In this blog post, Abhiraj Thakur, a student of NALSAR University of Law, Hyderabad writes about the rights available to the mentally challenged people in India under the current framework of laws. The post further elaborates on how these laws are implemented and what are the reforms that need to be brought about.

 

Humans have asserted themselves to be the most intelligent species to have ever walked on planet earth. The human brain is such that until today medical science has not been able to explain it in entirety. For instance, we still don’t know how memories are stored. It is because of this brain that humans have made significant discoveries and lived the best life for themselves, but sometimes there occurs a disorder in it which we colloquially refer to as madness or insanity.

 

What is Mental Illness? Who is mentally ill?

The American Psychiatric Association (APA) defines insanity as a ‘psychological pattern or syndrome marked by distress and disability.[1]‘ Mental illness is considered to be characterized by the inability of a person to carry out the daily chores of his/her life. The Indian Mental Health Act, 1987 defines mentally ill person as ‘a person who needs treatment for mental disorder.[2]‘

As we see by the definitions ‘mental illness’, the most drastic consequence seems to be that it disables a person to function as a normal human being. These people need treatment which should consist of care and love, but most often they are ill-treated by the larger society. They are considered as unproductive and useless, often thrown out of their houses. Most countries of the world today run Asylums and other healthcare facilities for these people where they are treated but in these facilities as well, they are ill-treated and often not provided with the basic necessities. It thus becomes important for us to know what are the rights available to mentally challenged people in India.

 

Framework of Laws

The Americans with Disabilities Act of 1990 and Mental Capacity Act of 2005 in USA and UK respectively are considered comprehensive legislations recognising rights of mentally challenged in their respective countries. In the case of India, we still lack a comprehensive code. The rights of mentally disabled in India are derived from a vast framework of different laws, these are:

 

Constitutional Rights

Mentally and physically challenged people can avail all the fundamental rights guaranteed to an ordinary citizen by the Constitution of India. No statute bars them from enjoying these rights. However for mentally challenged the most important constitutional rights are:

Right against discrimination: By Article 15(2) of Constitution of India any citizen, including mentally challenged people, can’t be denied access to public goods. Also, they need to be provided equal opportunities to prosper in life.

Right to Health: Article 21 gives the right to life and personal liberty. Right to health flows directly from right to life and the same has been laid down by the supreme court in many cases.

 

Disability rights under International Laws

In 1971 the ‘Declaration on Rights of Mentally Retarded Persons’ was adopted by the UN general assembly. The declaration was the first active attempt to grant disability rights to the mentally ill people. The declaration among other things laid down certain guidelines to be adopted by mentally ill people. Some of these were:

• Recognition of mentally ill people as a separate category of physically challenged individuals and providing them certain safeguards accordingly.
• The member nations shall ensure the economic security of mentally ill by devising suitable programs so that they can earn their living.
• Special care shall be taken for these people in any social planning by the state.

 

The 1996 convention by the WHO on Mental Health Care law

It laid down ten basic principles that every member nation needs to adopt for the betterment of mentally challenged people. It was recommended that a large number of asylums with best healthcare facilities need to be opened in the developing countries. The nations were told to make changes in the internal laws to provide specialized treatment to mentally challenged. There was felt a need to increase awareness among the general people about the plight of mentally challenged. However, the most remarkable recommendation was that all the nations of the world were told to review their laws on mental health and make necessary changes so as to shape them in the best interests of the mentally challenged people. Special categories and reservations were recommended to be made in jobs for these people and that every state shall recognize the disability rights of mentally ill persons. India being a signatory nation to both the schemes needs to act accordingly in the best interests of the mentally challenged people in the country.

 

Human Rights under international Laws

In 1992, The general assembly adopted the Declaration of Hawaii. For many years it was observed that many patients in mental asylums were subject to gross human rights violations at the hands of authorities. In many countries the asylums were is dismal conditions where in some cases even food and water was not available. Apart from this, the patients lacked privacy, there were no facilities for recreation and leisure activities, the patients were made to do hard labor at times. In fact, there has been no attempt to ‘treat the mentally ill’. The Hawaii declaration laid down that an environment of love and care ought to be maintained in asylums. The seclusion and restraint that is practiced in treating these people need to as minimum as possible. The declaration was the first international treaty that recognized human rights of mentally challenged people.

Rights under Local Laws

 

The Indian Mental Health Act, 1987

Under this Act, a mentally disabled person has the right to treatment and care in a psychiatric hospital. There are established special asylums for mentally challenged people under the age of 16 by this act. The cost of the treatment in asylums needs to be undertaken by respective state governments unless the relatives of the patient bear it. This Act also provides certain legal safeguards to the mentally challenged. A mentally challenged person has the right to avail legal aid on the order of the court if the court finds that he/she has no means to get aid.

 

The Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995

The need to provide equal opportunities and enhance participation of mentally challenged in the society was the first time realized through this act. Few landmark steps were taken in this regard were:

• Establishment of special schools for the education of mentally disabled children.
• Mentally disabled children were given the right to free education till the age of 18 under this Act.
• 3% employment reservation for disabled (Including mentally disabled) in government jobs was approved.

 

Judicial Pronouncements

The Indian judiciary has adopted a sympathetic approach towards mentally disabled people. Time and again judiciary has taken cognizance of infringement of rights of these people and provided them an adequate legal remedy.

In the case of Chandan Kumar v State of West Bengal[3], the judiciary condemned the mismanagement of mental asylums by state governments. In the mental hospital of Mankaundi in hoogly district West Bengal, the patients were kept chained with iron ropes and were physically tortured and denied food and water. This was all done in the name of treatment. The Supreme Court ordered the cessation of this inhuman practice, held the state liable and recommended reforms of mental health asylums all over the country. Now no patient in these asylums can be held chained; it is a punishable offense. In Legal Aid Committee v State of MP[4], the Supreme Court highlighted the need to have stricter enforcement of laws made for the betterment of mentally ill. If any government servant now complies with the behavior necessary for the betterment of mentally ill, he will be to be held liable.

 

Some current issues faced mentally disabled in India

Lack of Asylums

India, though being a signatory to various conventions and treaties, still requires an adequate number of mental health care asylums in the country. Ideally, there should be one asylum in every district.

Poor infrastructure

Most of the functioning asylums in the country are below standard. Lack of facilities in addition to staff and doctors exacerbates the situation of mentally challenged.

Lack of awareness

For any right to deliver on substantive goals there needs to be awareness of it. A majority of the country is today unaware of the rights of mentally challenged.

Current laws

Most of the current laws in the country induce incompetency in the mentally challenged people. They can’t enter into a contract, nor can validly marry. These things need to be reformed.

 

Lack of any comprehensive legislation

Lack of legislation granting rights to mentally disabled is another major issue to be tackled. The legislature should take an initiative in this regard.

Mentally disabled people are as much the part of the society as anyone else. Despite the existence of laws and precedents granting certain rights to them, there is felt a need for reform in this regard. This issue is not a politically charged one and so has not gained the attention it deserved. Moreover just by putting blame on regime won’t work, After all, it is us who have to come forward and help these people to get their rights.

Footnotes:

[1] Stein, Dan J Phillips, K.A Bolton, D Fulford, K.W.M Sadler, J.Z Kendler, K.S (November 2010). “What is a Mental/Psychiatric Disorder? From DSM-IV to DSM-V”. Psychological Medicine (London: Cambridge University Press

[2] Chapter 1 part 2 Definitions, Indian Mental Health Act 1987.

[3] (1995) 4 SCC 505

[4] (1994) 5 SCC 27