This article has been written by Saumya Sinha, a student of Rajiv Gandhi National University of Law and Yash Kapadia. It primarily discusses on the legal rights of persons with mental illnesses including insanity and lunacy laws that is available as a part of Human Rights Law. Although, not exclusively rendered under the Constitution of India, it gives an insight to its constitutional aspects as well.


India is a vastly populated country and according to a survey in 2017, one in seven Indians were affected by mental disorders of varying severity. People suffering from any sort of mental illness are highly susceptible to finding themselves in vulnerable positions. Therefore, it is important for developing countries like India to take this hands-on and make hard and soft laws concerning mental illness situations. 

Sadly, some people suffering from mental health issues are also victims of abuse and violation of their basic legal rights. For example, some are bullied, abused, and forced to do some things which violate their basic right to freedom and life. It is very important that stringent laws, adequate facilities and appropriate healthcare services are put in force in order to curb the rise of mental health issues in India. Concerningly, about 14% of India’s population suffers from mental health disorders.

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The Mental Health Care Act, 2017 has defined mental illnesses as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life. It also includes mental conditions associated with the abuse of alcohol and drugs.[1] A study conducted by the National Institute of Mental Health and Neurosciences (Nimhans) concluded that 13.7% of Indians suffer from mental illnesses and 10.6% of this requires immediate intervention. Out of these, nearly 1.9% of the population suffers from a severe mental disorder which includes schizophrenia, bipolar mental disorders, etc.[2]

Moreover, a study conducted by a charity by the name ‘Live Love Laugh Foundation’ at the beginning of 2018 concluded that 87% of the respondents showed awareness, out of which 71% of them used the word ‘stigma’ or associated terms with mental illnesses.[3] Therefore, it is the law which has to step into the picture to bridge the gap of social acceptance and grant various rights to people who suffer from mental illnesses. This becomes all the more important due to the growing awareness of human rights. Mental Health Care, 2017 is one of such step of the legislators to provide them with various rights. Apart from this legislation, the article will also focus on the position and rights of persons with mental illnesses (PMI) under various other laws.

The laws in the Indian legal system

The Indian legal system has had a dynamic relation with respect to putting the laws relating to mental health and the rights of persons suffering from mental health issues on paper. 

Pre-independent India had laws relating to mentally ill people to control and take care of them. The provisions laid down were: 

  1. The Lunacy (District Courts) Act, 1858
  2. The Lunacy (Supreme Courts) Act, 1858
  3. The Indian Lunatic Asylum Act, 1858
  4. The Military Lunatic Act, 1877

All the aforementioned Acts provided guidelines on how to establish mental asylums and the procedure that was required to admit mentally ill people. However, during the initial 1900s, the Indian Lunacy Act, 1912 was formulated with the growing public awareness and national and political views surrounding the rights of mentally ill people. 

The Universal Declaration of Human Rights was adopted by the UN General Assembly post the 2nd World War. The Indian Psychiatric Society submitted a draft Mental Health Bill in 1950 to replace the outdated Indian Lunacy Act, 1912.

It is also pertinent to mention Article 21 enshrined as a fundamental right in the Constitution of India that guarantees the right to life and personal liberty to every person. However, as per Section 16 of the Representation of People Act 1950, a person who is of unsound mind or is so declared by a competent court, that person is disqualified for registering himself for the electoral poll. Hence, a person with an unsound mind cannot hold parliamentary positions like Prime Minister, President, etc.  

We shall now enlist the various statutory provisions under the Indian law that have been formulated post-independence: 

Mental Health Act, 1987 

Back then, this Act defined the words mental illness and further focussed on the establishment of mental health authorities to regulate mental hospitals and nursing homes. This Act further formulated the role of police and magistrates while dealing with cases of people with mental illness (“PMI”) wandering and cruelly treated. It enlisted penalties if there was any breach of the provisions. However, this Act was termed as being overly complicated to put the procedures into action. The Government is now in process of amending the said Act in a more distinct and clear manner for understanding various provisions in it. 

Persons with Disability (Equal Opportunities, Protection of Rights, Full participation) Act, 1995

This Act came into force in January 1996 which laid down definitions of illness, employers, committees, etc. The main agenda of this Act was to remove discrimination faced by disabled people and prevent their exploitation and abuse in any manner whatsoever. In fact, PMI are also included in persons with disabilities. It has also given the right to reserve 3% of vacant job positions in the government sector for persons with disabilities (not PMI). This Act is currently under revision to be amended. 

Convention on the Rights of Persons with Disabilities, 2006 (CRPD)

Indian Parliament ratified the CRPD in May 2008 thereby formulating and adopting laws that are in harmony with this convention. The purpose of CRPD is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.” However, India after ratifying it failed to implement laws and most state governments do not even know of the existence of such an international convention which India has ratified.4

Mental Healthcare Act, 2017

This preamble of this Act preamble of the Mental Healthcare Act, 2017 aims to provide mental healthcare and services for PMI and to further promote the rights of such persons during delivery of mental healthcare and services. The Act is progressive, patient-centric, and rights-based. Chapter 5 on the “Rights of the persons with mental illness” is the head and heart of this statutory legislation.

This Act under Section 2(s) defined mental illness as “a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by sub normality of intelligence.”

It also provides the right of patients to access facilities that include rehabilitation services in the hospital, community, and home, sheltered and supported accommodation. It further provides patients the right to community living, confidentiality, the right to access medical records, the right to protection from cruelty and inhumane treatment, and the right to equality and non-discrimination too.

With respect to the restrictions, this Act lays down that procedures like sterilization of men or women when intended as a treatment for mental illness, unmodified ECT, seclusion, and chaining shall be restricted. The Act further regulates the research on PMI and the use of neurosurgical treatments. It is pertinent to state that a government has a duty to provide care, treatment and rehabilitation to a PMI or someone with stress problems and someone who attempts suicide only to minimize the recurrence of such actions. 

The punishments under Chapter 15 too under this Act are stringent but the weak point is, how does one assesses whether a contravention is accidental or on purpose. 

This Act, however, also has its own drawbacks too.  For example, allowing a person with mental illness to be admitted and treated without his consent (but with a request from a nominated representative) as stated under Section 87 of the Act. 

However, the drawbacks can be corrected and India shall make better reforms and amendments to this flagship Act of mental health. 

With the enactment of this Act, we see that India has come a long way post-independence in recognising mental illness but still has a way forward for improvements which we are certain, shall be recognised and further implemented by the government. 

Rights under Mental Health Care Act, 2017

The Mental Health Care Act, 2017 has been looked upon as a historical intervention in the field of medical healthcare. It has been termed as a ‘pro-right’ document for the PMI.

Right to make an advance directive

The Act gives the right to persons with mental illnesses to make advance directive with respect to the way the person should and should not be treated in case of his mental illnesses. Further, in the advance directive, he also has the right to appoint a nominee who has the duty to act on his behalf in taking treatment decisions and all other purposes as given in the Act which has to be in the best interest of the PMI.

Right to access healthcare services

The PMI has the right to access a mental health care or service provided or funded by the government. The Act provides that such mental health care services have to be acceptable to the PMI and their families, among other criteria.

The services provided should be affordable and of good quality so that financial status is not an impediment for persons suffering from mental disorder. Moreover, it is the right of the PMI that the quality of the services is not compromised.

  • The services have to be in sufficient quantity and geographical inaccessibility should not be a hindrance anymore for the PMI. Thus, the Act ensures that the PMI does not have to travel far to access treatment.
  • For this, the Act also casts a duty on the government to ensure that healthcare facilities should be available in each district which is run or funded by the government. Moreover, if the government fails to provide such facilities in the district of a PMI, then it is the duty of the government to ensure that the facility at any other health centre is accessible to him, the cost of which is to be borne by the appropriate government.
  • Discrimination on any grounds such as gender, sex, sexual orientation, class, religion, caste, etc. is prohibited in the rendering of mental health care services.

Right to free of cost healthcare services

The persons living below the poverty line or persons who are homeless or destitute have the right to avail the mental health care services and facilities free of cost and no financial cost, whatsoever, in the government-run or government funded establishments. Moreover, the appropriate government can also designate other healthcare centres where this provision shall be made available. Further, all persons with mental illnesses have the right to avail all the medicines enlisted in the Essential Drug list, notified by the appropriate government, at free of cost. Such availability has to be made by the government at all the state-run and state-funded health establishments.

Right to live in a community

The government is obligated under the Act to provide such healthcare facilities so as the person suffering from mental illnesses is able to live in a community, along with his family. Such persons cannot be secluded from society and if it is so impossible for them to live with the family or the person has been abandoned by the family, it is the duty of the government to provide aid. Moreover, the mother of a child who is below three years has the right not to be separated from her child for the reason for her being mentally ill. This right can be reasonably restricted if there is a risk of harm to the child and the child can be temporarily separated from the mother.

Right to protection from cruel, inhuman and degrading treatment

The roots of the right to a dignified life lie in Article 21 of the Constitution. This has been incorporated in the Mental Healthcare Act too which lays down that every person suffering from mental illnesses has a right to live with dignity. Moreover, such persons also have the right to be protected against cruel, inhuman and degrading treatment in any health establishment.  Also, there are various other rights provided to them such as the right to a safe and hygienic environment and other conditions such as the right to privacy.

Right not to be treated under prohibited treatment

The Act completely prohibits electroconvulsive therapy for children. Even for adults, the therapy has been performed by taking certain precautions such as using muscle relaxants and anaesthesia.

Right to equality and non-discrimination

The persons with mental illnesses have the right to be treated equally with the physically ill patients at the time of treatment, i.e. with respect to emergency services, ambulance services, etc. Moreover, no discrimination shall be made on any basis which shall include gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.

Right to information

The Act assumes that every person, including persons with mental illnesses, have the capacity to make decisions. Thus, the Act provides that any decision made should be an informed one. Therefore, such a person has the right to know the provisions of the Act under which he has been admitted, along with the criteria for the same. The person has also the right to know all the facets of the treatment for which he has been admitted, which includes the information of the side-effects of such treatment. Such information has to be made in an understandable language to the person who has been admitted and his nominated representative.

Right to confidentiality

It is the right of every person with mental illnesses has a right that the details with respect to his mental illnesses and treatment are protected under confidentiality. Such confidentiality is also extended to the information stored in digital or electronic form. Thus, duty has been casted upon the health professionals for not revealing any such information subject to certain exceptions such as to prevent harm, in the interest of public safety and security, etc. Moreover, such information can also be released to the nominated representative and other health professionals for the purpose of treatment.

Right to legal aid and complain

Article 39A of the Constitution lays down the directive of free legal aid. This has been incorporated under the Act for persons with mental illnesses who can seek legal aid to exercise the rights provided under the Act. He also has the right to be informed about this right by the appropriate authority. Further, the person is also entitled to the right to complain with respect to the deficiency in mental health care services or facilities provided to him.

Along with these rights, there are other rights too such as the right to access medical records and the right to personal contacts and communication. The latter includes the right to refuse any visitor and communication made to him.

For the effective implementation of these rights, the Act also lays down the duties of the appropriate government along with the establishment of the Central Mental Health Authority. Further, to reach ground level implementation, the Act also provides for State Mental Health Authority, among other authorities.

Rights and disabilities of persons with mental illnesses under other laws

The persons with mental illnesses have been given certain rights but along with that, the law has also taken away their certain rights.

Right to enter into a contract

Such persons cannot give valid consent under the eyes of the law because of the incapability to understand the nature of the contract and to form a rational judgment. Therefore, they do not have the capacity to enter into a valid contract, except during lucid intervals under the Indian Contract Act, 1872. Lucid intervals mean the time when the person is not in the clutch of his mental illnesses.

Right to marry

Marriage is governed by various personal laws. The Hindus are governed by the Hindu Marriage Act, 1955 which incapacitates a person suffering from mental illnesses to give a valid consent and hence, fulfil the requirement of a valid marriage. Similar provisions can be found in laws of other religions such as Muslims, Christians, etc. Even the Special Marriage Act, 1954 does not recognise the marriage as valid if consent is given by a person with mental illnesses. However, under all these personal laws, such marriage is not void but voidable.

Right to vote or hold public office

The person with mental illnesses does not have the right to register in an electoral roll under the Representation of People Act 1950. Such mental incapacity has to be declared by a competent court. Thus, such person is disqualified from holding public office under the Constitution of India such the office of President, Vice-President, Members of Parliament, etc.

Right to make will

A person suffering from mental illnesses cannot make a valid will, except during lucid intervals under the Indian Succession Act, 1925. This is because the person cannot understand the nature of the testamentary document because of such illnesses.

Right to not be held liable for a criminal offence

The Indian Penal Code, 1860 exempts the persons with the unsound mind from criminal liability. This is because of the fact that one of the most important elements i.e. mens rea is missing from the offence. As there is no guilty mind, there can be no criminal liability

Landmark judicial precedent

The Hon’ble Supreme Court’s judgement in Accused X vs The State Of Maharashtra, 2019 is renowned as one of the landmark judgements in this domain. The said case helps us decode the complex relationship between crime and mental illness. We shall discuss the said case in an easy-to-understand manner below.


In this case, the accused was charged with the rape and murder of two minor girls. The Trial Court stated that this case came under the category of “rarest of rare” case and awarded a death penalty to the accused. On appeal, the High Court and Supreme Court too confirmed the decision of the Trial Court to be correct. On filing a revision petition, the Apex Court again dismissed the same. However, it was when the case of Mohammed Arif vs Supreme Court of India, 2014 was cited that this case was reopened as it was held that all review petitions that are dismissed by means of circulation must be reopened. It was submitted as the defence of the Petitioner that the sentence was delivered before 17 long years and during this course, the accused have developed mental illness which violates Article 21 of the Indian Constitution and that such a situation would be “a supervening circumstance meriting commutation of the death sentence to life imprisonment.


The Hon’ble Supreme Court opined that there was no merit laid down in the submission by the Petitioner against the very order of his conviction. Therefore, there were only two issues before the Court. 

  1. Whether the view of the Court on non-complying Section 235 (2) of CrPC during the sentencing process before the Trial Court was correct or not.
  2. The second issue concerned the mental illness of the Petitioner which was raised for the first time through this Review Petition. This issue is mainly related to whether a post­ conviction mental illness can be a factor to convert a death sentence to life imprisonment.

Submissions by the Petitioner 

With respect to the first issue, Section 235(2) of the CrPC relates to the right to a pre-sentence hearing given to an accused which the Petitioner contended that he was not provided as the order of conviction and his sentence was passed on the same day. 

The Petitioner relied heavily on the landmark case of Bachan Singh v. State of Punjab, 1982 wherein it was held that  at the pre-sentence hearing “accused can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, may have a bearing on the choice of sentence.” 


The Apex Court, however, put on record that the Trial Court as well as the High Court took into account all aspects and provided the accused more than enough liberty to hear him and his submissions. The Court stated that the Trial court put on the record of the repetitive history of the Petitioner of committing the same offence and disregarded his submission that his mother and younger brother were dependent on him. The High Court too went beyond the scope of Section 235(2) of the CrPC to provide the Petitioner with an effective opportunity to adduce evidence. Based on the aforesaid circumstances, the first issue was rejected by the Apex Court. 

With respect to the second issue i.e. converting a death sentence to life imprisonment based on the Petitioner’s post-conviction mental illness, the Hon’ble Supreme has considered minute issues like the meaning of mental illness,5 the history of the entire case with respect to the Petitioner’s conviction,6 impacts of reasoning in the sentencing process.7

The Hon’ble Supreme Court after considering all factors that lead to the commitment of the crime and the legal aspects of mitigating circumstances that can be considered to disqualify a sentence awarded in a rarest of rare case accepted the second issue at hand. It was stated that the Petitioner has had some form of mental irritability from 1994 and suffered long incarceration as a death row convict. The brutal way in which the crime was committed and his tendency to commit them cannot be ignored therefore The court reduced the death sentence to life imprisonment sans the right to remission in this case. 

The Apex Court went a step further to state that the State Government must consider this case as the Mental Healthcare Act, 2017, and if the Petitioner is found entitled, then provide for his rights under the Act. 


The Mental Healthcare Act, 2017 has been a major revolution for the right of people suffering from mental illnesses. The Act has provided various rights to such people. Moreover, there are various other laws also which lays down various rights and disabilities of a person with mental illnesses. The law changes to keep pace with the demands of society and so can be seen in the field of mental health care.


[1] Section 2(s), Mental Healthcare Act, 2017

[2] Vandana Kamath, 13.7% Indians are mentally ill, study says, Times of India (October 12, 2016, 08:49 AM),

[3] 5 Charts that reveal how India sees mental health, World Economic Forum, (30 April, 2018, ),


[5]  Banerjee G. The Law and Mental Health: An Indian Perspective. 2001. [Last accessed 2012 Jun 21]. Available from:

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