Reforms in Law and Policy for mental health in India

AUTHOR- MS. NELLIE BIMLA EMMANUEL, FACULTY OF THAKUR RAMNARAYAN COLLEGE OF LAW

“Mental health is not a destination, but a process. It’s about how you drive, not where you’re going”-  Noam Shpancer.

INTRODUCTION:

According to the Black’s Law Dictionary, mental illness refers to a term that describes the disorder of the mind that could be of emotional or physical origin[1]. The people suffering from mental disorders are susceptible to violation of their rudimentary rights and abuse (further referred to as “Subjects” of such disorder). Various elements may result in violation of rights and abuse of these people which include professionals, members of the family, institutions, friends, caregivers and people of the community who are unrelated.

The types of mental disorders are anxiety disorders which include obsessive-compulsive disorders, panic disorders and phobias; mood disorders, bipolar disorders and depression; personality disorders; eating disorders; psychotic disorders which include schizophrenia and post-traumatic stress disorder[2].

Proper health care services should be provided for the protection of such people. The protection shall be granted through legislative policies and provisions which ensure that the rights of the subjects are safeguarded. Appropriate laws are required to govern various aspects of the areas and likewise, even mental health requires suitable legislation.

EARLY LEGISLATION:

The Lunatic Removal Act 1851 was the first law in British India relating to mental illness and it was ceased in 1891. It was enacted to transfer British patients to England. In 1858, after the administration of India was taken over by the British Crown various laws were introduced for the protection and care of the people suffering from mental illness such as the Lunacy (District Courts) Act 1858, the Lunacy (Supreme Courts) Act 1858, the Indian Lunatic Asylum Act 1858 (amendments in 1886 and 1889), the Military Lunatic Act 1877. Through these Acts a very minute chance of recovery was left as the patients were detained for longer periods, it led to the passing of a bill in the year 1911 and consequently the Indian Lunacy Act 1912 was introduced. This Act was concerned with sentences related to custody and deserted human rights of the subjects.

The Indian Lunacy Act 1912 was considered unsuitable and therefore a mental health bill was drafted in 1950 and was executed in 1993. The emphasis and importance of treatment and care rather than custody were laid down in the Mental Health Act (MHA) 1987. On the 19th Day of August 2013, the Mental Health Care Bill, 2013 was introduced and it repealed the Mental Health Act 1987, the bill received the assent of the President on the 7th Day of April 2017 and the Mental Health Care Act, 2017 commenced on the 29th Day of May 2018.

SOFT AND HARD LAWS GOVERNING AND INDUCING MENTAL HEALTH CARE:

The hard laws are enforceable domestically and internationally. There have been various declarations, covenants and international conventions in the past seventy years referring to mental illness and the health of a person. Article 1 of The Universal Declaration of Human Rights states that “all people are free and equal in rights and dignity” – “establishing that individuals with mental disabilities are protected and safeguarded by human rights law by virtue of their basic humanity”[3].

The Indian laws should be aligned in such a way to suit the declarations as it is a signatory to many such declarations. The hard laws in India include The Protection of Human Rights Act, 1993,  The Mental Health Act, 1987, The National Trust Act, 1999, Persons with Disability Act, 1955, Protection of Children from Sexual Offences Act, 2012, Protection of Women from Domestic Violence Act, 2005 and the Narcotic Drugs and Psychotropic Substances Act, 1985. On the other hand, soft laws are not obligatory. If they are created well, they can amount to future regulations. These laws are ‘hortatory’ which are in the nature of promises and possibilities. The National Mental Health Programme, National Mental Health Policy 2014 and The National Programme on Noncommunicable Diseases were soft laws.

THE MENTAL HEALTH CARE REFORM IN INDIA:

Even though the National Mental Health Programme was existent in the country since the year 1982 and in 1996 was re-strategized, it could be said that the programming and the policies related to mental health are more reactive than being proactive. The major drivers of modification have been the Public Interest Litigations(PILs) filed before the Hon’ble Supreme Court. The focus of the PILs has been the social, cultural and economic rights along with institutional treatments of the people dealing with mental illnesses. Every citizen has a right secured under Mental Health Care. According to a study undertaken in 2017, Indian Mental Health Care meets 68% of the standards that have been laid down by the World Health Organization(WHO)[4]. In 2014, the Mental Health Policy of India was released and the National Health Care Budget related to mental health was calculated to be 0.16%.

The Right to life and personal liberty guaranteed under Article 21 of The Constitution of India[5] has been extended and includes the right to health. Appropriate living conditions and health care should be provided to the subjects of mental illness. The Indian Government introduced the National Mental Health Programme (NMHP) in 1982 due to the increasing cases related to mental illness and to build an infrastructure to deal with such cases at the national level. This program further resulted in introducing the District Mental Health Program(DMHP) at the community level in 1996 which consisted of the two schemes of Upgradation of Psychiatric Wings of Medical Colleges/General Hospitals and Modernization of State Mental Hospitals.

The objectives of the DMHP are as follows:

1. Providing mental health services and integrating these services with other mental health services;

1. Early discovery and treatment of the subjects within the community;

1. Public awareness for the reduction of the stigma related to mental illness; and

1. To rehabilitate and treat the subjects within the community.

The enactment of the Mental Health Care Act 2017 was to safeguard the rights of the mentally ill patients and is a great step taken to provide proper mental health care services to the subjects and also to fulfil their rights regarding the delivery of mental healthcare.

Section 18 of the Mental Health Care Act 2017[6] states:

“Every person shall have a right to access mental healthcare and treatment from mental health facilities and services run or funded by the appropriate government” and “the right to access mental health care of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of sex, gender identity, sexual orientation, culture, race, religion, political and social beliefs, disability, class or other basis provided in a manner that is acceptable to persons with mental illness and their caregivers and families”.[7]

All the provisions of the Act aim to guard and treat the subjects of mental illness.

MENTAL ILLNESS AND SUICIDE:

The WHO has estimated that around 7.5 per cent of people suffer from mental illnesses in India. Indians suffering from anxiety are around 38 million and depression amounts to 56 million. The Mental Health Care Act, 2017 decriminalized the Attempt to commit suicide under Section 309 of The Indian Penal Code.

Suicide is an act of killing or self-murdering oneself. It is an act undertaken intentionally to escape the misfortunes and tragedies that have been faced. According to the National Mental Health Survey 0f 2015-16 led by the National Institute of Mental Health & Neurosciences (NIMHANS)[8], 9.8 million teenagers between the age groups of 13 to 17 suffered from depression and other mental disorders and India deals with 36.6 per cent of suicides globally.

Section 309 of The Indian Penal Code, 1860[9] states that:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with a fine or both.

Such an act committed should not be penalized instead the person suffering from the mental illness should be provided with appropriate health care and guidance. The Indian Judiciary, too, accepts this view in the following cases:

The  Bombay High Court in the case Maruti Shripti Dubal v. State of Maharashtra[10], ruled that Section 309[11] of The Indian Penal Code, 1860 is unconstitutional as it violates Article 21[12] of The Indian Constitution. The Court observed that when the freedom to remain silent[13] exists concurrently with the freedom of speech and expression under Article 19[14], there also exists a right to die concurrently with the right to life; the desire to die is not unnatural and so there exists a right to die.

The Andhra Pradesh High Court in the case Chenna Jagadeeswar v. State of Andhra Pradesh[15] opposed the decision of the Bombay High Court and held that Section 309 does not violate Articles 21 and 14[16] of the Constitution and hence it is not constitutional.

The Hon’ble Supreme Court disposed of the Andhra Pradesh High Court decision in the case P Ratnam v. Union of India[17] and held that Section 309 of the Indian Penal Code is unconstitutional as it violates Article 21 of the Constitution of India. The court iterated that the provisions of Section 309 are inhuman and cruel as it punishes a person who has suffered through pain and agony and as a result attempted to commit suicide

This decision was overruled by The Supreme Court in the case Smt. Gian Kaur v. State of Punjab[18] and held suicide is an unnatural extinction of life whereas the right to life under Article 21 is a natural right and therefore the former is inconsistent with the latter. Aspects that add on to life and not extinguish it are included in Article 21. The Hon’ble Supreme Court upheld the Constitutional validity of Section 309 of the Indian Penal Code, 1860.

An exception to the above-mentioned decision was shown in the case of Aruna Ramchandra Shanbaug v. Union of India & Ors.[19] as it upheld the validity of Passive Euthanasia, in which the life support of terminally ill patients is removed. The right to life does not include the right to die as far as the laws of India are concerned but it imparts the right to die with dignity.

As the subjects of mental disorders are subjected to trauma within themselves, they should not be granted an additional punishment in regard to the act that has been committed.

CONCLUSION:

It’s a clear indication that Mental Health Care in India has progressed with time and through the years various legislations came into effect to tackle the issues faced by the subjects of mental illnesses. Even though steps have been taken what is lacking is the awareness between the citizens who disregard the subjects as well as in some cases in which the subjects themselves fail to pay attention to the severity of the illness faced by them. The provisions of the Mental Health Care Act should be made so concrete and people should be made aware so that no one takes mental illness lightly and find ways by approaching the authorities for better treatment.

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[1] Black’s Law Dictionary.

[2] https://medlineplus.gov/mentaldisorders.html

[3] Universal Declaration of Human Rights, art. 1.

[4] World Health Organization(WHO).

[5] INDIA CONST. art. 21. (India)

[6] The Mental Healthcare Act, 2017, No. 10, Acts of Parliament, 2017 (India).

[7] Duffy, Richard M.; Kelly, Brendan D. (2020). India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights. Springer Nature. ISBN 9789811550096.

[8] National Institute of Mental Health & Neurosciences (NIMHANS).

[9] Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

[10] Maruti Shripti Dubal v. State of Maharashtra [1987 (1) BomCR 499] (India).

[11] Supra note 9, at 4.

[12] Supra note 5, at 2.

[13] INDIA CONST. art 20, cl. 3.

[14] INDIA CONST. art 19, cl. 1 (a).

[15] Chenna Jagadeeswar v. State of Andhra Pradesh [AIR 1988 Cr. L.J 549] (India).

[16] INDIA CONST. art 14.

[17] P Ratnam v. Union of India [1994 SCC (3) 394] (India).

[18] Smt. Gian Kaur v. State of Punjab [1996 SCC (2) 648] (India).

[19] Aruna Ramchandra Shanbaug v. Union of India & Ors. [(2011) 4 SCC 454] (India).