In India, Mental Health has been largely neglected and relegated from mainstream forums of discussion, debate and dissemination. Mental Heath Institutions are not only severely lacking in terms of doctors, mental health specialists and infrastructure, but the legal framework that forms the backbone of these institutions has several shortcomings.
With the onset of British administration in India in 1858, several laws were enacted for the care and treatment of mentally ill persons such as the Lunacy (Supreme) Courts Act, 1858; the Indian Lunatic Asylum Act, 1858 and the Military Lunatic Acts, 1877. This phase is marked by a trend to treat mental patients as a social threat, requiring ‘Asylums’ for their confinement from the rest of society. The Lunacy Act of 1912 empowered a central authority to regulate and supervise asylums apart from setting aside a procedure for admission and certification.
The lax in the functioning of the executive had a huge impact on the development of mental health. The draft Mental Health Bill was introduced in 1950 but was only enacted in 1987, 37 years too late. The Mental Health Bill provides for the establishment of Central and state mental health authorities to regulate and supervise the psychiatric hospitals and nursing homes. It also contains provisions to address the cruel treatment meted out to mentally ill persons and protection of their human rights apart from procedure to deal with the guardianship and management of properties of mentally ill persons.
This was followed by the Persons with Disability Act, 1995 which was enacted to remove discriminations in sharing of development benefits between disabled and non-disabled persons. It also laid down responsibilities for the government to plan developmental programmes for social integration of these persons. Most importantly, it categorized mental retardation and mental illness as entitled to the same benefits as a PWD. In 2011, a Mental Health Care Bill was prepared which provided for the establishment of a mental health review commission and enshrined duties on the government to take appropriate measures to provide mental health services to all citizens. More recently, the Rights of Persons with Disabilities Bill, 2014 replaced the Persons with Disabilities Act, 1995. The bill envisaged that persons with at least 40% of a disability are entitled to reservations in education and employment apart from ensuring disabled friendly access to buildings, hospitals, modes of transport etc. With respect to mentally ill patients, the bill permits district courts to grant two types of guardianship, limited and plenary and imposes penalties for violation of provisions of the act. However, the bill, modelled after the western concept of institutional psychiatric care, ignores the role of the family and stigmatises mentally ill persons. It proposes that a patient can nominate any person as his representative to take major decisions regarding his care and property. It furthers the stigmatisation by segregating them from the mainstream medical establishments and has no provisions regarding the rehabilitation of patients discharged from facilities.
While several laws exist, very few address the human rights of mentally ill persons. In India, hospitals are still managed and administered on a custodial care system where mental hospitals resemble prisons and detention centres. Judicial monitoring is necessary to check the power of the state and ensure that the situation of mental health institutions in India improve.
Views expressed are personal. Mrinali Komandur (II Year) is a law student at the National Law School of India University, Bangalore (NLSIU) and can be contacted at firstname.lastname@example.org