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Manish Lakhawat - Hidayatullah National Law University Raipur (Chhattisgarh)

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Since the dawn of human civilization, mentally ill patients have received the scant care and concern of the community because of their unproductive value in the socio-economic value system. They have not only been neglected but received step motherly treatment from the health planners especially in the developing countries. It was only after the plea of progressive incorporation of the norms of human rights and liberal jurisprudence in the respective legal system of nation states that has created the urgency and necessity of initiating appropriate steps for the care and treatment of mentally ill persons. Thus as a result of the growth of humanistic values it is now admitted on all hands that a mentally ill person needs more care and concern for his treatment and well being. Because of the social interests involved in ameliorating their conditions, the founding fathers of the Constitution directed the future government to continuously work for improving public health.

The provisions relating to the human rights of mentally ill patients have hitherto been neither specifically documented in any code nor been prescribed or elaborated by Judiciary in India. But it is admitted on all hands that barring few exceptions, the mentally ill person deserves the same privileges as enjoyed by any other human being. They include a right to better and more accessible care, to good recovery and increased hopes of reintegration into society. However, the Stigma, residual disability and its intolerance, and more importantly the inability of the mentally ill to protest against exploitation, have all made basic human rights of the mentally ill a major cause of growing concern. The term human rights in a broad sense mean “those claims which every individual has or should have upon the society in which he/she lives.

According to Richard Wasserstorm it means, one ought to be able to claims as entitlements (i.e. human rights) those minimal things without which it is impossible to develop ones capabilities and to live life as human beings. Thus Human Rights is about balancing the rights of all of us as individual within the community. In the context of mentally ill persons, it not only refers to their privileges but remedial right of protection against infringement of their human and other statutory rights. However, the Human Rights of mentally ill persons can be discussed under the following heads:

1. Right to Health and the Constitution of India
As Citizens of India, they are entitled to all those human and fundamental rights which are guaranteed to each and every citizen by the Constitution of India, to the extent their disability do not prevent them from enjoying those rights or their enjoyment is expressly or impliedly barred by the Constitution or by any other statutory law. The fundamental right to life and liberty as interpreted by the Supreme Court of India in number of landmark cases includes the right to live with human dignity and the right to health. The Supreme Court has also laid down the maintenance and improvement of public health is one of the obligations that flow from Article 21 of the Constitution. This means that mentally ill have the fundamental/human right to receive equality mental health care and to humane living conditions in the mental hospitals. The right to life in Article 21 of the Constitution means something more than survival of animal existence. It would include within its ambit the right to live with human dignity, right to health, right to potable water, right to pollution free environment and right to education etc., which have been held to be part of right to life. In the context of mentally ill person, apart from above narrated rights, it also includes right to live, work as far as possible in the community, to privacy and to lead a normal family life. The seriously mentally ill are a very special group with disabilities. The concern with this group are two folds not only providing the privileges to live in society along with other citizens but also ensuring their right to protection from exploitation.

2. (i) Right to Health as a Basic Human Right and International Covenant:
The United Nations has defined human rights to mean generally as “those rights, which are inherent in our nature and without which we can not live as human beings. Section 2(d) of the protection of Human Rights Act, 1993 has defined the human rights to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed under the Constitution or embodied in the international covenants and enforceable by the courts in India. In 1948, the United Nations through its Declaration of Human Rights affirmed the basic principle that a mentally ill person should at all times be treated with humanity and respect for the inherent dignity of the person. Every person with a mental illness should have the right to exercise all civil, political, social and cultural rights. The Declaration of the Rights of the disable, which includes person with mental illness was adopted by the United Nations in 1975.

Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 also provides “that the state parties to the present Covenant recognize the rights of everyone to the enjoyment of highest attainable standards of physical and mental health. As far as women mentally ill patients are concerned, Article 12 of the Convention on the Elimination of all forms of discrimination against women provides that state parties shall take all appropriate measures to eliminate discrimination against women in the field of health. In the area of providing access to free medical services to mentally ill patients Article 19 of 969 Declaration on Social progress and Development could be relied upon, which calls for  the provision of free health services of the whole population and of adequate preventive and curative facilities and welfare medical services accessible to all.

(ii) The 1971 Declaration on the Rights of Mentally Retarded Persons:-
This Declaration was adopted by the General Assembly on 20th December 1971, keeping in view the necessity of providing help to mentally retarded persons in order to enable them to develop their abilities and promoting their integration in the normal life. The Declaration provides a framework within which national and international actions should be initiated for the advancement of rights set forth in the Declaration

The Declaration lays down following principles:
1. The mentally retarded persons has to the maximum degrees of feasibility the same rights as other human beings.
2. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.
4. The mentally retarded person, whenever possible should live with his own family, or with foster parents and participate in different forms of community life. The family with which he lives should be provided with assistance.
5. The mentally retarded person has a right to qualified guardian when this is required to protect his personal well being and interests.
6. Disabled persons are entitled to have their special need taken into consideration at all stage of economic and social planning.
7. Disabled persons have the right to live with their families or with foster parents an to participate in all social, creative or recreational activities.
8. Disabled persons shall be protected against all exploitation, and treatment of a discriminatory, abusive or degrading nature.
9. Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their person and property. If judicial proceeding are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.

(iii) International Year of Disabled Persons(1981)
The General Assembly on 16th December 1978, decided to observe the Year 1981 as International Year for Disabled persons with the following objective:
1. Helping disabled persons in their physical and psychological adjustment to society.
2. Promoting all national and international efforts to provide disabled persons with proper assistance, training, care and guidance, to make available to them opportunities for suitable work and to ensure their full integration in society.
3. Encouraging study and research projects designed to facilitate the practical participation of disabled persons in daily life, for example, for improving their access to public buildings and transportation systems.
4. Educating and informing the public of the rights of disabled persons to participate in and contribute to various aspect of economic, social and political life.
5. Promoting effective measures for the prevention of disability for the rehabilitation of disabled persons.

3. Human Rights and Mental Health Act, 1987
Chapter VIII of this Act contains a very novel and explicit provision of protection of human rights of mentally ill persons. Section 81 provides that-
1. No mentally ill persons shall be subjected during treatment to any indignity whether physical or mental or cruelty.
2. No mentally ill person under treatment hall be used for the purpose or research unless (i) such research is of direct benefit to him for the purpose of diagnosis or treatment, or (ii) such person being a voluntary patient has given his consent in writing or where such person is incompetent by reason of minority or otherwise to give valid consent, on his behalf, has given his consent in writing, for such research.
3. Subject to any rules made in this behalf under Section 94 for the purpose of preventing vexatious or defamatory. Communication or Communications pre-judicial to the treatment of mentally ill persons, no letter or other communications sent by or to a mentally ill persons under treatment shall be intercepted, detained or destroyed. The doctrine of informed consent is partially recognized under the Mental Health Act 1987, when a patient voluntarily admits himself in the hospital or accepts treatment without any admission.

When a mentally ill patient detained as an inpatient and does not have property to bear the cost of treatment, in such cases his expenses shall be borne by the Government of the State. (Sec. 78) If a mentally ill patient owns a property and he is not in a position to manage his property, the Court may entrust the management of such property to the Court of wards, Section 54(1). Under Section 97 of the Act when a mentally ill person is not represented by a legal practitioner in any proceedings under Mental Health Act 1987 before a District Court or a Magistrate and such a patient does not have sufficient mean to engage a legal practitioner then the District Court or Magistrate shall assign a legal practitioner to represent him at the expense of the State.

The above provisions clearly indicate that the Act does not spell out much on Human Rights, nor does it covers neglect or cruelty to mental patient sustained in families or alternate system of care like magicians, healers and quacks. The Mental Health Act 1987 also does not spell out any enforceable right of the mentally ill to minimum standard of care and treatment. The Good faith clause (Section 92) dispenses with accountability of the government or its servants for any negligence in the care and treatment of inmates of asylums. The provision for legal aid to the mentally ill (Section 91) restricts the facility to proceedings before a District Court or a Magistrate. The Act is silent on the right to legal aid and counseling at all stages including the facility of approaching the High Court or the Supreme Court.

The Mental Health Act also by its definition of mentally ill persons excludes from its regime the mentally retarded. It also does not differentiate between the various degrees of mental illness that requires specialized care and treatment. However, it permits the commitment to hospitals of the criminal mentally ill. It makes no special provision for their care, treatment and discharge. Beside the above, there is no provision for compensating those wrongfully incarcerated or negligently treated or victimized in any manner by misuse of powers under the Act. Another important shortcoming in this context is that there is no right to rehabilitation of those mentally ill discharged after being found fit.

It is submitted that it is a matter of great regret that judiciary in India was given opportunities in number of public interests litigations filed and which were relating to inmates of mentally ill patients, but it did not dare to enumerate the human rights of mentally ill patients. On the aspect of judicial intervention, the Supreme Court concerning the management of mental hospitals decided the following cases-
1. In
B.R. Kapoor v. Union of India and PUCL v. Union of India, both relating to functioning of the hospitals for mental diseases, Shahdara, Delhi.
2.
R.C. Narayan v. State of Bihar and the order dated 11.11.97 the case concerning the Ranchi Mental Asylum.
3.
Supreme Court Legal Aid Committee v. State of MP , where the Supreme Court intervened to improve the working of the Gwalior Mental Asylum.

The subject of health falls under the concurrent list in the Indian Constitution empowering both the centre and states to introduce measures including the authority to legislate. The Mental Health Act 1987 is civil rights legislation with a focus on regulating standards in mental health institutions. There are serious questions over the effectiveness of this Act in ensuring protection to person’s property and management of persons covered.

A perusal of the above referred cases clearly revel that until recently many mentally ill persons were consigned to jails and those living in mental health institutions were no better off, as the conditions both in prisons and in mental institutions were far below the stipulated standards. Sheela Barse v. Union of India concerned the detention of non-criminal mentally ill persons in the jails of West Bersal. The appalling conditions in which they were held was noted by the Supreme Court which observed that admission of non-criminal mentally ill persons to jails is illegal and unconstitutional.

Similarly in Chandan Kumar v. State of West Bersal , the Supreme Court heard of the inhuman conditions in which mentally ill persons were held in mental hospital at mankaundi in the District of Hooghli. The Court denounced this practice and ordered the cessation of the practice of tying up the patients who wee unruly or not physically controllable with iron chains and ordered medical treatment for these patients. However on August 6th 2001 the indifference of state and private authorities resulted in the tragic death of 26 patients in Erwadi as they were tied to their beds when fire engulfed the building. Following this tragedy the National Human Rights Commission of India(NHRC) advised all the Chief Ministers to submit a certificate stating no person with mental illness are kept chained in either government and private institutions.

The NHRC is mandated under section 12 of the protection of Human Rights Act 1993 to visit government run mental hospital to study the living conditions of inmates and make recommendation thereon. In 1997 project quality assurance in Mental Health Institutions was initiated to analyze the conditions generally prevailing in 37 government run mental hospitals and departments. The findings of this study confirm that mental hospitals in India are still being managed and administered on a custodial mode of care. Characters sized by prison like structure with high walls, watch towers, fenced wards and locked cells. Mental Hospitals are like detention centers where persons with mental illness are kept caged in order to protect society from the danger their existence poses.

The above discussion has clearly pointed out that each of these cases reached the Supreme Court at different point of times through public litigation. However, in these cases, there was no mention of the rights of the inmates to minimum standards of care and treatment. However, the cases have demonstrated the need for continued judicial monitoring in order to ensure that the state acts in accordance with the statute and the Constitution.

************************************
End Notes:
 
Rights, Human Rights and Racial Discrimination The Journal of Philosophy 61, (1964), p. 268
Vincent Panikuriangara v. Union of India. JT (1987) 1-SC, 610
Kharak Singh v. State of UP, AIR 1963 SC 1295
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
(1989) 3 SCC 387
1989 Supp (1) SCC 644
(1994) 5 SCC 27
(1993) 4 SCC 204
(1995) Supp 4 SCC 505


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