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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.
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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
 The
author can be reached at :manish_bana@legalserviceindia.com
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Human
Rights Of Mentally Ill Persons