At present, there are broadly four legislations that deal with mental illness in India –
- Mental Health Act, 1987 [“MHA”]
- Rehabilitation Council of India Act, 1992 [“RCA”]
- Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [“PWDA”]
- National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 [“NTA”]
The most important of these are the MHA and the PWDA since they deal with the substantive aspects of the law, while the other two are majorly responsible for setting up organisations.
The MHA suffers from some glaring omissions, some of which are –
- The MHA does not deal with the human rights of mentally ill individuals, including their fundamental right to health, under Article 21 of the Constitution of India.
- The definition of “mentally ill person” specifically excludes those with mental retardation, thereby excluding them from obtaining any benefits of the legislation.
- The MHA continues to emphasize on custodial, rather than community care.
- The MHA retains provisions involving removal or transfer of patients without taking account of their consent and is silent on choice of treatment.
- The MHA is severely lacking in implementation across the board.
Even the PWDA has many lacunae, the biggest being its narrow definition of disability. It is to remedy this and several other loopholes that the Rights of Persons with Disabilities Bill, 2014 has been introduced in the Parliament. Similarly, the new Mental Health Care Bill, 2013 seeks to replace the MHA. It was felt that the MHA does not adequately protect the rights of persons with mental illness or promote their right to access mental health care. Consequently, the Bill was introduced with the following salient features –
- Every person has the right to access mental health care and treatment from services run or funded by the government.
- A mentally-ill person can make an advance directive stating how he wants to be treated for the illness during a mental health situation and who his nominated representative shall be.
- The procedure to be followed for admission, treatment and discharge of mentally ill individuals has been laid out.
- Anyone who attempts to commit suicide is presumed to be suffering from mental illness at that time and cannot therefore be punished under the Indian Penal Code.
Together, this demonstrates the dire need for change to be brought about in India’s current mental health laws.
– Mansi Sood
Mansi is an alumna of the National Law School of India University, Bangalore – where she set fire to the mooting and sports circuits, and also to the rain. She is soon going to be doing her various things at Oxford, Oxford. You’ll find her at the next big law type award ceremony, wearing her signature grin and nonplussed expression.
(Clearly, I wrote this bio, not her)