Our emotional, psychological and social well-being are all part of our mental
health. It has an impact on the way we think, feel, act. It also influences how
we deal with the stress, interact with others and make decisions. Mental
disorders or illnesses are very broad, one can be suffering from anxiety order,
panic disorder, depression, schizophrenia and some like OCD and ADHD etc.
People with mental disorders/illnesses are more likely to be abused and have
their basic rights violated. Institutions, family members, caretakers,
professionals, friends, unrelated members of the community and law enforcement
authorities are all potential sources of abuse or violation. This arouses the
need for a defensive and protective mechanism to ensure appropriate, adequate
health care services and rehabilitation. Such Defensive and protective
mechanisms include legislative policies to ensure the rights of the people
experiencing mental illnesses are protected.
The term Mental Health
refers to the cognitive, behavioural and emotional
well-beingof the people. It all comes down to how people think, feel and act.
The word Mental health is occasionally used to refer the absence of mental
disease/disorder or illness.
According to World Health Organisation, Mental health is a state of well-being
in which the individual realizes his or her own abilities, can cope with the
normal stresses of life, can work productively and fruitfully, and is able to
make a contribution to his or her community"
Mental Health And Indian Laws
Earlier mental health legislation was largely concerned with the confinement of
people with mental illnesses and the safety of society. Indian laws also address
issues such as determining competency, lessened accountability, and/or societal
The relationship between mental health and legislation, frequently comes into
play while treating persons suffering with mental disorders or illnesses.
Patients suffering with mental disorders often find their personal liberty
restricted as a result of their treatment. The majority of countries have law
governing the treatment of persons suffering with the mental disorders. Though
Ayurveda contains detailed descriptions of many mental diseases in numerous
treatises, the care of the mentally sick in Indian asylums is a British
Following the British crown's seizure of India's governance in 1858,
a slew of laws were enacted in fast succession to regulate the care and
treatment of mentally ill people in British India.
These laws were:
- The Lunacy (Supreme Courts) Act, 1858
- The Lunacy (District Courts) Act, 1858
- The Indian Lunatic Asylum Act, 1858 (with amendments passed in 1886 and
- The Military Lunatic Acts, 1877
These Acts outlined the procedures for establishing mental asylums and admitting
mental patients. The British scenario of the mid-nineteenth century provided as
the backdrop for India's lunacy statutes at the time. The numerous Acts of 1858
mirrored the legalistic framework for dealing with mentally sick people.
burgeoning political consciousness and nationalistic sentiments championed by
the Indian intelligentsia heightened public awareness of the pitiful conditions
of mental hospitals throughout the first decade of the twentieth century. The
Indian Lunacy Act of 1912 was enacted as a result. The fate of mental health in
India was determined by the 1912 act.
A central body now administered and oversaw lunatic asylums (renamed mental
hospitals in 1922). In this regard, the admission and certification procedures
were explicitly stated. The option of voluntary entry was made available.
Nonetheless, the main focus was on protecting society from the dangers of
mentally ill people and ensuring that no sane person was admitted to these
asylums. In these facilities, psychiatrists were assigned as full-time officers.
The Act also included provisions for judicial inquisitions for mentally sick
people. The United Nations General Assembly adopted the Universal Declaration of
Human Rights after World War II. In 1950, the Indian Psychiatric Society
proposed a Mental Health Bill to replace the outdated ILA-1912.
Constitution Of India And Mental Health
Article 21 of India's constitution states that no one may be deprived of his or
her life or personal liberty unless in accordance with legal procedures. The
right to life and personal liberty guaranteed by this article has been
interpreted to encompass:
facilities for reading, writing, and expressing
oneself in various ways, freely moving about, and mixing and comingling with
fellow human beings.
A person is ineligible for registration in an electoral roll if he is of unsound
mind and has been pronounced so by a competent court, according to the
Representation of People Act, 1950 (sec 16). As a result, the person is
ineligible to hold public posts such as President, Vice-President, Ministers,
Members of Parliament, and State Legislatures under the Constitution.
Mental Health Act (MHA-87) was finally enacted in 1987 after a long and
Main features of the Act are as follows:
- The growing definition of mental disease and the introduction of a
modern notion of treatment with a focus on care and treatment rather than
- Establishment of a Central/State Mental Health Authority to regulate and
supervise psychiatric institutions and nursing homes, as well as provide
advice to the federal and state governments on mental health issues.
- Admission to a psychiatric institution or nursing home under unusual
circumstances. Admission on the basis of voluntary admission and admission
on the basis of reception orders were both preserved.
- Role of Police and Magistrate to deal with cases of wandering PMI and
PMI cruelly treated.
- Protection of human rights of PMI.
- Guardianship and Management of properties of PMI.
- Provisions of penalties in case of breach of provisions of the Act.
Despite its many excellent characteristics, the MHA-1987 has been the subject of
criticism since its creation. It is said to be primarily concerned with PMI's
licence and admittance procedures, as well as guardianship issues. This Act does
not adequately address human rights issues or the delivery of mental health
services. The Act, as well as the Rules issued under it, can never be properly
executed due to a vast number of extremely intricate procedures, flaws, and
Human rights activists have questioned the constitutional legality
of the MHA, 1987, claiming that it restricts personal liberty without providing
for sufficient judicial scrutiny. MHA-87 is currently under process of amendment
to make it United Nations Convention for Rights of Persons With
Disabilities (UNCRPD) compliant.
Persons With Disability (Equal Opportunities, Protection Of Rights, Full Participation) Act, 1995 (PDA-95)
PDA-95 was passed in 1995 to eliminate discrimination in the distribution of
developmental benefits between disabled and non-disabled people, as well as to
prevent abuse and exploitation of disabled people (PWD).
It established a
barrier-free environment and outlined the government's obligations, including
developing strategies for comprehensive development programmes and making
particular provisions for the integration of PWDs into society. Mental
retardation and mental disease are classified as disabilities under the PDA-95.
As a result, the PMI are eligible to the benefits afforded to PWD under the Act.
In government employment, there is a 3% reserve provision, but it is not
available to the PMI. In view of the UNCRPD-2006, this Act is likewise
National Trust Act-1999
This Act was passed in 1999 for the benefit of people with autism, cerebral
palsy, mental retardation, and multiple disabilities, in order to enable and
empower them to live as independently and as close to their communities as
possible, as well as to facilitate the realisation of equal opportunities and
the protection of their rights. Many welfare provisions are included in the Act.
This Act is also being revised to comply with the UNCRPD-2006 and to make it
more comprehensive. The modified Act is supposed to address the management of
United Nations Convention For Rights Of Persons With Disabilities-2006 (UNCRPD) And Indian Laws
In December of 2006, the UNCRPD was adopted. In May of 2008, the Indian
Parliament ratified it. The UNCRPD requires countries that have signed and
ratified it to align their laws and policies with it. As a result, all of
India's disability legislation are currently undergoing modification.
reflects a transition in the way people with disabilities are treated, from a
social welfare issue to a human rights issue. The new paradigm is built on the
legal capacity, equality, and dignity of all people. PWDs will have equal legal
competence in all spheres of life, according to Article 2 of the convention.
Article 3 requires the state to take reasonable measures to ensure that PWDs
have access to assistance in exercising their legal ability. Article 4 demands
for safeguards to prevent misuse of the PWD assistance system. The UNCRPD does
not explicitly ban forced interventions, but it also does not authorise
obligatory mental health care.
The amending process for MHA-87 was started, and a draught Mental Health Care
Bill – 2011 (MHCB) was produced. MHCB calls for the licensing of mental health
facilities to be replaced with registration, as well as the creation of a Mental
Health Review Commission with state panels. The admissions procedure has
undergone significant changes. The most notable element of the MHCB is that it
makes the government responsible for establishing and providing mental health
services to all citizens, as well as taking proper actions in this regard. The
PMI features extensive human rights protections, including a full chapter
dedicated to the subject.
PDA-95 is also being revised, and the Ministry of Social Justice and Empowerment
has received a draught of "The Rights of Persons with Disabilities Bill, 2011
(RPWD Bill)" (MSJE). PWDs will have legal capacity on an equal footing with
others in all aspects of life, according to Section 18 of the proposed bill, and
any law, regulation, bye-law, custom, or practise that prescribes
disqualification on the basis of disability will become unenforceable.
the right to receive the assistance they need to exercise their legal ability,
but they also have the freedom to change, modify, or remove any support system.
The concept of plenary guardianship has been phased out in favour of limited
guardianship. Out of the projected 7% reserve for PWD in government positions,
PMI has been given a 1% quota.
The provisions of the MHC Bill and the RPWD Bill are incompatible. Human rights
activists controlled the RPWD's drafting committee. A group of human rights
activists believe that all PMI should have full legal competence and that
compulsory institutionalization, as well as the decommissioning of all mental
hospitals, should be prohibited. They believe there is no assumption of
universal capacity in the MHCB, and no plan to assist people in making informed
decisions about their own affairs. They have even demanded that MHA-87 be
repealed entirely and that the problem be covered by a revamped and
comprehensive RPWD Bill under MSJE's jurisdiction.
Indian Contract Laws
Any individual of sound mind can make a contract, according to the Indian
Contract Act of 1872. A person is considered to be of sound mind for the purpose
of making a contract if, at the time of making it, he is capable of
understanding it and making a logical decision as to its effect on his interest,
according to Section 12 of the Act. When he is of sound mind, a person who is
generally of unsound mind but rarely of sound mind may make a contract.
person is normally of sound mind but occasionally of unsound mind, he is not
permitted to enter into a contract. It means a PMI who is currently free of the
psychotic symptoms can make a contract, whereas a person who is currently
intoxicated or delirious cannot make a contract.
Marriage And Divorce
Under Hindu Marriage Act, 1955, conditions in respect of mental disorders, which
must be fulfilled before the marriage is solemnized under the Act, are as
- Neither party is incapable of giving a valid consent as a consequence of
unsoundness of mind.
- Even if capable of giving consent, must not suffer from mental disorders
of such a kind or to such an extent as to be unfit for marriage and the
procreation of children.
- Must not suffer from recurrent attacks of insanity.
Any individual of sound mind may make a contract under the Indian Contract Act
of 1872. A person is considered to be of sound mind for the purposes of making a
contract if, at the time of making it, he is capable of understanding it and
making a logical judgement about its effect on his interest, according to
Section 12 of the Act. When a person is of sound mind, he may enter into a
contract. When a person's mind is usually sound but occasionally impaired, he
may not enter into a contract.
Divorce or judicial separation can be obtained if the person has been incurably
insane, or has been suffering continuously or intermittently from a mental
disorder of such a kind and extent that the petitioner cannot reasonably be
expected to live with the respondent, according to section 13 of the Act.
The term "incurably" of unsound mind cannot be defined so broadly as to include
feeble-minded people or people with a dull intellect who comprehend the nature
and consequences of the act and can thus regulate themselves, their affairs, and
their reactions in a normal manner (A.I.R. 1969 Guj-48 and 78 CLT 1994 561).
Divorce could not be granted when there was sufficient evidence for the court to
decide that the wife's minor mental disease was not of such a nature and extent
that the husband could not fairly be expected to live with her (A.I.R., 1982 CAL
138). Each instance of schizophrenia must be assessed individually.
The grounds for marriage, divorce, and judicial separation under the Special
Marriage Act of 1954 are nearly identical to those in the Hindu Marriage Act of
1955. The Special Marriage Act of 1954 applies to anyone in India including
Indian nationals living abroad, regardless of their religious beliefs. This Act
allows for the registration of a marriage that has been solemnised in any other
Marriage is seen as a sort of contract under Islamic law. As a result, a Muslim
who has reached puberty and is of sound mind is eligible to marry. However, if
the guardian of a mentally ill person believes that such a marriage is in his or
her best interests and in the best interests of society, and is willing to
shoulder all of the marriage's financial obligations, the marriage can be
performed. Under Muslim law, talaq (divorce) must be for a good reason and must
be preceded by two arbiters' attempts at reconciliation. A woman married under
Muslim Law is entitled to a divorce if her husband has been mad for two years,
according to the Muslim Marriage Act of 1939.
Under Christian Law, marriage is voidable, if either party was a lunatic or
idiot. Christians can obtain divorce under Indian Divorce Act. 1869 (as amended
in 2001) on grounds of unsoundness of mind provided: (i) it must be incurable
(ii) it must be present for at least 2 years immediately preceding the petition.
Divorce is not admissible on ground of mental illness under the Parsi Marriage
and Divorce Act, 1936. However, divorce can be obtained if the defendant at the
time of marriage was of unsound mind, provided the plaintiff was ignorant of the
fact and the defendant has been of unsound mind for a period of 2 years upwards
and immediately preceding the application.
Testamentary capacity is the legal status of being capable of executing a Will,
a legal declaration of the intention of a testator with respect to his property,
which he desires to be carried into effect after his death. Indian Succession
Act, 1925 (sec 59), stipulates among other things:
- Any person of sound mind can make a Will.
- Persons, who are ordinarily insane, may make a Will during an interval
while they are of sound mind.
- No person can make a Will while he is in such a state of mind, whether
arising from intoxication or from illness or from any other cause, so that
he does not know what he is doing.
Testamentary capacity means that a person's complete sense and mental sanity
were required to affirm and sign the Will after fully comprehending his assets
and what he was doing by drafting a Will. He is fully aware of whom he is naming
the assets to, how they are tied to him, and what consequences this may have in
Nothing constitutes an offence, which is done by a person who, at the time of
committing it, by reason of unsoundness of mind, is incapable of comprehending
the nature of the act, or that he is doing what is either improper or contrary
to law, according to the Indian Penal Code of 1860. The McNaghten Rules, which
have been incorporated into Section 84, specify the criminal liability of
mentally ill people in our courts.
The Supreme Court has ruled that the law
presumes everyone over the age of discretion to be sane, and that any defence
based on insanity must be proven. If insanity is shown as a defence, such
individuals are sent to Psychiatric Hospitals under section 471 (i) of the
Cr.P.C., 1973. There have been cases where the sentence was reduced due to
mental illness. When a woman (accused) felt her life was becoming unbearable as
a result of family strife, she leaped into a well with her children, it was
determined that the only sentence that could be issued was the lower sentence of
life imprisonment. AIR 1953 MB 61
Any action taken in good faith for the benefit of a person of unsound mind by or
with the approval of the guardian or other person having lawful custody of such
person is protected under Section 89 of the IPC. Abetment of suicide by an
insane person is punishable by death or life imprisonment under Section 305 of
the Indian Penal Code (IPC).
The PMI has been examined in relation to important legal laws in the Indian
legal system. Because the majority of the laws were enacted during the colonial
period or had a colonial background, British influence is plainly obvious. Laws
relating to PMI are currently at a fork in the road, with the majority of them
being revised to align with the UNCRPD-2006. Human rights campaigners want
perfect legal capacity to PMI, whilst psychiatrists want to keep the option of
involuntary hospitalisation in exceptional instances. It is important to note
that the ultimate goal of any law measure should be the welfare of the PMI and
society as a whole.
- Somasundaram O. The Indian lunacy act, 1912: The historic background. Indian
J Psychiatry. 1987;29:3–14
- Mental Health Rights Group http://www.mhrg.org/Why-We-Against-MHAA.aspx
- Jiloha RC. Mental Capacity/Testamentary Capacity. In: Gautam S, Avasthi A,
editors. Clinical Practice Guidelines on Forensic Psychiatry. Indian Psychiatric
- Section 471 in The Code Of Criminal Procedure, 1973
- Gyarsibai W/O Jagannath vs The State of Madhya Pradesh (AIR 1953 MB 61)