Sanjay Karol, A.C.J.:— A Constitution Bench of the Hon'ble Supreme Court of India in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1, inter alia, observed as under:
“202.9. Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.”
2. The aforesaid observation applies, on all fours, in construing the provisions of the Mental Healthcare Act, 2017 (hereinafter referred to as the Act).
3. The Writ Petitioner has highlighted two instances, where persons suffering from mental illness, who were found wandering on the road, were taken to the hospital for providing medical treatment. He also points out indifferent and callous attitude on the part of the authorities in discharging the duties under the Act.
4. We may only point out that the persons with disability, referred to in the writ petition, were properly attended to and appropriate action taken in that regard.
5. During the pendency of the petition, we had issued certain directions.
6. On 01.01.2018, we had observed that under Section 23 of the Act, officer Incharge of the Police Station is required to take into protection any person wandering at large within their jurisdiction. He is required to take care of persons whom he has a reason to believe are suffering from mental illness and are incapable of taking care of themselves.
7. We had observed that keeping in view the geographical conditions of Himachal Pradesh, it may not be possible for every police officer, within the State of Himachal Pradesh, to search for all such persons. Equally, it is the duty and responsibility of every citizen to inform the police about the whereabouts of such persons. We had observed that one such way would be by making use of information and technology and as such, had directed the Superintendents of Police of thirteen Districts, within the State of Himachal Pradesh, to create a Web Portal, solely dedicated for implementing the provisions of the Act.
8. In another order, we had directed the respondent-authorities to create a jingle and air it on Radio, highlighting the mechanism provided in the Act and also need for sensitizing the general public with regard thereto.
9. Yet on another date, we had directed that dedicated help line, round the clock be set up, enabling the general public to furnish information with regard to such of those persons, who need immediate care and attention.
10. Directions issued by this Court from time to time stand fully complied with. We are happy to record that now the Director General of Police, Himachal Pradesh, has ensured that in every District of the State, there will be a website (URL), where people can furnish information of any person, suffering from mental illness or requiring mental healthcare. Also, with the help of the Central Government (Department of Telecommunications/BSNL), a dedicated toll-free helpline stands made functional.
11. We may record that steps, for making the stakeholders, including the general public, aware and sensitize them about the provisions of the Act, stand taken. Jingles to this effect are now being aired from All India Radio.
12. The Writ Petitioner further highlights inaction on the part of the State, and more specifically, the police authorities, in implementing the provisions of Sections 10, 14, 55, 100 and 101 of the Act.
13. In October, 2007, the Government of India ratified the United Nations Convention on the Rights of Persons with Disabilities. So, it became necessary to make suitable amendments in the policies and laws of the country so as to align them with the objectives of the Convention.
14. The Mental Health Act, 1987 had its limitations. There was no provision to protect the rights of persons with mental illness. The Mental Health Act, 1987 did not promote access to mental healthcare in the country.
15. To ensure healthcare, treatment and rehabilitation of persons with mental illness as well as to protect and promote the rights of persons with mental illness during the delivery of healthcare, inter alia, the Mental Health Bill was introduced in Rajya Sabha in 2013. The Bill was referred to the select committee, which tabled its report in December, 2013.
16. Statement of Objects and Reasons of the proposed Act stated:
“The United Nations Convention on the Rights of Persons with Disabilities, which was ratified by the government of India in October, 2007, made it obligatory on the Government to align the policies and laws of the country with the Convention. The need for amendments to the Mental Health Act, 1987 was felt by the fact that the related law, i.e., the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was also in the process of amendment. The Mental Health Act, 1987 could not protect the rights of persons with mental illness and promote their access to mental healthcare in the country.
2. In light of above, it is proposed to bring in a new legislation by repealing the Mental Health Act, 1987, and-
(a) Recognising that:
(i) Persons with mental illness constitute a vulnerable section of society and are subject to discrimination in our society;
(ii) Families bear financial hardship, emotional and social burden of providing treatment and care for their relatives with mental illness;
(iii) Persons with mental illness should be treated like other persons with health problems and the environment around them should be made conducive to facilitate recovery, rehabilitation and full participation in society;
(iv) The Mental Health Act, 1987 was insufficient to protect the rights of persons with mental illness and promote their access to mental healthcare in the country;
(b) And in order to:
(i) Protect and promote the rights of persons with mental illness during the delivery of healthcare in institutions and in the community;
(ii) Ensure healthcare, treatment and rehabilitation of persons with mental illness, is provided in the least restrictive environment possible, and in a manner that does not intrude on their rights and dignity. Community-based solutions, in the vicinity of the person's usual place of residence, are preferred to institutional solutions;
(iii) Provide treatment, care and rehabilitation to improve the capacity of the person to develop his or her full potential and to facilitate his or her integration into community life;
(iv) Fulfil the obligations under the Constitution and the obligations under various International Conventions ratified by India;
(v) Regulate the public and private mental health sectors within a rights framework to achieve the greatest public health good;
(vi) Improve accessibility to mental healthcare by mandating sufficient provision of quality public mental health services and non-discrimination in health insurance;
(vii) Establish a mental health system integrated into all levels of general health care; and
(viii) Promote principles of equity, efficiency and active participation of all stakeholders in decision making.”
17. Provisions of the said Legislation, i.e. Mental Healthcare Act, 2017, came into effect with its publication in the Official Gazette on 7.4.2017.
18. The Preamble of the Act itself states it is an Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.
19. The Act stands divided into XVI Chapters.
20. Chapter-I contains the definition clause, wherein “mental Illness” stands defined as under:
“2(1)(s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence”.
21. Chapters-II & III deal with determination of mental illness and the right of individual to make an advance directive, in writing, specifying the way in which he wishes to be cared or not to be cared and whom he would want to be nominated as a representative in the event of such illness. Sections 6 and 7 provide for the manner of making such advance directive and maintenance of an online register.
22. Chapter-V deals with the rights of every person to have right to access mental healthcare and treatment from mental health services, run or funded by the appropriate Government. Importantly, persons with mental illness, in terms of Section 19, have a right to live in, be part of and not to be segregated from the society. This, is apart from, to continue to remain in mental health establishment, within the conditions specified therein.
23. Section 21 of the Act specifically provides that every person with mental illness shall be treated as equal to persons with physical illness, under the provisions of healthcare and shall not be discriminated on any basis, including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability. Emergency facilities and emergency services for mental illness are to be of same quality and availability as those provided to persons with physical illness. There shall be no discrimination on any count.
24. Right of confidentiality of a person with mental illness, stands specially protected and preserved by virtue of Section 23 of the Act.
25. Person with mental illness has a right to receive free legal services (Section 19(2) of the Act).
26. Chapter-VI imposes certain duties on the appropriate Government to plan, design and implement the programmes for promotion of mental health and prevention of mental illness in the country, as also create awareness about the mental illness and reducing the stigma associated with mental illness. The relevant Sections in this regard are 29, 30 and 31.
27. A Mental Health Authority, Central or State, is required to be constituted, in terms of Chapters-VII & VIII of the Act.
28. Chapter-X deals with establishment and running of the mental health establishments, so defined under clause (b) sub-section (1) of Section 2 of the Act.
29. Chapter-XII deals with the admission, treatment and discharge of the persons with mental illness.
30. Chapter-XIII deals with the responsibilities of the other agencies.
31. However, certain steps are yet required to be taken for complying with the provisions of the Act and more specifically Chapter-II, dealing with advance directive and Chapter-IV, dealing with nomination of representatives.
32. We deem it appropriate to reproduce certain other Sections of the Act:—
“10. Duty to follow advance directive:— It shall be the duty of every medical officer in charge of a mental health establishment and the psychiatrist in charge of a persons treatment to propose or give treatment to a person with mental illness, in accordance with his valid advance directive, subject to section 11.”
“14. Appointment and revocation of nominated representative:— (1) Notwithstanding anything contained in clause (c) of sub-section (1) of section 5, every person who is not a minor, shall have a right to appoint a nominated representative.
(2) The nomination under sub-section (1) shall be made in writing on plain paper with the persons signature or thumb impression of the person referred to in that sub-section.
(3) The person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.
(4) Where no nominated representative is appointed by a person under sub-section (1), the following persons for the purposes of this Act in the order of precedence shall be deemed to be the nominated representative of a person with mental illness, namely:—
(a) the individual appointed as the nominated representative in the advance directive under clause (c) of sub-section (1) of section 5; or
(b) a relative, or if not available or not willing to be the nominated representative of such person; or
(c) a care-giver, or if not available or not willing to be the nominated representative of such person; or
(d) a suitable person appointed as such by the concerned Board; or
(e) if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness: Provided that a person representing an organisation registered under the Societies Registration Act, 1860 or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the mental health professional to discharge the duties of a nominated representative pending appointment of a nominated representative by the concerned Board.
(5) The representative of the organisation, referred to in the proviso to sub-section (4), may make a written application to the medical officer in-charge of the mental health establishment or the psychiatrist in-charge of the persons treatment, and such medical officer or psychiatrist, as the case may be, shall accept him as the temporary nominated representative, pending appointment of a nominated representative by the concerned Board.
(6) A person who has appointed any person as his nominated representative under this section may revoke or alter such appointment at any time in accordance with the procedure laid down for making an appointment of nominated representative under sub-section (1).
(7) The Board may, if it is of the opinion that it is in the interest of the person with mental illness to do so, revoke an appointment made by it under this section, and appoint a different representative under this section.
(8) The appointment of a nominated representative, or the inability of a person with mental illness to appoint a nominated representative, shall not be construed as the lack of capacity of the person to take decisions about his mental healthcare or treatment.
(9) All persons with mental illness shall have capacity to make mental healthcare or treatment decisions but may require varying levels of support from their nominated representative to make decisions.”
“55. Functions of State Authority:— (1) The State Authority shall-
(a) register all mental health establishments in the State except those referred to in section 43 and maintain and publish (including online on the internet) a register of such establishments;
(b) develop quality and service provision norms for different types of mental health establishments in the State;
(c) supervise all mental health establishments in the State and receive complaints about deficiencies in provision of services;
(d) register clinical psychologists, mental health nurses and psychiatric social workers in the State to work as mental health professionals, and publish the list of such registered mental health professionals in such manner as may be specified by regulations by the State Authority;
(e) train all relevant persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of this Act;
(f) discharge such other functions with respect to matters relating to mental health as the State Government may decide: Provided that the mental health establishments in the State (except those referred to in section 43), registered, before the commencement of this Act, under the Mental Health Act, 1987 or any other law for the time being in force, shall be deemed to have been registered under the provisions of this Act and copy of such registration shall be furnished to the State Authority.
(2) The procedure for registration (including the fees to be levied for such registration) of the mental health establishments under this section shall be such as may be prescribed by the State Government.”
“100. Duties of police officers in respect of persons with mental illness:- (1) Every officer in-charge of a police station shall have a duty-
(a) to take under protection any person found wandering at large within the limits of the police station whom the officer has reason to believe has mental illness and is incapable of taking care of himself; or
(b) to take under protection any person within the limits of the police station whom the officer has reason to believe to be a risk to himself or others by reason of mental illness.
(2) The officer in-charge of a police station shall inform the person who has been taken into protection under sub-section (1), the grounds for taking him into such protection or his nominated representative, if in the opinion of the officer such person has difficulty in understanding those grounds.
(3) Every person taken into protection under subsection (1) shall be taken to the nearest public health establishment as soon as possible but not later than twenty-four hours from the time of being taken into protection, for assessment of the persons healthcare needs.
(4) No person taken into protection under subsection (1) shall be detained in the police lock up or prison in any circumstances.
(5) The medical officer in-charge of the public health establishment shall be responsible for arranging the assessment of the person and the needs of the person with mental illness will be addressed as per other provisions of this Act as applicable in the particular circumstances.
(6) The medical officer or mental health professional in-charge of the public mental health establishment if on assessment of the person finds that such person does not have a mental illness of a nature or degree requiring admission to the mental health establishment, he shall inform his assessment to the police officer who had taken the person into protection and the police officer shall take the person to the persons residence or in case of homeless persons, to a Government establishment for homeless persons.
(7) In case of a person with mental illness who is homeless or found wandering in the community, a First Information Report of a missing person shall be lodged at the concerned police station and the station house officer shall have a duty to trace the family of such person and inform the family about the whereabouts of the person.
101. Report to Magistrate of person with mental illness in private residence who is ill-treated or neglected:- (1) Every officer in-charge of a police station, who has reason to believe that any person residing within the limits of the police station has a mental illness and is being illtreated or neglected, shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the person with mental illness resides.
(2) Any person who has reason to believe that a person has mental illness and is being ill-treated or neglected by any person having responsibility for care of such person, shall report the fact to the police officer in-charge of the police station within whose jurisdiction the person with mental illness resides.
(3) If the Magistrate has reason to believe based on the report of a police officer or otherwise, that any person with mental illness within the local limits of his jurisdiction is being ill-treated or neglected, the Magistrate may cause the person with mental illness to be produced before him and pass an order in accordance with the provisions of section 102.”
33. We notice that every person, not a minor, has a right to make an advance directive, in writing, specifying the way he wishes to be cared or not to be cared and treated for mental illness, and whom he wants to appoint as nominated representative. This, in terms of Section 7, he can do as per the regulations specified by the Central Authority. Every Board, by virtue of Section 7, is under an obligation to maintain an online register of all advance directives and make available to the concerned mental health professional as and when required. By virtue of Section 10, every Medical Officer, Incharge of a mental health establishment, and the Psychiatrist, Incharge of such establishment, is under a duty to give treatment to a mentally ill person.
34. Conjoint reading of provisions of Chapters-III & IV, leads to an irresistible conclusion that every individual has a right to choose the manner in which he wants to be treated and under whose care and also there is corresponding duty cast upon the Medical Officer, Incharge of the mental health establishment to give treatment in such manner. Now, this provision of the Section is not directory but mandatory and must be strictly adhered to.
35. Equally, it is the duty of the State Authority to maintain proper record of mental health establishments; develop quality service norms with respect to such establishments; supervise them and inter alia train all relevant persons, including law enforcement officials, mental health professionals and other health professionals, about implementation of provisions of the Act.
36. A Three-Judge Bench of the Apex Court in Vikram Deo Singh Tomar v. State Of Bihar ., 1988 Supp SCC 734, has held that India is a welfare State governed by a Constitution which holds the pride of place in the hearts of its citizens. It lays special emphasis on the protection and well-being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions.
37. In Pt. Parmanand Katara v. Union of India, (1989) 4 SC 286 (Two-Judge Bench), the Apex Court has held that Article 21 of the Constitution casts the obligation on the State to preserve life (Para-8).
38. A Five-Judge Bench of the Apex Court in M. Nagaraj v. Union of India, (2006) 8 SCC 212, held that “……… Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value”……………… and “It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give. It simply is. Every human being has dignity by virtue of his existence”.
39. In Dr. Balram Prasad v. Dr. Kunal Saha & Ors. S, (2014) 1 SCC 384 (Two-Judge Bench), the Apex Court observed as under:
“183. Before parting with the judgment we are inclined to mention that the number of medical negligence cases against doctors, Hospitals and Nursing Homes in the consumer forum are increasing day by day. In the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37, this Court has already pronounced that right to health of a citizen is a fundamental right guaranteed under Article 21 of the Constitution of India. It was held in that case that all the government Hospitals, Nursing Homes and Poly-clinics are liable to provide treatment to the best of their capacity to all the patients.”
40. The Apex Court, in Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 (Two-Judge Bench), has observed:
“11. Further, various international legal instruments also guarantee these rights for the disabled, including the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which India ratified in 2007. Specifically, the UNCRPD requires in Article 5:
“5. (2) State Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensuret.
12. The UNCRPD specifically targets transportation systems such as airlines when it states in Article 9:
“9. Accessibility.-(1) To enable persons with disabilities to live independently and participate fully in all aspects of life, State Parties shall take appropriate measures to ensure persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and system, and to other facilities and services open or provided to the public.”
And the UNCRPD makes clear that private carriers are covered as well in Article 9(2):
“9. (2) State Parties shall also take appropriate measures:
* * * * * *
(b) To ensure that private entities that offer facilities and services which are open to or provided to the public take into account all aspects of accessibility of persons with disabilities;”
“37. The rights that are guaranteed to differently abled persons under the Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has it roots in Article 21 of the Constitution……………”
“39. We should, therefore, keep in mind that CAR instructions have also been issued keeping in view the spirit of human dignity enshrined in Article 21 and the right that are to be ensured to such persons. The underlying message in all these provisions is the acknowledgment that human rights are individual and have a definite linkage to human development, both sharing common vision and with a common purpose. Respect for human rights is the root for human development and realisation of full potential of each individual, which in turn leads to the augmentation of human resources with progress of the nation. Empowerment of the people through human development is the aim of human rights.
40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. (See-Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2-2001).”
“43. …..What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perceptions has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination. They are not looked down by people. However, they are not accepted in the main stream either even when people sympathies with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which disabled feel as their grievance is that others do not understand them.”
“46. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nation's life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.”
41. The Apex Court in C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441, has highlighted the significance of several universal declarations/conventions with regard to raising standard of living; adequate health; wellness; medical care; sickness; disability etc., emphasizing that right to social and economic justice is a fundamental right and more specifically one guaranteed under Article 21 of the Constitution of India.
42. Without going into the question as to whether such functions stand discharged, if at all, satisfactorily or not, for the affidavit so filed on behalf of the State is silent on all these aspects, we deem it appropriate to close the present proceedings, by issuing the following directions:
(a) The Chief Secretary to the Government of Himachal Pradesh as also the Director General of Police, Himachal Pradesh, shall ensure that the web portals of all the Districts are kept functional and operational at all times;
(b) The Toll-Free numbers are kept operational and functional, with one person attending to the calls, round the clock;
(c) The general public as also the stakeholders are sensitized and made aware of the provisions of the Act; right of an individual to have an advance directive and the person of his choice nominated under the Act; duties and obligations of the functionaries of the State and more specifically the police officials, and importance and significance of proper and complete implementation of the provisions of the Act;
(d) Have the mechanism of implementing the provisions of Chapters-III & IV, pertaining to advance directive and nominated representative, in place, and not later than four weeks from today;
(e) There shall be a direction to the authority, constituted under Section 55 of the Act, to take all steps for training of relevant persons, emphasizing the need, importance and significance of property implementation of provisions of the Act.
(f) Awareness camps should be organized in the rural areas to educate the people that mental illness is curable and there is need for equal treatment of mentally ill with other persons in the society. In such camps, participation of psychiatrists, lawyers and social workers be ensured, who can help the participants clear their doubts and misconception about mental illness, and also about rights of the mentally ill persons with regard to property and other legal rights.
(g) Special Legal Aid Clinics be set up by State Legal Services Authority/District Legal Services Authorities, in association with the psychiatric hospitals/nursing homes, to sensitize the family members of the mentally ill persons regarding rights of such persons.
(h) The Social Welfare Department of the State, in association with other Departments, shall frame a policy for the rehabilitation of the cured mentally ill persons. Also, the places where the cured mentally ill persons are housed be visited frequently to ensure that they are given proper shelter, proper food, continued medication and vocational training.
(i) To examine the feasibility of formulating uniform rules regarding standard of services for both public and private sector Mental Health Institutes;
(j) To constitute a committee to give recommendations on the issue of care of mentally challenged persons who have no immediate relatives or who have been abandoned by relatives;
(k) To frame norms for Non-Government Organisations working in the field of Mental Health and to ensure that the services rendered by them are supervised by qualified/trained persons; and
(l) To introduce a mobile van equipped with necessities and a psychiatric to assist the mentally ill people who are abandoned.
43. In view of the above, present petition stands disposed of, so also pending application(s), if any.
Comments