S. Manikumar, C.J.:— Considering the prayers sought for and the need for establishment of a State Mental Health Authority and Mental Health Review Boards, we passed the following interim orders:
2. On 5.1.20201, we passed the following order:
“Kerala State Legal Services Authority has sought for a mandamus directing State of Kerala represented by the Principal Secretary to Government, Department of Health & Family Welfare/respondent No. 1 to nominate the remaining members of State Mental Health Authority mentioned in Clauses (f) to (n) of Sub-section (1) of Section 46 of Mental Healthcare Act, 2017, within a time limit prescribed by this Court. Further relief sought for in the writ petition is to issue a writ of mandamus directing the State Mental Health Authority to take steps to establish Mental Health Review Boards as per Section 73 of Mental Health Care Act, 2017 and ensure proper functioning of the same in line with the Act forthwith.
2. Short facts leading to filing of writ petition are as hereunder : The petitioner herein is Kerala State Legal Services Authority constituted under the provisions of the Legal Services Authorities Act, 1987. The petitioner herein is preferring this Writ Petition seeking for a direction to the State Government to implement the provisions of the Mental Health Care Act, 2017 by constituting a State Mental Health Authority in accordance with the Act and to establish Mental Health Review Boards in order to exercise the duties and functions effectively in letter and spirit of the Act.
3. As per Section 45 of the Act, the State Government shall constitute State Mental Health Authority in accordance with the Act within a period of nine months from the date on which this Act receives the assent of the President. Section 73 of the Act states that Mental Health Review Boards shall be constituted by the State Authority for the purposes of this Act. Section 74 deals with the Composition of Board. It is submitted that since the State Authority has not become functional, Mental Health Review Boards have also not been constituted in the State as the State Authority has to constitute the Board. For the proper implementation of the Act in its true essence, the State Authority and Review Boards are absolutely essential. Though Ext.P1 and P2 notifications have been issued by the State Government, State Authority has not been fully constituted and functional as per Section 46 of the Act in order to carry out its operations efficiently. Since State Authority and Review Boards are not functional, much difficulty is faced in the mental health care sector and it amounts to violation of the fundamental right guaranteed to persons with mental disability under Article 21 of the Constitution of India. Rights of persons with mental illness is being violated due to the non-implementation of the Act. Hence this writ petition is filed to implement the provisions of the Mental Health care Act, 2017 without any further delay.
4. Mr. Santhosh Mathew learned counsel for the petitioner made submissions on the above.
5. On this day, when the matter came up for admission, Mr. N. Manoj Kumar learned Special Government Pleader submitted that as per the statutory provisions State Mental Health Authority has already been constituted. Some of the members have been nominated and the remaining members would be nominated and notified within one week from today.
6. Submission of learned Special Government Pleader is placed on record. As regards the establishment of Mental Health Review Boards as per Section 73 of Mental Healthcare Act, 2017 and its proper functioning, Mr. N. Manoj Kumar the learned Special Government Pleader seeks time to get instructions.
Post on 13.1.2021.”
3. On 13.1.2021, this Court passed the following order:
“This Public Interest Litigation is filed seeking for a direction to the State Government to constitute a fully functional State Mental Health Authority to establish Mental Health Review Boards under Metal Health Care Act, 2017.
2. On this day, when the matter came up for further hearing, inviting the attention of this Court to a notification issued by the Health and Family Welfare Department in G.O. (P) No. 3/2021/H&FWD dated 8 January 2020, Mr. Santhosh Mathew, learned counsel for the petitioner (Kerala State Legal Services Authority), submitted that in terms of Section 46 (1)(g), (i), (j), (k), (l), (m), & (n) of the Mental Health Care Act, 2017, Government have decided to nominate non official members of the State Mental Authority. However, as per Section 46(1)(f) and (h), two other members have to be appointed.
3. G.O.(P) No. 3/2021/H&FWD dated 8 January, 2020 reads as under:
“GOVERNMENT of KERALA
Health and Family Welfare (E) Department
NOTIFICATION
G.O.(P) No. 3/2021/H&FWD.Dated, Thiruvananthapuram, 8th January, 2021
S.R.O. No. 37/2021
In exercise of the powers conferred by Sections 45 and 46 of Mental Healthcare Act, 2017 (Central Act No. 10 of 2017) read with rule 3 of the Mental Healthcare (State Mental Health Authority) Rules, 2018 dated 29 day of May, 2018, issued by the Government of India, the Government of Kerala hereby nominate the non-official members in the State Mental Health Authority established vide G.O.(P) No. 87/2019/H&FWD dated 16 July, 2019 and published as S.R.O. No. 486/2019 in the Kerala Gazette Extraordinary No. 1651 dated 19 July, 2019 and consequently make the following amendment to the said notification, namely:—
AMENDMENT
In the said notification,-
(i) after entry (g), the following entries shall be inserted, namely:—
“(h) Dr. C. J. John 44/2671, 7th Avenue, Asoka Road, Kaloor, Kochi-682017. .. Member [as per Section 46(1)(g) of the Act (i) Dr. Seema P. Uthaman, Assistant Professor, Department of Psychiatric Social Work, Institute of Mental Health & Neorosciences (IMHANS), Calicut. .. Member [as per Section 46(1)(i) of the Act] (j) Dr. A. Basheer Kutty, Sargam, Priyadarshininagar, Medical College Post, Thiruvananthapuram-695011. … Member [as per Section 46(1)(j) of the Act.] (k) Smt. Shija, K., Assistacnt Professor, Govt. College of Nursing, Alapuzha .. Member [as per Section 46(1)(k) of the Act.] (l) Shri Jidhin, M.L., Rithu, Bharath Nagar-15B, Thirumullavaram, Kollam-691012 .. Member [as per Section 46(1)(l) of the Act.] (m) Shri Mahadevan Kasi, Swara 67, TC 28/1231, Sreechithra Gardens, Pandarathoppu, Sreekanteswaram, Fort P.O., Trivandrum. .. Member [as per Section 46(1)(l) of the Act.] (n) Smt. Padmavathi E., Barotty House, Kolathur P.O., Kasargod-671541. .. Member [as per Section 46(1)(m) of the Act.] (o) Shri Nazeer, E., OASIS, Malayalam Lane, Chekkekonam, Karakulam, Thiruvananthapuram-695564. .. Member [as per Section 46(1)(m) of the Act.] (p) Dr. Suresh Kumar K., 5C, Garnet, Skyline Apartments, Kottooli, Kozhikode, 673016. .. Member [as per Section 46(1)(n) of the Act.] (q) Fr. George Joshua, Arch Bishop Mar Gregorios Snehaveedu, Benedict Nagar, Nalanchira, Thiruvananthapuram. .. Member [as per Section 46(1)(n) of the Act.]
(ii) for the words “non official members of the State Authority” the words “non official member under Section 46(1)(h) of the Act” shall be substituted.
By order of the Governor
RAJAN NAMDEV KHOBRAGADE,
Principal Secretary to Government.
Explanatory Note
(This does not form part of the notification, but is intended to indicate its general purport.)
Section 45 of the Mental Healthcare Act, 2017 (Central Act No. 10 of 2017) provides that every State Government shall, within a period of nine months from the date on which the said Act receives assent of the President, by notification, establish an Authority to be known as the State Mental Health Authority, Government have established State Mental Health Authority vide notification issued under G.O.(P) No. 87/2019/H&FWD dated 16 July, 2019 and published as S.R.O. No. 486/2019 in the Kerala Gazette Extraordinary No. 1651 dated 19 July, 2019 and G.O.(P) No. 6/2020/H&FWD dated 29 February, 2020 and published as S.R.O. No. 170/2020 in the Kerala Gazette Extraordinary No. 761 dated 4 March, 2009. Now Government have decided to nominate Non-official members of the Authority by amending the said notification.
The notification is intended to achieve the above object.”
4. Mr. S. Kannan, learned Special Government Pleader, submitted that the rules framed have been sent to the Central Government for approval.
5. It is also submitted by Mr. Santhosh Mathew that qualified hands satisfying the eligibility criteria, are available in Government Medical Colleges and, therefore, there cannot be any difficulty in making appointments under the abovesaid categories.
6. However, it is the contention of the learned Special Government Pleader that Selection Committees have to be constituted for the abovesaid purpose. He seeks further time to get instructions, on the above.
7. As regards the constitution of the Metal Health Relief Boards, attention is drawn to G.O.(Rt) No. 115/2021/H&FWD dated 12.01.2021, by which, Government have granted permission for constitution of the abovesaid Board. G.O.(Rt) No. 115/2021/H&FWD dated 12.1.21 reads thus:
GOVERNMENT of KERALA
Abstract
Health & Family Welfare Department - Constitution of Mental Health Review Boards in the State - Permission granted - Orders issued.
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HEALTH & FAMILY WELFARE (E) DEPARTMENT G.O.(Rt) No. 115/2021/H&FWD Dated, Thiruvananthapuram, 12/01/2021
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Read Letter No. A-217/2017/SMHA dated 20/08/2020 from Chief Executive Officer (Vc), Kerala State Mental Health Authority, Thiruvananthapuram.
1. As per Section 73(1) of Mental Health Care Act, “the State Authority shall by notification, constitute Boards to be called the Mental Health Review Boards, for the purposes of this Act. Section 73 (2), the requisite number, location and the jurisdiction of the Boards shall be specified by the State Authority in consultation with the State Governments concerned and Section 73 (3), the constitution of the Boards by the State Authority for a district or group of districts in a State under this section shall be such as may be prescribed by the Central Government.
2. In the meeting of State Mental Health Authority held on 06/03/2020, it was decided to constitute five Mental Health Review Boards in the first phase at Thiruvananthapuram, Kottayam, Thrissur, Kozhikode and Kannur with location, jurisdiction and office as described below and to constitute more Review Boards in future as per work-load and need. It was also decided that, in the initial stage, monitoring, supervision and control of the functioning of review boards may be entrusted to the Superintendent of respective Mental Health Centers and Head of the Department of Psychiatric departments of the Medical Colleges as follows. As per Letter read above, the Chief Executive Officer has requested to approve the above decisions of the Authority.
Sl. No. Districts (Jurisdiction) Location Office of Boards 1. Thiruvananthapuram, Kollam, Alappuzha Thiruvananthapuram Government Mental Health Centre, Thiruvananthapuram 2. Kottayam, Pathanamthitta, Idukki. Kottayam Government Medical College, Kottayam. 3. Thrissur, Ernakulam, Palakkad Thrissur Government Mental Health Centre, Thrissur 4. Kozhikode, Malappuram, Wayanad Kozhikode Government Mental Health Centres, Kozhikode 5. Kannur & Kasaragode Kannur Government Medical College, Kannur.
3. Government have examined the matter in detail and are pleased to approve the above decisions of the State Mental Health Authority. Sanction is also accorded for the constitution of five Mental Health Review Boards at Thiruvananthapuram, Kottayam, Thrissur, Kozhikode and Kannur with location, jurisdiction and office of the Boards as described above.
4. The Chief Executive Officer (Vc), Kerala State Mental Health Authority will take necessary action for the constitution of the Mental Health Review Boards as described above, as per Section 73 of Mental Health Care Act, 2017.
5. The Director of Health Services will take necessary action to allot space and to render logistical support for starting Mental Health Review Boards at Thiruvananthapuram, Thrissur and Kozhikode at the offices of the respective Government Mental Health Centers. The Director of Medical Education will take necessary action to allot space and to render logistical support for starting Mental Health Review Boards at at Kottayam and Kannur at Government Medical College, Kottayam and Kannur respectively. In the initial stage, monitoring, supervision and control of the functioning of Review Boards is entrusted to the Superintendents of respective Mental Health Centers and Heads of the Department of Psychiatry of the respective Medical Colleges.
(By order of the Governor)
RAJAN NAMDEV KHOBRAGADE
PRINCIPAL SECRETARY”
8. Learned Special Government Pleader to get instructions regarding the process involved in selecting the members of the Board, time required to complete the process, etc.
Learned Special Government Pleader shall communicate the order of this Court to the concerned authorities for compliance. Competent authorities under the Act are directed to discharge their statutory duties, and they do not require any order from this Court. We only observe that if any statutory authority, says that he would act, if only he receives a copy of this order or judgment of this Court, suitable orders would be issued.
Post on 20.01.2021.”
4. On 20.1.2021, the following order was passed:
“Pursuant to the order dated 13 January, 2021, a statement dated 19 January, 2021, on behalf of the Chief Executive Officer and In-Charge of the Kerala State Mental Health Authority, Thiruvananthapuram, respondent No. 2, has been filed, wherein it is averred that section 46 of the Mental Health Care Act, 2017 provides for composition of State Authority and clauses (a) to (n) of sub-section (1) of section 46, state that Chairman and Ex-officio as well as other members, to be nominated to the State Authority.
2. Sub-section (2) of section 46 provides that the members referred to the Clauses (e) to (n) of sub-section (1) shall be nominated by the State Government in such manner as may be prescribed. The term “prescribed” is defined as per Section 2(v) as prescribed by rules made under the Mental Health Care Act, 2017.
3. Section 121 of the Act empowers the Central Government and State Government to make Rules. However, Sub-section (2) states that the State Government can make rules only with the previous approval of the Central Government. It is also stated that the first rules shall be made by the Central Government by notification.
4. It is submitted that in exercise of powers conferred by the provisions to Sub-section (2) read with Sub-sections (1) and (4) of Section 121 of the Mental Health Care Act, 2014, the Central Government have made the Mental Health Care (State Mental Health Authority) Rules, 2018.
5. The said rules, prescribe for nomination of members as per Sub-clauses (a) to (n) of Section 46 (1) of the Act, except that under Sub-clause (f) of Section 46 (1). It is in the said circumstances, the State Government have proceeded to nominate members under various categories except under Sub-clause (f) of Section 46 (1). The State Government have also formulated the draft State Rules as provided under Section 121 and forwarded to the Central Government for approval.
6. In the statement dated 19 January, 2021, on behalf of the Chief Executive Officer and In-Charge of the Kerala State Mental Health Authority, Thiruvananthapuram, respondent No. 2, it is also submitted that, as per Rule 6 of the Mental Health Care (State Mental Health Authority) Rules of 2018, an advertisement inviting applications to the post of members of the Kerala State Mental Health Authority, as contemplated under Section 46 (1) of the Mental Health Care Act of 2017, has to be published in two leading news papers and that necessary publication of advertisement for filling up the vacancies of members under Section 46(1)(f) and (h) of the Mental Health Care Act of 2017, would be made by this month, itself.
7. It is further stated that, on receipt of eligible applications, necessary nominations will be made by the Government of Kerala, on the basis of the recommendation of the Selection Committee, on or before 28.02.2021. As per the statutue, the entire process of nomination to the Kerala State Mental Health Authority can be completed prior to 01.03.2021, after complying with all the statutory prescriptions.
8. Insofar as Mental Health Review Boards are concerned, it is averred that by virtue of G.O. dated 21.01.2021, Government of Kerala have granted approval to constitute five Mental Health Review Boards, its location and jurisdiction.
9. It is further stated that, the Kerala State Mental Health Authority can start the process of selection to the post of Chairman and members of the respective, Mental Health Review Boards. However, the Kerala State Mental Health Authority has to comply with Rule 18 (1) of the Mental Health Care (Central Mental Health Authority and Mental Health Review Boards) Rules of 2018.
10. It is also submitted in the statement dated 19 January, 2021 that necessary advertisement pertaining to the selection, as aforesaid has to be placed in two leading news papers, one in English and other in vernacular language, having wide circulation in the State of Kerala. Necessary advertisement in the said regard has to be made available in the website of Kerala State Mental Health Authority, as well. The applications to be received have to be shortlisted in accordance with the merit and have to be handed over to the Chairman of the Kerala State Mental Health Authority for making appointment. The representatives of the District Collector or District Magistrate of the respective District, where the Board is to be constituted, should also be nominated to the Mental Health Review Boards. The following timeline is expected to follow in the said selection process;
Steps to be taken Time required Advertising in newspapers 2 weeks Time for submission of applications after advertisement 4 weeks Short listing of applications according to merit 2 weeks Receiving nominations from District Collector or District Magistrate 2 weeks Appointment of Chairman and Members 2 weeks Induction training to members (Compulsory as per Act and Rule) 2 weeks
11. It is further stated in the statement that the Kerala State Mental Health Authority is yet to receive financial assistance from the State, for the purpose of forming and maintaining mental Health Boards. It is anticipated that a minimum of four months time will be taken for receiving the financial assistance from the Government. The Kerala State Mental Health Authority has to identify suitable office space in Government Medical College, Kannur and Kottayam, as well as in Government Mental Health Center, Kozhikode, Thrissur and Thiruvananthapuram.
12. The Kerala State Mental Health Authority has to invite applications from eligible applicants, for the purpose of selection of appointment of the support staff, for all the five offices of the Boards. Furthermore, the website of Kerala State Mental Health Authority has to be re-designed and to be linked with the respective Mental Health Review Boards, to receive the applications and to register advance directives, online. In view of the facts stated herein above, it is submitted that, a further period of six months is utmost necessary for completing the whole process.
13. It is also submitted in the statement dated 19 January, 2021 that the State Government as well as the Kerala State Mental Health Authority, Thiruvananthapuram, respondent No. 2, are taking all earnest efforts to nominate the remaining members of the State Mental Health Authority and to constitute Mental Health Review Boards. Allegations and averments made by the writ petitioner, contrary to the above, are incorrect, illegal and perfunctory and denied by the 2 respondent.
14. In support of the above contentions, Mr. N. Manoj Kumar, learned Special Government Pleader, also referred to the statutory provisions under the Mental Healthcare Act, 2017 and the Rules framed thereto, copy of which is produced. He submitted that in view of the rules prescribed under the Act, by the Central Government, the procedure for selection have to be strictly followed and hence, a time line is also mentioned in the statement of facts.
15. When the Chief Executive Officer of the said Authority has categorically stated that no financial assistance has been received from the State for the purpose of forming and maintaining mental Health Boards, we are of the view that, as per section 61 of the Mental Healthcare Act, 2017, State has the obligation to provide grant. Section 61 of the Mental Healthcare Act, 2017, reads thus:
“61. Grants by State Government
The State Government may, after due appropriation made by State Legislature by law in this behalf, make to the State Authority graqnts of such sums of money as the State Government may think fit for being utilised for the purpose of this Act.”
16. In so far as payment of salaries and other allowances, Mr. Santhosh Mathew, learned counsel for petitioner, invited attention of this Court to section 84 of the Mental Healthcare Act, 2017, which read thus:
“84. Grants by Central Government
(1) The Central Government may, make to the Central Authority grants of such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.
(2) The grants referred to in sub-section (1) shall be applied for,
(a) meeting the salary, allowances and other remuneration of the Chairperson, members, officers and other employees of the Central Authority;
(b) meeting the salary, allowances and other remuneration of the Chairperson, members, officers and other employees of the Boards; and
(c) the expenses of the Central Authority and the Boards incurred in the discharge of their functions and for the purposes of this Act.”
17. However, learned counsel for petitioner submitted that Central Government has not been made a party in the writ petition and therefore, petitioner would take appropriate steps to implead the Central Government.
18. Mental Healthcare Act, 2017, is enacted to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.
19. 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. Mental Health Act, 1987 could not protect the rights of persons with mental illness and promote their access to mental health care in the country.
20. In light of above, the then UPA Govt. proposed to bring a new legislation by repealing the Mental Health Act, 1987. Therefore, Mental Health Care Bill, 2013 was introduced in Rajya Sabha on 19-8-2013, which was referred to the Standing Committee. Standing Committee with some amendments/modifications gave its report, but could not be passed in Parliament. Later on the NDA Government have re-introduced a Bill in Lok Sabh on 8-8-2016. Finally, with certain amendments, Lok Sabha has passed it on 27-3-2017, while Rajya Sabha passed it on 30-3-2017. President of India has assented it on 7-4-2017. Now it has become the law of land and known as Mental Health Care Act, 2017 (10 of 2017).
15. The key features of the Bill are,
Recognising that:
- Persons with mental illness constitute a vulnerable section of society and are subject to discrimination in our society.
- families bear financial hardship, emotional and social burden of providing treatment and care for their relatives with mental illness.
- 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.
- The Mental Healthcare Act, 2017, was insufficient to protect the rights of persons with mental illness and promote their access to mental health care in the country.
21. Keeping in mind the key objects and the reasons for enactment, we are of the view that, Mental Healthcare Act, 2017 and Mental Healthcare (State Mental Health Authority) Rules, 2018 framed thereunder have to be implemented in its letter and spirit by both the State and Central Governments.
22. Mere constituting committees and appointments to various offices/posts would not serve the purpose for which the enactment has been made, unless and until, the members of the Board are also paid the salary and allowances by the Central and State Governments, as the case may be.
23. In view of the above, we direct the Principal Secretary to the Government, Department of Health & Family Welfare, Thiruvananthapuram, respondent No. 1, to ensure that the authorities appointed be functional and effective. Keeping in mind the objects of the Mental Healthcare Act, 2017 sought to be achieved, we make it clear that paucity of funds should be not a ground for not enforcing the statutory provisions.
24. Despite the enactment which came into force on 7.4.2017 and consequently the Mental Healthcare (State Mental Health Authority) Rules, 2018 effective from 29.05.2018, we are constrained to record that the State of Kerala had not constituted the authorities and the Board, for nearly 3 years, till the instant public interest Writ Petition No. 181 of 2021 is filed by the Kerala State Legal Services Authority. We are constrained to observe that there is lack of attention by Government of Kerala to the beneficiaries, of the above said Act.
25. Having regard to the time consumed in implementation of the objects/statutory provisions and the beneficiaries, in exercise of the powers under Article 226 of the Constitution of India, we deem it fit to suo motu implead Secretary to the Government, Ministry of Health an Family Welfare, Union of India, New Delhi-1 and Secretary to the Government, Department of Disability Affairs, Ministry of Social Justice & Empowerment, New Delhi - 1 as additional respondent Nos. 3 and 4 respectively, in the writ petition. Registry is directed to make necessary amendments to the cause title accordingly.
26. Learned Assistant Solicitor General, Government of India, is directed to take notice on behalf of additional respondents. Mr. Santhosh Mathew, learned counsel for petitioner, is permitted to serve entire cause papers to the learned Central Government counsel, for response.
Post after a week.”
5. On 29.1.2021, this Court passed the following order:
“In so far as expenditure likely to be incurred towards salary, allowances, and other aspects, Mr. Tekchand, learned Senior Government Pleader submitted that in so far as the State Government is concerned, their liability will be taken care of.
2. Mrs. Mini Gopinath, learned Central Government Counsel appearing for the Central Government/respondents 3 & 4 submitted that instructions are yet to be furnished.
Post on 5.2.2021.”
6. Reverting to the question as regards grants by Central Government, contemplated under Section 84 (2)(b) ie., to meet the salary, allowances, and other remuneration to the Chairperson, members, officers, and other employees of the Boards, on instructions from the Under Secretary to Government of India, Ministry of Health and Family Welfare (Mental Health Division), New Delhi, Ms. Mini Gopinath, learned Central Government Counsel, submitted that the grants to be given to CMHA, as mandated under Section 84 of the Act, is meant for the CMHA for its activities.
7. Section 43 of the Mental Healthcare Act, 2017 deals with functions of Central Authority.
“43. Functions of Central Authority
(1) The Central Authority shall—
(a) register all mental health establishments under the control of the Central Government and maintain a register of all mental health establishments in the country based on information provided by all State Mental Health Authorities of registered establishments and compile update 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 under the Central Government;
(c) supervise all mental health establishments under the Central Government and receive complaints about deficiencies in provision of services;
(d) maintain a national register of clinical psychologists, mental health nurses and psychiatric social workers based on information provided by all State Authorities of persons registered to work as mental health professionals for the purpose of this Act and publish the list (including online on the internet) of such registered mental health professionals;
(e) train all persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of this Act;
(f) advise the Central Government on all matters relating to mental healthcare and services;
(g) discharge such other functions with respect to matters relating to mental health as the Central Government may decide:
Provided that the mental health establishments under the control of the Central Government, before the commencement of this Act, registered under the Mental Health Act, 1987 (14 of 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 Central 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 Central Government.”
8. Chapter IX of the Mental Healthcare Act, 2017 deals with finance, accounts and audit. Section 57 of the said Act speaks about grants by the Central Government to Central Authority and it reads thus:
“57. Grants by Central Government to Central Authority
The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Central Authority grants of such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.”
9. Section 58 of the Act speaks about the Central Mental Health Authority Fund, which is extracted below:
“58. Central Mental Health Authority Fund
(1) There shall be constituted a Fund to be called the Central Mental Health Authority Fund and there shall be credited thereto—
(i) any grants and loans made to the Authority by the Central Government;
(ii) all fees and charges received by the Authority under this Act; and
(iii) all sums received by the Authority from such other sources as may be decided upon by the Central Government.
(2) The Fund referred to in sub-section (1) shall be applied for meeting the salary, allowances and other remuneration of the chairperson, other members, chief executive officer, other officers and employees of the Authority and the expenses of the Authority incurred in the discharge of its functions and for purposes of this Act.”
10. While Section 57 of the Mental Healthcare Act speaks about grants by the Central Government to the Central Authority, for being utilized for the purpose of this Act, and Section 84 of the Act, deals with grants by Central Government for meeting salary, allowances, and other remuneration to the Chairperson of the Central Authority, members, officers, and other employees of the Central Authority, as well as for meeting the salary, allowances, and other remuneration to the Chairperson, members, officers, and other employees of the Board, Section 58 of the Central Mental Health Authority Fund makes a distinction that it deals with Funds. Thus, Grant and Fund are distinct.
11. Conjoined reading of Sections 57 and 84 of Mental Health Act makes it clear that the Central Government is statutorily mandated to make grants to the Central Authority of such sum of money as Central Government think fit for being utilized for the purposes of this Act, which includes meeting the salary, allowances, and other remuneration to Chairperson, members, officers, and other employees of the Board as well.
12. Earlier, in our order dated 28.1.2021 at paragraph 22, we have observed that “Mere constituting committees and appointments to various offices/posts would not serve the purpose for which the enactment has been made, unless and until, the members of the Board are also paid the salary and allowances by the Central and State Governments, as the case may be.”
13. As per Section 34 of the Mental Healthcare Act, 2017, Secretary or Additional Secretary to the Government of India in the Department of Health and Family Welfare will be the Chairperson ex-officio.
14. Having regard to the objects and purposes of the enactment, and to make the authorities and Boards functional, we direct the Secretary to the Government, Department of Health and Family Welfare, Union of India to discharge the statutory functions, mandated under Sections 57 and 84 of the Act, and grant such sums of money as the Central Government may think fit for the purposes of the Act, as early as possible, but not later than two months from the date of receipt of this judgment.
15. No sooner the Central Government makes to the Central Authority grants of such sums of money, for meeting the expenses of salary, allowances and other remuneration to the Chairperson, members, officers and other employees of the Board, be disbursed to the Kerala State Authority so as to make the Committees and Boards functional at the earliest.
16. With the above directions, writ petition is disposed of.
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