INDIAN PARLIAMENT: RESPONDING TO INTERNATIONAL OBLIGATIONS REGARDING THE RIGHTS OF MENTALLY ILL PEOPLE

By Mr Tarun Arora[1]

Faculty at Baba Farid Law College, Faridkot

In a most tragic incident at Erwadi, near Ramanathapuram, 25 people including 11 women were charred to death. A devastating fire broke out at 5 am, in the thatched hostel housing them. Out of the 46 hostel inmates, 40 were chained to their beds. They kept screaming for help but no one came to their rescue. The 46 hostel inmates were mentally ill. Erwadi is considered a holy place and has a Dargah. People from various parts of the country brought their loved ones to this place in the belief that the Dargah here had magical powers to cure mental illness. During the course of the 'treatment', these persons with mental illness were frequently caned, whipped and beaten up in the name of 'driving away the evil'. During the day, they were tied to trees with thick ropes. At night, they were tied to their beds with iron chains.

PUCL Bulletin, December 2001

The question under consideration is that the population of India is crossing the figure of 10 million and 5% of the population is afflicted of mentally illness and mentally disorder, means 5 crore persons. After going through the above-referred news- it strikes our mind-what about their human rights?

The Preamble to the Constitution of India assures the equal treatment and equality of opportunity and status to all the citizens. No discrimination is allowed on the basis of race, religion, race, caste, place of birth, sex code or any of them etc. It assures the dignity of the individual. It is important to point out here that dignity of the individual is a fundamental notion behind all the fundamental rights guaranteed under part III of the Constitution. Right to dignified life is not only a fundamental right but also a human right, civil right recognized by number of international treaties and obligations.[2] The Preamble to the Constitution of India & Part III of the Constitution imposes a negative obligation on the part of the state ‘not to restrain the liberties and rights guaranteed under the same part.’ Further the State has been directed under the various provisions of the constitution to extend similar treatment to all persons. Article 41 declares that, ‘The State shall, within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement.’ Article 46 lays down an obligation on the State ‘To promote with special care the educational and economic interests of the weaker sections of the people, … and … protect them from social injustice and all forms of exploitation.’

Apart from this, various international conventions also compelled Indian government to join the worldwide movement to protect the dignity of mentally disabled persons.

The movement started in the earlier years of decade of 1980 When General Assembly adopted the Declaration on the Rights of Mentally Retarded Persons.[3] However, a little attention has been paid to the rights of disabled persons while passing of Universal Declaration of Human Rights. The Declaration was intended as a common standard of attainment for all nations. Though it was not seen at the time as imposing binding legal obligations on governments yet in practice the Declaration has obtained a substantial force. Article 25 of the Universal Declaration states that “each person has, the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control.” The United Nations was founded on the principle of equality for all. The Preamble of the Charter affirms the dignity and worth of every human being and gives primary importance to the promotion of social justice. Persons with disabilities are, de-facto, entitled to all the fundamental rights upheld by the Charter and other human. Bearing in mind the necessity of assisting mentally retarded persons to develop their abilities in various fields of activities and of promoting their integration as far as possible in normal life, the Declaration on the Rights of Mentally Retarded Persons proclaimed the necessity of protecting the rights and assuring the welfare and rehabilitation of the physically and mentally disadvantaged. The Declaration also enumerated some rights as the pre-requisites to be complied with and protected to ensure the human rights of mentally disabled persons. These rights were:

1. The mentally retarded person has, to the maximum degree 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. Whenever possible, the mentally retarded person 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 receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life.

5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests.

6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.

7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.

Therefore the Declaration stipulated that mentally retarded persons are accorded the same rights as other human beings, as well as special rights corresponding to their needs in the medical, educational and social fields. In 1975, the General Assembly adopted, the “Declaration on the Rights of Disabled Persons” which proclaimed equal civil and political rights of disabled persons the inherent right to respect for their human dignity; the same fundamental human rights, whatever the origin, nature and seriousness of their handicaps and disabilities, as their fellow citizens, including the right to a decent life, as normal and full as possible[4]; the right to legal safeguards against abuse of any limitation of rights made necessary by the severity of a person's handicap[5], including regular review and the right of appeal[6]; the right to protection against exploitation or discriminatory, abusive or degrading treatment[7]; and the right to qualified legal assistance to protect their rights, and for legal procedures to take their condition fully into account[8]. Then in 1976, the General Assembly declared that the year 1981 will be the International Year of Disabled Persons and called for a plan for action at the national, regional and international levels with an emphasis on equalization of opportunities, rehabilitation and prevention of disabilities. An important outcome of the International Year of Disabled Persons was the formulation of the World Programme of Action concerning Disabled Persons, adopted by the General Assembly in December 1982. For implementing the activities recommended in the World Programme of Action, within a time frame, the General Assembly proclaimed 1983 - 1992 the United Nations Decade of Disabled Persons. The Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (MI Principles) were adopted by the UN General Assembly and UN Commission on Human Rights in 1991. These principles offer important guidance for standard setting. The Principles focus primarily on human rights in relation to the mental health system. It affirmed that every person with a mental illness has the same basic rights as every other person, specifically including the rights set out in the ICCPR and the rights recognized in the Declaration on the Rights of Disabled Persons[9]; that discrimination on the basis of mental illness is not permitted[10]; and that people being treated for a mental illness must be accorded the right to recognition as a person before the law[11]. This exercise led to the adoption by the General Assembly of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993, which served as an instrument for policy making and a basis for technical and economic co-operation. Coming to the scenario prevailing in Asia, Economic and Social Commission for Asia and Pacific organized a meeting at Beijing in which Full Participation and Equality of People with Disabilities in the Asian and Pacific Region was adopted and 1993-2002 was launched as a decade for the achievement of the same goal.

Therefore the attitude of the society towards persons afflicted with mental illness has changed considerably and it is now realized that no stigma should be attached to such ill-ness as it is curable, particularly, when diagnosed at an early stage. Mentally ill persons are to be treated like any other sick persons and the environment around them should be made as normal as possible.

Though the government recognised the need for such a legislation as early as 1980, it was enacted only in 1995. The delay could be attributed to the fact that the Indian Constitution while distributing legislative powers between the Centre and States kept the disability issue in the State list at Entry 9 of Schedule 7. The Parliament of India gained competence to legislate on disability issues with the signing of the Proclamation of Equality and Full Participation of People with Disabilities in Asian and Pacific Region. Article 249 of the Constitution empowers the Parliament to legislate on any subject falling in any list in order to fulfil its international obligations. Being a signatory to the number of conventions, with a view to implement the Proclamation, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted w.e.f. 1^st January 1996.

The enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( referred to as Persons with Disabilities Act) is a signal achievement of the Indian disability movement. Preamble to this Act clearly delineates its objective of promoting and ensuring equality and full participation of persons with disabilities. The Act aims to protect and promote economic and social rights of people with disabilities. In literal sense, disability is a result both of the biological condition of the individual and of the social status that attaches to that biological condition. The word ‘disability’ under Medical Jurisprudence connotes (a)the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

Though the words disability has not been defined under the Act , but it may be pointed out that the Act covers seven disabilities under section 2(i) of the Act - blindness; low vision; leprosy-cured; hearing impairment; loco-motor disability etc. The same clause of section 2 (I) also deals with mental retardation & mental illness. Mentally disabled people means, “mental illness" means any mental disorder other than mental retardation.”[12] "Mental retardation" means a conduction of arrested or incomplete development of mind of a person which is specially characterized by sub-normality of the intelligence; [13]

The Act spells out responsibilities of the Government at all levels including establishments under its control. It lays down specific measures for the development of services and programmes for equalising opportunities for the enjoyment of right to education, work, housing, mobility and public assistance in case of severe disability and unemployment. To execute the mandated responsibilities, a Central Co-ordination Committee and State Co-ordination Committees representing major developlement ministries, Members of Parliament and disability NGOs and having a woman with disability as a member have been envisaged in a multi-sectoral model. Furthermore, the institution of Chief Commissioner in the Centre and Commissioner for Persons with Disabilities in States has been proposed . Their mandate is to redress individual grievances, provide safeguards to the rights of persons with disabilities, monitor implementation of disability related laws, rules and regulations, and oversee utilisation of budget allocated on disability.,. These quasi-judicial bodies are vested with the powers of a civil court.

This historic legislation is a corner stone of evolution of jurisprudence on the rights of persons with disabilities in India. As a result, disability concerns have come into sharp focus. However, within a period of ten years of enforcement of this Act its weaknesses have also surfaced in the absence of a powerful implementing instrumentality. Unlike usual indifference the government soon realised these weaknesses and acceded to the demand of the disability movement for overall review of the Act. Towards this end a committee was constituted which harmonised views of the disability sector and relevant bodies in its comprehensive report. Unfortunately, no concrete proposal has been moved to the Parliament so far for carrying out amendments that have been felt necessary to plug loopholes in the present Act.

Prior to the enactment of the Persons with Disabilities Act, Mental Health Act, 1987 was in application. It was intended to provide for the treatment and care of mentally ill persons, to make better provision with respect to their property and affairs and for maters connected therewith or incidental thereto. The Act provides that any person (not being a minor), who considers himself to be a mentally ill person and desires to be admitted to any psychiatric hospital or psychiatric nursing home for treatment, may request the medical officer in charge for being admitted as a voluntary patient.[14] If the person to be admitted is minor, the request can be made by the guardian.[15] The Medical Officer In charge of the nursing home may discharge the person on the request made by Voluntary Patient or his guardian (if minor). In special circumstances, a friend or relative or mentally ill person can also make the application to admit him in the nursing home.[16]

Further in order to protect the right to personal liberty of such people under Article 21 of the Constitution, Section 23 of the Act makes enough arrangement. It empowers a police official to arrest a mentally ill person who is incapable of taking care of himself.[17] After arresting, the police officer is bound to inform without any delay to clear the grounds for detaining him, if he is able to understand. If such person is not capable of understanding those grounds, his relatives or friends, if any, may be informed of such grounds.[18] The person taken into protection shall be produced before the nearest Magistrate within a period of 24 hours.[19] The Magistrate can pass appropriate order under the various provisions of the Act.[20] The Mentally ill person also enjoys the right to maintenance.[21] The Act further recognizes the right of the mentally ill persons to meet their relatives or friends. The visitors are allowed not less than 3 visits in a month and during their visit, they can check the register and record regarding treatment. Not only their right to life and personal liberty but right to property has also been recognized and protected under the Act. [22] With the prior approval or direction of the Court, the Manager or guardian of the property can enter into contract on behalf of Mentally Ill persons.[23] The manager of the business of such a person has also been empowered to dispose of the business, if it is beneficial in the interest of mentally ill persons, with the prior approval of the court.[24] Chapter VIII of the Act strictly prohibits the deprivation of human rights of mentally ill persons, section 81 clause (1) clearly provides that, ‘No mentally ill person shall be subjected during treatment to any indignity (whether physical or mental) or cruelty.’ Further the section prohibits use of body of mentally ill person for the purpose of any sort of research without his permission, if he is able to understand.[25] The Act further lays down comprehensive provisions for penalty in case of violation of any of the rules and directions contained under various chapters.

Another milestone of the movement is passing of Rehabilitation Act of India, 1992. The Rehabilitation Council of India was set up by the Government of India in 1986 to regulate and standardise training policies and programmes in the field of rehabilitation of persons with disabilities. The urgent need for minimum standards was felt as the majority of persons engaged in education, vocational training and counselling of persons with disabilities were not professionally qualified.

As certain groups among the disabled are more vulnerable than others, a special enactment for the protection of such persons, their property and well-being was felt necessary. The enactment of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (referred to as the National Trust Act) aims to fulfil a common demand of families seeking reliable arrangement for their severely disabled wards. The specific objectives of the Act are to enable and empower persons with disabilities to live as independently and as fully as possible within and as close to the community to which they belong; To promote measures for the care and protection of persons with disabilities in the event of death of their parent or guardian; and To extend support to registered organisations to provide need based services during the period of crisis in the family of disabled covered under this Act.

In conclusion, it may be submitted that problem has been recognized and recognition of problem is the first step towards removing them. Although legislative initiatives in India promote equality of people with disabilities by granting them basic social, economic and cultural rights and by taking various affirmative and special measures to achieve real equality, corresponding improvements in the lives of people with disabilities are not yet noticeable. Perhaps, the continued faith in charities and a welfarist mindset are the major stumbling blocks in the process of mainstreaming disability in the development agenda. Now the time has come when there should be a presumption of ability that a person should also enjoy his basic rights and other rehabilitation goals regardless of the severity of his or her disability, if appropriate services and supports are made available. The existing laws and the constitutional equality provision, if properly implemented, should ensure a fuller life with dignity to the disabled persons. The financial constraints cannot be put forth by the State for dealing with the implementation of the rights of these people. There is a Constitutional obligation on the part of the State to ensure equal opportunity to all persons including disabled persons. This gives them a right to seek removal of their handicaps so as to place them on a Competitive level with others by making supportive provisions which can enable them to exercise their Fundamental right to life to its fullest extent. Inasmuch mentally ill persons deserve the same rights enjoyed by any other human being.[26]

Any attempt at guaranteeing, securing and protecting the human rights of the mentally ill has to start with sustained awareness-raising campaigns aimed simultaneously at civil society and the state.

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[1] Co-ordinator, Legal Forum, Baba Farid Law College, Faridkot. : Associated Member: Indian Society of International Law, New Delhi. (II) Indian Academy of Social Sciences, Allahabad. (III) International Institute of Human Rights, New Delhi

[2] UDHR, ICSSR, ICCPER,

[3] Proclaimed by General Assembly resolution 2856 (XXVI) of 20 December 1971

[4] Principle 2

[5] Principle 3

[6] Principle 4

[7] Principle 10

[8] Principle 11

[9] Principle 1.5

[10] Principle 1.4

[11] Principle 13

[12] 2(q) of the Act; 2 (l) of Mental Health Act, 1987

[13] 2( r) of the Act.

[14] Section 15, Chapter IV Part I of the Act

[15] Section 16, Chapter IV Part I of the Act

[16] Section 19, Chapter IV Part I of the Act

[17] Section 23(1)(a) of the Act.

[18] Section 23 (2) of the Act.

[19] Section 23 (3) of the Act.

[20] Section 24, 25, 26 ,27 ,28 ,29 , 30, 31, 32, 33, 34, 35 & 36 of the Act.

[21] Section 25 (4) & 79

[22] 52. (1) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is in capable of taking care of himself and of managing his property, it shall make an order for the appointment of the Guardian under section 53 to take care of his person and of a Manager under section 54 for the management of his property.

53. (1) where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under subsection (2) of section 54, the Collector of District, may appoint any suitable person to be his guardian.  (2) in the discharge of his functions under sub section (1), the Collector shall be subject to the supervision and control of the state government of any authority appointed by it in that behalf.

54. (1) Where the property of the Mentally ill person who is incapable of managing it is such as can be taken charge of by a court of wards under any law for the time being inforce, the District Court shall authorise the court of wards to take charge of such property and there upon not withstanding anything contained in such law, the Court of wards shall assume the management of such property in accordance with that law. 55. Where the property of a mentally ill person has been entrusted to the collector by District court under subsection (2) of section 54, he may, subject to the control of the State Government or any authority appointed by it that behalf, appoint any suitable person for the management of the property of the mentally ill person.

56. Every person who is appointed as the manager of the property of the mentally ill person by the District Court or by the Collector shall, if so required by the appointing authority, entering into a bond for such sum, in such form and with such sureties as that authority, may specify, to account for all receipts from the property of the Mentally ill person.

57. (1) No person, who is the legal heir or a mentally ill person shall appointed under section 53, 54 or 55 to be the guardian of such mentally ill person of, as the case may be, the manager of his property unless the District Court or, as the case may be, the Collector, for reasons to be recorded in writing considers that such appointment is for the benefit of the mentally ill person.

(2) The guardian of a mentally ill person or the manager of his property or both appointed under this act shall be paid, from out of the property of the mentally ill person, such allowance as the appointing authority may determine.

58. (1) Every person appointed as a guardian of a mentally ill person or manager of his property, or of both, under this act shall have the care of the mentally ill person or his property, or of both, and be responsible for the maintenance of the mentally ill person and of such members of his family as are depended on him.

( 2) where the person appointed as guardian of a mentally ill person, is different from the person appointed as the manger of his property, the manger of his property shall pay to the guardian of the mentally ill person such allowance may be fixed by the authority appointing the guardian for the maintenance of the mentally ill person and of such members of his family as are depended on him.

59. (1) Every manager appointed under this act shall, subject to the provisions of this act, exercise the
powers in regard to the management of the property of the mentally ill person in respect of which he is appointed as manager, as the mentally ill person would have exercised as owner of the property had he not been mentally ill, and shall realize all claims due to the estate of the mentally ill person and pay all debts and discharge all liabilities due from that estate.

[23] Section 62 & 63 of the Act.

[24] Section 64 of the Act/

[25] Section 81(3) of the Act.

[26] National Human Rights Commission in its report Quality Assurance in Mental Health published in 1999 referred in Indian Journal of Medical Ethics, November 2003(1)