INTRODUCTION:

“My own view is that this planet is used as a penal colony, ground by asuperior civilization, to get rid of the undesirable and unfit. I can’t prove it butyou can’t disprove it either.” – Christopher Hitchens

People are considered to be the vital resource, an assetfor the development of any country. Hence, the statecomes under a positive obligation to protect theirrights. The main idea of having mental health laws andpolicies is to protect the sufferer’s human rights and toavoid the harm to general public and the sufferers. Indiawith the population of 1.27 billion has the humanresource in abundance, but out of the whole populationthere are around 5-6% of it, which cannot be consideredas an asset but a liability over a state. If healthyminds are considered to be an asset, unhealthy minds area liability and there is a great burden on the economicaldevelopment of the country.1 People who suffer from mentalillness are already marginalized by the society; hencemore importantly it is the duty of the government toprotect the rights of such people.2 In India, where thepopulation is growing every second the facilitiesprovided to them are not as desirable and adequate as itshould be. More then 80% of the districts in India lackthe psychiatric facilities in hospital.3 India is adiversified country with immense variance in itslanguage, difference of literacy and cultural practicesthat it gets difficult to organize for mental healthservices especially in rural areas.4 People who arevictims of mental illness are the most vulnerable section1 Nizamie, Haque S. and Goyal, Nishant. (2010). History of psychiatryin India. Indian Journal of Psychiatry. 52 (1), 7-12.2

http://www.youtube.com/watch?v=gvdBSSUviys&list=PLdlDBEjhKhTccnhXoAWfEigXma0SdFFjS&index=2

3 Manosarovar, Shraddha. (). Mental Health in India. Available: http://www.shraddharehabilitationfoundation.org/mental-health.htm. Last accessed 10th June 2013.4 Thara, R; Padmavati, R and Srinivasan, T.N.. (2004). Focus on Psychiatry in India. The British Journal of Psychiatry. 184 (4), 366-373.

of the society who constantly comes in contact withcruelty, ridicule, abuse and neglect of their legitimaterights.5 Earlier, in India, mental hospitals were not usedfor the treatment but as an institution where they can belocked up and kept away from the society, ripping them oftheir dignity. In the paper I would be discussing various aspects ofpsychiatry law related to India. To understand thepresent situation of anything it is very important thehistory of it is studied. Therefore, I will be discussingthe history starting from the Vedas, to the Mughal era,where the kings tried to provide medical facilities forthe poorly and ill, to the period when India was underthe British control which established various laws in thecountry which resulted in further reformed legislationseven after independence. Next chapter would be discussingone of the legislations, which ruled the mental healthlaw for more then two decades, i.e., Mental Health Act(MHA), 1987 with the Mental Health Care Bill (MHRB),2013, which is considered to be revolutionary. Whilecomparing both the acts, I would also be discussing thecase laws and analyzing what would have been the outcomeif the new bill were enforced earlier. India has signedand ratified the United Nation Convention of Rights ofDisabled Person (UNCRPD) in 2007 and 2009 respectively;third chapter will be discussing how far the new bill hascomplied with the convention and where it fails to complywith it and would give a reality check of the shortcomingon the part of resources. In conclusion, I would begiving my ideas and giving my point of views on the wholeaspect of psychiatry and laws related to it.The methodology I would be using is purely desk base andI have relied mostly on articles from various newspapersand journals. HISTORY OF PSYCHIATRY IN INDIA:

“Study history, study history. In history lies all thesecrets of statecraft.” –WINSTON CHURCHILL6

5 Kamra, Aakarsh and Tiwari, Garima. (2012). Mental Health Care Bill 2012. The Lex-Warrier.6 http://www.brainyquote.com/quotes/topics/topic_history.html#Ghb1TyP3J

History is a screen through which the past lightens thepresent and the present brightens the future.7 History ofanything teaches us the reasons for the presentsituation, which can help in bringing the change. Onlythrough studying history can we grasp how things change;only through history can we begin to comprehend thefactors that cause change; and only through history canwe understand what elements of an institution or asociety persist despite change. 8

The ancient Indian thought emphasized the theory ofunity of body and soul and also explained how to dealwith health and mental health problems in a psychosomaticway. In ancient India, people with the abnormal behaviorwere considered as “devil”. The cause of such a behaviorwas believed to be caused because of the sins of the pastor that they were haunted by the demons. Over the yearsthe concept of mental illness has shifted from “devil” to“ill”. Even after they were considered as ill, thetreatment towards them was horrible; they were treated ascriminals and were kept in jails where they wereexploited because of their condition. Knowing thesefacts, is important as still in some parts of India,people think that treatment of mental illness is at somereligious place where they are neglected, restraint andabused, provided with poor clothing, unhygienicsurrounding, poor food and are chained by hands and feetrestricting their movements.

THE CLASSICAL TRADITION:Indian mythology is very vast and has something or theother related to every aspect of life. Rig Veda is theoldest and the first available document of Indianliterature, which provides hints of mythological andreligious meanings attached to mental health. Even thepost Vedic period literature, like the “Mahabharata”, the“Brahmans”, the “Tantras”, the “Ramayana” and the

OUYrYG6.997 Nizamie, Haque S. and Goyal, Nishant. (2010). History of psychiatryin India. Indian Journal of Psychiatry. 52 (1), 7-12.8 http://www.historians.org/pubs/free/WhyStudyHistory.htm

“Purans” contains innumerable references to mental healthand illness.9 Ramayana and Mahabharata are the two greatepics in Hindu mythology, which gives a fictionaldescription of disordered states of mind and alsoproviding means of coping up with them. The Bhagvad Gitais a classical example of crisis interventionpsychotherapy.10

“The one whose “doshas” are balanced, whose metabolism isbalanced, whose tissues and eliminations are normal, andwhose senses and mind are centered in the self, isconsidered healthy and remains full of bliss.” This isthe quote from Shushruta Samhita, which is one of themanuscripts of Ayurveda, which reveals natural conditionof mind as a state of happiness. According to Ayurvedathe three main reasons for the imbalance of one state ofmind is caused because of disturbances in 3 doshas, i.e.,vata dosha (air and space), pitta dosha (fire and water)and kapha dosha (water and earth). The other mainmanuscript of Ayurveda is Charaka Samhita wherepsychiatry was called as “bhuta vidya”, in which the maincause of mental illness was associated with ill influenceof certain mythological gods or demons. Charak Samhitahad described various attributes for a hospital includingits location, details of equipment’s, food andcleanliness and model code of conduct for physicians,nursing staff and ward attendants. The ancient scriptureAtharva Veda also mentions about mental illness statingthe main cause as divine curses and it also gives a vividdescription about schizophrenia. In these inscriptionsthe treatment was restricted to giving shocks to thepatients and terrorizing them by snakes, lions, elephantsor men dressed as bandits. In 1222 AD, an Indian physician Najabuddin Unhammad,described seven types of mental disorders viz :- Sauda-a-Tabee(Schizophrenia); Muree Sauda (depression); Ishk( delusion of love); Nisyan (Organic mental disorder);Haziyan (paranoid state); Malikholia-a-maraki (delirium).

9 Parkar, SR, et at. (2001). History of psychiatry in India. Journal of postgraduate medicine. 47 (1), 73-76.10 Thara, R; Padmavati, R and Srinivasan, T.N.. (2004). Focus on Psychiatry in India. The British Journal of Psychiatry. 184 (0), 366-373.

Psychotherapy was known as Ilaj-I-Nafsani in UnaniMedicine.11 The other system was Siddha system, whichformulated treaties for mental illness, was called as“agastiyar kirigai nool” in which 18 psychiatricdisorders with appropriate treatment was described.

THE MUGHAL ERA:Historians believe that hospitals in India were builtwere in 600 BC which were efficient in treatment andcare. During the reign of great king Asoka, manyhospitals were established, which used to provide formentally ill. Though there is not much evidence of theestablishments, which were built during that time, but inAsoka Samhita, it has been scribed that hospitals werebuilt with separate enclosures for various treatmentsduring those times. The other inscriptions, which provideus information with the mentally ill people, are theinscriptions on the walls of temple of lord Venkateshwaraat Tamil Nadu. Even with the prevalence of hospitals andinstitutions people had carried on the same fear thatmentally ill were cursed and hence they were alienatedand there have been evidence showing that in Punjab andGujarat people used to abandon mentally ill in shrine ofShahdaulas Chauhas, (chau meaning rat). In 1436-1469,Mohammad Khilji, opened a psychiatric hospital i.e.,Mandu hospital at Dhar who’s in charge was MaulanaFazulur- lah hakim. Even before the British ruled India, it is consideredthat in seventeenth centaury when Portuguese discoveredour country, along with them, they also bought theconcept of modern medicine and modern hospital.

THE COLONIAL RULE:In the 1700s, India was surrounded by epidemics likemalaria, cholera, small pox, typhoid and venerealdiseases and everyone gave more importance to physicalhealth then mental health. Hence there was growing needto pay attention to mental health. Thus, even thoughthere was a lot of political instability because ofBritish invasion, states like Calcutta, Madras and Bombay

11 Parkar, SR, et at. (2001). History of psychiatry in India. Journal of postgraduate medicine. 47 (1), 73-76.

were seeing development in lunatic asylum. The credit forthe development was mainly the efforts of Britishenterprise, which introduced the concept of separatingmentally ill people in asylums and putting them underconstant supervision of trained people.

Warren Hastings, the first Governor General, during hisregime in 1784 introduced the ‘Pitts India Bill’according to which the activities of the Government ofthe East India Company came under the direction of a“Board of Control” and systematic reforms and welfareactions were taken during Lord Cornwallis (1786-93) rule.[17] It was during his rule that there is a reference ofthe first mental hospital in this part of India atCalcutta recorded in the proceedings of Calcutta MedicalBoard on April 3, 1787, which became the reference pointof inception of colonial influence on development ofpsychiatric care in India.[15]12

As, British influenced mental asylums; it only used tocater European soldiers. At that time, in 19th centaury,it was thought that mental illness among Europeansoldiers was caused due to Indian climate and they werekept in asylums for six months and then were sent back.13

These asylums were not meant for treatment but were a wayto segregate them from the society. During 1745-1857,India saw a lot of development of lunatic asylums, infact in 1745, in Bombay the earliest lunatic asylum wasestablished which was meant to accommodate 30 mentallyill patients. On 17th April 1795, first government runlunatic asylum was opened in Monghyr in Bihar especiallyfor insane soldiers. 14 The methods used to calm patientsincluded use of opium, leeches to suck their blood andsometimes even music. While the European soldiers werebeing kept in asylums, the Indian people who were

12 Nizamie, Haque S. and Goyal, Nishant. (2010). History of psychiatry in India. Indian Journal of Psychiatry. 52 (1), 7-12.13 Banerjee, G. (2001). The law and mental health: an Indian perspective. Mental Health Reviews,  Accessed from <http://www.psyplexus.com/excl/lmhi.html> on 11th June 201314 Varma LP. History of psychiatry in India and Pakistan. Indian J Neurol Psychiatry. 1953;4:26–53

suffering from mental illness were being treated in atraditional way through Ayurveda and Unani medicine.

India being under the influence of contemporary legalsystem of Britain, the British parliament passed thefirst legislation for India in 1851, which was known as“lunatics removal act”.15 Later on there was awarenessamong people about mental health that led to formulationof first lunacy act in the year 1858. The Act set upguidelines for the establishment of lunatic asylums aswell as the procedures for the admission of lunatics. TheInspector General of Prisons was managing theadministration of the asylum. Mostly custodial care wasprovided to inmates in mud houses. The wards and livingconditions of inmates were very poor and unhygienic;lice’s were seen even on the walls and many patients diedbecause of diarrhea.16 A committee appointed in Bengallater modified the act in 1888. Drugs like chloralhydrate was also introduced during this time only.

The rise in capitalism, urbanization, medical facilitiesand awareness among people in 20th centaury, it finallyled to a new phase of mental health with the introductionof Indian Lunacy Act, 1912. It was a huge step towardsthe psychiatry law in India. In 1911, Indian press waslaying a lot of stress on Indian government bycriticizing the legislations prevailing that time andhence, a bill was introduced in the council of governorgeneral of India, which consolidated various lunacy lawswith amendments, which were in force in India at thattime. Hence, the Indian Lunacy Act of 1912 was passed.Under the new act, European lunatic asylum was started inBhowanipore, which was later shut down in 1918 after theestablishment of European hospitals at Ranchi. The roleof such asylums and hospitals were less of custodial andmore of therapeutic and more humane. The act led to quiet

15 Banerjee, G. (2001). The law and mental health: an Indian perspective. Mental Health Reviews,  Accessed from <http://www.psyplexus.com/excl/lmhi.html> on 11th June 201316 Sudhir, Kumar, et at. (2008). Institute of mental health and hospital, Agra: Evolution in 150 years. Indian Journal of Psychiatry. 50 (4), 308-312.

a development in many ways. The origins of psychiatricrehabilitation in India can be traced to innovativeservice programs, which were initiated at the centralinstitute in 1922 when occupational therapy units startedat this place.17 All the mental hospitals were centrallysupervised and were removed from the grips of inspectorgeneral of prison.18 Specialist who was familiar withrecent medicine was appointed for the treatment ofpatients. The patients were treated kindly and they weregiven proper diet and were provided with occupationaltherapy. Though a lot of asylums discouraged restraintsbut asylums in Patna and Dullunda used restraints likebelts, sheets and handcuffs. Even after the act, theasylums wrongfully detained people and over the years thecondition of the hospitals also deteriorated. In 1920,words like “lunatics” was replaced by “patients and“lunatics asylums were called “mental hospitals”. Even ifthe minds of people were changing yet somewhere in thevillages of Tezpur, Assam mental hospital was a mixtureof mental home, asylum and prison. IN 1946, Col. M. Taylor formed a committee which wascalled “Bhore Committee” to check the mental hospitals inthe country. In his report he wrote “the majority ofmental hospital in India are quiet out of date, and aredesigned for detention and safe custody without regardsfor curative treatment.” He also made a lot ofrecommendation which included: to undertake pilotprojects to assess existing mental health care program ina defined populations and training program for healthworkers and to devise a manual for the same.19 During1959-60, a lot of suggestions were made to amend theexisting act and there was a lot of pressure from thepeople to repeal the Lunacy Act, 1912. In 1949, ad hoccommittee prepared and drafted “Indian Mental HealthAct.” Though there was no change in the law for a long

17 Nizamie, Haque S. and Goyal, Nishant. (2010). History of psychiatry in India. Indian Journal of Psychiatry. 52 (1), 7-12.18 Banerjee, G. (2001). The law and mental health: an Indian perspective. Mental Health Reviews,  Accessed from <http://www.psyplexus.com/excl/lmhi.html> on 11th June 201319 Parkar, SR, et at. (2001). History of psychiatry in India. Journal ofpostgraduate medicine. 47 (1), 73-76.

time but the minds of people were changing and weredemanding less rigid procedure for administration,treatment and discharge. In 1982, government of India started a national mentalhealth programme, which aimed at prevention and treatmentof mentally ill, use of new technology to improve healthcare and application of mental health problems in totalnational development to improve the quality of life.20 Themain reason for launching the programme was to reduce theburden that country was facing because of mental illnessand to improve the mental health infrastructure in thecountry.Finally in 1981, after a lot of hassles in the parliamenta bill was passed and after six years it was enacted in1987 and mental health act was introduced.

In 1947, when India got its independence it also bought ahuge makeover of mental hospitals. In states like Delhi,Jaipur, Kottayam and Bengal few of mental hospitals wereopen. The Mental Health Act of 1987, was more of layingemphasis on improving the conditions of existing mentalhospitals and at the same time encouraging outpatientcare.21 The act aimed in achieving goals which are asfollow: 1) to regulate the admission of people inpsychiatric institutions who were not capable enough totake decision and to protect them from being detained. 2)To protect society from the mentally ill people who mightbecome danger to them. 3) To protect citizens from beingdetained in psychiatric hospitals without any sufficientmedical reasons. 4) To regulate the maintenance chargesof ill person who were admitted to psychiatric hospitalsor nursing home. 5) To provide for guardians of mentallyill to take care of them as they were incapable of doingthemselves. 6) To establish the central authority andstate authorities for mental health services, which wouldconsider the complaints, made by the individuals. 7) Toregulate the powers of the government for establishing,

20 http://www.nihfw.org/NDC/DocumentationServices/NationalHealthProgramme/NATIONALMENTALHEALTHPROGRAMME.html21 Nizamie, Haque S. and Goyal, Nishant. (2010). History of psychiatry in India. Indian Journal of Psychiatry. 52 (1), 7-12.

licensing and controlling psychiatric hospitals andnursing homes for mentally ill persons. 8) To provide forgovernment funded legal aid to mentally ill person.22 AsUnited Nation Convention on the Rights of Disabled Personwas not in existence the act had no internationalstandards to comply with. In 2006, when the UNCRPD wasenforced the countries who ratified with the act had toinclude the essence of the convention in theirlegislature and thus Mental Health Care Bill, 2013 wasintroduced. Next chapter of my dissertation will bediscussing the MHA, 1987 in length and comparing it withthe new bill, MHCB, 2013. After knowing about whole of the history of psychiatrylaw in India, the whole of it can be divided in threemajor phases. First phase was the one in which the causeof mental illness was sins of previous life, witchcraftand possession by evil soul and thus either they werechained in jails and asylums or religious rituals likeexorcism were performed. The second phase was theintroduction of psychoanalysis, which was used to explainthe etiology of psychiatric disorders. The third phase isthe present phase, in which community treatment is usedfor psychiatric patients, which has led to integration ofmental health in the community.

 MENTAL HEALTH ACT VS MENTAL HEALTH CARE BILL

“The chain is blackened and the ring is horribly twistedbut still fastened to the charred stump- of a leg.” OnAugust 6, 2001, in a far away village at Erwadi insouthern Tamil Nadu a mental home name Moideen Badushamental home, had a devastating fire in which 25 peoplewho had been dumped and forgotten by their families, losttheir lives.23 J. K. Trivedi in his article said, “overtlythis may appear just another callous neglect in attention

22 Mental Health Act, 1987 - Description http://www.medindia.net/indian_health_act/mental-health-act-1987-description.htm#ixzz2b92b70Lf

23 Death of 25 Chained Inmates in Asylum Fire in T. Nadu, In Re Vs.Union of India, AIR 2002 SC 979

of policy makers in our over-populated accident pronesociety, but the reason is more deep and multi-factorialwith an equal contribution from, false beliefs in themasses, faulty state policies, lack of knowledge aboutmental illnesses in the health care policy makers, stigmatowards mental illness and beliefs about itsuntreatability.”24 If a person is mentally challenged arethey any less worthy of respect and humane treatment, theErwadi incident was a slap on Indian government. Themental home which was home to many mentally challengedpeople became the crematorium of 28 people and after thefire what all was left burnt bodies tied to chains.Eyewitnesses of the incident told media that, “had theirlegs and wrists not been chained, they could have escapedthe blaze.”25 The 800 year old dargah, where 46unfortunate people were living out of them 40 were tiedeither to trees with thick ropes or chained to their bedsand their cry for help was taken as insane act. Thecondition of the place was not only unhygienic but alsodegrading. The patients were chained together (mostly sixor seven irrespective of their illness and gender), andit used to get worse when either of them used to getdiarrhea or epilepsy or became violent. They used toallow taking bath only once in two to three weeks andthey were also made to beg if there families failed topay there residing fees. In the name of treatment theyused to go to dargahs in the evening and dab holy oilfrom the lamp or else they used to be beaten up by theauthorities. The dargah was not run by professionals butby the patients who had been staying there for 15-20years. Same like the Moideen Badusha dargah there weremore 15 such so called “mental asylums” with over 1000patients. These places were not meant to cure people butthey were place where people used to throw away their

24 Trivedi, JK, et at. (2006). What Psychiatry means to us. MSM. 4 (1), 166-183.25 PUCL belletin. (Dec 2001). Shocking neglect of rights of disabled persons. Available: http://www.pucl.org/reports/National/2001/disabled.htm. Last accessed03 Aug 2013.

relatives because of issues like properties or grudge.According to MHA, 1987, if an individual come to knowabout a mentally ill person being ill-treated orneglected, he/she should bring the matter in front of thelocal magistrate. In 1998, I. Nazneen, an activist,having faith in her government brought the issue ofinhuman treatment in such asylums in notice of the localauthorities. All her efforts went down the drain, as theonly thing that was done was committees were formed andrecommendations were made but no concrete step was taken.Even with the laws in hand, it is useless when theauthorities only say that units like these do not qualifyas psychiatric nursing homes and therefore, no action canbe taken against them.26

The Erwadi incident can be considered to be government’snegligence and even the mentality of people. But, evenafter the government realized its mistake they are tryingto change the law and enforce more strict laws, whichwould bring an end to such places. But what about thementality of people, even after 12 years, in a smallvillage of Bangalore, a man name Keshav, was kept insidefour walls for approximately nine- ten years. His ownparents had detained him in four walls with just a holeto pass food. When the local authorities came to knowabout the situation, they broke the walls and theyrealized that he was being kept worst then an animal.Regional commissioner, K Shivaram, was shocked at what hesaw and discovered and "Immediately, I told my people tobreak open the wall. There were 2,000 people gatheredwatching what we were doing. A very bad stinking smellwas coming. We couldn't even peep into the room. It was avery bad state of affairs."27

It is one such incident, which by gods grace came tonotice, but who knows how many more Keshav are kept

26 (2001). Erwadi asylums: A sordid tale. Available: http://articles.timesofindia.indiatimes.com/keyword/erwadi. Last accessed 18th June, 2013.27 Hammond, Claudia. (2013). Mentally ill Indian's hidden decade in solitary. Available: http://www.bbc.co.uk/news/health-22689652. Last accessed 18th June, 2013.

behind the walls without any treatment. Is it because ofthe failure of government’s effort to provide for theircitizens or is it the community at large whose minds needto be changed. The difference between the two of theincidents is that Erwadi incident was caused because ofthe negligence of the government. If the government hadlistened to the complaints made against such institutionsand appropriate step was taken then the lives of thosepeople could have been saved. Even with the relevant lawsfor the protection of mentally ill, the authoritiesfailed to do their part of the duty. Coming over to therecent event, the mind set of the people that mentallyill are nothing but burden on the families and all whatcan be done to them is shut them in the four walls,desperately needs to be changed and no law can do that.Though, both the incidents are totally different there isalso one similarity between them and that is thefacilities provided by the government for their treatmentand rehabilitation. Neither then nor now facilities forthe treatment of the mentally ill is adequate. More thenhalf of the districts and villages in India do not haveaccess to mental health. In situations like these onlychange in the law will not make a difference, at the sametime there is need to create awareness among people andto promote rehabilitation of such people. After theErwadi incident there was need to change the law and thusefforts were made and after a decade MHCB was passed in2013.

Mental health act, came into parliament in 1981, but ittook six years to be passed and was passed in 1987. Eventhough it got its validity in 1987, it came into its fullexistence and was enacted in 1993, but still it wasimperfectly implemented all over the country because ofthe lack of resources. As any law, it also has someadmirable points as well as some questionable points; thefollowing paragraphs will be discussing the advantagesand disadvantages of the MHA and how the MHCB hasresolved the problems.

The MHA was considered to be inadequate but still it wasa step towards the betterment of psychiatry

law. Once compared to Lunacy Act, 1919 therewere a lot of the provisions, which proved tobe good. The first and foremost thing was thechange in terminology, from being called a“lunatic” it was changed to “mentally ill” and“asylums” were called as “psychiatrichospitals”. If seen it is a very small changebut at times these few and small changes makesa lot of difference. A more humane approach wasmade towards the mentally ill and theirproblems. The changes included chapters for theprotection and management of their property,provisions protecting their basic human rightswere included, central and state authoritieswere formed to protect them from anyviolations, prohibition was put on researchwithout proper consent, etc. The procedure foradmission and discharge were simplified andmade easy, for example, voluntary patients nomore required the consent from two visitors andno written request, special provision wascreated for involuntary patients and now minorscould be admitted with the consent of aguardian, which was not there in the earlierlaw. Provisions for maintenance andestablishment of Psychiatric hospitals andnursing homes in private sector were alsoincluded.

It was considered that the MHA suffered from variousfundamental discrepancies and thus was notfulfilling its purpose and a need was felt tobring the law to the par with the changingtimes and international standards and henceMHCB was passed in 2013.28 On comparison of theact and the bill, it is realized that with thechanges that have been envisaged in the bill,it has neglected few good provisions, which arein the act.

28 Kamra, Aakarsh and Tiwari, Garima. (2012). Mental Health Care Bill2012. The Lex-Warrier.

Definition:

It is of great importance that for which the law has beenmade i.e., “mentally ill persons” the act orthe bill defines it with utmost care andproperly. In MHA, mentally ill persons aredefined as “ a person who is in need oftreatment by reason of any mental disorderother than mental retardation.” The main defectin the definition it leaves a wide scope ofinterpretation of mental disorder. It also putsan explicit bar on the treatment of allmentally retarded persons without even definingmental disorder. Trivedi in his book “themental health act: 1987, in ethics inpsychiatry” states that nothing has beenmentioned in respect to what constitutes tomental disorder. The definition of mentaldisorder has been left on tradition andteachings of psychiatry.29 The otherdetermination of a mentally ill person was onthe basis of treatment and because of that, actwill not be applicable to the untreatableconditions like dementia and like. One of thebasic advancement in the bill was thedescription of mental disorder and exclusion oftreatment criteria. The word mental disorderand treatment was replaced by the “a disorderof mood, thought, perception, orientation andmemory which causes significant distress to aperson or impairs a persons behavior, judgmentand ability to recognize reality or impairsthat persons ability to meet the demands ofdaily life” and even mental conditions arisingout of use of drugs and alcohols were alsoincluded which were earlier nowhere mentioned.The bill also laid down the criteria fordetermination of mental illness in accordancewith the national and international medicalstandards. No more person’s social, political,

29 Anthony, JT. (2000). A decade with the mental health act, 1987.. Indian Journal of Psychiatry. 42 (4), 347-355.

economic and religious, cultural or racialstatus or non-conformity with such beliefs ofone community will be criteria for ones mentalillness. The exclusion of mental retardationfrom both the act and the bill has been highlycriticized. The institutions, which providevocational treatment and special education, aremental for people who have mild or moderatemental retardation. These institutes are unableto take care of the people who suffer fromacute and profound retardation and thus theyare left with no place for help and assistance,even if they are in dire need of help. Further,patients with mental retardation will be leftout from the purview of the act and the billand thus they will not have any access tohealth care and will have no protection againstviolations of their basic human rights like, tobe treated with dignity, right of communityliving and freedom from cruel and degradingtreatment. The worst part is that no provisionanywhere has been made for them and hence nocompetent authority is established where theycould take their grievances.

LEGAL CAPACITY:

Earlier, the legal capacity was decided on the basis ofthe mental illness of a person. It was assumedthat a person with mental illness cannotexercise his legal rights and there was a needfor an appointment of a guardian. Person withmentally ill was not able to vote, enter intocontract, etc. hence a guardian was appointedfor the mentally ill person to represent themlegally and at times many relatives would takeadvantage of it. 30 National Handicapped Financeand Development Corporation (NHFDC), a bank forthe welfare of the people with disabilitiesrefuses to grant loan on basis of mental

30 Salelkar, Amba. (2012). Who needs a guardian?. Available: http://www.indianexpress.com/news/who-needs-a-guardian-/1008307/. Last accessed 18th June, 2013.

capacity. In Chennai, a group of seven studentsin quest of venturing their business appliedfor loan to the NHFDC but they were turned downas few of them were suffering from cerebralpalsy, and they even refuse to open bankaccount in their name.31 They even refuse peoplehaving intellectual disability to open theiraccounts under their name. It is believed thata person who is mentally ill does not loose thesense of right and wrong all the time, thereare times where he understands the consequencesof his action. Therefore, there was a need tochange the basis of person being declaredlegally incapable and in the bill; it mentionsthat a person’s legal capacity will be decidedby the competent court and not by his mentalillness.

HUMAN RIGHTS:

A person who is suffering from mental illness is veryvulnerable and can be subjected to various acts, whichin turn would violate his basic human rights. Hence, itis very important to have provisions in the legislaturefor protection of their rights. In, 1987 act, the onlyprovision that is available concerning the rights ofmentally ill person’s is in section 81. Under Section81 of the act, it provides protection in only twoscenarios, one being ill-treated during treatment andthe other for the purpose of research. In section 81(1), it says that no person will be subjected toindignity and cruelty during treatment, but it nothingmentions about the cruelty or indignity actions, whichcan happen otherwise. Whereas in the bill, the mentallyill persons are provided protection from cruel,degrading and inhuman treatment not only during thecourse of their treatment but also in various othercircumstances, for example, the environment ofhospitals, the behavior of staff etc. considering the

31 DNIS. (2012). Legal capacity denied to persons with cerebral palsy. Disability news and information service. 9 (2), 0.

Erwadi incident, people there were badly treated andphysical restraint was used on them but even if the lawwas prevailing nothing was done as private instituteswere not included in the act. It is very important thatthe laws are applied on equal basis irrespective of theinstitutes being state run or private.

Secondly, the research of any kind on patients wasearlier guided by the person himself in case of voluntaryadmission or by guardian or any other person havingauthority in case of minors. There were no guidelinesmentioned which needed to be followed for the purpose ofresearch and the professionals could have misused itusing extreme methods on the patients. Most of thepatients in the psychiatric hospitals are kept becausetheir family members neglect them. In such cases, theguardians or nominated person can consent to suchresearch without considering the will or wishes of theperson concerned. In the bill, inclusion of state mentalhealth authority was a huge step towards the protectionagainst such acts on parts of the guardian or nominatedperson. Earlier, research could have been carried out onminors with the consent of the guardian but now it istotally prohibited. Moreover, the state mental healthauthority will decide whether to conduct research on thebasis of the decision made by the nominated person. Theother major advancement is that, now for conductingresearch all the national and international guidelinesand regulations need to be followed and ethical approvalis required from the ethics committee where such researchwould be conducted.32

ADMISSIONS/TREATMENT/DISCHARGE:

The admission procedure in MHA was restricted to only fewprovisions. Admissions could only be made on voluntarybasis, consent by guardian, on an application by relativeor on reception order by judicial magistrate. A lot ofpower was given to the courts, it is the main drawback asthe courts are not medical professionals and they wouldlack the knowledge to understand whether to admit a

32 Section 55(2)(e), Mental Health Care Bill

person or not.33 Whereas, the bill provides for detailedprovisions for admission overspreading to various kindsof patients with diverse need of care. 34 Besides,independent admission, admission of minor and emergencyadmission the bill also provides for the supportedadmission of people up to 30 days and for more then 30days. Supported admission means when the person is highlydependent on the nominated person. It provides for alimitation period of 30 days and also lays down theprovisions after 30 days.

In the act, a lot of provisions have been made for thedischarge of the patients such as on the orders made bymedical officer, on the request made by the patient, onthe undertaking by the relatives or guardian of thepatient and if the patient is found to be of sound mind.The discharge part of the act is very wide and coversalmost all the aspects, which are of advantage to thepatients, but in the bill it has been narrowed down toonly request, made by patient themselves. The onlyfavoring provision is discharge on the basis ofdisagreement with admission of independent person. In theact nothing has been mentioned about the discharge of aminor when he/she reaches the age of eighteen. Whereas,in the bill when a minor becomes a major he/she would besubjected to the provisions of the act as an independentperson.

Another major drawback of the act was that it mentionednothing about the ways of treatment. It did not providefor the treatments like electroconvulsive treatment (ECT)and sterilization. In the new bill, use of ECT is totallyprohibited and should be used only in cases of emergencyand if used it should not be without muscle relaxants andanesthesia. It also prohibits sterilization of men andwomen until and unless it is for the betterment of theirhealth and it also restricts chaining of any manner in

33 mother superior v. state of bihar, HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 4351 of 201034 Dharmendra Chatur and Jayna Kothari. 2012. "Moving Towards Autonomy and Equality: An Analysis of the new Mental Health Care Bill2012" CLPR Working Paper Series (Working Paper 1/2012)Available at: http://works.bepress.com/dchatur/14

any case.

FORUMS:

One of the rights, which is provided by the bill is tomake complains against the deficiencies in the servicesof the psychiatric hospitals and nursing home (this kindof right has not been provided in the act) therefore itbecomes necessary to form bodies where such complaintscan be made. The duty of these bodies is not only to lookinto deficiencies of psychiatric hospitals and nursinghome but it is also a place where the patients can seekjustice against the violence of their rights likedegrading or inhuman or cruel treatment, forced andunethical admission etc. the bills seeks to completelychanged the existing mental health care system in thecountry. It established authorities on both central andstate levels laying down the minimum levels for theestablishment of mental health institutions and ensuringtheir statuary compliance. It also sets up Mental HealthReview Commission (MHRC) and district level Mental HealthReview Board (MHRB) that are equipped with severaladministrative and adjudicatory functions and also formsfirst level interaction of persons with mental illness orhis or her representatives with mental health caresystem. Earlier in the act the magistrate in the mentalhealth system hide whole lot of powers to decide on thecases relating to violation of rights, which now in thebill has been distributed among various bodies. Inaddition, under the rights of persons with disabilitieswith 2012 (RPWD bill) new special disabilities courts areestablished which protects the rights of disabled peopleincluding (mentally disabled). The only drawback is thatsuch multiplicity of forums will only add to furthermarginalization without sustaining cooperation betweenthese bodies.

OTHER PROVISIONS:

There are few more small changes, which have a greatimportance in small way. Earlier the number of visitorswas restricted and the patients were not allowed to makeany sort of communications. The number of visitors, which

were allowed under section 37 were five in which one waseither psychiatrist or medical officer and other two weresocial workers. In the bill it has changed, section 14allows patients to have as many visitors as they want andthey are also allowed to make any sort of communicationsat reasonable hour. It is very important as a patientshould not feel outcaste and if a patient has visitors,he feels more empathized.

At the time admission of minors or a person who isincompetent to consent or have not chosen anyrepresentative, in the act, the district court orcollector had powers to appoint a guardian or a nominatedrepresentative, but it has been changed in the bill, nowthe district panel of Mental Health Review Commission hasthe authority to appoint nominated representative orguardian. It is an advantage as, in India already thejudiciary is overburdened with a lot of cases which needsto be resolved and in cases like these the situations arevery intense and are required to be attended at the firstopportunity available. If it goes to courts it will getstuck there forever and the patient had to suffer.

OTHER ACTS:

DIVORCE: Under family law in India, there are seven grounds for a person to get divorced and one of them is insanity.35 It has been misused a lot of times in many ways. Once the mental illness is established and is of certain degree the divorce can be granted.36 The question of privacy has been raised many at times while establishing the fact that a person is medically ill through medical examination.37 With the bill being passed it states that any evidence of past or present institutionalization or treatment for mental illness willnot by itself be the ground of divorce, i.e., it needs tobe corroborated with more evidence. Further it takes all the powers from district court and moves it to the district board to decide whether person suffers from

35 SMT. ALKA SHARMA V. ABHINESH CHANDRA SHARMA, AIR 1991 MP 20536 ram narain gupta v. smt rameshwari gupta, 1988 AIR 226037 sharda vs dharmpal, AIR 2003 SC 3450

mental illness or not.38 The judgment in Usha Gupta case was far ahead of his time and that what is required to beenshrined in the legislature, he said, “"In deciding whether a person is "incurably of unsound mind" the test to be applied is whether by reason of his mental condition he is capable of managing himself and his affairs and, if not act whether he can hope to be restored to a state in which he will be able to do so. I would add to the above test the rider that the capacity to be required is that of a reasonable person."39

INSURANCE: One of the main objects of the bill is thatthere will not be any discrimination in health insurance.Earlier the insurance companies did not provide for thehealth insurance if the person was suffering from anymental disability, but in contrast it was provided to thephysical disabled persons. Under section 10(ii) privateand public insurance companies have to provide for mentalillness as it provides for physical illness. If the billonce passes in parliament, it would provide relief amongthe patients as well as there family members as theninsurance companies will have to make policies which willprovide treatment of a person suffering from mentalillness and cannot exclude it on any grounds. A mentallyill person will not be discriminated and subject tounfair treatment in obtaining adequate health insurancefor the care and treatment of physical and mental healthproblems from public and private health insuranceproviders.40 The bill goes further and makes the insurancecompanies liable and convicts them if they contraveneswith the provisions of this act and commits any offence,they will be fined or imprisoned. An important issuefacing the community and people living with mental healthissues is the entitlement to appropriate insurance38 John, A. (2013). A new legal regime for mental health care. Available: http://www.mylaw.net/Article/A_new_legal_regime_for_mental_health_care/#.UiD98xZ1Iy7. Last accessed 2nd July, 2013.39 USHA GUPTA V. SANTOSH KUMAR PAHADIYA, I (1996) DMC 9040 Chigiti, John. (2012). The Mental Health Care Bill. Available: http://www.the-star.co.ke/news/article-88281/mental-health-care-bill-2012. Last accessed 18th May, 2013.

coverage, including income protection insurance and lifeinsurance. However, it remains difficult to obtain healthinsurance for the mentally ill. Most insurance companiesacross the globe do not offer insurance for the mentallyill, despite the unstinting efforts made by familymembers and advocacy groups.41

SUICIDE: In India suicide rate is quiet staggering; in2011 alone approximately 135,585 people committed suicideand since 2012 it has increased by 25%.42 Under IndianPenal Code 1860 and Code of Criminal Procedure 1973, anyperson who commits suicide is subjected to prosecution.43

The one of the remarkable provision, which is provided inthe bill, is decriminalization of suicide. Now any personwho commits suicide will be presumed to be mentally illand not be subjected to any investigation or prosecutionand instead will be rehabilitated and treated. In regardto this provision, Malhotra said: "In certaincircumstances it can help, as police action is sometimescumbersome, but it can also not be denied thatcriminalizing suicide had acted as a deterrent in somecases".44 The point of view, which is being put forward byMalhotra, is that, not in all the cases a person whocommits suicide is mentally ill, hence it is a wrongdoing towards the people who commit suicide out ofcircumstances.

Thus, the new MHCB is more efficient and effective thenthe MHA, the only thing required is it to be passed byparliament.

COMPLIANCE OF UNCRPD IN MENTAL HEALTH CARE BILL:

41 Freeman, Melvyn, et at (2005). WHO Resource Book on Mental Health, Human Rights and Legislation.. China: WHO. 15742 Dharmendra Chatur and Jayna Kothari. 2012. "Moving Towards Autonomy and Equality: An Analysis of the new Mental Health Care Bill2012" CLPR Working Paper Series (Working Paper 1/2012)Available at: http://works.bepress.com/dchatur/1443 Section 309, Indian Penal Code44 (2013). New mental health bill bans electric shocks, decriminalises. Available: http://indiatoday.intoday.in/story/new-mental-health-bill-bans-electric-shocks/1/280471.html. Last accessed 13th May, 2013.

Million of people all over the world suffer fromdisability and about 80% of these people live indeveloping countries where they are subjected to varioushardships. United nation is an internationalorganization, which protects the human rights of peopleand before UNCRPD was adopted there was no hard lawavailable for the protection of mentally disabled personsas none of the seven main treaties of united nation humanrights expressly provided for the mentally disabledpersons.45 On 13th December 2006, united nation generalassembly adopted the one of the major treaties, unitednation convention on rights of person with disability andits optional protocol. Secretary general, Kofi Annans, inhis speech about the convention he said, it become alandmark several times over: it is the first human rightstreaty to be adopted in the twenty-first century; themost rapidly negotiated human rights treaty in thehistory of international law; and the first to emergefrom lobbying conducted extensively through theinternet.”46 The convention was open for signatures on 30th

march 2007 and 81 member states and European communityhad signed on the opening day itself (which was thehighest number of signatures any convention had got onits opening day), but only 44 member states had signedoptional protocol and only 1 member state had ratifiedthe convention. Once the country has signed anyconvention it means that the member state agrees with theconvention and ratification means that the country willinclude the provisions of the convention within their ownlegislature. The main reason why the optional protocolwas adopted was so that if ever any complaint is madeagainst any state member, an independent internationalbody will visit the country, only when all the internalremedies have been exhausted, and scrutinize thecomplaint.

India was one of the 81 member states to sign the

45 Stein, Michael Ashley. (2007). Quick Overview of the United Nations Convention on the Rights of Persons with Disabilities and ItsImplications for Americans with Disabilities. Mental & Physical Disability Law. 31 (0), 679.46 http://uncrpdindia.org/about/history/

convention on the opening day but it ratified theconvention on 1st October 2007, without signing andratifying the optional protocol. The reason for notopting for optional protocol was simply the assumption ofthe Indian government that it has got strong internaljudicial system.47 Prasanna Pincha who is an activistgives his views on the convention, “UNCRPD adopts a humanrights approach instead of the earlier medical approachto disability. This is a shift from viewing people withdisabilities (PWD) as objects needing social protectionand medical care to seeing them as subjects having humanrights, fundamental freedoms.."48 With the help of theconvention, the laws, which were earlier focusingmedically now will be amended and will focus on basichuman rights of the persons with disability. Once theconvention was ratified, the talks started of includingthe provision of convention and initially it was decidedthat 101 amendments will be made to person withdisability act which was highly criticized in the budgetsession. During the talks of amendment several disabilitygroup were consulted, which in return gave their viewthat the amendments are inadequate and hence there isneed of new law.49 The new law should not only focus onsocial, economic and cultural rights but at the same timeshould also explicitly provide for protection of civiland political rights and the scope of affirmative actionstowards any violation should be expanded as well asdiversified.50 The provisions of the convention are forboth people suffering from mental illness and physicaldisability. The focus of this chapter will be, the impactof UNCRPD on the existing mental health system in Indiaand how far it has been successful in implementing theprovisions of the convention. The existing mental healthcare system was extremely insufficient and was nowhere in

47 same as 4648 Manecksha, Freny. (2012). RIGHTS OF THE DISABLED Implement the UNCRPD. Available: http://www.indiatogether.org/2010/feb/hlt-uncrpd.htm. Lastaccessed 13th May, 201349 same as 4850 http://www.nihfw.org/NDC/DocumentationServices/NationalHealthProgramme/NATIONALMENTALHEALTHPROGRAMME.html

compliance with the convention. Hence, mental health carebill 2012 was initiated and it is only a nod away in theparliament to become an act.

PURPOSE AND GENERAL PRINCIPLES:

The main purpose of the convention is to promote, protectand ensure that the rights of the disabled people areprotected and that these people enjoy their rights to themaximum. Therefore it was important that the provisionsin the act are for the welfare of mentally ill person. Itis also under the duty to fulfill the obligation laiddown by constitution of India and also to follow thenorms of various international conventions ratified byIndia. The new bill states that in utilizing thefacilities of health care institutions there should be nohindrance. The bill envisages the main principles of theconvention. Firstly, to ensure the respect of theirdignity and autonomy which has been done by way ofintroducing an option of making their own choice.Secondly, the policies and the government should be non-discriminatory and it should promote equality. Thirdly,initiatives should be made by the government to includethe mentally ill person within the society by means ofrehabilitation. Fourthly, they should be provided withequal opportunities to utilize their capabilities. Lastlyand more importantly, the medical facilities should beeasily accessible by making sufficient provision byincluding quality mental health facilities at not only inurban areas but also in rural areas.

WOMEN AND CHILDRENS RIGHT:

Women and children are the most vulnerable part of thesociety and if they suffer from any kind of disabilitythey get more subjected to discrimination and abuse. Menand women have different status in the society and mentends to get better enjoyment of socio-economic rightslike basic needs, housing, education, social security,employment etc., and it also affects the kind of mentalhealth service they receive. Various studies have shownthat children who are subjected to abuse during theirchildhood are likely to suffer from somatization, sexual

delusions, interpersonal sensitivity, depression, anxietyand psychoticism.51 Children suffering from mental illnessare subjected to various kinds of abuse. Therefore, it isvery important to provide provisions for their safety. Itis better to address the ‘discrimination’ through anequitable delivery of development benefits and socialjustice systems or through the provision of mental healthinterventions, particularly in the context of vulnerablegroups such as women and children.52

Article 7 of the convention provides for the measure forthe protection of rights of children, but in the bill,there has been no provision made in this reference. Theonly protection, which has been made for children orminor, is that, they cannot be treated with electro-convulsive therapy. The problem children’s face is notrestricted to sexual abuse but the various customs, whichare being followed in the country from ages. One suchcustom is burying of children in the mud. In July 2009,in Karnataka 60 children were buried up to their neck inthe mud during a solar eclipse with the belief that itwould cure the children, but instead they suffer a greatdeal of torture.53 There is desperate need of includingthe provision for protection of such children, there bestinterest should be the primary consideration and theyshould be given equal opportunity like other children.

Like children the other part of society, which needs moreprotection are women. Again the bill does not provide forany kind of provisions, which protects the right of thewomen and uplifts their status in the society. Women andgirls are subjected to various kinds of discriminationand physical and sexual abuse. There have been many51 Chandra, PS, et at. (2003). A cry from the darkness: women with severe mental illness in India reveal their experiences with sexual coercion.. Psychiatry. 66 (4), 323-334.52 Davar V Bhargavi. (2012). Gender and Community Mental Health: Sharing Experiences from our Service Program. In: Chavan, BS Community Mental Health in India. India: Jaypee Brothers Medical Publishers. 136-147.

53 Agoramoorthy, G.. (2011). Are women with mental illness & the mentally challenged adequately protected in India?. The Indian Journal of Medical Research. 133 (5), 552-554.

instances where women are sexually abused because oftheir disability. In 2009, security guard raped a 19year old, who was mentally disabled who was kept ingovernment run asylum in Chandigarh, and the consequencewas she was found pregnant.54 The only reason the casewent to Supreme Court was because of pressure by mediabut still no explanation was provided as to how a maleworker came in contact with the girl. In another incidentin 2010 in Karnataka a 22 year old, mentally ill girl whowas admitted in asylum 2 years back was tested positivewith HIV.55 The other problem, which the women face, iswhen they get outcaste by their families. Recently in2012, a 55 year old, lady was not accepted by her familyeven after recovery of long mental illness and now havingno other option she is homeless and stays in shelterhome. Another incident, in Chennai a women was foundwandering in the streets at night and when subsequentlywhen the police came they still failed to take her tonearby mental institution just because the court wasclosed and she could not be produced before magistratewithout which she cannot be admitted.56 In another case, alady who was in a mental asylum was raped and of theresult got pregnant and the question was raised whetherto terminate her pregnancy or not.57 These are only fewincidents but still there are more thousands of suchcases, which might go unreported. There is need for morestrict laws for the protection of women against thesekinds of violations and abuse. Firstly, there should bemore strict provisions against male employers being incontact with the female patients and protecting thesewomen from sexual violence. Secondly, families reject

54 (2013). Mental illness and maternity. Available: http://www.deccanherald.com/content/18369/mental-illness-maternity.html.. Last accessed 5th June, 2013.55 Sachan, Dinsa. (2013). Mental health bill set to revolutionise care in India. The Lancet. 382 (0), 296.56 Agoramoorthy, G.. (2011). Are women with mental illness & the mentally challenged adequately protected in India?. The Indian Journal of Medical Research. 133 (5), 552-554.57 Suchita Srivastava & Anr. vs Chandigarh Administration, Civil Appeal No.5845 of 2009

their members even after they have recovered from theirmental illness and especially it is more difficult forwomen to provide for themselves and hence there is moreneed to provide for their rehabilitation. Thirdly, womenwho suffer from mental illness should be provided withthe opportunities to exercise their rights. Fourthly, themental health care system should be more consideratetowards the women and should provide for appropriatetreatment. Article 6 of the convention provides thatstate parties should take appropriate measure to ensurethe full development, advancement and empowerment ofwomen and with the large nation like India it is moreimportant to provide for such provision, which the newbill fails to provide for. The other provision of theconvention, which again has been ignored by the bill, isthe freedom from exploitation, violence and abuse.Considering the abovementioned incidents, it veryimportant to provide for appropriate measures to preventall forms of exploitation, violence and abuse. It goesfurther and provide in ways it can be done and places aresponsibility on the shoulders of the state to ensurethat all appropriate legislative, administrative andsocial measure are taken for protection, that independentauthorities are formed to keep check on facilities andmeasure should be taken for physical, cognitive andpsychological recovery, rehabilitation and socialreintegration of mentally ill people who have beensubjected to exploitation, abuse and violence. India isfilled with people with stereotypical minds where womenare subjected to situations of “proving them capable.”The new bill should also include provisions protectingwomen from violence, abuse and exploitation and thereshould be schemes promoting education and careerguidance, sexuality education, and housing andequipping women to make life choices that protectthem from violence, live without fear of exclusionand discrimination, and resist oppressive norms.58

AUTONOMY AND LEGAL CAPACITY:58 Daruwalla, N., et al. (2013). Violence against women with disability in Mumbai, India: A qualitative study. Sage Open. 3 (0), 1-9.

Article 12, of the convention provides for the equalrecognition of the mentally disabled person before thelaw. It sets out recognition of mentally disabled peoplein par with the others and it prohibits any kind ofdiscrimination before the law. It also reaffirms thelegal capacity of mentally disabled person on equal basisin all aspects of life like owning and inheritingproperty, controlling financial affairs, equal access tobank loans, mortgages, etc. It is very interestingarticle as it shifts the paradigm from “substituted” to“supported” decision making, thus abolishing any transferof rights of decision making to another person.59 Article12(4), directs the state to take appropriate measures toprovide for safeguards against any kind of abuse that themeasure relating to exercise of legal rights are inaccordance with the wishes of person and is not affectedby any kind of undue influence.

The bill I compliance with the convention also recognizesthe every person including a person wit mental illness,will be deemed to have capacity to make decisions. Itreaffirms the persons right and capacity to decide whattreatment or care he/she be subjected to, i.e., everyperson will be considered to have the ability tounderstand the information relevant to the decision andto retain, use, or weigh the information as part ofmaking decision and communicate his or her decision byany means.60 It is a major contribution it makes veryclear that a person suffering from mental illness notnecessarily lacks legal capacity. It separates theconfusion between person being diagnosed with mentalillness and a person without the legal capacity to makedecisions and remove the stigma of persons coming outabout their affliction and fear that they may besubjected to various restrictions upon their rights.61

59 Dharmendra Chatur and Jayna Kothari. 2012. "Moving Towards Autonomy and Equality: An Analysis of the new Mental Health Care Bill2012" CLPR Working Paper Series (Working Paper 1/2012)Available at: http://works.bepress.com/dchatur/1460 Narayan, M., et al. (2011). The ongoing process of amendments in MHA-87 and PWD Act-95 and their implications on mental health care. Indian Journal of Psychiatry. 53 (4), 343-350.

Advance directive, is a kind of living will, whichgoverns the manner in which they wish to be treated incase they develop mental illness and loose legalcapacity.62 It is an evolving concept, which has beenadopted by many countries as it gives a greater degree ofautonomy. It is being introduced in India through thebill, empowering the person to decide how they should betreated and cared for their mental illness in future.63

The psychiatric advance directive is a significantadvance that empower persons with mental disorders tohave a say in treatment decisions and in turn, it helpsby decreasing coercion, increase treatment collaboration,motivation and adherence, and help avoid conflict overtreatment and medical issues.64 It should be used onlywhen in future a person looses his capacity to make anydecision.

The bill lays down an elaborate procedure forregistration and revocation of advance directive and alsosituation where it can be overridden.65 For advancedirective to be legally binding it should be written andsigned by two witnesses and must be registered with themental health review board. The provisions of thedirective should not be contrary to any law existing atthat time and if the person gets mentally ill, thepsychiatrist or the officer of the mental healthestablishment should follow the wishes of patient in theadvance directive. At times there are situations where it

61 John, A. (2013). A new legal regime for mental health care. Available: http://www.mylaw.net/Article/A_new_legal_regime_for_mental_health_care/#.UiD98xZ1Iy7. Last accessed 2nd July, 2013.62 John, A. (2013). A new legal regime for mental health care. Available: http://www.mylaw.net/Article/A_new_legal_regime_for_mental_health_care/#.UiD98xZ1Iy7. Last accessed 2nd July, 2013.63 Jankovic, J., et at. (2010). Advance statements in adult mental health. Advances in Psychiatric Treatment. 16 (0), 448-455.

64 Van Citters AD, et at. (2007). Using a hypothetical scenario to inform psychiatric advance directives.. Psychiatric service. 58 (11), 1467-1471.

65 Poins to remember. (2013). Mental Health Care Bill 2012. Available: http://points-to-rem.blogspot.co.uk/2013/06/mental-health-care-bill-2012.html. Last accessed 2nd July, 2013.

conflicts the principle of “best interest”, as treatingdoctor might think that he best treatment is contrary tothe directive, which would lead to legal entanglement. Insuch situations, the practitioner has to make an appealto the MHRC for overruling the directive. Keeping in minthe principle of beneficence, a blanket refusal of allkinds of treatment in the advance directive is consideredinvalid unless approved by the district panel of theMental Health Review Commission (MHRC).66 The advancedirectives are not absolute and can reviewed, altered,modified or canceled on an application by the mentalhealth representative or caregiver. The draft gives thecommission the power to review the directive periodicallyand make recommendations or revoke or make modificationsin the directive. Also, an advance directive is notapplicable in emergency situations.

Advance directives not only provides for specific methodsof treatment and non-treatment but also provides for thenomination of a representative. The bill provides for theprocedure of appointment of nominated representative andtheir duties. In the absence of any representative thenthe MHRC will appoint someone. The nominated person whileperforming his duties has to respect and consider thepast and present and future wishes of the mentally illperson.67 If the nominated representative fails to performhis duty keeping the best interest of the patient then hecan be revoked from his duties as a nomination. The billalso provides for the provision where the medicalresearch on the patient is done only if it has the scopeof benefiting the patient and with the informed and freeconsent of the patient and where he is incapable thenwith the consent of state authority. It protects patientsfrom unnecessary and painful research, which might becarried out on them in the name of treatment.

RIGHTS OF MENTALLY ILL PERSON:66 Thippeswamy, H., et al. (2013). Ethical aspects of public health legislation: The Mental Health Care Bill, 2011. Indian Journal of medical ethics. 10 (0), 46-49.67 Narayan, M., et al. (2011). The ongoing process of amendments in MHA-87 and PWD Act-95 and their implications on mental health care. Indian Journal of Psychiatry. 53 (4), 343-350.

Person with mental illness are considered burden onsociety and hence their rights are violated every day.Earlier, mentally ill people were considered as beingdangerous or as objects of charity but with theconvention they are viewed people whose rights need to beprotected and it puts d duty on state to assure thattheir rights are not violated. The value of lives ofmentally ill people was very low and thus even in theasylums they were subjected to various acts, which wereviolating their basic human rights. Therefore, it was aneed of implementing laws, which prevents such abuse andguarantees human rights of mentally ill person. The billbrings out protection with the conformation ofconvention. Michelle Funk, coordinator of mental healthpolicy and service department at WHO says, “Too fewpeople with mental disorders and psychosocialdisabilities in India have access to good quality mentalhealth care, and too many within the system haveexperienced extensive human rights violations, includinginhumane and degrading treatment, restraint, seclusion,physical, sexual, or emotional abuse, and neglect.”68

One of the rights is equality and non-discriminationunder the article 5 of the convention and section 10 ofthe bill. It is for the first time that any law hasguaranteed such rights to equality, non-discriminationand the positive rights for provision of basic servicesto person with mental illness.69 Under the Indianconstitution, the state is required to provide equalprotection to its citizen without any discrimination.70

The rights provided in the constitution needs asupporting law and earlier there was no such right givenspecifically for mentally ill person. Though the

68 Sachan, Dinsa. (2013). Mental health bill set to revolutionise care in India. The Lancet. 382 (0), 296.

69 Dharmendra Chatur and Jayna Kothari. 2012. "Moving Towards Autonomy and Equality: An Analysis of the new Mental Health Care Bill2012" CLPR Working Paper Series (Working Paper 1/2012)Available at: http://works.bepress.com/dchatur/1470 Article 14, Indian Constitution

convention talks about the equal protection and equalbenefits of law to all it’s citizen and prohibitsdiscrimination on basis of disability, but the billprovides specifically no discrimination between mentaldisability and physical disability. Earlier, the law wasdifferent and services provided were different formentally disabled and physically disabled. Now, if thebill gets passed in parliament then no insurance candiscriminate on basis of disability, insurance companieswill be under an obligation to provide equal schemes tomentally ill person. Emergency facilities will be onequal par as that of physically disabled. The servicesprovided will be of same quantity and quality as thatprovided to physically disabled person. Living conditionof mentally ill people will no more worst livingconditions, as physically disabled are provided with goodliving conditions in health facilities same way mentallyill will also be given same conditions. Thus, it is ofgreat importance as earlier physically disabled weregiven better treatment the mentally ill with this billbecoming an act there will no more any discrimination.

One of the most important and most needed provision, isprotection of mentally ill people from any kind of cruel,inhuman, degrading or torturous treatment. All livingpersons are entitled to live with dignity and it is theduty of state to protect any violation of their right todignified way of living. In, India just because peoplewho were mentally ill were considered worthless and thusit was considered that they do not deserve any respectand hence they were subjected to cruel or degradingtreatment time and again. Any state that does not fulfillthe commitment made through ratification needs to changeand enforce according to the conventions.71 Article 15 ofthe convention promises that no one will be subjected todegrading or cruel or torturous treatment and puts anobligation on the state to take effective measures to

71 Behere Prakash B. et at. (2010). A Journey from Indian Lunacy Act 1912 to Indian Mental Health Act 1987 & Draft Amendment. Indian Journal of Forensic Medicine and Patholo1g2y5. 3 (4), 125-128.

avoid such happenings. Under the bill, cruel anddegrading treatment is abolished under section 9 and itgoes further and specifies minimum rights, which a mentalhealth facility should provide. Earlier, mental healthfacilities were just a dumping ground for families tosend their children suffering from mental illness and noone bothered about the conditions neither the people northe government, but with the ratification of theconvention it is the duty of the state to ensure thatmental health facilities provide proper care andtreatment. The minimum requirements are required to befulfilled by the mental health institutions to getlicense and they are bound to maintain it or else theywould be fined. The minimum requirements are basic thingslike, to provide safe and hygienic living conditions,proper and adequate sanitary conditions, provide forrecreational activities, to provide remuneration for thework the patients do and not to force them to work, toprovide proper diet and nutrition etc. Keeping a mentallydisabled person in a condition where a normal personcannot survive is degrading in itself. In a lot of mentalinstitutes in India even the basic amenities are notprovided.72 In a hospital for mental diseases, which wasrun by Delhi administration the ecological atmosphere,there was unfit and degrading.73 People are deprived ofthe facilities like hygienic environment, good diet,proper clothing etc. one such incident was, where thefemale patients were kept naked in a mental asylumCalcutta Pavlov Mental Hospital, Kolkata, West Bengal,which was a state run hospital.74 The staff members whenquestioned answered that the clothing’s have gone forwashing. The state is directly held responsible for themisbehavior and negligence on part of the staff members,as they are the agents of state. Theses institutes aremeant to treat the patients not rip them of theirdignity.

72 Rakesh Chandra Narayan v. State of Bihar, 1989 AIR 34873 B.R. Kapoor And Anr. vs Union Of India, AIR 1990 SC 75274 (2008). India: Inhuman and Degrading Treatment of Mentally Ill Women Patients in a Public Hospital. Available: http://www.omct.org/violence-against-women/urgent-interventions/india/2008/03/d19201/. Last accessed 18th June 2013.

Apart from the minimum requirement, which is again a hugestep the other provision which is of great importance isprohibition of degrading and cruel treatment likeelectro-convulsive, sterilization, psychosurgery andforms of restraints. Though, a medical practitioner hasthe authority to give any kind of treatment to amedically ill person with the conformation of mentalhealth review board, thus it becomes one of the drawbacksof the bill as it does not clear what will amount toemergency situation and can be misused by theprofessionals. The emergency period extends to seventy-two hours and up to seven days in case of calamities ordisasters.

Electro-convulsive treatment, which is commonly known as“shock treatment” is a controversial treatment, which ispermitted under the bill. The bill though makes itcompulsory to use muscle relaxants and anesthesia beforeECT and it totally prohibits its use on minors (except incase of emergency).75 Also, before using it on minors evenin life threating situation the consent of guardian andpermission of board is required. ECT on adults can beused only with the informed consent of patient or withthe approval of board. The other prohibited treatment issterilization of men and women. The use of sterilizationfor the purpose of treating any kind of mental illness istotally prohibited in general but in some women are masssterilized to promote hygiene as they are at times keepthemselves hygiene during menstruation. Anothertreatment, which is also controversial and banned, ispsychosurgery. The new bill under the section 52 does notprohibit the treatment but puts a restriction andconditions before it can be performed. Psychosurgery canonly be performed on a patient with the consent of thepatient and by approval from the state mental healthauthority. It also leaves a scope of change in thisparticular section as state mental health authority canmake regulations for purpose of carrying out provision ofthis section time to time.

75 Section 51, Mental Health Care Bill, 2013

The new bill is also criticized on the basis of itsallowing the use of physical restraints and seclusion.Though chaining is barred but other forms of physicalrestraints and seclusions are permitted only if thepsychiatrist allows it. Even if the physical restraintsand seclusion are allowed under section 53, it providesfew conditions on its use. The physical restraints andseclusion can only be used if the patient is eminentdanger to himself or others and cannot be used as a formof punishment or with the excuse like shortage of staff.It has to be authorized by the psychiatrist and mentalofficer has the responsibility to maintain the medicalrecord and mention the method and nature of the physicalrestraint used and also mentions the justification andthe duration for which the patient was physicallyrestrained and secluded. Also, the patient should beremoved from physical restraints and seclusion as soon asit is not required and the nominated representative ofthe patient should be notified within 24 hours. The billfails to provide or mention any kind of chemicalrestraints, as at times psychiatrist give heavy drugs orchemicals or medication to the patients as a form ofrestraints. Chemical restraints are not prohibited thatdoes not make them any less bad as instead of thephysical restraints; psychiatrist can use chemicalrestraints on the patients, which would affect theirphysical movement. Generally, chemical restraints havebeen highly criticized as health care workers use it as aform of convenience of the staff rather benefitingpatients. The workers can keep the patients sedate wholeof the day so that they do not disturb them, it isagainst the right to life of person and also it slowstheir treatment. By not providing any provision againstuse of chemical restraints the bill somewhere does notfulfill the requirement of the convention.

Till now what is been discussed has related to the mentalhealth institutions and the kind of treatment provided tothem but one of the neglected part is rehabilitation andcommunity based care. In Bears Cave Estate vs ThePresiding Officer76, a lady was dismissed from her work on

76 Madras High Court, 22nd September 2011

the basis of her mental illness when she was working inthe same place for 15 years. The court said that if theemployers of the opinion that their workers are mentallyill they should refer them to psychiatrist and notdismiss them from their work. In situations like these,it is very important to have a law, which protects peoplefrom being unemployed. Hence, it is important that caretowards the mentally ill people is not only restrict tomedical care but also include accommodation,rehabilitation, education and employment. There have beendevelopment in fields of science and have changed thelives of people but still underneath this superficialprogress people are living in conditions which creates ahuge mental and emotional stress. Article 19 of theconvention guarantees the equal rights of person with thedisability on equal par with the others. It fulfills theneeds of the mentally ill people on three fold base:first, to provide them residence on an equal base,second, to provide for support service as per the needsof the person and third, community service and facilitieswhich are responsive to the needs to disabled person.Article 26 of the convention is directly related torehabilitation and habilitation. It says that the statehas the duty of providing effective and appropriatemeasures so that the person with disability can attainand maintain maximum independence, full physical, mental,social and vocational ability and full inclusion andparticipation in all the aspects of life. The state isrequired to provide for training to the professionals whowork in such centers and that there should be assistivedevices for the people who are mentally ill. The lawneeds to regulate care in government and non-governmental sectors, in both institutional and communitybased hospitals, specialized institutions, rehabilitationcenters and other facilities which care for the mentallyill to ensure minimal standards of care and to preventhuman rights abuse.77 Even today with the advancement in

77 Murthy, P.. (2010). The Mental Health Act 1987: Quo Vadimus?. IndianJournal of medical ethics. 7 (3), 152-156.

medicine and technology and with the amount of awarenesscreated, few of the people in India still treat asmentally disabled person as a burden. Families refusetheir own relatives to except them even after they havebeen treated. Hence, it becomes very important that theIndian government takes steps towards theirrehabilitation and provides them opportunities forindependent living. Family is considered as the firstform of rehabilitation as the person feels more loved andsecure. Even, if the families accept them, they end upliving on their mercy and spend his whole life livingwithin four walls and are secluded from others and theyend up spending their days doing nothing but staring thewalls. India is a country where millions of people livebelow poverty line and for them it is difficult to takecare of the needs of mentally ill person who is not ableto get income in the family. So these people, who aresuffering through no fault of t heir own, are sent tohomes or government hospitals, which are even worse thanjails and little attention is paid to their human rights,their feelings or their emotions. All this makes themfeel undesirable in the society and is pushed moretowards their illness.78 To improve the quality life ofthese persons, the new bill has made an effort. In thebill, section 8 guarantees their right to live incommunity. It is of great importance that once the personis treated and is ready to reintegrate in the society allthe opportunities are provided to them. One should not besubjected to live in an institution after the treatmentjust because the families fail to accept them. TheGovernment will provide for the establishment of lessrestrictive community based facilities including halfwayhomes, group homes and like, for persons who no longerrequire treatment in a more restrictive mental healthfacility.79 These facilities should provide them withvocational training and give them hope of reintegrating78 Sanyal, Ishita. (2006). "Practical Ideas for Rehabilitation". Available: http://www.turningpoint.org.in/indian_context.asp. Last accessed 15thJune 2013. Thornicroft,G, et al. (2010). WPA guidance on steps, obstacles and mistakes to avoid in the implementation of community mental health care.. World Psychiatry. 9 (2), 67-77.79 Section 8, Mental Health Care Bill, 2013

in the society by increasing their confidence andmotivating them to start their own earning by way ofemployment.

In India, it is very difficult to implement communitybased treatment and rehabilitation system. Firstly, theeconomy of the country is poor the total expenditurewhich is made on health and family welfare is about 2.06%considering that less than 1% of money is allocated forthe mental institutions. Now, with the available resourceit becomes very difficult to choose between improving theconditions of existing mental institutions or starting ofrehabilitation centers. Secondly, more then half of thedistricts and villages in India still do not have mentalhealth institutes, so again it is a difficult option forthe government to provide for rehabilitation. Thirdly,the professionals to work in rehabilitations are notproperly qualified and thus it becomes impossible tofulfill the purpose of rehabilitation. It is agreed thatrehabilitation and reintegration is important formentally ill persons but what is the point of law if theresources are scarce and it cannot be implemented. Wherethe resources of the country falls short it is importantfor the citizens of that country to provide for non-governmental organizations to provide for rehabilitationof mentally ill patients. Again it is a step towards thebetter life of people who suffer and spends half of theirlives in mental institutes. Sometimes even a small stepmakes a difference.

As by now it is established that mentally ill people areconsidered as a taboo in a society therefore, it becomesnecessary for their rehabilitation to preserve theirinformation. Article 22 of the convention makes aprovision where the right to privacy is protected ofperson with mental illness. The same right has beenprotected under section 12 of the bill. The professionalsworking in health institutions are under a responsibilityto keep the records of mentally ill person confidential.Under the bill, the professionals can only give theinformation under following circumstances: a) to thenominated representative to enable him perform hisduties, b) to other professionals as to enable them to

give proper care and treatment, c) to protect others fromharm and violence, d) if there is a life threateningemergency and d) under the orders by any of thecommissions or high court or supreme court.

Though the bill makes an effort of preserving the privacyof mentally ill person, but concern arises because of itsimplementation for example, person seeking disabilitycertificate to attain the benefits have to apply togovernment health care provider and the certificatecontains photograph of the patient, diagnosis, durationand degree of illness, if such certificate is lost it canbe used against the person. These certificates are a wayof reintegrating the mentally ill patients in the societyby way of providing them with various benefits but attimes people use it to for wrong purposes, they falselyobtain it and enjoy all the benefits coming of it. Hence,it is very important to check that the certificates aregiven to those only who deserve it and while preservingthe information about their illness.80

The one main provision of the convention which bill failsto imply is the right to liberty and security. Article 14of the convention guarantees that the person withdisability enjoy their life with full liberty andsecurity and they are not arbitrarily deprived of itbecause of their illness and that state authorities takenecessary measures to protect such rights. The bill ishighly criticized on this basis also as many families andrelatives in India put away their children and familymembers by declaring them mentally ill for the sake ofmoney and power or against some grudge. Though the lawsare very strict for the admission process but it is inthe hands of the professionals, which can also be boughtby money. Corruption is at it peak in India and themental health professionals are paid peanuts hence itbecomes very important to provide for laws which stopsuch activities. The only place where such right isconfirmed is under article 21 of the Indian constitution80 Mishra, Srijit. (2012). Hunger, Ethics and the right to food. Indian Journal of medical ethics. 9 (1), 43-46.

but with the exception that a person can be derivedaccording to any other established law and also toutilize the protection under the given article it needsto be corroborated with any other established law. Thereis high need of establishing a provision which wouldprovide protection to people who are deprived of theirliberty by forcefully admitting them in mental healthinstitutions without proper consideration.

Earlier, there was no provision anywhere where thementally ill patients were granted the right to legalaid. As the literacy rate in India is very low the peopleare not familiar with their rights and it is veryimportant to create awareness among them so that if thererights are violated they can fight against it. Under thesection 15 of the bill, a person who is suffering frommental illness is entitled to receive free legal servicesso that he can enjoy the right provided to him and italso makes the medical officer in charge of a mentalhealth facility or psychiatrist in charge responsible toinform the patients that they are entitled to free legalaid and provide with contact details. It is veryimportant because firstly, in India most of the peopleare not aware of their rights and their rights areviolated by others and secondly, as the poverty is at itpeak people cannot at times afford the legal aid to fightfor their rights. The right has been provided but it isthe duty of the mental health professionals as well asthe legal professionals to provide the mentally illperson with the right information and direct them towardsproper direction. Here the ethics of a profession shouldbe followed in the strict sense, as these are the mostvulnerable people of the society. Another provision,which is again a huge step, is that now patients haveright to make complaints against the institutions wherethey are admitted, if they do not follow the rules andregulations and do not provide for minimum standard ofliving.81 Person suffering from mental illness or hisrepresentative can make a complaint against thedeficiencies in the mental health facilities to themedical officer and if he is unable to help then to state

81 Section 16, Mental Health Care Bill, 2013

mental health authority and it can further go to districtpanel of the mental health review commission. Theseprovisions have been added to comply with conventions asunder article 13 of the convention the state parties areunder the duty to provide the disabled person withprovisions where he can access justice without anydiscrimination and the rights of the person are protectedand the judicial remedy is provided.

About one-sixth of total population is mentally ill andit is estimated that with the population increase,changing values, lifestyle, crop failure, naturalcalamities, economic crisis, lack of social support,etc., there would be a substantial increase in the numberof people suffering from mental illness.82Recent reportsin India has shown the very considerable and previouslyunderestimated burden that mental disorders impose onindividuals, communities and health services globally.83

Only increase in political will and public awarenessthere is need to invest the resources in care andprevention strategies. It is very important and mostsuggested that mental health care should be integrated inthe primary health system but it has been time and againsubjected to economic evaluation as it is very importantto check the availability f the resources. Policies andservices for persons with mental illnesses in India areincreasingly progressive and humane, the formal mentalhealth infrastructure is minimal at best but still Indiaafter the 56 years of independence has substantiallyincrease the medical health facilities.84 With the82 Kumar, Anant. (2011). Mental Health Services in rural Inida:challenges and prospects . Health. 3 (12), 757-761.

83 Chisholm, Daniel, et al. (2000). Integration of mental health careinto primary care Demonstration cost-outcome study in India and Pakistan. The British Journal of Psychiatry. 176, 581-588.

84 Ganju, Vijay. (2000). The mental health system in India. History, current system, and prospects.. International Journal Law Psychiatry. 23 (3-4), 393-402.

increasing population of India the considerable number ofthe mental health professionals have decreasedconsiderably. In India, people suffering from mentalillness, is about 26% and the percentage is expected toincrease by 15% by 2020. The study by the NationalCommission on Macroeconomics and Health (NCMH) shows thatat least 6.5% of the Indian population has some form ofserious mental disorders, with no discernible rural–urbandifferences.85 The problem is that most of these patientslive in rural areas where the availability of mentalhealth service is poor as most of the institutions, whichprovide for mental health care, are in urban areas.Hence, it is very important to include the mental healthservices in the rural areas also as most of thepopulation lives in rural areas which have only 25% ofhealth infrastructure, medical man power and other healthresources. Only 31.9 percent of all government hospitalbeds are available in rural areas as compared to 68.1percent for the urban population. At the national levelthe current bed-population ratio for Government hospitalbeds for urban areas (1.1 beds/1000 population) is almostfive times the ratio in rural areas (0.2 beds/ 1000population).86

The bill makes an effort to make the mental healthaccessible to urban as well as rural areas. Half of thedistricts in India do not have basic primary health care;hopefully with the passing of the bill the mental healthcare will be available to all. Under section 7 of thebill, all persons have the right to access mental healthcare treatment and such mental health services should beaffordable, good quality, available in quantity and isaccessible by all. It also puts the government under theobligation to make sufficient provisions as may benecessary according to the place and the care should benot only include less acute treatment but should also85 same as 7486 Kumar, Anant. (2011). Mental Health Services in rural India: challenges and prospects . Health. 3 (12), 757-761.

provide for acute as well as emergency treatment and alsomental health services shall be integrated into generalhealth care services at all levels of health careincluding primary, secondary and tertiary care level ofhealth services and in all health programs run by theGovernment. The mental health services at al levelsshould provide for treatment, which would help them livein the community and would discourage long-termhospitalization only in exceptional circumstances. Themost important provision is that the accessibilityclause, as mental health care are situated far away fromvillages it becomes difficult for people to travel,therefore it is very important that the mental healthfacilities are nearly situated as if they are notutilized by the people it is just waste of resources. Itcompels government to make provisions of institutions atdistrict level so that the person being treated caneasily utilize the benefits of such care system and asthe people in villages are poor it is very necessary thatthe cost of treatment be borne by the government. Thepoverty is another factor, which stops people fromgetting themselves, treated, as they cannot afford suchtreatments. So, it is important that people living belowpoverty line gets entitled to free treatment at nofinancial cost by all mental health institutes run by thegovernment. The quality of such institutes should be goodand should be up to the standards issued by mental healthauthorities. It is also very important that the essentialmedicine should be made free and easily available by thegovernment in hospitals and pharmacies run by government.Lastly, the government will take measures to ensure thatnecessary budgetary provisions in terms of adequacy,priority, progress, and equity are made for effectiveimplementation of the provisions of this section. Theseprovisions are in compatibility with the article 25 ofthe convention, which provides that all the disabledpeople are entitled to good health care system.

If the bill is passed in the parliament it becomes an actbut to implement these provisions in the system is verydifficult. Firstly, the resources in India are notsufficient to provide for mental health institutions

especially with the falling economy and increasingpopulation. In India rich is getting richer who hasaccess to the best kind of mental health facilities butthe poor who is getting poorer fails to even have basichealth care system. Even the national health programfails to provide for institutions in all the districtsjust because of the non-availability of resources. Evenif the institutes are opened the quality will be poor andit would lack various things like, adequate number ofdoctors, nurses, beds and various other facilities.Secondly, the lack of technical support, public healthsystem in India is limited and the capacity andcompetence to monitor is very poor and inadequate.Though, the committees are formed to look and check thefunctioning of such institutes but then again they needto work efficiently and responsibly and should not repeatthe mistakes of carelessness and inefficiency. As thereare few institutes providing for mental health care onlymany medical colleges and major hospitals have startedpsychiatry treatment.87 Only if the government is, able tofulfill its promises which it gives in the provision itwould be great achievement.

DUTIES OF THE GOVERNMENT:

Under the article 4 of the convention, the state partiesare suppose to take necessary measure and ensure that thehuman rights of the disabled people are protected andthey enjoy their rights without nay discrimination. Thegovernment should make all appropriate measurelegislative, administrative and other measure so that therights of the disabled people are protected. The billalso provides for detailed role, which the government andagencies should fulfill. The government is under the dutyto plan, design and implement programs for the promotionof mental health and prevention of mental illness incountry.88 It is very important on part of the governmentthat proper planning is done and the implementation87 R. SRINIVASA MURTHY. (2011). Mental health initiatives in India (1947–2010). THE NATIONAL MEDICAL JOURNAL OF INDIA . 24 (2)

88 Section 17, Mental Health Care Bill, 2013

should also be in strict sense of the programs, which arefor the benefits of mental health program. It isresponsibility of the state to create awareness among thesociety and reduce the stigma associated with mentalillness.89 The government should take measures topublicize the provisions of the bill through print mediaand television, radio and various other means ofcommunication. The programs which initiate in reducingthe stigma associated with mental illness must beproperly planned and well executed as one wrong step canmake the situation more worse and such programs shouldstart with the government officials including policeofficers and other judicial members. The governmentshould provide for human resource and their training andshould promote more and more people to join suchprograms.90 Access to mental health care and rights of thementally ill person cannot be guaranteed if there is lackof human resource i.e., if the mental healthprofessionals are not properly trained and are not insufficient number it becomes difficult to provide andprotect the rights of mentally ill persons. Therefore,the government will take necessary measures and willprovide for human resource through out the country byproper planning, developing and implementing educationaland training programs with the help and support of higheducation system, to increase the number of mental healthprofessionals and to improve their skills so that theproblem of human resource is catered. The government willtrain all medical officers in public health facilitiesand medical officers in jail so that they are able toprovide for basic and emergency treatment. For all theseprovisions to prove successful it is very important thatthey are checked time and again and that they work infull coordination. Under section 20 of the bill, thegovernment have to work in full co-ordination as variousdepartments like, department of law, home affairs, socialservices etc., are involved to implement the program andfor its success it is very important that they work infull co-ordination.

89 Section 18, Mental Health Care Bill, 201390 Section 19, Mental Health Care Bill, 2012

CONCLUSION:

We have seen how the trend in the mental illness haschanged from being considered as sins from past life andassociated with witchcraft to being considered as dangerto society to finally just diseases. Even today mentallyill people roam around the railways station, bus stationand on the streets begging and unaware of theirsurroundings and conditions. People in rural areas stillconsider mentally ill person as burden and they eitherare send to shrine or left in the forest or on thestreets and worst come to worst kept within the fourwalls of the house. The population of India is still notknown, the figures and data are inaccurate as most of thechildren are not born in hospitals but in homes withoutany proper care and facility. One can imagine if thepopulation is unknown the data on percentage of mentallyill will be so vague. The Indian government is trying toenact a new law which will comply with the UNCRPD but whokeeps a check on the implementation of the provisions ofthe legislature. Does upgrading the law is enough or weneeded to see that it is properly implemented? Thegovernment can keep making laws but it is not of any usetill it is implemented properly. The other step, which isdesperately required, is to create awareness among peopleand to promote students to study mental science so thatthe number of professionals is also increased, as it isalso one of the problems.

If you walk in mental institute in a metropolitan city,you will see all the amenities from extra curriculum toadvance technology treatment to high profile professionalbut if in case you happen to walk in an institute in arural area, you will realize the huge difference in bothas there patients will be lying on the floor and livingwithout the basic amenities. The huge difference betweenthe two is because more emphasized is laid on making richfeel more comfortable then poor being treated well. Notonly this, at times people don’t admit mentally illperson in the fear that they might not be treated well bythe staff members or in case of women they might beharassed. In such situations, even the law fails, as itis the staff members, which need to be more humane

towards the patient.

In the end the big question is what needs to be done toimprove the situation, to make more laws or to makepeople more humane towards the mentally ill person?

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14. Chigiti, John. (2012). The Mental Health Care Bill. Available: http://www.the-star.co.ke/news/article-88281/mental-health-care-bill-2012. Last accessed 18th May, 2013.15. (2013). New mental health bill bans electric shocks, decriminalises. Available: http://indiatoday.intoday.in/story/new-mental-health-bill-bans-electric-shocks/1/280471.html. Last accessed 13th May, 2013.16. http://uncrpdindia.org/about/history/17. Manecksha, Freny. (2012). RIGHTS OF THE DISABLED Implement the UNCRPD. Available: http://www.indiatogether.org/2010/feb/hlt-uncrpd.htm. Last accessed 13th May, 2013

18. (2013). Mental illness and maternity. Available: http://www.deccanherald.com/content/18369/mental-illness-maternity.html.. Last accessed 5th June, 2013.

19. Poins to remember. (2013). Mental Health Care Bill 2012. Available: http://points-to-rem.blogspot.co.uk/2013/06/mental-health-care-bill-2012.html. Last accessed 2nd July, 2013.

20. 2008). India: Inhuman and Degrading Treatment of Mentally Ill Women Patients in a Public Hospital. Available: http://www.omct.org/violence-against-women/urgent-interventions/india/2008/03/d19201/. Last accessed 18th June 2013.21. Sanyal, Ishita. (2006). "Practical Ideas for Rehabilitation". Available: http://www.turningpoint.org.in/indian_context.asp. Last accessed 15th June 2013.

CASES:

1. Death of 25 Chained Inmates in Asylum Fire in T. Nadu, In Re Vs.Union of India, AIR 2002 SC 979

2. mother superior v. state of bihar, HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 4351 of 2010

3. SMT. ALKA SHARMA V. ABHINESH CHANDRA SHARMA, AIR 1991 MP 205

4. ram narain gupta v. smt rameshwari gupta, 1988 AIR 2260

5. sharda vs dharmpal, AIR 2003 SC 34506. USHA GUPTA V. SANTOSH KUMAR PAHADIYA, I (1996) DMC

907. Suchita Srivastava & Anr. vs Chandigarh

Administration, Civil Appeal No.5845 of 20098. Rakesh Chandra Narayan v. State of Bihar, 1989 AIR

3489. B.R. Kapoor And Anr. vs Union Of India, AIR 1990 SC

75210. Bears Cave Estate vs The Presiding Officer,

Madras High Court, 22nd September 2011

ACTS:Lunacy Act, 1912Mental Health Act, 1987Mental Health Care Bill, 2012Indian Constitution, 1949Indian Penal Code, 1860United Nation Convention on the Rights of Disabled Person, 2006

BIBLIOGRAPHY:

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8. *Richard Jones, Mental Health Act Manual 15th Edition), Sweet

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CASES:

1. Death of 25 Chained Inmates in Asylum Fire in T. Nadu, In Re Vs.Union of India, AIR 2002 SC 979

2. mother superior v. state of bihar, HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 4351 of 2010

3. SMT. ALKA SHARMA V. ABHINESH CHANDRA SHARMA, AIR 1991 MP 205

4. ram narain gupta v. smt rameshwari gupta, 1988 AIR 2260

5. sharda vs dharmpal, AIR 2003 SC 34506. USHA GUPTA V. SANTOSH KUMAR PAHADIYA, I (1996) DMC

907. Suchita Srivastava & Anr. vs Chandigarh

Administration, Civil Appeal No.5845 of 20098. Rakesh Chandra Narayan v. State of Bihar, 1989 AIR

348

9. B.R. Kapoor And Anr. vs Union Of India, AIR 1990 SC 752

10. Bears Cave Estate vs The Presiding Officer, Madras High Court, 22nd September 2011

ACTS:Lunacy Act, 1912Mental Health Act, 1987Mental Health Care Bill, 2012Indian Constitution, 1949Indian Penal Code, 1860United Nation Convention on the Rights of Disabled Person, 2006