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MENTAL HEALTH AND LEGISLATIONS IN INDIA

Author: Ashwin Pandey, II year of B.A.,LL.B. from The West Bengal National University of Juridical Sciences, Kolkata


Mental Health issues are one of the biggest challenges that our generation faces today, it has been dubbed a ‘silent killer’ and the modern-day epidemic, and according to the World Health Organization, it constitutes 10% of the global burden on fatal, as well as 30% of the worldwide burden on non-fatal diseases. It can reduce the lifespan of the person by as much as 10 years.[i] They further report that one in five children and adolescents suffer from mental health issues, with depression being one of the leading causes of disability, adversely affection 264 million people.[ii]


It is also noted that one person dies by suicide every 40 seconds, which means by the time you finish reading this paragraph we would have lost another human to mental health issues. In the age group of 15-29, suicide is the second leading cause of death, and it takes over 800,000 every single year.[iii]


In light of all these worrying statistics, one would believe that there must be a lot of discourse on the subject to combat what is very evidently a pressing matter. But it is unfortunately far from the truth, mental health remains a very taboo subject in India with little to no attention being paid to the same, even though a report notes that 14.3% of our population [iv] suffers from mental health issues.[v] And this has been reflected in the legislation that our Parliament has passed over the years on the subject. Until 2017, the primary legislation on the matter in India was the Mental Healthcare Act, 1987.[vi] This Act was archaic and failed in being patient-centric in its mental healthcare approach. It did not comply with the provisions of the United Nations Convention on the Rights of Persons with Disability (UNCRPD), furthermore, it had provisions that were said to curtail the personal liberties of those with mental disabilities and did nothing to curtail the stigma attached to mental health issues.[vii] In the backdrop of this draconian legislation came the Mental Healthcare Act, 2017.


The new act was hailed as a breath of fresh air, and it sought to fix many of the issues found in the original Act. Firstly, it regulated the method of treatment that was to be used on the patient. Before the Act, Electro-Convulsive therapy, or in simpler terms, the passing of an electric current through the brain in an attempt to alter the chemistry of the brain, could not be applied to minors anymore, something the previous legislation had permitted. When the procedure was performed on adults, under the earlier legislation, it was not necessary to use anaesthetics, and the same has been made compulsory under the Act of 2017. Furthermore, the Mental Health Establishments may no longer restrain the patients with chains or keep them in solitary confinement.[viii]


Another important step taken by the Act is the decriminalisation of suicide. Section 309 of the Indian Penal Code states that any person who attempts to commit suicide will be punished with imprisonment of up to a year or a fine or both. This fails to acknowledge the fact that suicide is not always a direct choice of the person doing it, which is why the proper terminology to be used is not committing suicide but instead ‘died by suicide’. The Act acknowledges that any person attempting to commit suicide was under severe mental distress and hence will not be tried and judged on the same.[ix]


The Act also brings in a degree of confidentiality to combat the social stigma associated with mental illnesses in Indian Society with the Person with Mental Illness being given a right to confidentiality with regards to the diagnosis of their mental illnesses and the treatments being pursued the same. The only people who are authorised to have such details are the nominee and the mental health professional to be able to expedite the recovery better. These details can also be revealed if it can be shown that the same was carried out in the best interest of the public.[x]


While all of these are necessary steps forward, some glaring deficiencies in the Act need to be addressed.[xi] First of all, the Act contains something called an Advance Directive that allows the patient to decide their course of treatment.[xii] This comes with the inherent presumption that the patient possesses sufficient knowledge to know the best course of action for them. When looked at in the Indian context, considering the lack of discourse and availability of help, this is a near-impossible situation. The Act also does not provide an exhaustive list of the treatment options that are to be made available to the patient.


Furthermore, the Act fails to provide a clear and distinct procedure for the appointment of the nominee by the patient to make decisions on their behalf should they lose their mental capacity.[xiii] There is also a provision present in the Act that states that the only condition under which there will be supported admission into a psychiatry hospital would be if the patient is unable to take care of themselves, or could potentially harm themselves or the people around them.[xiv] This provision is problematic because all it is doing is equating mental illnesses with the dangers that the people suffering from them pose to society. This seems to partially undo the steps the Act had taken to undo the stigma attached to mental illnesses.


And finally, perhaps the most glaring flaw in the Legislation is with regards to the free mental healthcare that is to be provided by the government. The Act says that it will provide free mental healthcare to any person who has a mental illness, the issue with the provision lies in their definition of what a mental illness is. The Act defines mental illness as something that causes substantial impairment to the judgment, perception of reality, or ability to meet the ordinary demands of day to day life, of a person.[xv] The issue with this is that this definition of a mental illness is very narrow, so unless the condition of a person fits into these parameters, they cannot approach a government institution recognized under the Mental Health Act to bear the costs of treatments as well as any drugs that may be required. Crucially this definition leaves out things such as eating disorders or anxiety that may not fulfil the definition in the Act. Furthermore, the Act also does not apply to private practitioners.[xvi]


There also remain practical concerns with the implementation of the Act, the socio-economic conditions of India, along with a lack of infrastructure, trained professionals and the prevailing stigma regarding mental health make it incredibly challenging to be able to successfully implement the Act and bring about the positive changes that it desires.[xvii]


Hence, while the Mental Health Act does take a step in the right direction regarding fighting mental health issues that cripple so many people across our nation; it still leaves much to be desired. To truly help the millions of people who are suffering from mental health issues every single day in our country, we must start a constructive conversation on identifying mental health issues, as well as the proper way to go about dealing with the same. There need to be more trained professionals on the subject, and the prices of these professionals need to be made more accessible to the general population of the country. Necessary amendments also need to be brought about to the existing Legislations to fix the procedural flaws that currently exist. Furthermore, the legislation should provide an exhaustive list of treatments that can be made available to someone suffering from mental illnesses. The provision for free mental healthcare needs to be made more broad-based to include anxiety, etc. Finally, provisions in the prevailing legislation that inadvertently fuels the stigma against mental health need to be removed.


Mental Health issues are real, and it is about time that we as a modern society acknowledge the same. We also need to remember that if we work together then we can overcome these mental health issues and must always strive to do the same. So, if you are suffering from mental health issues, speak up. If you know someone fighting battles within their minds every day, reach out to them, show them your love and support, let them know they are not alone, remind them that they matter, because they do.

I want to end this piece by quoting one of the best songs I have ever heard, Grow as we go:

When you’re high I’ll take the low,

You can ebb and I can flow,

And we’ll take it slow,

And grow as we go,

And grow as we go.”


[i]10 facts on mental health (who.int)

[ii]Id.

[iii]Id.

[iv]1 in 7 People in India Suffered From Mental Illness in 2017: Lancet (thequint.com)

[v]THE MENTAL HEALTHCARE ACT 2017: A CRITICAL ANALYSIS – AWAAZ- THE BLOG (lasclc.in)

[vi]Microsoft Word - New Microsoft Office Word Document (wbhealth.gov.in)

[vii]Mental Healthcare Act 2017: Critical Analysis - LawEscort

[viii]The Mental Healthcare Act, 2017: An Analysis - LexQuest Foundation

[ix]Supra, Note v.

[x]Examining the progressive and archaic elements of the Mental Health Care Act | ORF (orfonline.org)

[xi]The gaps in the Mental Healthcare Act (livemint.com)

[xii]India's Mental Healthcare Act, 2017: Content, context, controversy - ScienceDirect

[xiii]Mental Healthcare Act: A step in the right direction, but ‘loopholes’ remain - punjab chandigarh - Hindustan Times

[xiv]https://www.prsindia.org/uploads/media/Mental Health/Mental Healthcare Act, 2017.pdf, Section 89.

[xv]Can People Get Free Mental Healthcare? - Legalease (by WorldWise) (substack.com)

[xvi]Id.

[xvii]Examining the progressive and archaic elements of the Mental Health Care Act | ORF (orfonline.org)


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