Mental Healthcare Bill to strengthen systems that safeguard fundamental rights of the patients

The Lok Sabha unanimously passed the Mental Healthcare Bill, 2016, a legislation that decriminalises suicide and provides for comprehensive mental healthcare and facilities for persons suffering from mental illness. The Bill securing full parliamentary approval will now render the criminal provision that criminalises and penalises persons who attempt suicide ineffectual.

The Bill was passed by the Rajya Sabha in August last year with 134 amendments. It mandates that a person attempting suicide will provided with medical support and rehabilitation, and will be presumed to have been in “severe stress”, instead of being considered a miscreant, who has violated the law.

At the centre of the legislation, lies the interests and rights of patients with mental illness, and this is what makes the Bill unique. The Bill seeks to look at mental illness from a rights-based approach by establishing and strengthening systems that safeguard the fundamental rights of the patients, and “in a manner that does not intrude on their rights and dignity”.

Representational image. PTI

Representational image. PTI

Besides this, the Bill provides for a distinctively empowering feature called an ‘Advance Directive’ wherein it allows adults to create an advance directive about how they’d like to be treated in case they are afflicted by mental health issues in the future. The Bill states that there will be free treatment for persons with mental illness, if they are homeless or fall below the poverty line, even if they do not possess a BPL card. In addition to this, the legislative Bill clearly defines mental illness, and adds that the erstwhile definition under the Mental Health Act, 1987 was ambiguous. Along with outlining the procedure and process for admission, treatment and discharge of mental health patients, the Bill states that every mental health establishment has to be registered, after fulfilling certain criteria mentioned in the Bill, with the respective Central or State Mental Health Authority. A quasi-judicial body called the Mental Health Review Commission and Board shall be established to review procedure for making advance directives as well as to advise the government on what steps to take for the protection of the rights of mental health patients.

The Bill’s most progressive feature is the decriminalisation of suicide. In the realm of health, it is significant as this is indicative of legislators understanding that mental health is an important element of public health, and treating patients as criminals is problematic for the social fabric of the country. The Bill declares: “Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”

In October, 2008, the 210th Report of the Law Commission of India, titled ‘Humanisation and Decriminalisation of Attempt to Suicide’, studied section 309 of the Indian Penal Code, and stated that the provision provided for a double punishment for the person who is suffering from mental health issues, and that it is a “stumbling block for the prevention of suicides”. The Law Commission, in its report, categorically wrote that — “Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law contained in section 309 of the Indian Penal Code would save many lives and relieve the distressed of his suffering.” Previously, in its 42nd Report submitted in 1971, the Law Commission had recommended, inter alia, the repeal of section 309. The Rajya Sabha had passed the Indian Penal Code (Amendment) Bill, 1978, that provided for the omission of section 309, but before it could passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed. However, in 1997, the Law Commission in its 156th Report, after the pronouncement of the Gian Kaur judgment, recommended that section 309 be retained.

Section 309 of the IPC has had a long history in the Indian courts, and has had its tryst with the principles of constitutional validity. In State v. Sanjay Kumar Bhatia (1985), the Delhi High Court stated that — “The continuance of Section 309 IPC is an anachronism unworthy of a human society like ours. Medical clinics for such social misfits certainly but police and prisons never. The very idea is revolting. This concept seeks to meet the challenge of social strains of modern urban and competitive economy by ruthless suppression of mere symptoms – this attempt can only result in failure. Need is for humane, civilized and socially oriented outlook and penology.” The Bombay High Court in 1987, in the case Maruti Shripati Dubal v. State of Maharashtra (1987), declared that section 309 is ulta vires to the Constitution as it violated Articles 14 and 21 and therefore, must be struck down. The court also stated that the language of section 309 is problematic, as it “is sweeping in its nature”, and that the provision does not define what suicide is.

According to the Bombay High Court, because of the expansive nature of Article 21, it is a but a logical corollary that “Article 21 of the Constitution will include also a right not to live or not to be forced to live.” The Supreme Court in P Rathinam v. Union of India (1994), agreed with the high court and stated that as the Article 21 contains an inherent right to life, it can also mean that the Article contains within itself to include the right not to live a forced life. The Supreme Court stated that section 309 has to be removed from our laws to humanise the Indian Penal Code.

In the Gian Kaur v. State of Punjab (1996) judgment, however, a Constitution Bench of the Supreme Court overruled the decisions in Maruti Shripati and P Rathiram, stating that Article 21 cannot be construed to hold a “right to die” in the paradigm of fundamental rights. The Constitution Bench stated that the ‘right to life’ is a natural right embedded with the provision of Article 21, and suicide is the “unnatural termination or extinction of life” and hence, blatantly inconsistent with the concept of right to life.

So far, the treatment of issues relating to suicide and mental health, whether it be in the judiciary or in the legislature, were, so to say, immensely ‘regulation-centric’. However, with the 2016 Bill, the paradigm has shifted to a more ‘patient-centric’ approach. And this is precise reason why the parliamentary approval of this law must be celebrated.


Published Date: Mar 29, 2017 04:26 pm | Updated Date: Mar 29, 2017 04:28 pm


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