Mental Health legislation in India has seen a stark improvement over the years since the British Era. Various provision and guidelines have been put into place to safeguard the rights and liberties of the victims of mental health issues as they are not in a position to make an informed decision themselves.

However, the real reason for the stagnation of such legislations can be traced back to the age-old stigma that still exists in the mind of a considerable portion of the population. Mental Health issues have always been associated with indifference and antipathy from the masses, leading to ostracism and inhuman treatment of the patient.

This paper primarily deals with the apparent correlation between the concept of Human Rights and Mental Health. There are various instances of gross infringement of the human rights of mentally ill individuals that spark the debate on whether we as a society and nation are doing enough to aid these vulnerable and helpless souls. The modernization of technology and people's thought-process has brought about a positivity in outlook and better care is taken to ensure the human rights of such patients is upheld.

Introduction
The present day concept of Human Rights can have their foundations traced back to the ‘Universal Declaration of Human Rights' that was taken up by the United Nations in 1948. India is a signatory to this declaration. It embodies two notions about the nature of human rights.

First, it talks about the innate and inalienable nature of certain individual rights and which consist of the idea of individual liberty, where a nation's primary function is enumerated to be the protection of its citizens from the abuse of power and guarantee freedom. It consists of the right to life, liberty, and the pursuit of happiness. The second principle is a social entitlement, which refers to the accountability of society and the nation to assure the acquisition of results along with the assurance of the freedom of chance to its citizens.[i]

Most rights can be said to be of a negative nature owing to the fact that society is barred from interfering with them so as to bring them under the purview of law.

The right to health acquires its effectiveness from the fact that by promoting it, society attempts to garner an advantage, thereby bearing evidence that Health is a right of a unique kind[ii].

This right is no longer enforceable by law; it positions duties on society that none could hope to meet until recently.[iii] Rights and obligation have a fascinating way of interlinking themselves. Liberty breeds obligation which renders the exercise of rights fundamental and compulsory.[iv] [v]

The infringement of civil rights of mentally ill individuals has been given substantial focus which saw the establishment of a variety of institutional psychiatric practices following European Conventions. The fact that the mentally ill need to be protected from the illegal infringement of their civil rights and liberties becomes the harrowing truth of the present time.

The World Health Organization (WHO), the United Nations and various other European Organizations came to recognize the magnanimity of the global phenomena that was the Human Rights motion.[vi]

The rights of the mentally ill, as provided in General Assembly Resolution 46/129 on the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care[vii] should be given equal importance as the legally binding global covenants and their civil and political rights.

Various other regional devices exist that strive to safeguard the rights of the mentally ill; special mention requirements to be made of The European Convention for the Protection of Human Rights, backed by the European Court of Human Rights.[viii]

Human Rights treaties such as the United Nations and of other regional authorities showcase the step in the right direction to enhancing the accountability of the governmental bodies when it comes to protecting and upholding the idea of promoting mental health and safeguarding their rights.

Mental Health Care Legislation In India

The origin of Mental Healthcare legislations in India can be traced back to the British Era. The first regulation in relation to mental illness was the Lunatic Removal Act 1851, which ceased to exist in 1891. This regulation existed to expedite the transfer of British patients back to England.

Since the British Crown promptly took over the Indian administration, numerous legal guidelines were put into action which were concerned with the betterment of mentally ill individuals, namely The Lunacy (Supreme Courts) Act 1858, The Lunacy (District Courts) Act 1858, The Indian Lunatic Asylum Act 1858 (with amendments passed in 1886 and 1889) and The Military Lunatic Act 1877.

These acts did more harm than good as the patients were detained in deplorable dwelling conditions for an indefinite period of time with little to no hands-on care for them. Following this, the Indian Lunacy Act was passed in 1912[ix]. This Act is regarded as one of the first regulation to deal with mental health in India. Fundamental alterations were brought about in the governance of asylums which later came to be known as mental hospitals.

However, this act centered on the protection of the public from those who were regarded dangerous to society (i.e. sufferers with a mental illness). The ILA 1912 overlooked human rights and was involved only with custodial sentences. As a result, the Indian Psychiatric Society recommended that the ILA 1912 was inappropriate and as a result helped to draft a mental health bill in 1950.[x] [xi]

After having received the Presidential assent in May 1987, nearly 3 decades after its introduction, the Act was finally passed in 1993. The Mental Health Act (MHA) 1987 was advantageous in the fact that it revolutionized the way it defined mental illness whereby the elements of cure and care were given more importance than that of custody. The Act further enunciated the importance of shielding the management of property, guardianship and human rights of mentally ill individuals and laid down the provisions for the process of admission in medical institutions.

The MHA 1987 was criticized on the grounds of its shortcomings regarding the admission, guardianship and licensing and their legal procedures, not to mention the lack of clarity regarding the efficiency of mental healthcare delivery and upholding the human rights of patients[xii]. The primary criticism was put forth due to the fact that the Act condoned the curtailment of personal liberty without the establishment of an overview or judicial body.

These claims were brought to light by certain human rights activists who questioned the constitutional validity of the Act based on these grounds. The MHA 1987 was once also silent about the rehabilitation and remedy of patients after their discharge from medical institution[xiii].

The families of the patients were additionally burdened by the ineffective therapy regimens. The Mental Health Care Bill 2013 saw its inception following the shortcomings of the MHA and was eventually introduced in the Rajya Sabha (upper residence of parliament) on 19 August 2013. It was passed on 7th April, 2017 and came into force on 7th July, 2018.

[II-A] The Mental Healthcare Act, 2017

The Mental Health Care Act 2017 was a step in the right direction with regards to mental health legislation in India. There were various modifications that were introduced via this Act that gave a greater clarity to the problems faced by the victims of mental illness and gives a detailed step-by-step provisions for the alleviation of their issues and ensures that the appropriate authorities take care of such victims.

For starters, the Act introduces a holistic definition for mental illness, which is a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by sub normality of intelligence.

The Act highlights the following important provisions:

1. Establishment of a Mental Health Authority

   The Act gives the government the authority to establish a Central Mental Health Authority and State Mental Health Authorities for every state. Every clinical psychologist, psychiatric social workers and mental health nurses along with every mental health institute are to be registered with this authority.
   
   The functions of this authority can be listed as the following:
   
   1. Establish a good quality and service provision guidelines for such establishments
   2. Train and educate mental health professionals and officials of law enforcement on the provisions of the Act
   3. Creation, maintenance and supervision of a register of mental health establishments.
   4. Providing insight and advice on matters of mental health to the government.
   5. Maintenance of a register of mental health professionals.
       

2. Decriminalization of Suicide

   While the Indian Penal Code (IPC) has provided for the punishment for the attempt to commit suicide or commission of any act towards that goal under Section 309, the MHA 2017 has a provision under Section 115 which states that in the event a person attempts to commit suicide, it shall be presumed that the person is suffering from a mental illness or instability and shall not be implicated under the provisions of the Indian Penal Code. In essence, the Act decriminalizes the act of attempted suicide and furthermore adds the responsibility of treatment and rehabilitation of the person attempting to commit suicide on the government.
    

3. Advance Directive

   This provision states that a person suffering from mental health issues who is in need of therapy and rehabilitation can put forth an Advance Directive (AD) regarding the manner in which his/her illness is to be treated and also state his/her Nominated Representative (NR). Such directives need to be registered with the Mental Health Board or be certified by a medical practitioner. The Act provides for an override function to such directive put forth by the patient wherein the medical practitioner/relative can apply to the Mental Health Board to alter or cancel the directive if they feel it is in the best interest of the patient.
    

4. Treatment Guideline for Mental Health patients

   The Act provides for exhaustive guidelines regarding the admission, therapy and discharge of mentally ill persons. Such clear-cut guidelines promptly expedites the efficiency and working of the Mental Health establishments and everyone associated with it.
   
   • The use of Electro-Convulsive Therapy (ECT) on persons with mental illness is only allowed when the patient has been treated with muscle relaxants and anesthesia. However, use of ECT is barred on minors.
   • Under no circumstances are the patients to be chained in any manner whatsoever.
   • The use of physical restraint on a mentally ill individual is allowed only when it is absolutely necessary. However, no patient is to be subjected to solitary confinement or seclusion.
   • Any unforeseen circumstance or consequence arising from following the advance directive provided by the patient shall not be blamed on the medical practitioner.

[II-B] B] Criticisms Of The Act

1. Families burdened with Responsibilities:

   While welcoming the superior and empowering involvement of family and caregivers as recommended by the new act, one cannot be blind to the burden it is covertly imposing upon them. Patients can appoint nominated representatives (NR) who act as proxy choice makers.
   
   A simple assertion can make a nomination valid. There are no necessities to validate that the nomination is made with free will or to affirm that the patient has the capability to make such a nomination as long as it is not made as part of an AD. The act stipulates that barring an application from NR, a patient can't be admitted to the health facility against his or her wish. Making such a decision, i.e., to observe and be accountable for compulsory admission to the health facility against the patients' noted wish, may additionally lead to resentment, anger, and even vengeance towards the NR. Families already struggling with an unfortunate sickness are now pressured with the accountability of all necessary decisions such as compulsory admission, many of which may not be accepted by the patient.
   
   This makes family members the direct target of the patient's anger and resentment. Families wish to be concerned in caring for and aiding the patient, however not in the position of enforcers. Families taking on such roles could stress relationships beyond restoration and may also make contributions to future relapse of the illness.
   
   Such roles should not be forcefully thrust on the household and need to be elective instead. In countries like the UK, proxy decision-making is carried out by professionals, such as specially educated social workers, who act as independent experts and may make applications for obligatory admissions. The Government of India, through the new act, has determined not to shoulder these duties and as an alternative impose a heavy emotional burden on household members.
    

2. Single Individuals living without a Family Discriminated against:

   Single individuals living with no family or caregivers would struggle to get suitable care in an MHE if their capacity is limited, even temporarily, due to a mental disorder. Without an NR, MHE would no longer be able to admit them. The sole option handy is for the MO to request the district review board (DRB) to appoint an NR. This would take 7 days. Until then, such patients, who may also be at risk of suicide, would continue to be in limbo.
   
   The act, though very vocal about people's rights, has avoided guaranteeing a single individual equal access to excellent and speedy mental health care. This ought to have been avoided if the act had granted instant proxy decision-making powers in such situations to particular local self-government consultant or clinical experts by the discretion of the MO.
   
   The act has adopted a dimensional model for capacity and encourages household members to aid the patient in making choices with a view to promote independent admissions. Individuals without family members would be at a disadvantage right here as well and are more likely to be declared as having no decision-making ability for independent admission.
    

3. Discrepancy in Defining Capacity and Refusal of Treatment under Section 89 and 90:

   Informed consent for a medical intervention is a cornerstone of the doctor–patient relationship. In mental disorders, many nations have taken a deliberately gradual route to incorporate the ability criteria for admission and treatment. This is because, in distinction to a physical disorder, in mental health, there are many situations where a patient with full capability would require compulsory treatment.
   
   Unlike physical disorders, in mental disorders, the consideration is about the risk to oneself and others due to the illness. In such situations, the patient's desire to accept or refuse one or all remedies should no longer prevent the affected person from receiving appropriate treatment, even if such therapy is against the patient's wishes. One motive of sections 89 and 90 is to grant treatment when an individual with a severe mental disorder is a chance to themselves or others.
   
   However, the act does not provide the MO the power to prudently treat the admitted affected person if the treatment contravenes the patient's preceding wishes (AD), the affected person refuses the treatment (while having capability to do so), or the NR (for a person with no capacity) refuses the proposed treatment. There is additionally the possibility that an affected person admitted under section 89/90 could refuse remedy once he regains capacity. This would suggest that a patient who meets the standards for involuntary admission can remain in a health center without receiving any treatment. This would definitely defeat the purpose of involuntary admission and have a paralyzing impact on the MHE[xiv].
    

4. Need for an holistic Capacity Clause not given due attention

   While the Act lays down the provisions and procedures to be followed in the event the patient is unable to furnish an informed decision due to lack of cognitive capacity, there are shortcomings when it comes to the definition and scope of the word ‘capacity'.
   
   The dimensional idea of capability adopted in the act could come in to strife with the dichotomous nature of legal capacity. If a medical practitioner attempts to deal with a person without valid consent, he or she will be responsible under both tort and criminal law.
   
   There is a chance of being sued for negligence and being prosecuted for assault or battery. Indian contract law states that consent of any party (in this case, from the patient) that is obtained by way of coercion, undue influence, mistake, misrepresentation, or fraud will render the agreement, i.e., consent, invalid. Section 120 of the new act states that the provisions of the act shall override other laws and devices even if such other laws and instruments have provisions that may also be inconsistent with the new act.
   
   The guidance notes on capability assessment will be produced by the government in due course. This will determine whether we will observe the dimensional clinical model of capacity adopted in the act, considering this model seems to contradict the generally frequent legal definition (i.e., a categorical concept) of capacity.

Mental Health And Human Rights

Mental Health issues have always been met with gross indifference from time immemorial. For as long as we have existed as a part of society, there have been instances of victims of mental illness of various degrees being mistreated and socially excluded for it was the belief that he had been possessed by an evil spirit.

With the passage of time and the advent of technology and proliferation of knowledge, there has been a stark change in the degree of acceptance of victims of mental health issues, but there is still a sizeable chunk of the population who still turn a blind eye to the people in need. Fear of social exclusion and ostracism create a blockade in the sufferer's mind and a moral dilemma is created whether or not to seek professional help.

It is the belief of the psychiatrists that such fear of ostracism is the reason why more than half of the cases springing up remains unreported. Psychologists highlight the sad fact that the society we live in encourages people to talk about their physical health issues and accepts that without batting an eyelid but we still haven't established a fluidity and ease of parlance in order to communicate our mental health troubles.

Poor access to clinical treatment can be pegged as one of the reasons there is wanton under-reporting of cases of mental illness. Establishments that do provide sufficient care for mentally ill individuals are concentrated in the cities and major townships. This accentuates the fact that people refuse to seek professional help for their mental illness unless it reaches a severe stage. This ideology can be seen at an extreme in rural area, where mental illness is still associated with religious reasons and the first step of action is to approach a local faith healer, regardless of how extreme the condition is.

The MHA 2017 has made specific provisions regarding the regulated use of the Electro-Convulsive Therapy (ECT) whereby controlled electric currents are passed through the patient's brain triggering a brief seizure. The Act has strictly provided that the patient must be anesthetized beforehand and the process must be minutely monitored. Most registered Mental Health Establishments comply with this provision, however there are instances where a relentless patient urges the medical practitioner to forego the anesthesia and quickly fix their brain.

Reports gathered from the recent past bear evidence to the fact that the attitude towards mental health issues along with the accessibility and quality of mental health care across the country has seen considerable improvements.

The Supreme Court in 1997 has directed the National Human Rights Commission (NHRC) to keep a close eye on the working of the Mental Health Establishments and to obtain and maintain vital information and data regarding their efficiency and achievements in order to maintain a country-wide quality of mental health treatment. In addition to his, the government came up with the National Mental Health Policy in 2014. Nevertheless, the uninhibited discrimination and troubles faced by mentally ill individuals both by medical professionals and family members can't be overlooked.

[III-A] Cases Of Human Rights Violation Of Mental Health Patients
There are various instances of atrocities and indifference towards individuals suffering from mental health issues throughout the course of history. Lack of awareness and general acceptance of the threat that mental health problems pose to a person in the society can be one to blame. Such indifference and social stigma mutates to force atrocities against the helpless victims of mental health problems.

Erwadi Tragedy

In a tragic event that transpired in the small town of Erwadi in Tamil Nadu on the 6th of August, 2001, 27 mentally ill patients were burnt to a crisp in a private hospital operated by a religious institution. It was later reported that a larger percentage of the victims were in need of major rehabilitation and had consulted a psychiatrist but were unable to find the appropriate facilities.

Their deplorable mental health condition led them to being chained down which later became the sole reason for their demise as they couldn't free themselves from the shackles in order to escape the fire that had erupted in the building and there was no immediate family member or staff to tend to them. The Supreme Court decided to take suo moto cognizance under Section 21 of the Constitution of India and Sections 3 to 8 of the Mental Health Act, 1987.

Human Rights Violation In Rural Areas

The following is a case report published by the Department of Psychiatry of the National Institute of Mental Health and Neurosciences [xv]

Facts:
Mr. K, a 41 year old gentleman who was unmarried hailing from a rural village in South India and who belonged to a lower socio-economic status, was educated and amongst the few from his village who graduated before the subsequent onset of his mental illness. He spent the last 21 years of his life battling Paranoid Schizophrenia. It is reported that 17 years prior he sought treatment in a tertiary healthcare center but it was discontinued due to his inability to afford the treatments and the non-availability of appropriate medications.

In the following years, his condition worsened following a drug default and he became tough to confront and manage.

In 1997, he was restricted to a terrace room. The ventilation and sanitation facilities were nothing more than deplorable and he would be passed some food upon the patient making a noise to notify his hunger. As a result, the patient's personal care was in tatters. Six years ago, the patient's accommodation was further reduced whereby the single room was divided into two and the patient's room was deprived of everything but a single window. A local journalist caught wind of this incident a year ago and promptly published the information in the newspaper.

Following this, members of the local government and the regional health team managed to take the patient away from his horrendous living condition and brought under the care of the National Institute of Mental Health and Neuro-Sciences in Bangalore.

When the patient was brought in, conversation with him was next to impossible as his mode of communication had diluted down to occasional grunts and noises. However, following a 3-month treatment period, the patient recuperated enough for him to be moved to a government run rehabilitation facility which was nearby his hometown. According to the recent reports of the psychiatrist, the patient is seen to respond positively to the treatments.

The aforementioned facts highlight the true and nerve-racking reality that a domestic setting is not devoid of instances of gross human rights violation of mentally ill individuals. Following the establishment of the National Mental Health Program 30 years ago, its primary objective of educating the rural and economically backward population regarding basic mental health issues is evidently incomplete. The ground reality of what mentally ill individuals have to tolerate on a daily basis in their rural setting is depicted in the aforementioned case.

This proves that mental health legislations enacted by the government have not been able to make an impact on the ideology and mindset of the people in such a lower strata of the society's hierarchy.

The quintessential need of the hour is to deploy a considerable workforce with respect to setting up mental fitness centers, spreading basic education and technical know-how regarding mental health issues and the proper way to approach such a problem if it presents itself and strive for the overall improvement in the neighborhood outlook and attitude towards mental health issues and educating the people regarding the provisions of basic human rights of the victims of mental health issues.

[III-B] The Issues Concerning Health Status

The discrepancies and irregularities in dispensing equal health rights to all have been abundantly evident until now, most of which can be accredited to political and socioeconomic factors. There is widespread disparities in the quality and delivery of mental healthcare, which is synonymous to the deplorable status of general mortality rates, maternal mortality and suicide rates in the country.

Although terms like social inequity and social inequality are often misinterpreted due to lack of clarity in their explanation, certain authors[xvi] are of the opinion that ‘inequality' can be said to be the difference or gulf in the level of resources owned or the level of income, whereas ‘inequity' refers to the problems surrounding those of fair chance and justice.

This lack of clarity has brought about a wave of confusion and irregularities all the way up to the national level, and this is reflected in the lack of specificity of the right to health in conspicuous and legally binding regulations. A simple provision has been included to avoid the aforesaid controversy, i.e. the establishment of four principle of international human rights law and regulations namely justice, participation, equity and dignity[xvii] [xviii].

In the Indian context, it is all but evident that requirement of human rights regulations for mental health care is important and its implications on a nation-wide scale is quite necessary. The Human Rights Act 1993 established in India incorporates the idea of Justice which involves the ability of persons to claim their right to health and seek redress upon infringement.

It is the belief of many legal activists that conspicuous and government-driven infringement of human rights of mentally ill individuals are relatively rare. However, this does not discount the plethora of subtle acts of indifference and ostracism dished out to mental patients in medical establishments as well as their own homes. Fulfillment of human rights provisions cannot reach a 100% as long as social stigma lingers around our neighborhood.

It requires nothing short of a perfect society and the personal will to maintain a social Utopia[xix]. Social stigma is one of the biggest reasons in the downfall of human rights implications on the masses as is evident from cases like the Erwadi Tragedy. These horrific instances may not always be related to the shortcomings of legislations that are already in place. For the longest time, the aversion towards mental patients have been attributed to a question of ‘who requires protection from the other?'[xx] Sadly, the feeble balance between the two has seldom been struck.

Conclusion
The long-standing battle between social stigma and human rights has opened up a variety of avenues of debate and discussion and given us as citizens a lot to ponder upon. As is evident from instances and reports aforementioned, mentally ill individuals have to go through a lot of problems due to an age old societal antipathy towards the concept of mental illness. Victims of mental health problems were condemned because people around them were of the belief that they were possessed by an evil spirit or by the devil.

Such extreme notions brought out the worst in people, leading to inhuman treatment of the victims such as locking them in a deplorable place, forcing them to live in bondage or burning them alive to drive the evil spirits away.

However in the present times, reports indicate that there is a stark improvement in the general acceptability of and attitude towards mental illness and its victims. People have started taking cognizance of the issue and laws and regulations have been put into place to safeguard the rights and liberties of such vulnerable people. Various mental health establishments have seen the light of day and professionals and volunteers work tirelessly to ensure the safety and protection of their human rights. In essence, there is a simple correlation between mental health and human rights. It can be determined that a mental health policy has an effect on human rights.

Similarly, the violation of human rights adversely affects the mental health of that person. Human rights and mental health can be said to be complementary to each other and keeping both of them in a positive light helps improve and strengthen both of them and aids in the betterment of people. The maintenance of human rights of each and every person leads to the maintenance of peace, which in turn has a profound and positive effect on developing and developed nations.

The modern mental health legislations have ensured an increased accountability of psychiatrists and mental health practitioners as their actions and inactions have a lasting effect on their patients who are mostly detained and who do not have the cognitive capability to make an informed decision about their treatment process. The present world has evidence of the fact that the practice of psychiatry is convoluted in the sense that it has to bypass a series of blockades in the form of regulations and expectations.

There is a fine gulf between the notions of coercion and care[xxi], medicine and law[xxii] and ethical guidelines[xxiii]. The work of mental health professionals and psychiatrists have a profound effect not only in their sphere but beyond, adding to the betterment of mental health conditions of people, allowing them to enjoy their rights and liberties with the utmost mental capacity to understand and cherish them.

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List Of Abbreviations:

1. ILA - Indian Lunacy Act
2. MHA - Mental Health Act
3. ECT - Electro-Convulsive Therapy
4. NR - Nominated Representative
5. AD - Advanced Directive
6. MHE - Mental Health Establishment
7. MO - Medical Officer
8. DRB - District Review Board

Written By: Sourajit Sarkar, Amity Law School Noida in lieu of the NTCC Submission represents my own original work. All sections of the paper under quotes or those that describe an argument or notion developed by another author has been duly referenced to show that the appropriate material has been adopted to support my thesis.