Mental health legislation has existed in India since the mid-19th century. The first law in relation to mental illness in British India was the Lunatic Removal Act from 1851, and which continued until 1891. This law was enacted to regulate the transfer of British patients with mental illnesses back to England. After the takeover of the Indian administration by the British Crown, many laws with respect to mental health were passed thereafter, such as:
- The Lunacy (Supreme Courts) Act 1858
- The Lunacy (District Courts) Act 1858
- Indian Lunatic Asylum Act 1858 (with amendments in 1886 and 1889)
- The Military Lunatic Act 1877
Under these Acts, patients were detained for an indefinite period in poor living conditions, with little to no chance of recovery or discharge. These Acts led to the formulation of the Indian Lunacy Act of 1912 which was the first proper law that governed mental health in India, bringing fundamental change in the management of asylums. However, the Act was premised on the need for the protection of the public from patients with mental illness. It contained terms like ‘lunatics’, ‘lunatic asylums’ and ‘idiots’ and disregarded human rights and was concerned with custodial sentences.
The Indian Psychiatric Society deemed this Act as “inappropriate” and helped draft a mental health bill in 1950. It took India two decades to enact the Mental Health Act (MHA) in 1987, primarily a custodial law. This law came into force in 1993, replacing the Indian Lunacy Act of 1912. The MHA 1987 laid down the minimum necessary care standards in mental health institutions, for example for every 10 admitted patients, a psychiatric hospital would need to have at least a psychiatrist, one psychologist or social worker and three nurses. The MHA also defined mental illness progressively, emphasising care and treatment over custody. It tried to strike a balance between the rights of the family (primary caregivers) and the rights of patients, keeping the caregiver’s burden in mind. It also tried to prioritise the need to protect human rights, guardianship and management of the property of those diagnosed with mental illness. The MHA 1987 also sought to regulate involuntary admissions through sections 19 and 20. These sections mandated that involuntary admission could only occur in designated psychiatric hospitals and that it required the recommendation of a psychiatrist and two medical practitioners.
However, MHA 1987 received its own share of criticisms. Human rights activists questioned the validity of the act as it curtailed the personal liberty of patients without the provision of review by a judicial body. The Act did not comment on the treatment and rehabilitation of patients post their discharge from the hospital. Furthermore, insufficient treatment facilities posed a financial and socioemotional burden on caregivers and the family. Its silence on emergency psychiatric services and on the choice of treatments, particularly electroconvulsive therapy without anaesthesia was deadening. Limited allocation of budgets and resources implied poor functioning of national and mental health authorities, hampering its implementation.
Eventually, the Mental Health Care Bill was introduced in 2013 and passed in 2017. Under MHCB 2017, every person shall have the right to access mental healthcare and facilities such as the provision of psychotropic medications, free of cost, insurance coverage for mental illness, funding for a private consultation if a district mental health service is not available. It further ensures that treatment and rehabilitation are done in the least restrictive manner, respecting the rights and dignity of patients. It also introduces newer concepts such as advanced directives and nominated representatives, allowing persons with mental disorders some autonomy over how they wish to be treated in the future in case they lose their ability to make informed decisions. It also calls for the establishment of central and state mental health authorities and ensures that every mental health establishment is registered with the relevant mental health authorities.
This bill also calls for the decriminalization of suicide. A person dying by suicide shall be presumed to be suffering from a mental illness at that time and will not be punished under the Indian Penal Code. It also regulates the use of electroconvulsive therapy without anaesthesia and prohibits its use on minors. It is a step towards the provision of human and evidence-based care for people with mental health concerns. It mandates a wide range of services, including community rehabilitation, and puts the onus on the state for suicide prevention, promotion of mental health, training of mental health professionals, and provision of care.
However, the Bill has received its share of criticisms. Many psychiatrists view some provisions of the Bill, such as advance directives and nominated representatives, as interference with clinical decision-making. Mental health activists have noted that it doesn’t comply with the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
Mental health is political and cannot be divorced from socio-economic contexts and the Bill does not go far enough or deep enough in recognizing and addressing these socioeconomic realities that drive mental health issues for millions. Vikram Patel in his research on low and middle-income countries has established the correlation between poverty and mental health. Similarly, MHA was considered also in Supreme Court in Navtej Singh Johar vs Union of India, referring to how the repercussions of Section 377 included adverse impact on the psychological well-being of individuals. Other axes of marginalization, such as casteism, ableism and Islamophobia, continue to impact the mental health of individuals. Thus, the mental health crisis in the country cannot be resolved unless the mental health policies and practices take into account identities. Future mental health legislation in India must take into account socioeconomic factors and discrimination faced by the marginalised groups by virtue of their positionality and address these aspects through appropriate measures designed in consultation with those most affected.