SPECIAL ARTICLE
Legal Frameworks for and against People
with Psychosocial Disabilities
Bhargavi V Davar
People with mental illness were hitherto considered
non-persons, lacking recognition before the law, on
any life dimension. The macro-environment within
which the mental healthcare system, supported by the
Mental Health Act 1987, still works is that of custodial
law. However, in 2007, the government signed and
ratified the United Nations Convention on the Rights of
Persons with Disabilities, which shifts the policy gaze
away from a medical model to a more encompassing
social paradigm, where long-term impairment
physical, mental, sensory, or intellectual combined
with social barriers is understood to create disability. This
paper critically analyses the provisions of the new
Mental Health Bill, particularly on the question of patient
consent, in light of the ratified convention.
This paper is an outcome of advocacy in the Convention on the Rights of
Persons with Disabilities since 2006, as well as through the Bapu Trust,
National Alliance on Access to Justice for Persons living with a Mental
Illness and World Network of Users and Survivors of Psychiatry. The
author was also a member of the committee which drafted the Rights of
Persons with Disabilities Bill until almost the last meeting.
Bhargavi V Davar (bvdavar@gmail.com) is with the Bapu Trust for
Research on Mind and Discourse, Pune since 1999.
Economic & Political Weekly EPW december 29, 2012 vol xlviI no 52
P
eople living with a psychosocial disabilities and mental
illness, have for over two centuries, suffered stigma, and
struggled for their fundamental rights, including the right
to life, liberty, privacy, freedom of expressing oneself, freedom
to choose treatments, etc. India does not have any law to protect
their human rights. But this is true of all healthcare patients. A
Right to Health Bill, long pending before the Indian legislature,
will hopefully, cover broader patient rights. A minimum of social
protection has been provided in the Persons with Disabilities
Act of 1995. However, the Acts provisions have largely not been
implemented. There are high expectations from the Right to
Persons with Disabilities Bill 2012,1 pending before the Ministry
of Social Justice and Empowerment.
However, people with mental illness were hitherto considered
non-persons, lacking recognition before the law, on any life
dimension. The macro-environment within which the mental
healthcare system works is that of custodial law. We do not
have a national policy for mental health. The mental hospitals,
an overdetermined mode of mental healthcare provision in the
country, have been instituted and regulated by the Mental Health
Act (MHA), 1987 regarded as an Act to protect the rights of
people with mental illness.
The Act is a peculiarity of the health sector. Unlike health-
care patients, who are distal from the universe of law and
courts, psychiatric patients become medico-legal subjects the
moment a psychiatric diagnosis is received. The MHA provides
liberally for involuntary commitment into a mental hospital.
The legal format and process of commitment is more like the
arrest of legally incapacitated persons, and less like a critical
health admission of people with healthcare issues. The National
Human Rights Commission (NHRC) in 1999 observed that it
was more appropriate to call mental hospitals asylums rather
than hospitals. Mentally ill people are the only ones subject to
arrests without warrants, making hospital admission a penal
matter more than a matter of care.
When a legally incapacitated person goes before a court on an
insanity petition, this is like an accusation of crime, which
must be proved before the court. The police often have a role
to play in mental hospital commitments, which is another
peculiarity. Through the punitive legal devices enshrined in
the Act, psychiatric patients become high risk for state coercion,
particularly involuntary incarceration and treatment, and
inhuman, degrading and torturous treatments (Minkowitz
and Dhanda 2006). This has been a huge concern among
human rights activists for many decades. All stakeholders in the
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SPECIAL ARTICLE
mental health system have been unhappy with the MHA, 1987.
For example, doctors have claimed that it makes hospital admis-
sion cumbersome, because it requires court procedures. Parents
organisations have made similar claims. Human rights advo-
cates have decried blatant human rights violations in custodial
care, the deprivation of liberty and the legal incapacitation of
people with disabilities.
In 2010, the Ministry of Health and Family Welfare has pro-
posed another draft, called the Mental Healthcare Bill, 2010
(henceforth MHC). While professionals and caregivers have
strongly approved this bill, human rights activists and liberal
thinkers have been up in arms against it. This paper describes
the recent debate around the MHA and the MHC. The context
for its increasing intensity lies in 2007, when the government
has signed and ratified the United Nations Convention on the
Rights of Persons with Disabilities (CRPD). The paper critically
analyses the provisions of the MHC, particularly on the ques-
tion of patient consent, within the context of the CRPD.
Enter, CRPD2
India signed the CRPD on 30 March 2007, the day it opened for
signatures. On 1 October 2007, the government ratified the
CRPD, and in doing so, made a commitment to the people of
India and to the international community on its obligation to
respect, protect and fulfil the enjoyment of all human rights
and freedoms by all people with disabilities, on an equal basis
with others. The CRPD is like the Committee on the Elimina-
tion of Discrimination against Women (CEDAW), the Child
Rights Convention (CRC), Convention against Torture, etc. It is
considered hard law, relative to the Standard Principles,
Rules, Declarations, and other instruments that UN bodies
adopt every now and then. A convention on people with disa-
bilities was envisioned in order to fill the huge gap that other
conventions left. For example, while CEDAW gave a more spe-
cific international legal framework for concepts such as legal
capacity and discrimination, it did not specifically address
issues of people/women with disabilities.
The CRPD promises a shift of paradigm. It shifts the policy
gaze away from the medical model to a more encompassing
social paradigm, where long-term impairment (physical, mental,
sensory, or intellectual) combined with social barriers creates
disability.3 While the CRPD has been considered as not provid-
ing for any new rights, it melds together socio-economic and
civil-political rights in ways that makes human rights truly
indivisible, inalienable and universal for all people with disa-
bilities. The CRPD also, in its preamble, recognises multiple
discrimination against people with disabilities, especially
women and children.
The disability movement in India has reverberated with the
slogans, all rights for all persons with disabilities and noth-
ing about us without us since the advent of the CRPD. The
CRPD inscribed the principle of participation for people with
disabilities in its Article 4.3.4 It also recognises the existing
and potential contributions made by persons with disabilities
to the overall well-being, and diversity of communities. By
introducing the new concept of reasonable accommodation,
124
an operational term for all people with disabilities, the CRPD
placed an obligation on communities (see Article 2, on Defini-
tions) including private agencies:
to provide necessary and appropriate modifications and adjustments,
not imposing a disproportionate or undue burden, where needed in a
particular case, to ensure equal enjoyment of all human rights and
fundamental freedoms on equal basis with others.
Not providing reasonable accommodation to a person with
a disability is considered discrimination, taking the notion of
discrimination to a higher level of inclusion.
According to many experts in the field, the CRPD is a coming
of age as far as UN conventions go, in the interpretive breadth
and depth of insight on the notion of personal identity, equality
and non-discrimination, and the general human rights discourse
(Quinn 2010). It places the person with a disability at the centre
of the discourse. Disability is considered evidence of human
diversity and potential. When all the CRPD rights are ensured
by a state, we can expect a world where people with disabili-
ties are fully included and participating in their communities,
living independently, with dignity, and able to make their own
choices and contributions.
There is a view recently expressed in international advocacy
that Article 19, embodying the right to live independently and
being fully included in the community is perhaps a new right
offered by the CRPD. For people with psychosocial disabilities,
this could be the foundational right on which to pitch all
advocacy efforts. For example, the state can no longer use the
argument, no one is claiming these people, for the indefinite
incarceration of people with disabilities in mental asylums and
other places of penal custody.
Challenges for People with Psychosocial Disabilities
Following ratification of the CRPD, in India, persons with dis-
abilities and their organisations are having to advocate with at
least two separate ministries with key roles the Ministry of
Health and Family Welfare and the Ministry of Social Justice and
Empowerment. There are approximately 200 civil incapacity
laws, three rights-oriented disability laws the National Trust
Act, 1999, Persons with Disabilities Act, 1995, and Rehabilita-
tion Council of India Act, one neocolonial mental health law
the MHA a handful of health and disability policies, drafts of
various new laws relating to full enjoyment of all freedoms and
human rights of people with disabilities, and several plans and
programme documents. The policy environment for persons
with psychosocial disabilities is, to say the least, complex.
There is little doubt that the CRPD includes people with
mental, intellectual, multiple and psychosocial disabilities.
However, people with psychosocial disabilities in India, face
some key challenges, beginning with who are we?. The shift
from the illness paradigm to the disability paradigm raises
several questions (Davar 2008).
There is the question, for instance, on whether the MHA is at
all a disability rights law. Traditionally for 200 years, some
persons seen as being unsound were subjects of the health/
prisons department, through the Indian Lunacy Act (ILA) 1912.
This colonial act included both the categories of the insanes
december 29, 2012 vol xlviI no 52 EPW Economic & Political Weekly

and the idiots, who were subject to involuntary incarceration
in mental asylums and other places of penal custody, including
jails, beggars homes and lepers homes (Mills 2000, 2004).
Unsound mind was a legal category which allowed the courts
to determine level of safeguards and protections the state needed
to provide for society and imperialist power (Ernst 1991). It in-
cluded a broad social class of people. This notion became strongly
medicalised when the ILA 1912 was changed to the MHA in
1987, following advocacy by the Indian Psychiatric Society.
The MHA retained the penal involuntary provisions in full with
some additional medical provisions, restricting personal lib-
erty further. It did so by bringing discharge within stricter
penal procedures, and liberalising norms for family members to
commit individuals involuntarily (see Section 19: Admission).
In this legislation, mental illness was reified to a total medico-
legal matter, with admission made easier, and discharge, more
difficult.5 In this way, the MHA 1987 enhanced state and medi-
cal power, by taking over decisions about personal liberty,
even compared to the ILA. It also allowed families to more sim-
ply, and without the involvement of the judiciary, involuntarily
commit a relative, on the basis of psychiatric evidence alone,
without having to go through a lengthy court procedure.
This is the reason why I refer to the MHA as a neocolonial
act. The post-Independence Indian state failed to protect per-
sonal liberty. Instead it enhanced its own power over individ-
ual lives and decision-making, and solicited the power of the
doctor in directing or even taking over the lives of people.
More than even the Code of Criminal Procedure (CrPC), which
has some inherent rights and safeguards built in, a finding of
mental illness through MHA makes a person very much below
par on any measure of rights guaranteed in the Constitution.
For example, in the late 1980s, after the emergence of the
MHA, some famous public interest litigations (PILs) in the east
and north-east, initiated by Sheela Barse, led to judicial activ-
ism on the archaic ILA. Courts investigated and found large
numbers of prisoners in the jails of these regions; they directed
that the correct place of detention for mentally ill people
were the mental asylums, and not jails. Large numbers of peo-
ple were shunted from the prisons to the asylums at this point,
most of them homeless or deserted, with no other place to go
to. The human rights-based approach of the courts and civil
society at the time did not further question the penal model of
the asylums (NHRC 1999), which was far worse than the pris-
ons. The courts did not consult the inmates of the institutions
on what they wanted, nor did they grant liberty to those found
in the prisons to walk free, at their own risk and/or determi-
nation. They were shunted into the asylums, without relevant
jurisprudence, human rights safeguards or review.
Meanwhile, the mental/intellectual/multiple disabilities
group (known as idiots in the ILA), with strong advocacy from
parents groups such as Parivaar, shifted to the jurisdiction of the
disability department, which was formulating its own human
rights sensitive legislations the Persons with Disabilities Act
1995 and the National Trust Act 1999. People with psychosocial
disabilities have continued to remain in penal/medical control
within the mental health law; the disabling aspects of mental
Economic & Political Weekly EPW december 29, 2012 vol xlviI no 52
SPECIAL ARTICLE
illness have been invisible. Even though everyone vaguely knew
people with psychosocial disabilities as the seventh category
in the Persons with Disabilities Act, 1995, the disability sector has
not created any rights or entitlements in the last two decades.
This, in brief, is the historical legacy of the MHA. The MHA is
a penal custodial law, inherited along with other penal acts,
such as the Beggary Prevention Act, CrPC,6 and amended post-
Independence only with tightened penal measures. It is an
obsolete piece of legislation, best repealed, like the Lepers Act,
to make way for CRPD-rights compliant norms. MHA is not a
disability Act and mental health advocates have been asking
for the full inclusion of all rights of all persons with disabili-
ties, including persons with psychosocial disabilities, in a com-
prehensive disability legislation, also presently in the making.
Infirmity, Defect, and Incapacity Laws
It has been well known that many laws bar persons of un-
sound mind from full legal capacity in many walks of life, in-
cluding marriage, contracting, political life, holding a job, vot-
ing, etc (Dhanda 2000).7 However, a quick scan of national
laws shows overwhelming discrimination against all persons
with disabilities on grounds of legal incapacity in over 150
laws. For example, the words, physical and mental defect,
incapacity, physical and mental infirmity, deaf mute,
blind, contagious leprosy, leprosy cured, epilepsy are
found pervasively in the laws in the context of legal incapacity.
More general categories of incapable due to serious illness,
found unfit to act by a competent court, etc, are also found.
Like the MHA, many of these laws have their origins in the
colonial period, and have gone through serial amendments in
the post-Independence period. The legal experts who amended
various laws following Independence did not revise provisions
relating to people with disabilities. As a result, a hard core of
provisions and legal perversions exist within nearly every class
of laws, containing highly discriminatory, even inflammatory,
allegations and assumptions regarding a variety of disabilities.
A large part of the family laws are about people of unsound
mind. Family laws deny capacity to be married, stay married,
adopt, inherit, terminate a pregnancy, choose a pregnancy, etc.
Some of these laws have guardianship provisions. Some laws
are applicable only to those of unsound mind, others include
leprosy or contagious leprosy, physical and mental defect,
severe handicap, etc. The Hindu Inheritance (Removal of Dis-
abilities) Act of 1928 has a curious subtitle, reminiscent of
sterilisation of the unfit, which was the practice at the time
this Act was promulgated in the late colonial period. Conditions
are placed on the capacity of persons with disabilities in making a
will. A person who is blind or deaf and dumb can make a will
provided they can understand what they are doing. A lunatic
cannot probate or administer a will.
Laws relating to the military, security and other enforce-
ment laws (such as the Coast Guard Act) deny a person with
disability the capacity to act, to stand trial, to defend him or
herself, to explain or appeal, to give consent for treatment, to
give consent for institutionalisation/treatment, etc. These
laws provide for a direct pathway from the services into a
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SPECIAL ARTICLE
mental institution without too much legal intervention or
human rights safeguards. Reference is still made to the ILA
1912 in these legislations.
The provisions relating to persons with disabilities are harmo-
nised with the CrPC or other penal laws, and not with any rights
or social justice-related, disability-related or other progressive
laws. This has entrenched the legal view that people with dis-
abilities operate on the fringe of criminality, and that come within
the jurisdiction of criminal law and institutions by virtue of their
disability alone. However, unlike other constituencies mired
within the criminal discourse (such as denotified tribes), the
disabled never received patronage or protections from the state.
Criminal laws, in general, deny the capacity to defend,
stand trial, witness, or give consent for any medical interven-
tions. In the recent post-CRPD amendments (2009) to the law,
for the first time, a psychiatrist or clinical psychologist is re-
ferred to in determining unsound mind in the criminal law
context. The amendment is interesting evidence of the perver-
sion of the law through the ages, because it brings together
anachronistic provisions from laws drafted at different times,
resulting in some strange legal terminology, such as a person
of idiot (sic) or accused to be of idiot. Here the psychiatrist
and psychologist are called upon to declare a person of idiot
is suffering from unsoundness of mind. The legal determin-
ation mandated in the amendment is of idiot found to be
unsoundness of mind found to be incapable. In another rights to all persons with disabilities, and especially people with
provision of the CrPC, the amendment says that trial may
resume after a person has ceased to be of idiot. Mental retar-
dation appears as a separate category distinct from person of
idiot, or of suffering from unsoundness of mind, again refer-
ring to psychologist or psychiatrist for the determination.
The amendment enlarges the scope for medical professionals
in directing the status and lives of people with disabilities. Notice
the neocolonial perversions in this law, mixing the old with the
new arbitrarily, to serve the short-term purpose of managing
jurisprudence questions, with long-term consequences in the
deprivation of constitutionally granted rights, simply on the basis
of disability, leading to civil death. A law on the settlement of
property-related matters of dead, missing or unsound persons in
the military forces provides that a person of unsound mind is to
be treated as a dead person from the day unsoundness is ascer-
tained. I have found this to be the most inexplicable representa-
tion of people with psychosocial disabilities within the law.
Disabled people are the only group singled out in this way,
by the most powerful normative structures of the country.
Women, dalits, tribes, and others have over a period of the last
50 years slowly gained release from a regime of total legal
oppression. The legal barriers for people with disabilities are
the last frontiers to be crossed.
The CRPD (Article 12 equal recognition before the law) was
a key article over which many struggles have been mounted,
and won, in the drafting of the convention. Article 12 is clear on
the issue of legal capacity. Article 12.1 reads: persons with dis-
abilities have the right to recognition everywhere as persons
before the law. Further, persons with disabilities enjoy legal
capacity on an equal basis with others in all aspects of life. The
126
state is obligated to take appropriate measures to provide ac-
cess by persons with disabilities to the support they may require
in exercising their legal capacity. Not providing such support in
the exercising of legal capacity will count as not providing rea-
sonable accommodation, therefore, discrimination.
Article 12 and the equality/non-discrimination articles of
the CRPD, along with the Principles, allow for an unequivocal
obligation on the part of state parties to dismantle the incapac-
ity laws. Such far-reaching legal deprivation of capacity and
legal personhood needs to be changed in the post-CRPD era, if
the government stands by its obligation under this inter-
national treatise to take all appropriate measures, including
legislation, to modify or abolish existing laws, regulations,
customs and practices that constitute discrimination against
persons with disabilities (4.1.b). Further, legal pedagogy and
court practice have been so indoctrinated into thinking inca-
pacity for over a century, that there is little disciplinary
imagination for making an alternative legal articulation. Fur-
ther, these laws have created a formidable social stereotype of
the incapable, violent lunatic, a stereotype that plays itself
out in public skirmishes and in the courtrooms.8
Intersections between Penal and Incapacity Laws
The legal incapacity laws and the penal provisions of the mental
health law work synergistically, to ensure total deprivation of all
psychosocial and mental disabilities. The mental health law is
like a legal filter to catch people who have been determined to
be of unsound mind, defected, incapacitated, etc from fall-
ing through the cracks of other laws. Once so caught, the peo-
ple are hauled into the involuntary commitment procedures of
the MHA or other penal acts.9, 10 Considering that the MHA allows
for involuntary admission up to 90 days without legal review,
private facilities stand to profit from such involuntary commit-
ments.11 It was recently reported in Chennai that 40% of divorce
cases in family courts are filed on petitions of insanity (Times
News Network 2011), which is a probabilistically impossible
number for the insanity clause alone.12
Following the tragic deaths of 25 people in Erwadi (more fully
described in an article in EPW by Davar and Lohokare 2009), the
Supreme Court (SC) ordered the construction of mental hospi-
tals in states where none exist.13 The court did not examine the
state of mental asylums (private and public) in the country, nor
did it pay heed to the everyday exposes in the press or even to
the NHRC report of 1999. The controversial issues of electro-
convulsive therapy (ECT) and solitary commitment have been
pending without judgment or directive from the SC since 2002.
Since the SC directive, licensing for starting private asylums
have been liberalised, and over 400 private asylums exist, with
more applications going before the state mental health authori-
ties.14 Recent affidavits filed in 2009 by various state govern-
ments before the SC as obligation under the Erwadi directives
show that in Andhra Pradesh and Chandigarh, over 35 institu-
tions have been licensed. In Maharashtra, an improbable
number of 101 institutions have been licensed, and Kerala is the
highest with around 150 private institutions.
december 29, 2012 vol xlviI no 52 EPW Economic & Political Weekly

Some institutional atrocities against people perceived to be
or diagnosed as mentally ill are instructive, even taking only
recent incidents of the last two to three years, i e, in the post-
CRPD period. A campaign called Jan Manasik Arogya Abhiyan,
working in Maharashtra, brought to light many atrocities hap-
pening in these closed institutions,15 including, in the last couple
of years, a case of attempted rape, a suicide and a high-profile
wrongful political commitment involving senior police officers.
In January this year, 40 people were found in degraded condi-
tions in a mental asylum in Thrissur and rescued (CNN-IBN
2012, Times News Network 2012). Last year, in Maharashtra,
children, both boys and girls were sexually abused, leading to a
PIL in Mumbai High Court (Sikand 2011). Masina Hospital, a
century-old private asylum in Mumbai has been exposed by the
media repeatedly for fraudulent admissions, extant involuntary
commitments, over-drugging, over-use of shock treatments,
and various other abuses (NDTV 2010; Moghul and Shelar 2011;
Paul 2012). Near Kolkata, a 32-year old woman was raped and
killed in a private mental asylum.16 Her death certificate, ac-
cording to reports, said that she died of a cardiac arrest. Ear-
lier in the year 2012, a sexual molestation case was exposed by
Anjali, a human rights organisation working in Kolkata,17 and
yet another one reported more recently (Telegraph 2012). In Au-
gust 2012, some ward staff obtained sadistic pleasure by egging
on inmates to fight, resulting in one homicide.
The beggars home institutions also house a majority of people
with physical, multiple and psychosocial disabilities.18 Atrocities
have been reported here too, for example, the Karnataka State
Human Rights Commission (SHRC) took suo motu action, upon
the death of 40 reported beggars in the Magadi Main Road
beggars home on 18 August 2010, in Bangalore in the post-CRPD
period.19 In Chennai, following a beggar-free Chennai cam-
paign,20 around 420 persons were forcibly caught and detained
in Kilpauk mental hospital.21 The Public Union of Civil Liberties
(PUCL) fact-finding group observed many procedural violations.
According to the report, many of those caught were in sound
mental health, working in the unorganised sectors, migrants
from other districts and states and the homeless. Those people
who were sleeping or living on the streets were rounded up ran-
domly by the health inspectors from the 10 zones of Chennai
Corporation. The process of capture and detainment was deceit-
ful and inhumane, it was reported. The corporation employees
told them that they would give them a haircut if these people
went with them. When they resisted, four to five people sur-
rounded them and forced them into the waiting van.
State Obligations in the CRPD
The longlist of abuses described above, are of course totally
contrary to human rights, and the state is obligated to take
action under Article 15 of the CRPD. The state has the duty to
respect (not cause harm), protect (ensure that non-state actors
cause no harm) and fulfil (take proactive measures), and has
done none of these in the above cases. The National Alliance
on Access to Justice for Persons Living with a Mental Illness
(NAAJMI) has advocated for the repeal of the MHA, endorsing
the statement of the World Network of Users and Survivors of
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SPECIAL ARTICLE
Psychiatry (WNUSP) (Minkowitz 2011), which has called for
repeal of mental health law around the world.
A recent article by Davar gave narratives of coercion within
mental institutions, arguing that the presence of the MHA makes
the staff custodians rather than caregivers, creating a key dilemma
in social work practice.22 Helping staff who are expected to do
no harm are forced to deal with inmates in fashion contrary to
their instincts because of the control and command regimen
set up by the MHA. The system becomes violent in effect, even if
not in purpose, leaving both staff and patients disempowered
and unable to connect on a shared space of empathy and com-
passion. This violence is inherent to the institutional design
itself, and the overdetermination of this system by a penal law.
In India, in the wake of the CRPD, Cremin (2007) argued for
alternative institutional designs and the right to community
mental healthcare. His inference was that the MHA has affected
not only the way the mental asylums are run, but nearly all
mental health facilities, even those deemed to be community
care. Rehabilitation centres were interpreting involuntary com-
mitment procedures and had become semi-state authorities in
utilising Article 21 of the Constitution (Right to Life and Liberty)
for purposes of deprivation of personal liberty. Solitary confine-
ment and lock-up was found in many private rehab centres also.
Cremins report described how social workers and rehab centre
staff openly talked about catching people, or round-ups, parti-
cularly referring to homeless people with disabilities. Davar and
Lohokare (2009) also argued for voluntary and humane institu-
tional designs for recovery from psychosocial traumas.
While the CRPD does not explicitly prohibit institutionalised
care such as respite homes, it also does not say anything specifi-
cally on having a special law for a certain disabled constituency.
But Article 14 of the CRPD is clear that a person should not be
detained in an institution on grounds of disability. By inference,
it is anti-CRPD for a state to continue to create custodial institu-
tions specially for some people with disabilities. Article 17 on
Right to Integrity, including the protection of physical and
mental integrity, is a challenge to the regime of force extant in
the mental health sector. Through various other provisions of the
CRPD (14, 19) we can infer that states are obligated to begin a
de-institutionalisation process through a review of laws, policies,
programmes and practices, and set up alternative practices that
will facilitate inclusion. Article 15 gives further cover on protec-
tions from torture, cruel, inhuman and degrading treatments, or
punishments. It is the responsibility of the state to ensure full
compliance with Articles 14 and 15.
The WNUSP, on 31 August 2011, argued that the CEDAW/CRC
general comments should recognise forced and coerced psychiatric
interventions against women, men and children as a harmful
cultural practice of the west.23 On 5 August 2011 through a
resolution, the secretary general made a clarificatory statement
on torture and other cruel, inhuman or degrading treatment or
punishment.24 The special rapporteur on torture reported that
where the physical conditions and the prison regime of solitary con-
finement cause severe mental and physical pain or suffering, when
used as a punishment, during pre-trial detention, indefinitely, pro-
longed, on juveniles or persons with mental disabilities, it can amount
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to cruel, inhuman or degrading treatment or punishment and even
torture. In addition, the use of solitary confinement increases the risk
that acts of torture and other cruel, inhuman or degrading treatment
or punishment will go undetected and unchallenged.
In India, advocates are for community mental health and
support systems to be made available, including mental health
within overall development, group and peer support, neigh-
bourhood care systems, conflict reduction and peace-building
strategies, supportive counselling, addressing exclusion at
community level, trauma informed services, and a huge range
of alternatives (Lahiri et al 2010). The CRPD emphasis on inter-
dependence can be fulfilled in the country because of the tra-
ditional support systems mixed with emerging alternatives to
families. Surely, a national mental health policy is needed to
cover these aspects. While not diminishing the role of tertiary
care, it should be noted that the doctors scope of authority in
our society is sufficient to build a good and supportive client
doctor relationship. No further law is needed. Mental health
laws have always been penal: they divide communities, break
social collaborations and build mistrust and paranoia in soci-
ety as a whole. They build suspicion of persons being crazy,
so a community has to watch out and turn them in.
From Institution to Independent Living
The CRPD directs the state on respecting, protecting and fulfil-
ling the right of living independently in the community, and on
full inclusion (Article 19). In the wake of CRPD, other developed
countries are considering another round beyond de-institu-
tionalisation (Axelsson et al 2004), and applying social inno-
vations to mainstream people found in institutions, compliant
with Article 19 (living independently and being included in the
community). The World Report on Disability (World Health
Organisation 2011) further gives a step-wise process of moving
from a regime of custody to a regime of care in the community.
With respect to mental healthcare, India is in a period of
double transition: It has to bring something down at Point A
(mental asylums) and put something new up at Point B (com-
munity mental health). It is evident that both processes will be
costly.25 This ramping process is often called a transition
period with respect to creating CRPD compliance in laws, poli-
cies and practices. Visualising India as an asylum-free zone
for the future, and community mental health programmes in
every district, NAAJMI is advocating de-institutionalisation
through the following step-wise ramping measures, which can
be executed by a time-bound national expert commission on
de-institutionalisation:
Set up a regulatory (or ramping) process with definite time-
lines on changing the mental asylums (private and public) to
what they should be tertiary care voluntary hospice/recovery
centres with active community outreach and linkages with
various development programmes and empowerment efforts.26
Provide a legal procedure/interim law and an expert author-
ity, so that there is active protection against abuse, violence
and exploitation, and protection from inhuman, degrading
and torturous treatments, when whole populations are moved
from institutions to the community.
128
Come up with an institutional design that is community-
linked, accessible, small and not unwieldy, efficient, inclusive,
homely, locally managed, aesthetic, low cost, and offers a wide
range of mental health services.
Capture know-how from non-governmental organisations
(NGOs) and DPOs of grass roots.27
Review and inquire into institutional contracts, existing land,
assets and liabilities, and other thorough financial audits.
Conduct country-wide independent evaluation of district
mental health programmes (DMHPs).
Facilitate the development of a national policy and its imple-
mentation, so that the de-institutionalisation process is backed
by good community support systems.
Is the MHC moving in this direction, towards CRPD compli-
ance?28 The last section of this paper considers this question.
Mental Health Care Bill
In fulfilment of its obligation under the CRPD, the Ministry of
Health and Family Welfare decided to develop a new law for
people with mental illness, entitled the Mental Health Care
Bill.29, 30 The object of the proposed legislation is to provide
access to mental healthcare for persons with mental illness
and to protect and promote the rights of persons with mental
illness during the delivery of mental healthcare. On the face
of it, this preamble to the legislative proposal has all the prom-
ising ingredients needed for CRPD compliance.
The MHC also proposes to protect and promote the rights of
persons with mental illness during the delivery of healthcare
in institutions and in the community, giving a wider scope
than the MHA, which did not talk about community. Also,
coming close to the CRPDs Article 19 (living independently
and inclusion in the community), the MHC preamble provides
that community-based solutions, preferably in the vicinity of
the persons usual place of residence, are preferred to institu-
tional solutions. This is further emphasised by the provision
that intervention will have the purpose of improving the
capacity of the person to develop his or her full potential and
to facilitate his or her integration into community life.
A key purpose found in MHC, not endorsed by the CRPD, is
where it directs that healthcare, treatment and rehabilita-
tion to persons with mental illness is provided in the least
restrictive environment possible, and in a manner that does
not intrude on their rights and dignity. The phrase least re-
strictive environment,31 widely used in the Indian mental
health sector by professionals, is however not found in the
CRPD. These clauses are found in an erstwhile UN document
called the MI Principles, 1991, which also included, at the
core, elements of force and institutionalisation.32 While
the preamble of the CRPD recognises many conventions,
covenants, treatises, standard rules and charters, it does not
recognise the MI Principles.33
The bill recognises the vulnerability of persons with mental
illness, and that families bear a disproportionate financial,
emotional and social burden of providing care and treatment.
However, the provision here does not capture the disabling
aspects of familial, societal and attitudinal barriers. It retains
december 29, 2012 vol xlviI no 52 EPW Economic & Political Weekly

an impairment only definition, reinforced by the purely
medical definition of mental illness found in the bill (3.1):
Mental illness for the purpose of this Act, means a disorder of mood,
thought, perception, orientation or memory which causes significant dis-
tress to a person or impairs a persons behaviour, judgment and ability to
recognise reality or impairs the persons ability to meet the demands of
normal life and includes mental conditions associated with the abuse of
alcohol and drugs, but excludes mental retardation. Mental illness shall be
determined in accordance with nationally and internationally accepted
medical standards such as the latest edition of the International Classifi-
cation of Disease of the World Health Organisation.
Restricting the notion of equality (on equal basis with others)
as prescribed by the CRPD, the MHC preamble provides that:34
Persons with mental illness should be treated like other persons with health
problems and the environment around them should be made as conducive
to facilitate recovery, rehabilitation and full participation in society.
The MHC only recognises the equality of people with psy-
chosocial disabilities with people with health problems, and
not citizens in general. Choice in the health sector is not gov-
erned by law; it is governed by individual/family concerns and
negotiations. The right to refuse treatment available to
healthcare patients is not available to persons charged with or
diagnosed with mental illness.35 So, if the MHC respects choice
on par with health patients, that would be a huge gain for per-
sons with psychosocial disabilities. We can expect then that
MHC will not come in the way of being on equal basis with
others in other walks of life. However, this expectation is com-
pletely belied by the core elements of the bill.
Patient Choice
Unfortunately, the rest of the MHC keeps closely to a medical
paradigm, as well as, more sadly, a medical penal paradigm,
thereby drifting in the intent of treating all mentally ill people
at least on a par with health patients. The rest of the paper
focuses on the core provision of the MHC, and its contradictions,
not only with the CRPD, but with itself. I here consider mainly
the provisions of informed consent and choice, a fundamental
healthcare right. The MHC defines informed consent as
consent given to a proposed specific intervention, without any force,
undue influence, fraud, threat, mistake or misrepresentation, and ob-
tained after disclosing to the person adequate information including
risks and benefits of, and alternatives to, the proposed intervention in
a language and manner understood by the person.
The bill provides for patient choice if he or she is compe-
tent to make a decision (Section 4), which is further defined as:
the person has ability to: a) understand the information relevant to
the decision and; b) retain that information and; c) use or weigh that
information as part of the process of making the decision and; d) com-
municate his or her decision by any means (by talking, using sign lan-
guage or any other means).
From here, the discrimination against mental health pa-
tients vis--vis healthcare patients begins. Even assuming
that the doctor-patient relationship has been ideal, achieving
the level of competency expected herein, will not be possible
in the case of any healthcare decision. Further, decisions
here is not limited to healthcare decisions, and given the
plethora of incapacity laws of the land, may refer to a variety
Economic & Political Weekly EPW december 29, 2012 vol xlviI no 52
SPECIAL ARTICLE
of life decisions. Under ideal environmental conditions,
human decision-making is a complex job, involving at least
possible goals of action, possible lines of action, assessments
of risk and consequence, interest and will to pursue a certain
line of action, moral, social, emotional, intuitive and even
spiritual aspects of decisions. Healthcare decisions in general
are complex, involving additional components of medical in-
formation made available, cost of care, safety for body and
health, possibility of attaining overall cure, etc. Such deci-
sions are complex for all people, not just people with mental
illnesses. The competency test provided for is thus a cari-
cature of human decision-making. There are also no criteria
for judgment about relevance, understanding, weighing
information, etc.36
Given the power in families over decisions, and also the
power given to doctors in the laws, there is a very high chance
of intrusions into the decision-making processes of persons
with mental illness. Just as it is easy for a person to be deter-
mined mentally ill, under the MHC regime, to render a per-
son not competent will not be too difficult. The certifying
process is left to the doctors alone, and no judicial process is
involved in this highest disqualification to living and acting on
an equal basis with others.
An incompetent person in the above sense can then be
enabled to express choice through two procedures: the ad-
vance directives (AD) and the nominated representatives (NR).
The AD is a written document wherein a person can endorse
his or her choices of treatment.37 Though these directives are
meant to respect the healthcare choice of the person, several
conditions apply. They are to be monitored by a district men-
tal health panel, which has the power to uphold, nullify,
modify or alter any AD made by a person.
In any case, an AD containing a refusal of all future medical
treatment for mental illness is null and void. In approving an
AD, the district panel will ensure that the AD was made with
free will and free of all undue influence; the person was well
informed, was competent at the time of making the decision,
and further, it is in the best interest of the person con-
cerned. In addition, the AD should be in conformity with other
laws and constitutional provisions. If an AD passes through
these really strict conditions, it will not apply in case of emer-
gency treatment. The AD is worldwide practice especially for
protecting against rights violations in the name of emer-
gency treatment, and known more for its breach than for its
following. Considering that the MHC is placing people with
mental illness on equal basis with healthcare patients, this
application of choice and consent is a great challenge to any
understanding of medical ethics. Establishing the validity
of the AD will be an impossible task for a psychosocially dis-
abled person.
An NR is someone who will take decisions on behalf of a
competency test-failing person diagnosed with a mental
illness. Such a person has all-encompassing rights to make
treatment decisions, admission, discharge, appeals, proxy con-
sent for research conducted on their ward, etc. The NRs role in
the life of a person living with a mental illness is akin to a
129
SPECIAL ARTICLE

guardian, substituting decision-making by the person himself In Conclusion

or herself, though the MHC still talks in terms of supported
decision-making. The NR will be in the registry of the district
panel as well.
Therefore, within the scope of the MHC, it becomes impos-
sible for persons found to have mental illness to express
choice on their own. Yet, the MHC has the intent of CRPD com-
pliance and of respecting the autonomy of disabled people.
Without going into the sections on admission and discharge,
I can say that the institutional and involuntary commitment
procedures of the MHC are hazardous for society at large,
given the rather universal application of finding of mental
illness and competency. Admission to a custodial insti-
tution is always a matter of deprivation of personal liberty,
and a constitutional matter. The MHC has done away with
any kind of judicial intervention on this constitutional ques-
tion, leaving admissions and discharge in the hands of non-
state parties psychiatrists and local committees. In these
sections of the law, the person with mental illness and
NR are used interchangeably, legitimising proxy decisions
on critical matters relating to health, well-being and indi-
vidual freedoms.
The MHC is a good example of the neocolonial struggles in India,
where modernising mental healthcare has meant building
more asylums that are costly to maintain if the object is to pro-
vide good quality mental healthcare, and which are hugely prof-
itable for private business. Needless to say, there is a political
economy to this struggle, in liberalising markets, which needs
separate study. However, even these intense debates around the
MHC and institutionalisation, are relevant only to the middle
and upper classes in urban areas, especially non-resident Indi-
ans (NRIs) looking for the ideal mental institutions for ageing
parents, sisters or other siblings and dependents. This may con-
stitute around 7% of the Indian population.
For the remaining 93% population in rural areas, inner city
slums, mountainous terrains, and other far-flung regions of
the country, where the social fabric is still intact, and where
there is no doctor or asylum, this will have no relevance.
Despite the heated controversies relating to this coercive
draft law, which is seen as a total sell-out to the burgeoning
private asylum business, involving the liberalisation of private
power over lives of people in the garb of treatment, the Govern-
ment of India has forwarded the bill to the Law Commission.

Notes
[Finally, financial support by the International Dis-
ability A lliance facilitated regional travel. I also
thank William Sax of the University of Heidelberg
for supporting review of institutional structures
and relationships through a grant. A legal review
team comprised of Kanchan Pamnani, Rahul
Cherian, Rajiv Rajan, Deepak, A S Narayanan,
Reshma Valliappan and Bhargavi Davar scanned
all the national laws. The work was supported by
DRG, a cross-disability coalition led by Javed Abidi.
I thank the team for their comprehensive work in
reviewing nearly all the laws. The analytical views
presented herein, are however, my own. I thank
Vaishnavi Jayakumar, Chennai, for the everyday
reporting and compilation of atrocities against
people with disabilities, especially those with psy-
chosocial/mental disabilities.]
1 Viewed on 22 September 2012: http://socialjus-
tice.nic.in/pdf/draftpwd12.pdf
2 For related documents, see http://www.un.org/
disabilities/default.asp?id=150 and http://un-
crpdindia.org/
3 See Article 1 on Purpose: Persons with disa-
bilities include those who have long-term physi-
cal, mental, intellectual or sensory impair-
ments which in interaction with various barri-
ers may hinder their full and effective partici-
pation in society on an equal basis with others.
4 (4.3) In the development and implementation
of legislation and policies to implement the
present Convention, and in other decision-
making processes concerning issues relating to
persons with disabilities, States Parties shall
closely consult with and actively involve
persons with disabilities, including children
with disabilities, through their representative
organisations.
5 For a historical context on madness, institutions,
society and medicine in the western context, see
Andrews and Digby (2004), Braslow (1997),
Foucault (1965), Goffman (1961), Scull (1989).
6 Only the Lepers Act was repealed. However
leprosy cured and leprosy affected are still
terms liberally found in the laws.
7 Full legal capacity implies recognition as a
person before the law. Some countries such as
the Philippines have a Civil Code which defines
who is a person. In Philippines, the Civil Code
denies capacity to act to people of unsound
mind, and the deaf mute. In India, a variety
of laws deny not only capacity to act, but also to
be full persons before the law.
8 Recently, Santosh Mane, a Pune Municipal
Transport (PMT) bus driver went amok in the
city, killing several people. The state mental
hospital denied that he was mentally ill. His
lawyer argued that he was. Following this
event, all bus drivers of PMT were sent for
medical psychiatric screening! A scare was cre-
ated about mentally ill drivers which the health
system had to address (see Rashid 2012).
9 The Beggary Prevention Act of 1959 is another
legislation through which people with disabili-
ties are arrested without warrant, and brought
into state institutions for beggars.
10 For a full case study of the nexus between the
Marriage and Divorce Act, and the MHA, see the
testimony of Chrysann. Chrysanns story, Sanchit
Oral Histories Archives, Bapu Trust, Pune.
11 Just admission rates even in the cheapest of fa-
cilities may cost a family up to Rs 15,000, with-
out including medicines and other emergency
measures, such as shock treatment.
12 We were suddenly confronted with a long
silence from Jhilmil, a regular and vivacious
Facebook friend. Her family was not forthcom-
ing with information at first. We had to put lot
of pressure to get news about her. This recent
torture, punishment and enforced dis-
appearance of a woman with serious marital
discord and difficulties into the high security
forensic ward of the Institute of Human Behav-
iour and Allied Sciences (IHBAS) occurred
using police force, though the admission was
through the voluntary Section 19 provision of
the MHA. Viewed on 29 October 2012: http://
mindarcs.wordpress.com/petitions/stop-forced-
institutionalization-and-release-jhilmil-breck-
enridge/. People who have been whisked away
into institutions at the behest of family often
describe the procedure as kidnap. They are
often misled by the hospital authorities who
visit at odd hours, and are given false informa-
tion, before the round-up. Sometimes many
policemen may arrive to intimidate the person.
Sedation is used frequently. (Refer Cremin
2007, for data on how the MHA is applied in
practice in rehabilitation centers.)
13 Writ 562 of 2001, Saarthak and Achal Bhagat vs
Union of India, Ministry of Social Justice and
Empowerment, Ministry of Health, Disabilities
Commissioner and other state governments.
14 Affidavits filed before the SC by various courts
in the case of Death of Inmates in Erwady versus
Government of India, 2009.
15 Jan Manasik Arogya Abhiyan Inquiry and
Campaign Report, 2008, Sexual Molestation
of Patient in Yerawada Mental Hospital, Bapu
Trust Archives, Pune.
16 Mentally Challenged Raped and Killed in
West Bengal, viewed on 29 October 2012:
http://timesofindia.indiatimes.com/videos/
news/Mentally-challenged-raped-and-killed-
in-West- Bengal/videoshow/14851591.cms
17 Fact-finding report by Srija Chakraborty and
Shampa Sengupta on behalf of Anjali to
Kolkata Pavlov Hospital after one female
patient was reportedly sexually assaulted on
23 April 2012, Kolkata.
18 Provided for under the Bombay Beggary Preven-
tion Act of 1959, applicable in 17 states of India.
19 HRC No. 5978/SM-1242/2010 and connected
cases, before Justice S R Nayak, in the Karna-
taka SHRC, on 18 September 2010.
20 Chennai to Become Beggar Free Soon,
viewed on 29 October 2012: http://www.ndtv.
com/video/player/news/chennai-to-become-
beggar- free-soon/143406
21 See report by a PUCL fact-finding team, Dis-
pensable Lives, A Beggar-free Singara Chennai,
Chennai, 7 June, 2010.
22 Bhargavi Davar (2012). Narratives of Coer-
cion: Law as a Social Determinant of Clinical
Interactions in Mental Hospitals, unpublished
paper under review.

130 december 29, 2012 vol xlviI no 52 EPW Economic & Political Weekly

23 On 31 August 2011, Tina Minkowitz of the Cen-
tre for the Human Rights of the Users and Sur-
vivors of Psychiatry (CHRUSP) and the WNUSP
submitted for joint CEDAW-CRC General Rec-
ommendation/General Comment on harmful
practices.
24 United Nations General Assembly (UNGA)
66th session, item 69 (b): Promotion and pro-
tection of human rights: human rights ques-
tions, including alternative approaches for im-
proving the effective enjoyment of human
rights and fundamental freedoms.
25 In Nepal, which did not inherit the colonial
policies and institutions, a double transition is
not needed. They need to only focus on commu-
nity development and disability/mental health
as part of that.
26 In Maharashtra, there is a plan by the state gov-
ernment to bifurcate the universities to make
them not unwieldy and efficient. It is possible
that other authorities/departments are in the
process of make these structural changes.
27 NAAJMI, Visions and Dreams Workshop:
Towards a National Mental Health Policy,
Pune, July, 2011.
28 See: http://www.prsindia.org/uploads/media/
draft/Draft%20Mental%20Health%20Care%
20Bill,%202010.pdf
29 The latest draft was released on 6 December
2010.
30 The preamble records that one of the objects of
the proposed legislation is to fulfill the obliga-
tions under the Constitution of India and the
obligations under various International Con-
ventions ratified by India.
31 Offering an option for treatment or a setting
for treatment which (a) meets a persons treat-
ment needs and (b) imposes the lowest restric-
tion on the person rights (MHC Bill).
32 UN A/RES/46/119 The protection of persons
with mental illness and the improvement of
mental healthcare, adopted at the 75th Ple-
nary of the General Assembly, on 17 December
1991.
33 In the making of the CRPD, these clauses and
the MI Principles were widely debated, and
eventually did not find a place in the Preamble.
34 This is also exemplified in Section 10 Right to
Equality and Non Discrimination.
35 The MHA restricts choice severely, with four
out of five provisions being fully coercive
(treatment under arrest), and the fifth provi-
sion of voluntary boarding, being an insecure
one. Medical authority can convert this provi-
sion into an involuntary boarder option.
36 NAAJMI has pointed out the ludicrous conse-
quences of legitimising the competency test
through the force of law. For example, when
family members accuse each other of being in-
sane, as often happens, will the doctor then
certify all members of families as competent or
incompetent? Will there be competency serv-
ices in society at large, like we have notary
services? Will there be a registry of medical
officers in every city who are authorised to pro-
vide competency certificates? What will be the
revenue earned by the doctor/state by provid-
ing competency services? Considering that
every medical site could potentially be a find-
ing mental illness and competency testing
site, the consequences of this finding and this
test on society at large will be quite, very
profitable for the doctors. [Take family compe-
tency package: for every two tests at Rs 100
only, 1 test FREE!] etc. Ridiculing the whole
basis of competency test as a mockery of pa-
tient rights, NAAJMI has called the MHC fas-
cist, because it divides peoples into those who
are competent and those who are not.
Economic & Political Weekly EPW december 29, 2012
37 According to the MHC Bill, a person not pres-
ently mentally ill may still make an AD, in
anticipation of any future mental illness.
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