PROJECT TOPIC

The need of providing Legal aid and assistance to

the mentally ill and mentally disabled persons.

Submitted by
NAMRATA BHATIA
B.B.D UNIVERSITY

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ACKNOWLEDGEMENT

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I wish to express my sincere gratitude to U.P STATE LEGAL
SERVICE AUTHORITY for providing me an opportunity to do my
internship and project work.

I also wish to express my gratitude to the officials and other staff

members of U.P State Legal Service Authority who rendered their help
during the period of my project work.

The internship opportunity I had with U.P SLSA was a great chance of
learning and professional development . Therefore , I consider myself a
very lucky individual as I was provided with an opportunity to be a part
of it . I am also grateful for having a chance to meet so many wonderful
people and professionals who led me though this internship period.
I perceive as this opportunity as a big milestone in my career
development . I will strive to use gained skills and knowledge in the best
possible way , and I will continue to work on their improvement , in
order to attain desired career objective.

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INTRODUCTION

Mental retardation can be defined as an development disability and it is an intellectual

functioning level which is below average and brings limitations in daily living of a person which
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appears in children below 18 years of age . In the total population of the nation it occurs in
among 3 percent of the people . Mental retardation starts in childhood and stays throughout the
adulthood where an IQ score will be below 70 to 75 and this is mostly caused by hereditary
reasons.

In earlier days mentally ill persons were treated very badly and meager care by the society , as
they were considered burden and unproductive to the society . Disabled persons usually do not
get proper attention from others in relations to access to justice too.

Traditionally , mentally retarded people are not considered fully humans and so they were not
given equal rights and equal citizenship status in many nations. These people have suffered a lot
and are being denied basic rights like right to travel , right to liberty , right to education , right to
vote, right to buy insurance , right to association , an privacy . Indian Constititon provides the
disabled a right to justice , liberty of thought and expression , belief and worship , equality of
status and opportunity . There can be no discrimination on the basis of race , religion , sex , caste
etc . To live a dignified life is a human right which is recognized by many treaties of the world..
Article 41 states that every State has to secure right to work , education and public assistance for
old , sick and disabled person. Right to get treatment and proper health care under ARTICLE 21
of the Constitution is applied even to mentally retarded person .

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What is mental incompetence?

A person can be deemed mentally incompetent in either a civil or criminal proceeding. A person
is considered to be mentally incompetent in a civil proceeding if she has a mental illness such as Page
schizophrenia or dementia. Individuals who are mentally retarded are also considered to be
mentally incompetent. The court appoints guardians for individuals who are declared mentally
incompetent in a civil proceeding to make financial and legal decisions on their behalf.

When mental incompetence is used in a criminal proceeding, the defendant must undergo
psychiatric evaluation. The doctor who conducts the evaluation presents the findings to the court.
If there are grounds for a plea of mental incompetence, the defendant is hospitalized.

At the end of the hospitalization, the doctor reports to the court whether the defendant is
competent, or needs more time to regain competency. Once the defendant is deemed competent,
she can stand trial. If a doctor thinks that a defendant will not regain competency, then she can
remain hospitalized after being declared incompetent in a civil proceeding

RIGHTS AVAILABLE TO MENTALLY

DISABLED PEOPLE IN INDIA

Humans have asserted themselves to be the most intelligent species to have

ever walked on planet earth. The human brain is such that until today medical
science has not been able to explain it in entirety. For instance, we still don’t
know how memories are stored. It is because of this brain that humans have
made significant discoveries and lived the best life for themselves, but
sometimes there occurs a disorder in it which we colloquially refer to as
madness or insanity.

What is Mental Illness? Who is mentally ill?

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The American Psychiatric Association (APA) defines insanity as a ‘psychological

pattern or syndrome marked by distress and disability.[1]‘ Mental illness is
considered to be characterized by the inability of a person to carry out the daily
chores of his/her life. The Indian Mental Health Act, 1987 defines mentally ill Page
person as ‘a person who needs treatment for mental disorder.[2]‘

As we see by the definitions ‘mental illness’, the most drastic consequence

seems to be that it disables a person to function as a normal human being.
These people need treatment which should consist of care and love, but most
often they are ill-treated by the larger society. They are considered as
unproductive and useless, often thrown out of their houses. Most countries of
the world today run Asylums and other healthcare facilities for these people
where they are treated but in these facilities as well, they are ill-treated and
often not provided with the basic necessities. It thus becomes important for us
to know what are the rights available to mentally challenged people in India.

Constitutional Rights
Mentally and physically challenged people can avail all the fundamental rights guaranteed to an
ordinary citizen by the Constitution of India. No statute bars them from enjoying these rights. However
for mentally challenged the most important constitutional rights are:

Right against discrimination: By Article 15(2) of Constitution of India any citizen, including mentally
challenged people, can’t be denied access to public goods. Also, they need to be provided equal
opportunities to prosper in life.

Right to Health: Article 21 gives the right to life and personal liberty. Right to health flows directly from
right to life and the same has been laid down by the supreme court in many cases.

Disability rights under International Laws

In 1971 the ‘Declaration on Rights of Mentally Retarded Persons’ was adopted by the UN general
assembly. The declaration was the first active attempt to grant disability rights to the mentally ill people.
The declaration among other things laid down certain guidelines to be adopted by mentally ill people.
Some of these were:

 Recognition of mentally ill people as a separate category of physically challenged individuals and
providing them certain safeguards accordingly.

 The member nations shall ensure the economic security of mentally ill by devising suitable
programs so that they can earn their living.

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 Special care shall be taken for these people in any social planning by the state.

The 1996 convention by the WHO on Mental Health Care law

It laid down ten basic principles that every member nation needs to adopt for the betterment of
mentally challenged people. It was recommended that a large number of asylums with best healthcare
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facilities need to be opened in the developing countries. The nations were told to make changes in the
internal laws to provide specialized treatment to mentally challenged. There was felt a need to increase
awareness among the general people about the plight of mentally challenged. However, the most
remarkable recommendation was that all the nations of the world were told to review their laws on
mental health and make necessary changes so as to shape them in the best interests of the mentally
challenged people. Special categories and reservations were recommended to be made in jobs for these
people and that every state shall recognize the disability rights of mentally ill persons. India being a
signatory nation to both the schemes needs to act accordingly in the best interests of the mentally
challenged people in the country.

Human Rights under international Laws

In 1992, The general assembly adopted the Declaration of Hawaii. For many years it was observed that
many patients in mental asylums were subject to gross human rights violations at the hands of
authorities. In many countries the asylums were is dismal conditions where in some cases even food and
water was not available. Apart from this, the patients lacked privacy, there were no facilities for
recreation and leisure activities, the patients were made to do hard labor at times. In fact, there has
been no attempt to ‘treat the mentally ill’. The Hawaii declaration laid down that an environment of
love and care ought to be maintained in asylums. The seclusion and restraint that is practiced in treating
these people need to as minimum as possible. The declaration was the first international treaty that
recognized human rights of mentally challenged people.

Rights under Local Laws

The Indian Mental Health Act, 1987

Under this Act, a mentally disabled person has the right to treatment and care in a psychiatric hospital.
There are established special asylums for mentally challenged people under the age of 16 by this act.
The cost of the treatment in asylums needs to be undertaken by respective state governments unless
the relatives of the patient bear it. This Act also provides certain legal safeguards to the mentally
challenged. A mentally challenged person has the right to avail legal aid on the order of the court if the
court finds that he/she has no means to get aid.

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The Persons with Disabilities (Equal opportunities, protection of rights and full
participation) Act 1995
The need to provide equal opportunities and enhance participation of mentally challenged in the society
was the first time realized through this act. Few landmark steps were taken in this regard were:

 Establishment of special schools for the education of mentally disabled children. Page

 Mentally disabled children were given the right to free education till the age of 18 under this
Act.

 3% employment reservation for disabled (Including mentally disabled) in government jobs was
approved.

Judicial Pronouncements
The Indian judiciary has adopted a sympathetic approach towards mentally disabled people. Time and
again judiciary has taken cognizance of infringement of rights of these people and provided them an
adequate legal remedy.

In the case of Chandan Kumar v State of West Bengal the judiciary condemned the mismanagement of
mental asylums by state governments. In the mental hospital of Mankaundi in hoogly district West
Bengal, the patients were kept chained with iron ropes and were physically tortured and denied food
and water. This was all done in the name of treatment. The Supreme Court ordered the cessation of this
inhuman practice, held the state liable and recommended reforms of mental health asylums all over the
country. Now no patient in these asylums can be held chained; it is a punishable offense. In Legal Aid
Committee v State of MP[4], the Supreme Court highlighted the need to have stricter enforcement of
laws made for the betterment of mentally ill. If any government servant now complies with the behavior
necessary for the betterment of mentally ill, he will be to be held liable.

Some current issues faced mentally disabled in India

Lack of Asylums
India, though being a signatory to various conventions and treaties, still requires an adequate number of
mental health care asylums in the country. Ideally, there should be one asylum in every district.

Poor infrastructure
Most of the functioning asylums in the country are below standard. Lack of facilities in addition to staff
and doctors exacerbates the situation of mentally challenged.

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Lack of awareness
For any right to deliver on substantive goals there needs to be awareness of it. A majority of the country
is today unaware of the rights of mentally challenged.

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Current laws
Most of the current laws in the country induce incompetency in the mentally challenged people. They
can’t enter into a contract, nor can validly marry. These things need to be reformed.

Lack of any comprehensive legislation

Lack of legislation granting rights to mentally disabled is another major issue to be tackled. The
legislature should take an initiative in this regard.

Mentally disabled people are as much the part of the society as anyone else. Despite the existence of
laws and precedents granting certain rights to them, there is felt a need for reform in this regard. This
issue is not a politically charged one and so has not gained the attention it deserved. Moreover just by
putting blame on regime won’t work, After all, it is us who have to come forward and help these people
to get their rights.

Need of providing legal aid and assistance to mentally

disabled persons
The fate of the mentally retarded has been rapidly acquiring ominous dimensions. The government
has so far set up 100 institutions for the care of the 20 million who are afflicted. Equally inadequate is
the government's support in financial terms - approximately Rs 4.5 Lakhs annually for institutions with
140 patients.

These institutions are separated into two categories. One category caters exclusively to mentally
retarded children who are nominated, according to their IQ, by a special children's court. The second
category covers all mentally retarded patients who, in the opinion of a committee, can lead a normal life
with proper care and education.

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Said a psychiatrist: "Our problem is one of information, rather than lack of concern. We don't really
know about human growth. A child is taught a particular skill. But it is seldom made use of economically.
Factors such as independence and self-sufficiency are ignored. Often a child is not mentally retarded but
the environment is so non-stimulating that the subnormal child becomes worse," she added.

The total number of special schools increase each year, but their quality, said the psychiatrist, remains
the same. An official explained, "It's not so easy. The education for these children has to be highly
individual. This is very expensive and even now only 0.02 per cent of our mentally retarded children
have the opportunity of going to such schools."

Lack of space is one of the major problems faced by the institutions. Children in these homes are not
divided according to their mental abilities. "There are some who do not even know how to use a toilet.
But we have to let them sleep next to each other because there is no room," moaned a case-worker.

"Moreover, every child has to sleep on the floor as they might fall off the cot," he said. Often the floors
are dirty and unswept. "It's difficult to maintain hygienic conditions because these children have no idea
of cleanliness and we are badly understaffed," complained a school-teacher.

Though the teachers are paid about Rs 1,000 per month, many of them are untrained. The case-workers
on the other hand, are paid approximately Rs 700 per month. "Even if we get involved and want to
continue, it's difficult because we can hardly support ourselves with our kind of pay," said one.

Voluntary agencies for the mentally retarded exist in India but the record of some of these has been
dubious. Often the government pays 90 per cent of the cost of a project run by these agencies which
have been known to exploit the trained among the mentally retarded, who get Rs 40 a month to work
10 hours a day. The savings in wages are then pocketed by those who run the agencies.

There is also a need to re-orient the rehabilitation programmes run by the government. An institution
keeps a child for 12 years, educates him or her in a certain craft, and then leaves him absolutely high
and dry. "They might have the ability to earn the money but they need guidance as to how they should
spend it for their betterment," complained the official.

Workshops conducted by government officials should be set up. Guardianship programmes, where
some one individual assumes the responsibility of another, would also help the mentally retarded. There
have been cases of parents leaving money, at the time of their death, to their mentally deficient child.
The legacy has often been grabbed by some unscrupulous people first on the case.

Then there is the problem of educating the public. People often don't know how to react towards a
mentally retarded person. "My main consideration in this whole thing is a human-rights issue. I feel that

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if people don't do any harm to. Themselves and to other people, and don't breach the law, they have a
right to live as they see fit".

While his plea might prove impractical in India for often there is no other place for the mentally
retarded other than the institutions, the fact that the issue is basically one of human rights is easily
forgotten because of the massive poverty. Page

Recently the death of a noted industrialist plunged a great number of people into gloom. The cremation
ceremony was attended by people from all walks of life keen to pay their homage. At about the same
time, far from the glare of publicity, occurred another death of a girl closely connected with the same
family.

The victim had gradually withered away into skin and bone. When the end was near, her brother visited
her in a home for the mentally retarded. He had driven away from the gates after leaving oranges and
apples as the girl had asked for them. Before driving away he had instructed the case-worker to
undertake all the rituals after her death. "Money," he had said, "is no problem."

"It's the social stigma that's attached to the mentally retarded which compels parents to behave as they
do," said the case worker. "For example, Thursdays are visiting days and although parents are allowed to
spend the whole day with their children, few, if any spend more than an hour."

Legal aid to mentally ill persons under section 91 of the MENTAL

HEALTH ACT ,1987
Legal services Institutions can play a effective role in the situation
mentioned in section 91 of Mental Health Act , 1987 provided that the
mentally ill person is in custody in a psychiatric hospital or psychiatric
nursing home irrespective of his/ her proof of means.
However , in all cases under section 91 where the mentally ill person has
no sufficient means to engage a legal practitioner the legal service
institution shall provide the legal services to the mentally ill person.

Legal Service Institutions they play a vital role in order to provide legal
aid to mentally disabled persons as these persons are in the need of the

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help and there are other bodies which provide help and assistance to
them like NGO .
As they are I a condition such that they are not able take their own
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deceision and grant themselves helpful means which may help them in
order to live a normal and peaceful life

How legal service institution provide legal aid to mentally disabled

person ?
First of all they make sure that matter for which they are providing aid to
them
These are as follows
1 Mental illness is curable or not
2 Mental ill persons are entitled to all human rights and fundamental
freedoms
While dealing with mentally ill persons for rendering legal services it
shall be the prime concern for legal services institutions to promote,
protect and ensure the full and equal enjoyement of human rights and
fundamental freedoms of mentally ill persons.
3 Respect for the inherent dignity of mentally ill persons.
The legal service institutions shall promote respect for the inherent
dignity , individual autonomy including independence of mentally ill
persons
4 Non discrimination
5 Reasonable accommodation

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6 The right of mentally ill persons to get treatment

7 Privacy and dignity of mentally ill persons.

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CONCLUSION

Disability is a complex social issue and is increasingly becoming a Page

major concern all over the world. The number of disabled people are
increasingly due to varied reasons. Whatever the perception of the
society towards the persons with disabilities may be , it has to be
fundamentally accepted that disabled people are integral part of our
society . Besides the matter of fact that they are a part of our society they
do lack certain basic rights of which they should necessarily entertained
.As the matter of fact they are civil creatures like us being the difference
of being disabled..
Our Constitution guarded them certain rights and as discussed in project
they are many laws which do pass from time to time after seeing the
necessity of being enforced . Many NGO s they are trying to help them
in order to provide assistance to them and legal service institution they
are trying their best in order to provide proper aid to them.
But still to some act besides the fact that there are laws for them but in
order to curtain any law its important that the individual should be of
prime concern but as far as they people are concerned they lack their
such responsibility . So there is a need for providing legal aid and
assistance to such people

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