Open Access Research Article
MENTAL HEALTH: AN UNDERTRIAL IN CRIMINAL JUSTICE SYSTEM BY: WANIYA JAVED & ZAHIR IRSHAD
Published Paper
Article Details
MENTAL HEALTH: AN UNDERTRIAL IN CRIMINAL JUSTICE SYSTEM
AUTHORED BY 1: WANIYA
JAVED
COURSE: B.A. LL.B (4TH
YEAR)
AFFILIATION: ALIGARH
MUSLIM UNIVERSITY
CONTACT NO.: +91
7236965657
E-MAIL: waniyajaved2003@gmail.com
CO- AUTHOR 2: ZAHIR
IRSHAD
COURSE: B.A. LL.B (4TH
YEAR)
AFFILIATION: ALIGARH
MUSLIM UNIVERSITY
CONTACT NO.: +91 8082022760
E-MAIL: zaeirirshad44@gmail.com
ABSTRACT
Mental Health, a term which in the recent past
has cloaked the human space with innumerable facts and instances. Mental health
can be delineated as a state of well-being where an individual realises his or
her own abilities and is strong enough to cope with the normal stresses of life
and can work productively, besides contributing to his or her community.
In the present scenario, mental instability
rules the decisions and differences of the society. Law, an undifferentiated
part of the society, is heavily intertwined with increasing vigilance of mental
health aspects. The Indian Justice System is mild over the incarceration of
mentally-ill individuals, whether children or youth. The ignorance of the issue
of mental health under the judicial decisions and explanations led to the
degradation of mental health of incarcerated individuals. The paper discusses
the criminal liabilities of persons with mental illness or PMIs, and moral
obligations of adjudicating authorities so as to highlight the rights as well
as conditions of the PMIs in prisons. In the same vein, the concern over the
aspects of rehabilitation of PMIs and the application and implication of the
sociological jurisprudential theories of punishment has been discussed.
Further, the focus of the paper is on the ever-increasing number of trials of
offenders with mental instability in the present scenario. The paper also tries
to scrutinise the debatable concern of whether the prevalent examination
of the course of proceedings with respect to PMIs satisfies the goals of
formulating justice or not. The global reference as to the concern of punishing
the PMIs is alluded to in the paper.
KEYWORDS: Mental Health, Criminal Justice Delivery System, PMIs,
Reformation
LITERATURE REVIEW
The contention over mental health is a recent
and vehement one, cloaking almost the vast areas of human existence. For the
record of evolution of mental health laws, a reference has been made in
chronological order to numerous legislations being enacted and enforced in
India.
Recent trends show a nexus of psychiatric and
legal studies at an unprecedented rate. Research paper titled Mental Health
and Law: An Overview to develop and strengthen the discipline of forensic
psychiatry in India published under the Indian Journal of Psychiatry
provides that the thought-bearing on primary mental health is the least concern
of the people and the report concluding the same made reference to state and
Union territories equally. Further, as per the Mental Health Survey Report
conducted in 12 states elucidated the prevalence of mental disorders at 10.6%
while the health care gap of these states varied between 70.4% and 86.3%.
(Pratima Murthy, 2016)
The other literature is titled as Indian
Legal System and Mental Health published in the Indian Journal of
Psychiatry. The reference to the statutes and legislations has been made and
intrinsic principles of the Indian Constitution have been discussed. Being
dwelled on the principles of natural justice, the Indian Constitution equally
eludes for the protection of prisoners and prohibit any kind of torture or
discrimination against such person which is inconsistent with the laws. In this
regard, Article 21, Right to Life and Liberty is the prominent one. Legislative
enactments of pro-independence India have also been alluded to as a historical
evolution of the gradual increment of mental health philosophy. (Lakshmi
Narayan, Deep Shikha, 2013).
References have been made to the Mental
Health and Criminal Justice System in France: A Narrative Review to give an
outlook over the global prevalence of the mental health issues of incarcerated
persons. (Thomas Fovet, 2020). Further, the Dutch Prison System has been
discussed with regard to the mentally-ill prisoners and a quick glance is
provided. (Melissa Hogenboom, 2018).
OBJECTIVES
The objectives of the discussing research paper
are three-fold;
·
To analyse
the inception of mental health laws in India.
·
To
scrutinise the statistics of PMIs and the increment rate per se.
·
To discuss
the stabilising effects of Reformative measures of punishment.
INTRODUCTION
Mental Health and criminal liability with
respect to PMIs has always been the attraction of the masses. From time
immemorial, numerous judicial pronouncements, statutes and legislations have
been passed to determine not only the criminal liability but also the treatment
and other necessary aspects concerning a mentally ill individual. However,
emphasising on the 19th century, the definition of mental health had been
undertaken only in the negative terms. The focus was on the incarceration of
unstable individuals rather than on compassion and treatment to such PMIs.
Legislations being formulated in British India primarily focused on the threats
that a mentally-ill individual possesses in the society of sane persons.
However, gradually the old ways took a turn and stance over the definition can
be witnessed in post-independence India. The post-independence legislative
formulations focused on the PMIs but lacunas relating to rehabilitation and
human rights of such individuals were still in preponderance. To overcome the
same, modern jurisprudential aspects of punishment have been referred to and the
reformative measures have been adopted. Today, the aim of punishment has
shifted from retribution to reformation and aided in re-living the humanistic
principles. The era of eye for an eye and tooth for a tooth has come to
an end and the fundamental aim of punishment is considered in re-cultivating
the offender into an upright man and introduce him in the society as a
responsible citizen.
RELATIONSHIP BETWEEN PSYCHIATRY AND LAW
The ambit of law has always cloaked various
other aspects of society. Since the inception of the sovereign authority, the
law has controlled the greater needs of the people. Whether it is morality,
public order, inhumane behaviour, each and everything has been mentioned and
defined under the laws of the land. One of such aspects that law deals with is
the mental health of individuals. As may be seen, in India, the statutes and
provisions related to mental health have been developed and enacted during
the British Raj. Most of the existing provisions have their birth in 20th
century India. However, the foot of mental health issues in the legal arena has
strengthened only after the 1990s.
However, in the recent past, the definition of
mental health has taken a sporadic shift. As being delineated by WHO, mental
health is a state of well-being in which the individual realizes his or her own
abilities, can cope with the normal stresses of life, can work productively and
fruitfully, and is able to make a contribution to his or her community”. It may
be noted that, primarily mental health comprises three chief components;
emotional well-being, psychological well-being and social well-being. These
three components are intertwined and work as a catalyst to each other. The
imbalance in any of the catalysts will cause havoc that directly or indirectly
will prove an apocalypse to the society or state. Hence, it is not incorrect,
if we say, mental health and law are like parallel lines, going together on an
unending path.[1]
INCEPTION OF PROVISIONS CONCERNING PERSONS WITH MENTAL DISABILITIES
In the year 1858, the
British crown took control over the Indian territory and numerous laws came
into existence in British India. The treatment of the mentally ill persons in
the asylum was the innovation of the Britishers and the same was introduced in
British India through the statutes enacted by the British officials. During the
late half of the 19th century, legislations were enacted for the purpose of
establishing mental asylums and the admission and treatment of PMIs. Some of
these legislations were; The Lunacy
(Supreme Courts) Act, 1858[2]; The Lunacy (District
Courts) Act, 1858[3]; The Indian Lunatic
Asylum Act, 1858[4] and The Military Lunatics Act, 1877.[5]
These Acts were not
humane and focussed on the custody of the PMIs as they were seen as dangerous people
who didn't need care rather imprisonment in the mental asylums. The Acts were
against human rights and detained patients for an indefinite time period. These
drawbacks paved the way for the introduction of a bill in 1911 that integrated
the existing legislations and provided for better conditions of PMIs. The Indian Lunacy Act, 1912[6] came
into existence and changed the existing definition of mental health laws in
India. The enactment led to the alteration in the management of mental asylums,
which were now termed as mental hospitals, but the major lacuna of considering
PMIs as dangerous and system of their custody remained the same. This was
vehemently criticised by the Indian Psychiatric Society that wanted reform in
the mental health legislations and heavily contributed to the draft of the
mental health bill in 1950.[7]
In the year 1987, the
bill got the President's assent and was implemented later in 1993. The Mental Health Act, 1987[8] gave new speculation
about the mental health legislations in India. Unlike the past statutes, it
provided for the best care and treatment of mentally ill persons, along with
keeping in mind their human rights. The Act focussed primarily on the treatment
of the PMIs, rather incarcerating them in mental asylums. However, after being
applauded for its aims and objectives, it had specific and major drawbacks that
led to the enactment of another Act of 2017. The Act of 1987 didn't delineate
about the management of rehabilitation of the discharged PMIs from the
hospital. It was also not specific on the question of licensing, admission and
guardianship of the mentally disturbed persons and was also criticised by human
rights activists for the non-providance of
adequate provisions regarding human rights.
LEGISLATIVE PROVISIONS REGARDING MENTAL DISABILITY IN INDIA
The earliest statute
concerning mental health is the Persons With Disabilities (Equal
Opportunities, Protection of Rights, Full Participation) Act, 1995[9]. This Act was
implemented in 1995 in order to provide for the extending opportunities to the
PMIs. Its aim is to remove the discrimination and prevent the abuse and
exploitation of persons with disabilities (PWDs). The Act makes the government
liable for the development of PWDs and make sure to include them into the social
milieu with equal opportunities and participation. It also recognized mental
retardation and mental illness as a disability, hence PMIs are also given the
benefits available to PWDs under the Act.
Another prolific step
taken by the government is the National Trust Act, 1999[10].
The Act is concerned with the treatment and care of persons who are dealing
with autism, mental retardation and cerebral palsy, to protect and empower them
so as to make them capable of living in the society to which they belong and
grow and shine in their own glorious way. The umbrella objective of the Act is
to provide equal opportunities and participation to the PMIs.
The Mental Health Act,
2017[11] is the latest step in the
light of mental health administration.
In the year 2008, the
Indian Government had ratified the United
Nations Convention for Rights of Persons with Disabilities, 2006 and has
been obliged by the same to enact and enforce legislations in consonance with
the provisions of the Convention as well as take necessary steps to harmonise
the issues of mental health in the country. In the same alignment, the Mental
Health Act, 2017 came into force. The Act of 2017 replaced the Mental Health
Act, 1987 and took the concerns of mental health into a new spectrum. Latest
statute provides for the rehabilitation and treatment of the PMIs at affordable
cost as well as with latest technologies.
Chapter V[12] of
the Act provides for the Rights of persons with mental illness. Section 18[13] of the Act says that every
person has a right to go to mental healthcare services to opt for mental health
care and treatment. It also says that access to mental healthcare means
services provided at an affordable cost and of good quality that are
geographically available to the concerned persons without any discrimination on
the basis of gender, caste, colour and religion.
Section 19[14] of the Act has concerns
over the Rehabilitation rights of the PMIs. The provision provides that a
mentally ill person has a right to live in the society and not to be segregated
from it. Also, a person cannot live in mental healthcare establishments because
his family or relatives abandoned him due to the existing state of his mind.
The provision has given the responsibility to the appropriate government to provide
for legal aid and assistance to the person who has been abandoned by his family
or society.
The right of dignity of a
mentally unstable person has been secured under Section 20[15] of
this Act. The provision safeguarded the right of a PMI to live in a hygienic
environment where he has facilities of adequate sanitation, activities for
leisure, educational and recreational opportunities and must be away from cruel
and inhumane treatment, as well as physical, verbal and emotional abuse by the
hands of other human beings.
The awestrucking
developments of the Act are the decriminalisation of attempted suicide
contained under Section 309[16] of
Indian Penal Code, 1860 and the establishment of Central Mental Health
Authority at national level and State Mental Health Authority in every state.
The reason behind the establishment of these authorities is to give training to
mental health officials and executive officers over the enforcement of the
provisions of this Act.
REFORMATIVE PUNISHMENT:
A BEACON LIGHT TO CAST
The issue of Mental Health in India is a
concerning index. As per a report submitted in the year 2017, approximately 14%
of the total population of India suffer from varying mental disorders and older
adult females constitute a more vulnerable age group. As per a recent study,
around 74% of the Indian population suffers from stress while 88% suffers
from varying anxiety disorder.[17]
Turning the page to mental health in offenders,
it has been reported by the Prison Statistics India Report of the NCRB,
2021 that approximately 9,180 prisoners have been suffering from some sort of
mental illness, accounting for around 1.7% of the 5.54 lakh prisoners being
lodged in various jails.[18]
Chart 1
Chart 2
In its most basic form, justice entails treating
everyone equally. To put it another way, it explicit the fact that one must
receive what one deserves. However, it is not as straightforward as it may
appear. The criminal delivery justice system is likewise strangulated at its
own thrust. One among the numerous problems associated with criminal offences
is the scrutinization of mental health of incarcerated persons. The mental
health phenomenon associated with iron bars is two-fold, the first fold cloaks
the offenders who have prior mental conditions, while the latter fold crawls
through the crevices of criminal justice delivery system and entails the
inception of mental conditions of prisoners solely linked with the milieu and
treatment that they receive in prisons.
Another undeniable fact explicit that though
criminal behaviour is a reflection of an internal psychiatric condition, the
disorder does not describe all aspects of crime. The trial of PMIs is one issue
that puts the concept of justice and fairness to the test. The debate over the
question of whether PMIs should be put to punishment or treated accordingly is
a perennial one. The universe of opinion is split into two-halves, one
contending the philosophy of deterrence and retribution while the other
advocating the sociological jurisprudential concept of reformation.
The universal opinion alludes to the point that
it is intolerable if horrible criminals are allowed to roam free under the
guise of mental illness and continue to pose a threat to the society. However,
another undeniable point remains that there are people in prisons all over the
world who deserve to be rehabilitated rather than imprisoned.
Now the question arises as to how the issue of
the right of patients to be treated and the public's right to be protected be
resolved ? Unfortunately, there is no one-size-fits-all solution or straight
response to the question. Each fact of each and every case must be thoroughly
scrutinised and a comprehensive diagnosis of the offender's mental condition as
well as the surrounding environment must be read. The greatest method to
rehabilitate the patient and safeguard society subsequently can be accomplished
through unifying rehabilitative and punitive measures. To accomplish so, it is
vital to create an atmosphere in which not only the offenders are properly
cared for but also the security of the wider society is not jeopardised.
In the same vein, modern punishments have
foundation on the Reformative approaches that focus on reforming the offender
and cultivating him in order to make him a responsible citizen of the nation.
Among the offenders, reformative theory of punishment has explicit implications
that are targeted to provide curative treatment to PMIs and provide them a
humane environment that suits their needs and aid in their re-cultivation. On
this point, Justice Krishna Iyer has reiterated in the case of Mohd.
Giasuddin v. State of Andhra Pradesh[19]
that every saint has a past, and every sinner has a future, while delineating
the fundamental importance of Reformative theory of punishment. Further, it has
been postulated that the seed of criminal behaviour lies in the
deculturalization of an individual from the society and this should be combated
through re-culturalization of the offender with the society. Hence, draconian
and inhumane punishment or treatment will explicitly abhor the idea associated
with the penology principles.
GLOBAL OUTLOOK OVER THE ISSUE
The issue of criminal liability of mentally
unfit individuals and their treatment is a global issue and many different
nations are working for it. However, it is also true that the world is far
beyond than it needs to be in order to reach the goal of justice and welfare.
According to data, 56% of state prisoners and 45% of federal prisoners in the
United States have symptoms or a recent history of mental illness.[20]
France has comparable findings, and it recognises mental illness in its legal
system after several changes and provisions for insanity defence. In its legal
system, France implemented Diminished Criminal Responsibility. But the
boundaries between the mental health and legal systems in France impede
interactions between the two institutions, resulting in major gaps in
psychiatric care for those who are detained. Because of this contrast, it is
possible to preserve the patient's best interests as the primary goal of
psychiatric care, while still remembering that the clinician's responsibility
is to give care, not to enact legislation against illegal behaviour.[21]
The Dutch Criminal Judicial System, which has implemented a five-level justice
system, is highly encouraging in this regard. It's a sliding scale that ranges
from full responsibility to total absence of responsibility with three levels
in between.[22]
Mentally ill offenders' responsibility is determined with due care, and they
are treated as best as possible in special facilities designed exclusively for
them. However, the situation in many countries is worse than it has ever been.
State jails house not only criminals, but also mentally ill people who require
solitary treatment and cannot be housed in public places. It leads to a
worsening of their mental health and, in some cases, a more criminal nature.
SUGGESTIVE MEASURES
The problem of mental health must be solved,
which necessitates an understanding of the existing system's flaws and the
implementation of appropriate measures. The attitude of authorities and the
general public toward mental health issues is the first issue. In a country
like India, mental illness is regarded as a taboo topic that is kept hidden.
The first step toward a better situation is to raise awareness about the
sickness and the need for treatment.
True, with legislation like the Mental Health
Act of 2017, which took significant reformatory moves like decriminalising
Section 309 of the Indian Penal Code and enacting a slew of new regulations to
strengthen the country's mental health system. However, the legislation's
implementation and the reality on the ground continue to be disheartening.
According to a study conducted by India's National Institute of Mental Health
and Neurosciences in 2016, the prevalence of depression is 2.7% for current
depression and 5.2% for lifetime depression in 12 distinct states. According to
this survey, the lifetime prevalence of mental disorders is 13.7% across the
board, implying that at least 150 million Indians require immediate assistance.[23]
With such disturbing data, the need for better conditions is considerably
greater. A better infrastructure is required to create a better environment for
mentally ill people and to care for their treatment and rehabilitation. It is
critical that mentally ill people be steered away from the criminal justice
system and towards the mental health system. Prisons must also stop serving as
a dumping ground for PMIs. The state of the jails adds to the agony and has the
potential to harm even the most stable person's mental health. The environment
in jails, as well as overall living conditions, must be addressed and cared
for. Human rights and mental health legislation should be advocated. The system
should devote a larger portion of the money to this issue and take a
rehabilitative rather than punitive approach to mentally ill offenders, as they
require therapy far more than punishment. All of these activities can help to
improve the situation, and we can strive toward the common good.
CONCLUSION
The debate over the issue of PMIs and their
human rights has always been one of a greater need of debates. On one side, the
protection of the society is necessary while on the other side the care and
guidance of the PMIs is not only needed but is to be enacted. Amidst the
debates of what is and what not, we must not take turn from the fact, that
under the Criminal Justice System, the main motive of punishment is not to
punish the wrongdoer for satisfying the urge of vengeance, rather it is to
reform the person. And in this light, reformation of the PMIs is the one of
great importance and also a step to set the goals of humanity. However, as it
ha been elucidated earlier in the article, the problem of delivering justice as
well as rehabilitation of PMIs is a not-so easily solved one, hence a more
cautious and sensible approach is required. If PMIs continue to be treated
inhumanely, it will be a failure not only of the system but also of a society
as a whole With the passage of time, the behaviour and response has undoubtedly
developed and improved, but there is still more to be done.
[1] Silvana
Galderisi, Andreas Heinz, Marriane Kastrup, Julian Beezhold and Norman
Sartorius, Toward a new definition of
Mental Health, WORLD PSYCHIATRY
(Jun. 4, 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/#__ffn_sectitle
[2] The Lunacy (Supreme Courts) Act, 1858,
No. XXXIV, Acts of British Parliament, 1858 (British India).
[3] The Lunacy (District Courts) Act, 1858,
No. XXXV, Acts of British Parliament, 1858 (British India).
[4] The Indian Lunatic Asylum Act, 1858, No. XXXVI, Acts of British Parliament, 1858
(British India).
[5] The Military Lunatics Act, 1877, No. XI,
Acts of British Parliament, 1877 (British India).
[6] The Indian Lunacy Act, 1912, No. IV, Acts
of British Parliament, 1912 (British India).
[7] Choudhary Laxmi Narayan and Deep Shikha, Indian Legal System and Mental Health, INDIAN
J. PSYCHIATRY, S177 – S181 (2013).
[8] The Mental Health Act, 1987, No. 14, Acts
of Parliament, 1987 (India).
[9] Persons with Disabilities (Equal
Opportunities, Protection of Rights, Full Participation) Act, 1995, No. 1, Acts
of Parliament, 1995 (India).
[10] The National Trust for Welfare of Persons
With Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act,
1999, No. 44, Acts of Parliament, 1999 (India).
[11] The Mental Health Act, 2017, No. 10, Acts
of Parliament, 2017 (India).
[12] The Mental Health Act, 2017, Ch. V, No.
10, Acts of Parliament, 2017 (India).
[13] The Mental Health Act, 2017, § 18, No. 10,
Acts of Parliament, 2017 (India).
[14] The Mental Health Act, 2017, § 19, No.
10, Acts of Parliament, 2017 (India).
[15] The Mental Health Act, 2017, § 20, No.
10, Acts of Parliament, 2017 (India).
[16] § 309, IPC, 1860 (India).
[17] Sanyukta Kanwal, Mental Health in India: Statistics and
Facts, STATISTA (Mar. 8, 2023), https://www.statista.com/topics/6944/mental-health-in-india/?kw=&crmtag=adwords&gclid=CjwKCAjw-b-kBhB-EiwA4fvKrL1fX65FWT0oH8KAq0lI3U4xjrIRKdtFNs-hTeQmrc4VQyf71_AwyhoC_xwQAvD_BwE#topicOverview.
[18] Ambika Pandit, 22% rise in
mentally ill jail inmates: NCRB, TOI (Sep. 11, 2022), https://www.google.com/amp/s/m.timesofindia.com/india/22-rise-in-number-of-mentally-ill-jail-inmates-ncrb/amp_articleshow/94124324.cms
[19] Mohd. Giasuddin v. State of Andhra
Pradesh, AIR 1977 SC 1926.
[20] Human Rights Watch Statement for the Record to the
Senate Judiciary Committee Subcommittee on Human Rights and the Law, Mental Illness, Human Rights, And Us Prisons,
HUMAN RIGHTS WATCH, (Sep. 22, 2009), https://www.hrw.org/news/2009/09/22/mental-illness-human-rights-and-us-prisons.
[21] Thomas
Fovet, Florence Thibaut, Anne Parsons, Hans-Joachim Salize, Pierre Thomas,
Camille Lancelevee, Mental Health And The
Criminal Justice System In France: A Narrative Review, SCIENCE DIRECT,
(Aug. 22, 2020), https://reader.elsevier.com/reader/sd/pii/S2666353820300217?token=4AC308B0C6E300F69F7091B29E74CA87233A5DA43A85FDED4A79229063A48294A2AAE2F71AD4865BD085A0A323BD0024&originRegion=eu-west-1&originCreation=20220211202002.
[22]Melissa Hogenboom, The
Unique Way The Dutch Treat Mentally Ill Prisoners, BBC FUTURE,( Apr. 25, 2018), https://www.bbc.com/future/article/20180423-the-unique-way-the-dutch-treat-mentally-ill-prisoners .
[23] Abhishek Mishra, Abhiruchi Galhotra, Mental Health Act, 2017 : No need to Wait
and Watch, INTERNATIONAL JOURNAL OF APPLIED AND BASIC MEDICAL RESEARCH, (Jun., 2018)
Article Information
MENTAL HEALTH: AN UNDERTRIAL IN CRIMINAL JUSTICE SYSTEM BY: WANIYA JAVED & ZAHIR IRSHAD
Authors: WANIYA JAVED, ZAHIR IRSHAD
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.