Deciding Authority: The Supreme Court of India
Name of the Judges: M.B. SHAH & B.N. AGRAWAL & ARIJIT PASAYAT
Date of Judgement: 05/02/2002
Facts: On the basis of submission note of the Registrar (Judicial) to a news item published in all leading national dailies about a gruesome tragedy in which more than 25 mentally challenged patients housed in a mental asylum at Ervadi in Ramanathapuram district were charred to death, the patients could not escape the blaze as they had been chained to poles or beds, this Court took suo motu action. After considering the factual report, Dr. Abhishek Manu Singhvi, learned senior counsel was appointed as Amicus Curiae to assist the Court and notice was also issued to the Union of India. Thereafter, by order dated 15.10.2001 this Court called for the report of the State of Tamil Nadu on the subject and also sought information on the topics which are mentioned, from the State Governments and Union Government on an affidavit of competent authority. Thereafter, when the matter was placed before this Court on 21.1.2002, most of the States sought extension of time for compliance with the order passed by this Court. The matter was adjourned for 29.1.2002. On that day also, some of the State Governments again sought extension of time for compliance with the directions issued by this Court. Further, learned Amicus Curiae submitted that the Mental Health Act, 1987 (for short “the 1987 Act”) is not at all implemented by the concerned authorities and there is failure on the part of Central/State Governments to implement the 1987 Act.
Judgement: Mr. Soli J. Sorabjee, learned Attorney General appearing on behalf of the Union Government submitted that the 1987 Act is for the benefit of mentally ill persons and is required to be implemented right earnestly. He submitted that the Centre would take appropriate action for implementation of the 1987 Act as early as possible. In the Court’s view, it appears that there is slackness on the part of the concerned authorities to implement the laws enacted by the Parliament. This is one such instance. One of the objects of the 1987 Act is to provide a law relating to the treatment and care of the mentally ill persons. Notification for implementing the Act was published in the Gazette of India on 11.1.1993. Like Section 3, similar provision is made under Section 4 for the establishment of such authority by the State Government. Thereafter, Section 5 provides that Central Government may, in any part of India, or the State Government may, within the limits of its jurisdiction, establish or maintain psychiatric hospitals or psychiatric nursing homes for the admission, treatment and care or mentally ill persons at such places as it thinks fit. Other important section is Section 6 which provides that on and after the commencement of this Act, no person shall establish or maintain a psychiatric hospital or psychiatric nursing home unless he holds a valid licence granted to him under this Act. Section 8 further provides-when licence to continue or establish psychiatric hospital or psychiatric nursing home should be refused. Prayer is made for implementation of these provisions.
Decision:
The Court gives following direction:
- Every State and Union Territory must undertake a district-wise survey of all registered/unregistered bodies, by whatever name called, purporting to offer psychiatric/mental health care. All such bodies should be granted or refused license depending upon whether minimum prescribed standards are fulfilled or not. In case license is rejected, it shall be the responsibility of the SHO of the concerned police station to ensure that the body stops functioning and patients are shifted to Government Mental Hospitals. The process of survey and licensing must be completed within 2 months and the Chief Secretary of each State must file a comprehensive compliance report within 3 months from date of this order. The compliance report must further state that no mentally challenged person is chained in any part of the State.
- The Chief Secretary or Additional Chief Secretary designated by him shall be the nodal agency to coordinate all activities involved in implementation of the Mental Health Act, 1987, The Persons with Disabilities (Equal Opportunities. Protection of Rights and Full Participation) Act. 1995 and The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act. 1999. He Shall ensure that there are no jurisdictional problems or impediments to the effective implementation of the three Acts between different ministries or departments. At the Central level, the Cabinet Secretary, Government of India or any Secretary designated by him shall be the nodal agency for the same purpose.
- The Cabinet Secretary, Union of India shall file an affidavit in this Court within one month from date of this order indicating:- (a) the contribution that has been made and that proposed to be made under Section 21 of the 1999 Act which would constitute corpus of the National Trust. (b) Policy of the Central Government towards setting up at least one Central Government run mental hospital in each State and Union Territory and definite time schedule for achieving the said objective. (c) National Policy, if any, framed u/s 8(2)(b) of the 1995 Act.
- In respect of States/Union Territories that do not have even on fullfledged State Government run mental hospital, the Chief Secretary of the State/Union Territory must file an Affidavit within one month from date of this order indicating steps being taken to establish such full-fledged State Government run mental hospital in the State Union Territory and a definite time schedule for establishment of the same.
- Both the Central and State Governments shall undertake a comprehensive awareness campaign with a special rural focus to educate people as to provisions of law relating to mental health, rights of mentally challenged persons, the fact that chaining of mentally challenged persons is illegal and that mental patients should be sent to doctors and not to religious places such as Temples or Dargahs.
- Every State shall file an affidavit stating clearly: (a) whether the State Mental Health Authority under Section 3 of the 1987 Act exists in the State and if so when it was set up. (b) If it does not so exist, the reasons therefore and when such an Authority is expected to be established and operationalised. (c) The dates of meetings of those Authorities, which already exist from the date of inception till date and a short summary of the decisions taken. (d) A statement that the State shall ensure that meetings of the Authority take place in future at least once in every four months or at more frequent intervals depending on exigency and that all the statutory functions and duties of such Authority are duly discharged. (e) The number of prosecutions, penalties or other punitive/coercive measures taken, if any by each State under the 1987 Act.”
Sudipta Bhowmick, 4th Year, B.A.LL.B., KIIT School of Law