Letter From Justice Ajit Prakash Shah to the Minister of
Health and Family Welfare, Mr Ghulam Nabi Azad, dated May 07, 2010
May 07, 2010
Shri Ghulam Nabi Azad
Minister of Health and Family Welfare
Government of India
New Delhi
Dear Mr. Minister,
India ratified the United Nations Convention on the Rights of Persons with Disabilities
in 2007 and the Convention came into force in May 2008. In fulfillment of our international
obligation we have started a process of law reform whereby we are working at harmonizing
our domestic laws with the Convention. Amongst the laws requiring such like harmonization
is the Mental Health Act of 1987 which is administered by your Ministry. The Ministry
initiated the reform process by setting up a committee of Dr Soumitra Pathare and
Prof Jaya Sagade to put in place a draft amendment Act which was to form the basis
of five civil society consultations to be undertaken in different parts of the country.
In late February 2010 Dr. Pathare and Prof. Sagade requested me to be the observer
and advisor for the Mental Health Act Amendments process. I received from them a
copy of the draft amendments and a meeting was also fixed in Pune on March 20, 2010
to discuss the amendments in light of the CRPD. But this meeting did not materialize.
Thereafter, I received a second draft of amendments from Dr. Pathare vide his email
dated May 2, 2010. It was surprising to find that my name has been mentioned among
the names of the team members working on the draft even though I was not consulted
at any stage in the preparation of the first or the second draft.
In the mean time, I have received letters and emails from mental health rights groups,
activists and academicians expressing serious concerns about the proposed amendments.
Since the legislation concerns one of the most voiceless groups of persons with
disabilities, I decided to closely examine the draft amendments to see whether they
were in furtherance of the CRPD mandate. I have formed the following opinion as
a result of this study.
The Convention on the Rights of Persons with Disabilities inaugurates a rights based
treatment of persons with disabilities and requires the stereotype of incompetence
and exclusion to be foundationally challenged in law and policy. The CRPD seeks
to include all persons with disabilities within the fabric of society and requires
that all persons with disabilities should be treated on an equal basis with others
in all areas of life. This right to equality and non discrimination has also been
extended to persons living with mental illness. Whilst devising strategies of inclusion,
the Convention accords greater significance to the social barriers encountered by
persons with disabilities in their quest for social participation over the impairments
experienced by them. For persons living with mental illness this would necessitate
addressing the social stigma accompanying the condition as also a reexamination
of the labels of dangerousness and incompetence routinely attributed to them.
The CRPD has also recognized that all persons with disabilities have legal capacity
on an equal basis with others in all areas of life. The Convention thus both recognizes
that persons with disabilities are subjects of rights and respects their right to
exercise those rights on an equal basis with others. These rights could be the right
to liberty or the right to health or the right to integrity or the right to live
independently and in the community. I especially draw your attention to these rights
recognized by the Convention because they have a special bearing on the subject
matter of the Mental Health Act.
The Convention makes an unequivocal commitment to inclusion. This is borne out by
the fact that article 12 rules out the possibility of denying legal capacity to
any person with disabilities, but recognizes that if persons with disabilities so
desire they may access support to exercise their legal capacity. This mechanism
of individual or network support has to function respecting the will and preference
of persons with disabilities, without exercising undue influence or coercion on
them. Similarly the concept of reasonable accommodation, inducted as an integral
component of the right to equality, underscores how individual differences should
be accommodated to achieve the outcome of participation and equality. I refer you
to these values of the Convention so that you may ensure that the amendment process
brings Indian law in harmony with both the letter and spirit of the CRPD.
Insofar as institutionalized care is the sole site of mental health treatment the
Mental Health Act of 1987 denies the opportunity of living in the community to people
living with mental illness. The statute recognizes the competence of the person
living with mental illness to take decisions provided the decision is to opt for
institutionalized care. If the person living with mental illness decides to discontinue
such care, the statute allows for the decision to be questioned. The presence of
this provision shows that in the MHA the nature of the decision reached by the person
living with mental illness determines the presence or absence of legal capacity.
Such an outcome based approach has been subjected to intense criticism in human
rights literature on legal capacity. The CRPD, as already stated, has addressed
these questions by both recognizing the legal capacity of persons with disabilities
and the right to live independently and in the community and to be provided health
care whilst respecting the right of free and informed consent.
Along with care and treatment, the Mental Health Act also addresses questions of
legal capacity of persons living with mental illness by incorporating a procedure
whereby a substituted management can be installed to make decisions on matters regarding
the person and property of the person living with mental illness. Once such management
has been installed the person living with mental illness becomes a non person in
the eyes of the law as both little and big decisions affecting the life, treatment
and property of the person living with mental illness shall be reached by the substituted
management without the slightest legal obligation to respect the will and preference
of the person living with mental illness.
My exposition on the CRPD in the early part of this letter makes it clear that these
provisions are not in harmony with the CRPD. Presumably, it is this lack of conformity
which caused your Ministry to initiate the process of reforming the Mental Health
Act. Unfortunately, the draft produced by Dr. Soumitra Pathare and Prof. Jaya Sagade
has in no way inducted legal capacity in the Mental Health Act. The draft states
at several places that persons living with mental illness possess legal capacity
but then goes ahead and provides a procedure by which such capacity can be ousted
by the so called support person. The CRPD recognizes the legal capacity of all persons
with disabilities and then allows a person with disabilities, if he or she so desires
to seek support for the exercise of legal capacity. The draft amendment however
speaks of support in plenary terms as a mechanism by which the decision-making freedom
of the person living with mental illness is taken away from him or her. The draft
therefore continues with guardianship without calling it so and without the safeguard
of judicial review provided in the existing Mental Health Act. Furthermore the draft
at no point recognizes the will of the person living with mental illness in making
decisions affecting him or her. It is this non-recognition which explains how advance
directive can be overridden by mental health professionals in the best interest
of the person living with mental illness.
In my view, any change in the mental health law should recognize the right of all
persons living with mental illness to make decisions regarding their own lives,
live independently in the community, marry, raise family, and have access to education,
work, employment and health. The present draft is not an entitlement document. It
does not look at mental illness from a social model of disability as required by
the CRPD. A review of law should address the attitudinal and environmental barriers
faced by the persons living with mental illness. The current amendments fail to
do so. Discrimination against people on the basis of diagnosis of mental illness
is common place in India and even in the laws in India. If the multiple laws which
sanction the discrimination are not addressed simultaneously then the persons living
with mental illness will continue to be incarcerated in institutions. The current
amendment process does not address this. No doubt the draft talks about advances
in understanding of rights of people with mental illness, understanding legal capacity,
obligations under the Constitution of India and understanding of international obligations.
But the provisions in the amendments focus only on the treatment aspects of people
with mental illness. Legal capacity is seen only in terms of treatment and access
to property. The understanding of legal capacity has to include its application
to all rights including social, economic, civil and political rights.
I do not wish to burden this letter with more examples from the draft amendments
which show that the provisions are not in alignment with the CRPD mandate. The present
draft restricts the vision of the CRPD of a world that includes all.
It is in this background, I am sending my opinion on the draft amendments to you.
The CRPD places an absolute obligation on State parties to consult with disabled
people and their organizations whilst formulating any law and policy affecting them.
However, this consultation should be undertaken around a draft which is at least
in broad conformity with the CRPD; the current draft I am sorry to say fails to
pass that test. May I therefore urge the Honorable Minister to direct an immediate
review of the current process of the amendments to the Mental Health Act and seek
to recast the Mental health Act under the auspices of a broad based Committee/ think-tank
including all stakeholders and dissenting voices from the civil society. Considering
the great significance of the issue, I am marking a copy of this letter to Dr. Pathare,
Prof. Sagade and civil society stakeholders.
I await your prompt intervention in the matter.
With regards
Justice Ajit Prakash Shah