By Rashika Bhardwaj & Prasoon
Introduction
The Prisons Act of 1894 (PA) and the Prison Statistics India reveal how mental health is not a lesser discussed issue in just the society, but it has largely been ignored by the government and especially the prisons of India. When the prison statistics released by the National Crime Records Bureau kept quiet on the number of mentally ill prisoners, it seemed as if Indian prisons did not have any mentally ill prisoners. As much as this would have been great news considering the state of prisons in India, it is not true. Human Rights Law Network Report shows that mentally ill prisoners are there and are being treated in an inhumane way. This article aims to analyse the law or rules that apply to mentally ill prisoners and their implementation through various cases and the present situation of mentally ill prisoners in India followed by some necessary reformative measures that need to be taken to ensure their welfare.
Legal Standpoint of Mentally Ill Prisoners
A mentally ill prisoner is a person for whom an order under §27 of the Mental Health Act, 1978(hereinafter ‘MHA’) has been made to detain in or remove that person to or from a psychiatric hospital or psychiatric nursing home or jail or any other place of safe custody [5]. An order under §27 is passed when a mentally ill person is treated cruelly or is not under proper care and control [6]. Since the judiciary has, as a matter of habit, used the terms mentally ill and lunatic interchangeably, the paper will do the same.
Mentally ill prisoners can be broadly classified into two categories viz. mentally ill prisoners who were accused of an offence and were supposed to undergo trial and mentally ill prisoners who have been admitted due to the various circumstances laid down in the MHA. These circumstances include situations where a police officer has reason to believe that a particular person can be dangerous to the society owing to their mental illness along with voluntary admission etc. §328of the Code of Criminal Procedure, 1973 (CrPC) lays down the procedure for trying an accused who is a lunatic. It says that if a Magistrate inquiring against a person has reason to believe that that person is of unsound mind and hence incapable of defending himself, the Magistrate shall direct a medical officer to examine that person. The Court thereafter tries the fact of such unsoundness and postpones further proceedings in that case if it is satisfied that that person is of unsound mind [8]. After this the Court may release the accused of unsound mind in the presence of sufficient surety irrespective of whether the offence was bailable or not, on being assured of the fact that he will be taken care of and will be prevented from harming himself and others [9]. But if there is no one to take care of such a person or if it is not possible to grant bail, the Court transfers him to a custody that it deems safe for the accused.
When any court sends these mentally ill persons to prison in the name of safe custody, they essentially throw them into a Bermuda triangle where there’s no hope of their return as no record of their health is being maintained. However, chapter VIII of the PA talks about health of prisoners and mentions how the jailer has to call the attention of the Medical Subordinate to any prisoner who is ill or whose state of mind or body seems to require attention or who desires to see a doctor and shall thereafter give effect to all the instructions given by such Medical Officer [10]. Further, §38 of the PA mentions that a day to day record of all the directions given by a Medical Officer stating whether or not those instructions were complied with, has to be maintained. Finally, the PA requires that every prison should have a proper place for sick prisoners [12]. Clearly, there is hardly any implementation of these provisions seen in real life.
Judicial Analysis & its implication
The case of Mrs.Veena Sethi vs State Of Bihar And Ors was the result of a report published in Indian Express on December 17, 1981regarding 16 mentally ill prisoners of the Hazaribagh Central Jail who had been languishing in prison for more than 25 years each. The judgement mentions that due to overcrowded mental asylums, all these people [most of whom were accused of committing an offence under §302 of the Indian Penal Code (IPC)]were sent to prison by the Court. They kept rotting in prisons as the Court was unable to find record which the Jail Superintendent is supposed to forward to the State Government stating the mental condition of these prisons. It was later discovered how the majority even after becoming of sound mind were still under detention for years while they were supposed to be brought before the Court for resumption of their trial. The judgement deeply criticises the inhumane way in which the jail administration and in some cases the Magistrate and various departments handled these cases. The Court finally released these prisoners. But the judgement failed to address the issue of improving the condition of prisons for mentally ill prisoners.
In 1984, a prisoner called Rama Murthy from the Central Jail, Bangalore wrote a letter to the Chief Justice of Bangalore High Court talking about grievances of prisoners (the case of Rama Murthy v. State of Karnataka, 1997) after which, the court took cognizance and ordered a District Court Judge to visit the Bangalore Central Jail to verify the allegations. Thereafter, the Judge prepared a report mentioning the state of mental patients in the prison, as they were compelled to remain in jail even when they required serious medical assistance from outside. In a later-sections, the Judge makes an excellent recommendation to counter this problem; that in the case of mentally ill patients, the National Institute of Mental Health and Neuro-Sciences (NIMHANS) authorities must be requested to treat them as in-patients till they become normal without referring them back to the prison.But the said recommendation did not find a place in the directions given by the Court in this judgement.
In 1989, the question of illegal detention of prisoners arose in the case of Sheela Barse v. Union of India where the apex Court passed an order strictly prohibiting the confinement of non-criminal mentally ill patients in jails. The government then appointed Senior Advocate, Gopal Subramanium, to see that the aforementioned order was strictly complied with in the state of Assam. He had prepared a report that revealed disturbing facts which highlighted that there were a shocking number of people detained in jail in Assam on the ground of mental illness and on further enquiry he discovered that many of these people were in fact not in a state of mental illness. For example, there was a case where a person was confined to prison for being talkative. [17]
Although this step by the Court was appreciable, the implementation of those steps was scrutinized only with respect to Assam and even though the judgement aimed to protect non-criminal mentally ill patients from the prison atmosphere, the mentally ill persons accused of criminal offences remained neglected. Once again, no heed was paid on improving the condition of prisons so as to accommodate these mentally ill people. Shortly after the judgement, National Human Rights Commission (NHRC) issued its Annual Report for the year 1994-95 which pointed towards the deplorable conditions of prisoners by visiting over-crowded prisons like Tihar in Delhi as well as underutilized ones like the open prison in Hyderabad. The report describes the heart-rending state of mentally ill prisoners who were being kept with other inmates and no efforts were being made for their well-being. To improve the situation, the commission mentioned in the report that a meeting would be held where it would discuss incorporation of special arrangements for mentally ill prisoners, among other things. This was the first time that a governmental body displayed sympathy towards this neglected section of mentally ill prisoners accused of a criminal offence, assuming that the others were not being detained in prisons anymore. Recently, the National Seminar on Prison Reforms, 2014, conducted by NHRC identified certain issues and made recommendations/proposals for the same. The list finally included the rights of mentally ill prisoners. But the hard part i.e., the implementation is still to be carried out.
Guidelines for Mentally ill Prisoners
The case which finally led to framing of a set of guidelines issued for mentally ill prisoners was the case of Charanjit Singh v. State and Ors. A petition was filed by NHRC in pursuance of a news report in 2002 that described the pathetic condition of a mentally ill prisoner Charanjit. His trial was put on hold when it was discovered that he was of unsound mind and he was sent to prison in the absence of surety. This worsened in prison and his illness compounded over time. In the judgement, the court said that while knowing that there is no scope for the mentally ill prisoner to become normal again and thus his trial could never be resumed, if he is left to die in prison till his last breath only because of paucity of surety, it will be a violation of his right under Art.21 of the Constitution. As it was held in the case of Maneka Gandhi v. Union of India, 1978that right to life includes the right to live with dignity. The Court thereafter squashed Charanjit’s chargesheet and requested NHRC to recommend changes to the existing system which have been listed in the judgement.
The NHRC recommendations are quite exhaustive and if implemented would bring a revolutionary change in the current manner of handling mentally ill prisoners. The recommendations comprehensively cover almost every factor that affects or might contribute to the welfare of mentally ill inmates. Some important highlights from the recommendations that should be implemented right away are as follows-
- Preventive measures like counselling, humane staff, effective grievance redressal mechanism and means of recreation etc. to help prevent prisons from mentally scarring inmates.
- Availability of a psychiatrist and preliminary means of treating mental ailments at every prison.
- Making sure that no mentally ill patient not accused of committing a criminal offence is sent to prison.
- State must make arrangements for treatment of mentally ill prisoners in private hospitals if government hospitals are full.
- All prisoners with mental illness or those under the observation of a psychiatrist should be kept in one separate barrack.
- Prisoners are to be made aware of their rights to seek medical assistance soon after entering the prison.
- Quarterly report of under trial mentally ill prisoners should be sent to the relevant Court.
- Sensitization of judicial officers towards mentally ill inmates.
- State should take responsibility of mentally ill people who have been released but do not have any family/friends.
- Efforts should be made to rehabilitate people who gain soundness but do not have family/friends.
Making a case for Appropriate Justice
The journey of the rights of mentally ill prisoners has just evolved on paper and not in practice. Mentally ill prisoners are maltreated and rendered insane even today[22]. These recommendations clubbed with the guidelines issued by the Court should be officially framed to create a national act called the rights of mentally ill prisoners which should be made applicable to the whole of India because not every state has accepted and implemented the court guidelines. Another thing that can be done is establishment more mental asylums throughout India as it can be seen in many cases that the Court found itself helpless when some prisoners who were not supposed to be confined in prisons but had to be due to the paucity of mental hospitals in India. Although a short-term solution to that has already been suggested by NHRC when they said that such prisoners should be given treatment in private hospitals, establishing government hospitals would be a permanent solution to this problem.
NHRC also suggests that mentally ill prisoners be kept in different barracks in prisons. A better way of reaching the goal NHRC seeks to reach through this recommendation will be having a separate building altogether for mentally ill prisoners. Such a building should be well equipped and should have special and unarmed staff to meet the special needs of these people and would definitely protect them from any kind of abuse. The prison atmosphere can be harmful to an extent where a mentally ill prisoner finds himself in an ever-deteriorating state [23] while other attempts to commit suicide[24].
In case of mentally ill prisoners whose trial is awaiting them, if after keeping them in prison under psychiatric observation, no progress is seen and if a medical officer declares their case hopeless, then instead of leaving them to die in prison, they should be released. This should be done without waiting for any newspaper report or any NGOs petition to do so. In fact, limit can be set on the number of years a mentally ill prisoner accused of a criminal offence can be kept in prison in hope of presumption of trial in the interest of their right to live with dignity.
The remaining concerns have been addressed in the recommendations provided by NHRC. The government simply needs to implement the guidelines. This is because the people suffering from mental illness have the right to be treated equally under the Article 14 of the Constitution and it is the duty of the government to honour this right. Law has to make a shift in the way it looks at this section of the society. Instead of a threat, these are just less privileged people and have all the right to be treated like any other citizen. An aberrant subculture should not be excluded and neglected on the assumption of it being a potential danger, instead an inclusive approach should be taken by the society to adapt to its needs.
[The authors are 3rd year law student at WBNUJS, Kolkata and NLUO, Cuttack respectively.]