Kerala High Court: V.G. Arun, J., addressed the instant suo motu case pertaining to the plight of mentally ill remand prisoners who had been left to languish in prisons due to them being abandoned by family and friends. Calling it blatant violation of basic human rights as well as of fundamental rights guaranteed by the Constitution, the Bench expressed,

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”

According to the State government’s as on 10-08-2020, there were 77 convicts/ remand prisoners undergoing treatment in Government Mental Health Centres in the State, of whom 22 were continuing after acquittal. Of the other 55 prisoners,48 were undertrial prisoners and 7 were convicts. Out of the 22 acquitted persons, 18 were fit for discharge and could be sent to rehabilitation centres and even from among the under trial prisoners, some were fit to be rehabilitated.

Noticeably, the Government had framed a scheme for rehabilitation of mentally ill prisoners continuing in Mental Health Centres after acquittal; which provides for shifting such prisoners to Psycho-Social Rehabilitation Centres which had expressed willingness to look after such persons. The Government had also decided to sanction an amount of Rs.39,660/- per year to such Psycho-Social Rehabilitation Centres essential.

Infinite Detention of Mentally Ill Prisoners

After pursuing Chapter XXV, (Ss. 328-339) of the Code of Criminal Procedure, which governs the enquiry, trial and acquittal/conviction of mentally ill persons; the Bench observed that in spite of being found eligible for discharge or release on bail or even on being acquitted, a mentally ill prisoner may have to continue in prison or a mental health facility, until a friend or relative volunteers to take him and to give him proper care. Such good Samaritan’s being absent in the case of most of the mentally ill accused, they continue to languish in prisons and mental health centres for years together.

“Even worse is the case of under-trial prisoners, who are to continue under remand till they are capable of making their defence, which may take years together and for the most unfortunate, may never happen.”

Inadequate Implementation of Statutory Safeguards

India, being a signatory to the United Nations convention on rights of persons with disabilities and it’s optional protocol. Hence, to follow its international obligation, it had replaced the Mental Health Act, 1987 with the Mental Healthcare Act, 2017 to bring about revolutionary changes in the life and living standards of persons with mental illness. The 2017 Act aims to make community living the right of every mentally ill person, and guarantee the right to protection from cruel, inhuman and degrading treatment.

Noticing that most of the Sections of Chapter XXV of the CrPC still term mentally ill accused as ‘lunatic’ and for mental health establishments the term used is lunatic asylum, the Bench stated,

“Not only the terminology, the procedure prescribed in Chapter XXV has to be amended, to make the provisions commensurate with the the Mental Healthcare Act, so as to achieve the laudable objective of the Act, viz., to make improve the life and living standards of persons with mental illness.”

Relying on the Supreme Court’s decisions in Hussainara Khotoon v. Home Secretary, (1980) 1 SCC 81, and A.R.Antulay v. R.S.Nayak, (1992) 1 SCC 225, where it was held that right to speedy trial is integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution, the Bench stated, if the provisions of the Act gets implemented in its letter and spirit it would undoubtedly provide solace to the mentally ill persons, including the mentally ill prisoners.

Conclusion and Directions

Considering the report of the Kerala Legal Services Authority (KELSA), the statement submitted on behalf of the Government, the relevant provisions under the CrPC, the Mental Healthcare Act and being guided by the doctrine of parens patriae, the Bench issued following interim directions;

  1. The State Government shall forthwith set up a mental health establishment, as stipulated in Section 103(6) of the Mental Healthcare Act, in at least one prison in the State. The prisoners with mental illness shall ordinarily be referred to and cared for in the said mental health establishment.
  2. The Government shall forthwith constitute Mental Health Review Boards under Section 73 of the Mental Healthcare Act, the composition of which shall be in accordance with Section 74 of the Act.
  3. The Medical Officers of prisons and mental health establishments shall strictly comply with the duties imposed on them under Section 103 of the Mental Healthcare Act.
  4. The Mental Health Review Boards shall ensure that prisoners with mental illness are allowed to live with dignity and treated as equal to persons with physical illness.
  5. The Mental Health Review Boards shall make available details of the mentally ill remand prisoners detained in jails and mental health establishments to the Kerala State Legal Services Authority.
  6. The State Government shall, with the assistance of the KELSA, take necessary steps to trace the relatives of acquitted mentally ill prisoners and of the under-trial prisoners fit for rehabilitation and persuade their family members to provide necessary care and protection to those persons. If the family members of the acquitted mentally ill persons refuse to take them back, the State Government shall take steps for their rehabilitation by transferring them to the willing registered mental health establishments. Once the mentally ill acquitted person is shifted to a mental health establishment, the amount fixed by the Government scheme shall be disbursed to that establishment.
  7. The Social Justice Department shall file a report specifying the steps taken in terms of the above directions.

[Suo Motu v. State of Kerala, OP(CrL.) No. 487 of 2019, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

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