Bombay High Court: In a PIL highlighting serious issues of the non-implementation of the Mental Healthcare Act, 2017, in the State of Maharashtra, the Division Bench of Nitin Jamdar and Gauri Godse, JJ., came down heavily on the State government for non-functioning of the State Mental Health Authority under section 45 of the Mental Health Act, 2017. The Court expressed,
“It is not clarified as to why Government Resolution has been issued on 15 December 2022 for appointment of Chief Executive Officer of the State Mental Healthcare Authority, if the Authority was already established. If it was only a change of Chief Executive Officer, the Government Resolution would have been in a different manner.”
Notably, in the Government Resolution dated 15-12-2022, reference was made to the constitution of Authority as per Government Resolution dated 06-09-2022.
On 23-08-2022 the Court had directed the State to make the Authority functional and the case was adjourned to enable the Authority to hold a meeting. However, on 02-12-2022, noting the regrettable state of affairs due to the inaction of the State despite the orders of the Court, the Court reminded the Authority concerned and the State of the duties imposed upon them under the Act and to inculcate a sense of urgency for the tasks ahead.
Accordingly, the Court directed the Chief Executive Officer of the State Authority to:
Place the details of the State Mental Health Authority Fund as to when it was created, what is the sum available in the Fund, and whether it is adequate for its functioning and performance of the Act.
To prepare a proposal for a work programme as per Section 53(1)(c) of the Act.
To prepare a statement of revenue and expenditure and the budget of the Authority as per Section 53 of the Act.
To prepare a general report covering all activities of the Authorities in the previous year per Section 53 of the Act.
To prepare the schedule of programmes of work and budget for the coming year for approval of the Authority per Section 53 of the Act.
To prepare a report in terms of Rule 10 of the Rules of 2018 as per Form A appended, copies of which shall be placed on record of the Petition along with an affidavit of the Chief Executive Officer to be sworn personally.
The Court further directed the Secretary, Department of Public Health, State of Maharashtra to place on record details of tasks performed by the Government since 2017 and a report disclosing the steps that the government intends to take in respect of the duties under the Mental Health Act, 2017. The Court also asked the Secretary whether the State Government has called for a report from the Authority under Rule 10 of the Rules and details of the reports so submitted since the inception of the Authority and give an explanation if no statutory reports are submitted nor called for.
Submissions of the State
The State, in its affidavit, contended that the activities initiated to redress problems of mental health care under the National Health Mission should be construed as activities under the Act of 2017. Further, a tentative time-line for the activities for 2022-23 appended to the affidavits, referred to targeted intervention for mental health taken by attending schools, colleges, and other places to take workshops for mental well-being. The affidavit also disclosed that Mega Camp for mental health and suicide prevention would be held with no specific timeline, day-care centers would be set up and 13 such centers have been set up till February 2023.
The State also submitted that clinical psychology equipment, medicines to hospitals of psychiatric patients, and drugs would be procured till February 2023. Similarly, training of para-medical staff with batches of 300 and clerical activities such as hiring of vehicles, office expenses, translation of material and distribution, survey register printing, and creation of software would be done by February 2023.
Findings and Conclusion
Noting that the Principal Secretary had accepted that no details as per Rule 10 of Mental Healthcare (State Mental Health Authority) Rules, 2018 have ever been called for from the Authority, the Court remarked,
“It is quite clear to us that though the Authority has been established in 2018 it has remained non-functional. The meetings of the Authority have not been held as per section 56 of the Act which mandates meetings not less than four times a year. The statutory fund, which is constituted from the contribution made by the State Government, does not have any corpus.”
The Court further noted:
The statutory fund, which is constituted from the contribution made by the State Government, did not have any corpus and nothing was placed on record as when the amount would be transferred to the fund.
No commitment was given as to when the statutory reports will be prepared. No commitment was given by the State as to when report/details will be called for.
Even the timeline given by the Principal Secretary was not satisfactory as it referred only to visits to schools, medical camps, and the rest of all clerical activities of hiring vehicles, office expenses, translation etc.
There was no reference to obligations under sections 29, 30, 31, and 32 of the Act.
In light of the above, the Court directed the State Mental Authority to hold a meeting before 09-01-2023 to discuss the aforementioned issues. The Court added,
“Considering the fact that for the last almost five years no progress at all has been achieved by the Authority, we request the Chief Secretary of the State of Maharashtra to attend the said meeting so that issues highlighted by us can be addressed and resolved. The Chief Secretary will also look into the question of contributing funds of the State Mental Healthcare Authority as per section 52 of the Act.”
Despite the directions of the Court to the Secretary and the Chief Executive Officer to provide all instructions to the Assistant Government Pleader (AGP) to avoid the situation that they will have to remain present in the Court, the Court was apprised that the AGP was not furnished with the Government Resolution dated 20-10-2018, which has constituted the Authority. Considering the lack of assistance that the AGP had received in spite of the Court orders, the Court directed the Principal Secretary, the Public Health Department, and the Chief Executive Officer of the Authority to remain present in the Court on the next date to apprise the Court of the initiatives taken by the Authority.
Mr. J.P. Sen, Senior Advocate was appointed as Amicus Curiae to assist the Court along with the counsel for the Petitioner. The matter is posted on 12-01-2023 for further hearing.
[Harish Shetty v. State of Maharashtra, 2022 SCC OnLine Bom 7507, decided on 21-12-2022]
Advocates who appeared in this case :
For the Petitioner: Pranali Mehra, Advocate;
For the State: M.M. Pable, AGP.
*Kamini Sharma, Editorial Assistant has put this report together.