To address the plight of mentally ill prisoners languishing in prisons and mental health centres for years together, the Kerala High Court recently directed the State government to 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 for the well-being of such prisoners.

Justice VG Arun passed the order after considering a report by the Secretary, Kerala State Legal Services Authority (KELSA), a statement submitted on behalf of the government and the relevant provisions under the Code of Criminal Procedure (CrPC) and the Mental Healthcare Act (Act), 2017.

Guided by the doctrine of parens patriae, the Court deemed it appropriate to issue the following interim directions:

I) The State government shall immediately 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.

II) 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.

III) 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.

IV) 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.

V) 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. Based on the details thus received, the Secretary, KELSA may bring deserving cases to the notice of the High Court, to enable the High Court to take an appropriate decision on the judicial side.

VI)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 undertrial 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 under G.O(Rt).No.426/2019/SJD dated 10.7.2019 shall be disbursed to that establishment.

VII) The Special Secretary, Social Justice Department shall file a report specifying the steps taken in terms of the above directions.

Justice Arun started his order with a quote from Don Quixote by Miguel de Cervantes:

“They must take me for a fool, or even worse, a lunatic. And no wonder, for I am so intensely conscious of my misfortune and my misery is so overwhelming that I am powerless to resist it and am being turned into stone, devoid of all knowledge or feeling.”

The Court observed that, similarly, "the system and the society presume the voiceless mentally ill prisoners, embroiled in legal quagmire and abandoned by family and friends, to be devoid of knowledge and feeling, thereby turning them into stone"

Pertinently, the Court also remarked that the provisions of the CrPC are yet to be amended in tune with the provisions of the Mental Healthcare Act, 2017.

In most of the Sections of Chapter XXV of the Code, mentally ill accused are still termed as ‘lunatic’ and for mental health establishments the term used is lunatic asylum, the Judge observed.

The Court stated that these provisions must be amended in accordance with the Mental Healthcare Act, 2017.

"Not only the terminology, the procedure prescribed in Chapter XXV has to be amended, to make the provisions commensurate with the provisions of 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", the Court said.

The Court issued the order in a matter taken up suo motu in 2019 after another Judge of the Court brought to the notice of the Chief Justice several news reports regarding prisoners suffering from mental illnesses who were remanded to custody for many years without any mental health support.

Subsequently, KELSA, the State government and the High Court Registry collected and submitted information about mentally ill remand prisoners in the State along with suggestions to address the issue by KELSA.

It was reported that as on August 2020, there were 77 convicts/ remand prisoners undergoing treatment in government Mental Health Centres in the State, of which 22 were continuing in such centres 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, the Court was told. Even from among the under trial prisoners, some were fit to be rehabilitated, it was submitted.

On its part, the government framed a scheme for the rehabilitation of mentally ill prisoners continuing in Mental Health Centres after acquittal.

The scheme provides for shifting such prisoners to Psycho-Social Rehabilitation Centres that express willingness to look after such persons. The State also sanctions an amount of ₹39,660/- per year to such centres, the Court was told.

The Court analysed the statutory provisions under Chapter XXV of the CrPC, which governs the enquiry, trial and acquittal/conviction of mentally ill persons. From a conjoint reading of the provisions, the Court discerned 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 give him proper care.

The case of undertrial prisoners is perhaps even worse as they might have to continue under remand until they are able to make their defence, which in some cases, never happens, the Court noted.

The Court also surveyed the statutes enacted for the welfare of mentally ill persons. It recalled that the Mental Health Act, 1987 was enacted by repealing the Lunacy Act of 1912, which had contained inappropriate terminologies like 'lunatic asylums', 'criminal lunatic' etc. as well as discriminatory provisions

Thereafter, in 2017, India became a signatory to the United Nations convention on rights of persons with disabilities which led to the replacement of the Mental Health Act, 1987 with the Mental Healthcare Act, 2017, envisaged to bring about revolutionary changes in the life and living standards of persons with mental illness.

The Court observed that the Act, 2017 has made community living the right of every mentally ill person, and guarantees the right to protection from cruel, inhuman and degrading treatment.

It, therefore, opined that "the provisions of the Act, if implemented in its letter and spirit will undoubtedly provide solace to the mentally ill persons, including the mentally ill prisoners".

Bearing this in mind, the Court passed its order directing the State to set up mental health establishments in at least one prison in the State by next date of hearing.

The matter will be taken up again after three months.

[Read Order]