|
INTRODUCTION
In India, as in other parts of the world,
the traditional approach to the care of the mentally ill, during the last
200 years, was custodial rather than therapeutic. This system was built by
the then rulers in the mould of the mental health care delivery system of
contemporary Britain. To build a chain of mental hospitals and to introduce
Western healing practices in them were conceived and executed by the East
India Company. In the early phase of their development, (in late 18th
century), mental hospitals were meant exclusively for the soldiers, who
fought for their British masters against the Indian princes, the civilian
officers of the East India Company and the white settlers.
THE EARLY LEGISLATIONS
In the early 19th century,
experts and administrators believed that the tropical climate was one of the
causes of mental disorders among the Europeans living in India. Accordingly
European patients, who did not improve within six months after their
admission in a mental hospital in India, were sent to England for treatment.
The passage money and other expenses were paid by the East India Company as
loan to be repaid by the recovered patient. The practice began in 1818. In
course of time the cost-effectiveness of this exercise was called into
question. In order to regulate the selection of such patients the need for
enactment of a law became apparent. In 1851 the “Lunatics Removal Act” was
passed. This Act has the dubious distinction of being the first mental
health legislation in British India. In pursuance of this Act and the rules
framed thereunder, the flow of patients gradually dwindled, till it came to
an end in 1891.
The administration of justice in India
during the colonial era was based on the British model. Political, social
and philosophical ideas prevalent in the British public life exerted a major
influence on the contemporary legal system in Britain. The growing public
awareness about the plight of mental patients in custody was instrumental in
enacting laws for the regulation of asylums, prisons and the legal system as
a whole. Thus the English Act of 1774 was replace by the country Asylum Act of 1808
which in turn was replaced by Lunatic Act and Lunatic Asylum and Pauper
Lunatics Act of 1845 as amended by (a) Lunacy Regulation Act, 1853 (b)
Lunatic Care Treatment (Amendment) Act, 1853 and (c) Lunatic Asylums
(Amendment) Act. 1853.
After the take over of the administration
of India by the British Crown (in 1858) a large number of laws were enacted
in quick succession for controlling the care and treatment of mentally ill
persons in British India. These enactments were modeled under the three
English acts of 1853.
For the more inquisive readers let me
quote the names of those enactments (a) The lunacy (supreme court) Act, 1853
(Act 34 of 1858) (b) The lunacy (District Courts) Act, 1858 (Act 35 of 1858)
(c) The Indian Lunatic Asylums Act (Act 360 of 1858), (d) The Military
Lunatics Act 1877 (Act 11 of 1877) (e) The Indian Lunatic Asylums
(Amendment) Act, 1886 (Act 18 of 1886) (f) The Indian Lunatic Asylums
(Amendment) Act 1889 (Act 20 of 1889).
In essence these Acts gave guidelines for
establishment of mental asylums and codified the procedures of admitting
patients. The aim of establishing asylums was to segregate those who were
considered dangerous to the society by reasons of mental illness. Asylums
were the places where insanes were kept for safe custody and not for proper
treatment.
During the second half of 19th
century, along with the proliferation of mental health legislation, number
of mental hospitals also increased in different parts of India. Needless to
say, they did not match the need of the community. Patients were
incarcerated in these asylums for an indefinite period with very little
chance of recovery and release. Consequently, by the end of the century
overcrowding and its impact on the living condition of patients made these
asylums a veritable inferno.
THE INDIAN LUNACY ACT,
1912
During the first decade of the 20th
century, public awareness about the pitiable conditions of mental hospitals
accentuated as a part of the growing political awareness and nationalistic
views spearheaded by the Indian intelligentia. It resulted in the next phase
of development of mental health legislation in India.
Public resentment over the plight of
mental patients was expressed through adverse criticism in the Indian press.
It found its echo in the contemporary British press as well as in the
British parliament. The government of India, thereupon, decided to tone up
the administrations of the mental hospitals and the procedures of admission and
discharge of inmates of those hospitals through a comprehensive Act. In 1911
a new bill was introduced in the council of the Governor General (Viceroy)
of India with the intention to consolidate the various lunacy Laws in force
in India (those enacted during the period between 1858 and 1889) and to
introduce certain amendments and especially to bring the law in certain
important particulars in line with the modern English law i.e. the Lunacy
Act 1890 as amended by the Lunacy Act 1891. After a careful consideration
of all details by a Select Committee the bill was passed as the Indian
Lunacy Act, 1912.
The enactment of India Lunacy Act, 1912
had a far-reaching consequence and impact on the whole system of mental
health services and administration in India. Under this new legislation the
central supervision of all mental hospitals became a reality. This is a
fundamental change in the management of mental hospitals. These hospitals
were thus removed from the grip of the Inspector General of Prisons. The
next most important change was the recognition of the role of specialists in
the treatment of mental patients. Psychiatrists were appointed as full time
officers in mental hospitals.
These beneficial features apart, a
dispassionate analysis of the Indian Lunacy Act, 1912 will lay bare the
legacy of its predecessors enacted in the previous century. This Act also
was obsessed with a persistent concern for the protection of the public from
those who were considered dangerous to the society. Provisions of this Act
have paid more attention to increase the legal safeguard against wrongful
detention and proposed rigorous criteria for certification of the mentally
ill. The law ensured an overriding power of the magistrate in the
certification process. Thus an essentially clinical issue was overshadowed
by a legalistic approach. The adverse effects of these procedures were not
far to seek. The condition of mental hospitals rapidly deteriorated during
the following three decades.
THE MENTAL HEALTH ACT, 1987
In 1946 Col. M. Taylor, Superintendent of
European Mental Hospital at Ranchi, as a member of the Health Survey and
Development Committee, popularly known as “Bhore Committee” was asked to
survey the mental hospitals. According to his report, there were 19 mental
hospitals with bed strength of 10,181. He summed up his observation in the
following words. “The majority of mental hospitals in India are quite out of
date, and are designed for detention and safe custody without regards for
curative treatment.” Besides making several recommendations for the upliftment of these hospitals, he observed that the Indian Lunacy Act, 1912
had outlived its utility. Col. Taylor’s view must have been shared by his
contemporaries in the psychiatric fraternity.
It was in 1949 that the first editor of
the Indian Journal of Psychiatry (then known as the Indian Journal of
Neurology and Psychiatry) Prof. N. De wrote editorials to highlight the need
of amending the Indian Lunacy Act, 1912. In the same year the Indian
Psychiatric Society in its second annual conference held at Allahabad,
passed a resolution (at the insistance of Prof. De) to move the Government of
India to repeal the Indian Lunacy Act, 1912 and to introduce a new mental
health bill. As a follow up of this resolution the IPS appointed, in 1949,
an adhoc Committee of three distinguished psychiatrists, namely, Dr. J. Roy
of Nagpur, Dr. R.B. Davis and Dr. S.A. Hasib of Ranchi. They met at Ranchi
and prepared a draft “Indian mental Health Act”.
In 1959-60 an attempt was made, under
instruction from the Govt. of India, to suggest amendment to the 1912 Act.
But the experts failed to reach a consensus.
For about two decades the Government made
no further efforts for enactment of a new law on mental health. During this
period great strides were taken in the advancement of knowledge and
understanding of the nature of mental disorders. Attitudes of the society
towards mentally ill persons had changed remarkably. Stigma associated with
mental disorders also was on the wane. There was growing demands and
aspirations of the people to get better facilities and less rigid procedures
for admission, treatment and discharge of mental patients. As far as
possible mentally ill persons should be treated at par with any other sick
person and the environment should be natural and familiar. This collective
view was bolstered up by the principles of Alma Ata Declaration of 1978. The
Government could hardly ignore this changed climate of opinion and responded
to the concerted pressure of the people, professionals and policy makers by
introducing the Mental Health Bill in parliament in 1981. It was referred to
a joint Committee of MP’s in 1982. Before the Committee could come to a
decision the Lok Sabha was dissolved on 31st December, 1984. In
1985 a new Joint Committee went into the Bill, elicited public opinion,
suggested some amendments and adopted it on 24th April, 1986.
This amended Bill was passed by the Rajya Sabha on 26th November,
1986 and by the Lok Sabha on 19th March, 1987. The amendments
made by the Lok Sabha were agreed to by the Rajya Sabha on 22nd
April, 1987. The president’s assent was received on 22nd May,
1987, and it became the Mental health Act, 1987 (Act No. 14 of 1987).
This narration gives us a glimpse of the
long and arduous process of enactment of the new Act. The mental Health Act,
1987 is indeed an embodiment of the persistent motivation and labour of
mental health professionals, law makers, jurists and many leading persons of
many walks of life.
THE EPILOGUE
Paradoxically many experts, psychiatrists
among them, developed a love – hate relationship with the Act as soon as it
was introduced in Parliament in the form of a bill. The first salvo was
fired in an editorial published in 1985 in a widely circulated professional
journal. It advocated a farewell to the bill. This attitude has since then
increased rather than mellowed down. The reason might be traced in our
distrust of the legislators, judiciary and law enforcing bodies on the one
hand and a lack of proper appreciation of the scope and nature of the new
Act.
It bears repetition that the Mental health
Act, 1987 is an advancement on its predecessor. In a nutshell, its
progressive features include (a) incorporation of modern concepts of mental
illness and treatment, (b) primacy of the role of medical officers (c)
simplification of the rules of admission and discharge (d) protection of
human rights of the patients (e) providing for supervision of the standard of
care in psychiatric hospitals (by creating the Mental Health Authority) (f)
provision of penalties in case of breach of laws in connection with welfare
of the patients and (g) care is the ultimate aim and not the custody alone.
However, it must be conceded that the law
alone cannot automatically guarantee a high quality of care in mental
hospitals.
In April, 1993 Mental Health Act 1987 (MHA)
came into force officially. Actually its implementation has been delayed and
appears to be imperfect in many parts of the country. One of the major
reasons for this sad state of affair is the inadequate appreciation of the
principles and provisions of the Act by all concerned with its
implementation.
During the last four or five years the
MHA has been subjected to incisive scrutiny in many regional and national
seminars. As a result, imperfections, lacunae, absurdities and
discriminations galore have been detected in it. This has led to a shift in
priority. Experts clamour for modification of the Act and blissfully forget
that it is yet to be strictly enforced. Our unified voice should be “enforce
first, amend next.” We are in good company when we say so. Recently the
Supreme Court issued a directive to implement the MHA in its present form.
It took a terrible incident like the Erwadi holocaust to awaken the nation.
It was felt that the lack of implementation of the MHA was the main reason
for Erwadi tragedy and the strict implementation of the law was the answer.
The blemishes of the Act may be removed along with the process of
implementation. The MHA is essentially a social welfare measure. Like any
social welfare measure it has an in–built mechanism for improvement of its
functioning and checks and balances for regulation of its malfunctioning
(Chapter II and X, MHA 1987).
The outmoded Indian Lunacy Act, 1912 and
the Lunacy Act 1977 have already been repealed. We should grab with both
hands the opportunity to give a fair trial to the Mental Health Act, 1987
which has been enacted with the aim of creating conditions for treatment of
mental disorders according to modern methods and concepts in a milieu where
human rights would be protected.
REFERENCES
-
Mental Health Act, 1987
with short notes (1987), Lucknow Eastern Book Company.
-
Sharma, S. D. (1990) Mental
Hospitals in India New Delhi, Directorate General of Health Services.
-
Shah, L. P. (1999) Forensic
Psychiatry in India, current status and future development. Indian journal
of Psychiatry. 43(3), 179-185
-
Somasundaram, O. (1987) The
back ground of Indian Lunacy Act, 1912. Indian Journal of Psychiatry, 29,
3-14.
-
Trivedi, J. K. (2002) The
Mental Health Legislation: An ongoing debate (editorial) Indian Journal of
Psychiatry, 44(2), 95-96.
-
Channabasavanna, S. M.
(1985) Farewell to the Mental – Health Bill (editorial) Indian Journal of
Psychiatry 27, 179-181.
|
