Mental Healthcare Act, 2017: Legislation with a flawless facade

Introduction

The Mental Healthcare Act, 2017[1] (hereinafter referred to as MHCA, 2017) is a landmark legislation which revolutionized the mental healthcare system of the nation. It is true that the MHCA, 2017 is a great leap in principle which not only attempted to exorcise stigmatisation of mental illness but also anaesthetized provisions such as section 309 of the Indian Penal Code[2] (hereinafter referred to as IPC), which criminalizes attempt to commit suicide. However, this legislation comes with major limitations when its legal principles are juxtaposed against its social implications. In order to identify the socio-legal fallacies, the write-up is divided into three parts, where the first part establishes that the same provision which was enacted to act as a shield against section 309, contrarily, acts as a sword. The second part highlights the social limitations within the legislation from a legal standpoint, following which, the paper culminates by analysing the recent reckless media reporting of celebrity suicide cases with no heed being paid to the PCI guidelines on reporting of suicide cases.

The Paradox of Presumption

Section 309 of the Indian Penal Code, 1860 which criminalizes attempt to commit suicide is nullified to a great extent by virtue of section 115(1) of the Mental Healthcare Act, 2017[3]. It provides that, any person who attempts to commit suicide, unless proved otherwise, shall be presumed to be under stress and shall not be tried or punished under the Indian Penal Code. A plain reading of this section would mean that it is enacted to save a distressed mind from the torment of trial. However, the question is, whether it truly does so? The answer is no.

A person who attempts to commit suicide may be presumed to be under stress however, this presumption comes with a concomitant diction of ‘unless proved otherwise’, thus making it clear that this presumption can be disproved. The definition of the word ‘disproved’ is provided under the illustration of section 3 of the Indian Evidence Act, 1872[4], according to which, a fact is said to be ‘disproved’ when the Court decides it after considering the matters before it, which purports that, on the basis of evidences adduced by both the parties. Following this definition, it can be concluded that the stages of evidence would naturally entangle the suicide victim, requiring him to testify before Court, about the incidence which made him take the penultimate step and in a way the same presumption of stress which was to act as a shield for the person contrarily would act as a sword making him re-visit all the facts, and subjecting him to more severe stress, even greater than the stress presumed under the legislation. However, “what is needed to take care of suicide prone persons are soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor”[5] Moreover, the above discussion establishes the fact that s. 155(1) of the MHCA, 2017[6] is nothing more than a paradox which despite providing that a stressed person must not face the rigours of trial, indirectly make that person undergo the same.

It is also pertinent to note that the draft bill of MHCA, 2013 contained the word ‘mental illness’[7] which was replaced by ‘severe stress’ in the MHCA, 2017.[8]The reason for such replacement being, the stigma attached to the word ‘mental illness’ and the ostracism faced by a person who attempted suicide.[9] As a result of the replacement, now the presumption is drawn only regarding mental stress and no presumption is drawn as to whether such stress is qualified to take the shape of mental illness. As a consequence of the moniker, now it is nebulous as to whether Chapter XXV of the Criminal Procedure Code, 1973[10]would apply to a person who attempted to commit suicide. Hence, a person may be mentally ill, but the legislation subscribes this ‘illness’ as ‘stress’ vis-à-vis depriving him of the provisions encapsulated in the Criminal Procedure Code, 1973for person with unsoundness of mind. Apart from the prejudice caused to the person, the replacement of the word ‘mental illness with ‘mental stress’ is contributing in perpetuating the same stigma for which the replacement was done by deterring people from considering the fact that sometimes ‘mental stress’ turns out to be a sub-set of ‘mental illness’ too.[11]

The Game of Stress

It is pertinent to note that section 115(1) the MHCA, 2017 creates a distinction between an attempt to commit suicide under stress and a stress-free attempt. However, such distinction overrules the decision of Thomas Master v. Union of India[12]which held that no distinction can be made between persons those commit suicide or attempt to commit suicide under stress and those who decided to end their life after leading a successful one.[13] The Court vehemently went on to say that, there cannot be any distinction between suicides committed impulsively or after great thought.  Thus, the MHCA, 2017 is the quintessence of perfunctory exercise of judicial power in the name of legislative power[14] where the provision which draws the presumption of stress, at the first instance, when proved otherwise i.e. the attempt was not made under any stress, the same provision pushes a stress free person into the vicious circle of stress by permitting a trial of the corpus in a Court of Law which may even crystallize into punishment.

The determination of the fact as to whether a person has attempted to commit suicide, out of stress or otherwise, is a dicey floor too. As it is evidenced in the case of Thomas Master[15], an 80-year-old man, after living a fruitful and respectful life as a teacher, expressed to end his life not by committing suicide rather prayed to the Court for the establishment of Voluntary-Death Clinic. The Hon’ble Court rejected the petition citing the case of GianKaur[16]. Now, for the sake of argument, if it is assumed that this same petitioner after getting no relief from the Court of Law, attempts to commit suicide, whether such an attempt would qualify as an attempt under stress? An answer in simpliciter is no, because the petitioner himself admitted that he was in good mental and physical health with no stress. Thus, according to the MHCA, 2017, the petitioner may be tried and even punished. However, close scrutiny would lead us to the fact that the person was under severe stress due to the fear of pain, misery or suffering in old age, or being dependent on others.[17]

Mental Healthcare Act 2017: Liberal in Principles, Let Down in Provisions

In developing countries such as India, people with mental illness and their situations, are compounded by socioeconomic and cultural factors such as lack of access to health care, superstitions, and lack of awareness, stigma and discrimination.[18] However, the mental Health Care Act does not offer much on prevention and early intervention.

The act upholds the idea that all citizens, including those with mental illness, have a right to equality and non-discrimination. By bringing voluntary admission of mental health‑care patients under the regulatory gaze, the state is infringing on the principles of equality and non-discrimination described in section 21 of the act.[19]

The state shall provide all care for the persons admitted for the safety of the other under Section 89 of the Mental Health Care Act, 2017.[20] It is clear that the state wants the private companies to take care of the patients admitted under Supported Admissions. However, the act does not specify how the state is going to fulfil the moral and ethical responsibilities as is prevalent in modern societies.[21] On the other hand, the act stipulates that without the application from the Nominated Representative (NR) a patient cannot be admitted to a hospital against his or her will.[22] Families already dealing with a debilitating illness, and now burdened with forced admission, much of which the patient does not accept. This makes the families the primary focus for the anger and frustration of the patient.[23]Hence, such a role should not be forcefully thrust on the family and should be optional instead.

In its rush to escape accountability for the treatment of the mentally ill, the new act left enormous uncertainties and lots of unanswered questions. If an NR does not behave in the best interests of a patient, the NR preferably should be removed.[24]Patient who lacks capacity cannot remove an existing NR. Even while having capacity, they may not have the courage or financial freedom to remove a family member as NR. The act, as it stands now, states that only the patient can revoke or change the NR. Unfortunately, the patient can do so only if they have the capacity, and if they had the capacity, they would not have needed an NR in the first place.[25]

The Iresponsible Reporting of Sushant Singh Rajput’s Death

India’s Press Committee, headed by Justice C.K. Prasad, at a release dated September 13, 2019, has adopted guidelines on reporting on suicides, based on guidelines from the WHO. [26]Undoubtedly celebrity suicide has great news value however it can also influence the vulnerable and suicidal people. The death of Bollywood actor Sushant Singh Rajput has caused a shockwave in the entertainment industry but it does not stop the mainstream media from overtly sensationalising the matter, despite several reporting guidelines on suicide provided by Press Council of India(PCI).[27] As examples of highly irresponsible reporting, some of the reports described the method of suicide while some others added an image of the person lying down on his bed, both of which flout the guidelines provided by PCI. Zee News put out a tweet with the caption “How did the Dhoni of cinemas get “out” in Real Life”. AajTak also put out a similar caption in the ticker stating “How did Sushant get a Hit wicket”.[28] The above examples of reporting are strictly in conflict with the guidelines presented by PCI, especially with regard to the “use of language which sensationalise or normalises suicide” Practicing advocate of Hon’ble Delhi High Court Mohit Singh has served a legal notice of defamation on Editor-In-Charge of the India Today Group for “demeaning” the tragic loss. “By this comment, AajTak has insinuated that the death of Rajput is equivalent to that of a batsman hitting his own wicket. Such careless use of words portray that news channel AajTak has shed its responsibility towards the Indian mases”, the notice reads.[29] Much has been written about the toll of celebrity culture on their private lines. There are bereft of privacy even in death. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 of the Constitution of India.[30] It is also to be noted that death by suicide makes the people in the private lives of the celebrities uniquely vulnerable. Suicide survivors in psychotherapeutic terms are people who have lost a loved one in suicide. In addition, suicide survivors are at a greater risk of dying by suicide themselves. Protecting the friends and family of the deceased is not only a moral imperative for the media, but there is also evidence to show that it can prevent further harm.

Conclusion

The above discussion leads us to the squitter that, the MHCA, 2017 is a double edged-sword, which may help plenty of those who are inculpated under section 309 IPC but at the same time it fails to embrace vivid possibilities and counterproductive results of the same protective provision. Moreover, the Government is yet to attach much more safety valves in the mechanism of the Act along with a proactive vow to tackle the TRP game played by the mainstream media.

[1]The Mental Healthcare Act, 2017, No. 10, Acts of Parliament 2017 (India) [hereinafter

MHCA, 2017].

[2]INDIA PEN.CODE [hereinafterIPC].

[3]The Mental Healthcare Act, 2017, No. 10, Acts of Parliament 2017 (India).

[4]The Indian Evidence Act, 1872, No. 1, Acts of Parliament 1872.

[5]P.Rathinam v. Union Of India, 1994 SCC (3) 394 (India).

[6]The Mental Healthcare Act, 2017, No. 10, Acts of Parliament 2017 (India).

[7]LaxmiNareshVadlamani, Mahesh Gowda, Practical implications of Mental Healthcare Act 2017: Suicide and suicide attempt, National Center for Biotechnology Information, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6482674/.

[8]Id.

[9]Id.

[10]INDIA CODE CRIM. PROC.

[11]Arthur, A.R. (2005), When stress is mental illness: A study of anxiety and depression in employees who use occupational stress counselling schemes. Stress and Health, 21: 273-280. doi:10.1002/smi.1069.

[12]Thomas Master v. Union of India, 2000 SCC Online Ker 430 (India).

[13]Id.

[14]Mahendra Pal Singh, V. N. Shukla’s Constitution of India, 797 (13th ed. 2017).

[15]Thomas Master v. Union of India, 2000 SCC Online Ker 430 (India).

[16]Smt. GianKaur v.The State Of Punjab, 1996 SCC (2) 648 (India).

[17]Thomas Master v. Union of India, 2000 SCC Online Ker 430 (India).

[18]Rakesh Kumar Chadda et al, Recent developments in community mental health: Relevance and relationship with the mental health care bill,31.INDJSP 153,153-160(2015).

[19]The Mental Health Care Act, 2017, No.10, Acts of Parliament, 2017.

[20]The Mental Health Care Act, 2017, No.10, Acts of Parliament, 2017.

[21] Alec Bucharan, Mental Capacity,Legal competence and consent to treatment,97.JR.Soc.Med 410,415-420(2004).

[22]The Mental Health Care Act, 2017, No.10, Acts of Parliament, 2017.

[23]DS Goel, Why Mental Health Services in low and middle-income countries are under-resource, under-performing:An Indian Prospective, 24. NatlMedJ India 94, 94-97(2011).

[24]VasudevanNamboodiri, Capacity for mental healthcare decisions under the Mental Healthcare Act, 61. INDJSP 676, 676-679(2019).

[25]Mandira Kala,  New Mental Health Bill Provisions and Some Challenges in their implications,  THE INDIAN EXPRESS (August 10, 2016 12:06:20 am),  https://indianexpress.com/article/explained/new-mental-health-bill-provisions-rajya-sabha-2964545/.

[26]AnooBhuyan, Press Council’s New Guidelines Ask Media to not sensationalise reports on suicide, THE WIRE (16 Sept 2019 11.20 PM), https://thewire.in/media/press-council-new-guidelines-reporting-suicide.

[27]ArchisChowdhury, The Irresponsible reporting of Sushant Singh Rajput’s Death, BOOM NEWS (14 Jun 2020 11:17 PM), https://www.boomlive.in/fact-file/the-irresponsible-reporting-of-sushant-singh-rajputs-death-8479.

[28]David D Luxton et.al, Social Media and Suicide:A Public Health Perspective, 102. AJPH 190, 195-200(2012).

[29]Richa Mukherjee, Legal Notice served to AajTak for ‘Insensitive’ Reporting on death of actor Sushant Singh Rajput, THE LOGICAL INDIAN (15 Jun, 2020), https://thelogicalindian.com/news/lawyer-sends-notice-to-india-today-group-for-allegedly-spreading-misinformation-on-death-of-actor-sushant-singh-rajput-21703#:~:text=A%20practicing%20advocate%20in%20Delhi,Bollywood%20actor%20Sushant%20Singh%20Rajput.

[30]INDIA CONST. art. 21.


ABOUT THE AUTHORS

Ishan Mazumder

Picture of Ishan Mazumder

Ishan is a third-year law student from West Bengal National University of Juridical Sciences (WBNUJS). His areas of interest are Constitutional Law, Criminal Law, and Corporate Laws. He enjoys researching and writing articles about the developments in Constitutional Law and other socio-legal issues.

Mayukh Mandal

Picture of Mayukh Mandal

Mayukh is a third-year law student from West Bengal National University of Juridical Sciences (WBNUJS). His areas of interest include inter-connection of Law with Human Rights, Constitutional Law, Corporate Laws, and International Law. He enjoys researching and writing articles on the International Conventions regarding Human Rights and other contemporary International issues related to the legal field.

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