The issue of Reproductive Rights in India: How is it different from other societies?

by Samyak Sibasish

Last November, we witnessed the death of a 31 year old Indian woman, Savita Hallapanavar, in Ireland, after doctors refused to give her an abortion 17 weeks into pregnancy, which created quite a huge furore in the Indian and Irish media. The reason for such a hue and cry was the reason that the doctors cited for their inability to perform an abortion – that Ireland, being a Catholic country, they are obligated not to take the life of a foetus. It is the growing perception that Ireland is being governed by a legal regime that encourages doctors to consider the repercussions of taking the life of a foetus even if it at the cost of the life of the mother, thereby keeping in tune with the ideals of the largely Catholic constitution of the country. It is pervaded by a religious dogma that is disrespectful to non believers and demonstrates utter disregard for the life of a mother as opposed to the ‘life’ of a yet-to-be-born baby.

The debate in this issue basically boils down to pro-choice and pro-life support. The pro-choice and pro-life antagonists argue over whether a woman should have the right to abort a pregnancy when she decides that she is either unable or unwilling to invest a lifetime of resources in the foetus that she is carrying. The pro-life proponents claim that such an act is equivalent to murder because the foetus must be considered a viable human being from the time of conception. The pro-choice proponents, on the other hand, advocate a woman’s rights to control her own body, her right to an induced abortion, especially when her own life is in danger. They argue that when the foetus is detrimental to the survival of the pregnant woman, she should be allowed to choose whether she wants to save her own life herself by exercising her natural rights over her own life and body or she wants to try saving her baby.

In this perspective, it is interesting to examine the position and awareness of the issue of abortion laws in India. In other societies, activists talk about the abortion as something that also involves the ending of a potential human life. However, here, we do not discuss the issue of women’s reproductive rights and abortion on terms of pro-life and pro-choice. We don’t talk and argue about the rights of the mother vis-à-vis those of the unborn baby. In our society, abortion is more of a visceral and possibly sentimental issue, and the causes leading to abortion are looked down upon as things that are extremely shameful for a woman, by the so-called moral guardians of the society. Here, the topic of a case of abortion and the factors leading to it are discussed in a hushed whisper, a disapproving tone and cluck of the tongue.

The Medical Termination of Pregnancy Act was enacted in 1971 and was suitably amended in 1975. The Indian law empowers women with a choice of abortion in the event of contraceptive abortion,  all pregnancies- not just those that endanger the health of mother or foetus, or resulting from rape –- can be terminated legally. Technically, any woman above the age of 18 can have an abortion with nobody’s consent but her own and her doctor’s.  However, like several of our laws designed to directly impact the lives of women in ostensibly positive ways, what is real on paper is not nearly as effective in practice. Just like other major women centric laws in India, that prohibit pre-natal sex determination, dowry, women’s education; legislative protection in the field of reproductive and abortion rights also does not translate to reality.

Abortion exists in India. Indian society also strongly encourages it, but hardly when the life of the mother is in danger. Many conservative families in patriarchal Indian families urge the mother to go for abortion, when they get the information through illegal scans that the ensuing baby is a girl child; or when, some woman from the family has got pregnant before marriage. That is when abortion ceases to be an issue which champions a feministic point of view, but rather turns detrimental from a perspective of women’s rights.

As mentioned earlier, the issue of abortion in India is not based on the pro-life and pro-choice divide which debates, elsewhere in the world are based on. From a strictly legal point of view, abortion in India is pro-choice. The fact that India has been plagued by the disturbing facets of overpopulation demands, legality of abortion is a practical solution. The primary reason why abortion is legal in India has only little coherence with it being a basic, personal right and has more to do resources and development. Moreover, in the Indian society, where unwanted pregnancy is a social taboo, had abortion not been legal, it would have led to problems galore. Many a woman would have been forced to go for abortions in clandestine and unsafe medical conditions, to avoid ‘social shame’. That in turn, would have led to gross violations of the law coupled with dangerous medical consequences, possibly even death. However, one of the primary objectives of such a law is to remove the tag of taboo attached with the topic of abortion in the Indian society, something which hasn’t been achieved yet.

Keeping the legality of the issue aside, we need to ponder over as to why, incidents related to abortion and unwanted pregnancy are rarely regarded as anything other than shameful events, slips of judgement or  symptoms of malaises in the society. In India, only few sections of the society think on the lines of unwanted pregnancies being a simple biological occurrence, which can be dealt with, safely and quickly, thanks to the bludgeoning medical technology. Rather, they seem to imagine abortion as an undesirable yet inevitable consequence, resulting from lack of moral standards of a woman.

Ultimately, legislation is not the only and moreover, effective tool to ensure that women are aware of and have easy access to their reproductive rights. We have to move beyond the black letter of the law to address such an issue, which is so central to women’s rights. The law is worth its salt when women can go for abortions without being branded sluts, without any sort of social repercussions. Of course, there should be room enough for debate on whether a mother’s life should be given primary importance as opposed to that of the foetus or an unborn baby. The medical safety aspect of abortion cases should also be taken into consideration, while discussing the issue. Furthermore, the logistical problems of abortions being legalized and its potential subsequent misuse should also be open to debate, especially in a society like that of India’s, where the frequency of cases in which female foetuses are surgically killed even when there is no iota of danger to the mother’s life, is far too high. But seeing the topic of abortion and reproductive rights of women as a social taboo doesn’t really make much sense.

Image Courtesy: here, here, here, here, here and here

(Samyak Sibasish is an Assistant Editor with the Journal of Indian Law and Society)

Conversation with Raju Ramachandran, Senior Advocate, Supreme Court

Shambo Nandy, the Executive Editor of Journal of Indian Law and Society recently spoke to Raju Ramachandran on a wide array of topics. He talks about legal education in the 1970s and now, the qualitative change in the Bar and about the benefits of interdisciplinary legal education.

SN: Please tell us something about yourself. What made you interested in joining the profession?

RR: I grew up in Delhi and studied economics at St. Stephen’s College. I am the son of a railway officer; I have no legal pedigree.  I initially wanted to be a journalist. So during my undergraduate days, I was attending a journalism course and was also doing some writing and reporting. There was a teacher in this journalism course who taught us press law, and he made the subject come alive. I became fascinated by the law. During my days at St. Stephen’s, the Kesavananda Bharati case was being argued.  The quality of legal reporting in those days was very high. The arguments of Seervai and Palkhivala were reported on a daily basis, and I got interested.  I started attending the hearings. So the first court I ever saw in my life was the Supreme Court, the first Bench I ever saw had thirteen judges in it and the first lawyers I ever heard were Palkhivala and Seervai. After Kesavananda Bharati, I forgot all about journalism and decided to study law. I joined what was then called the Faculty of Law of Delhi University. I did my three year course and joined the profession.

SN: What was the standard of legal education imparted then? Were you satisfied with the teachers who taught you? Based on your interactions with junior lawyers now, do you feel that there has been a qualitative decline in legal education now?

RR: I am glad you have asked me this question because I have been making this point to different people. The difference between then and now is that as far as the students of law were concerned there were very few of us who joined the law course because we wanted to become lawyers. Most of the others were there to avail of postgraduate hostel facilities and study for the civil services examinations. There were others who could not make it to regular postgraduate courses in their disciplines, and therefore joined the law course. So the number of serious motivated students was few.  But the teachers we had were legendary teachers, great academics, highly qualified, highly respected. I think we learnt our law at the feet of great masters. Today the situation is diametrically opposite. The students getting into law these days, and I am talking about the major national law schools, are all a brilliant and a highly motivated lot, whether they want to come into litigation or whether they want to get into the transactional sector. The quality of the students is much better, but only a few law teachers measure up to these students.

SN: Many teachers experiment with different styles of teaching, some prefer the traditional lecture method, some go by the Socratic method and some adopt a mix of both. What method was adopted by the Delhi Law Faculty then?

RR: The Delhi Law Faculty prided itself as the pioneer in the case method, and that was the method by which we were taught.

SN: And do you think that was a very good method?

RR: I have mixed feelings. On the one hand, the case method made the subject livelier but I did feel that unless we put in that extra effort of reading Acts as a whole, we could miss some fundamentals. Since the method of teaching did not cover an Act section wise, we did run the risk of missing some important provisions if the cases didn’t deal with them.

SN: One of the objectives behind the setting up of national law schools was the idea that quality junior lawyers would improve the standards of the Bar. Every year few graduates from these law schools join the various High Courts and even the Supreme Court. Based on what you have seen till now, do you think that there has been an actual qualitative improvement in the standards of the Bar by their contribution?

RR: We must remember that at the time the national law schools were conceived starting with the Bangalore project, the economy was still the old economy. It was therefore felt that lawyers were meant for courts. But alongwith the growth of the national law schools has come the major change in the economy, and therefore the legal profession is not confined to courts.  Naturally, therefore, a major portion of legal talent thrown up by the law schools has gone to the transactional sectors. Therefore, the idea of bringing about a qualitative change in the Bar has not been achieved. But I think this was inevitable considering the change in the economy. However, I do feel that those who have come into litigation, each one of them (the exceptions would be few and far between), have all impressed by the quality of their work.  It is also important to mention that those who have gone to the transactional sector have made an important contribution there, and if Indian law firms are an important force to reckon with, that is also substantially due to because of the recruitment from the major national law schools.

SN: You joined the profession in mid 1970s. Can you tell us how the Bar has changed over the years? Has there been a cultural shift in the Bar’s attitude towards matters of assisting the court, professional ethics, etc.?

RR: The Bar has also changed with economic change. When I joined the profession, the prospects of earning and accumulation of wealth were still limited, compared to the sky high possibilities of today. Therefore, in those times the approach was definitely far less commercial as far as the lawyers were concerned. In the controlled economy, there was not much choice in the kind of car which a lawyer could own or the kind of watch he could wear. The material ambitions of lawyers were very different. Today, in the liberalized economy and the culture of consumerism, aspirations in the material sense keep increasing and therefore the concept of fee as the payment for services rendered has been lost. When a lawyer charges a disproportionate fee, he loses his objectivity and becomes obliged to his client.  The need to ‘win’ a case becomes stronger, and the lawyer cannot perform his role as “officer of the court” effectively.

SN: Current BCI Rules do not allow a law graduate in full time employment to practice before the courts. As a result of this, law teachers cannot plead on behalf of others and can only do so if they are appearing as party-in-person in matters where they have filed cases in their own name. Do you think that in the interest of the professional development of law teachers of our country, should an exception be carved out to allow them to appear at least in matters of public interest?

RR: It is definitely something worth thinking about, because an interaction between practice and academics will enrich both. To give you an example, take the field of architecture where many successful architects are teaching.  I definitely feel it is worth a try, but how it is to be worked out has to be carefully thought out. Academic commitments should not interfere with court dates, and the fact that someone is busy in court should not affect his teaching.

SN: Over the last few years there has been a heated tussle between the BCI and the HRD Ministry over the latter’s attempt to take away control of legal education from the BCI. Do you think that BCI should continue controlling legal education, given the way it has handled it till now?

RR: I am not in favour of the control of legal education going out of the hands of the BCI on principle. I am however not oblivious of the fact that apart from the major national law schools, the quality of legal education is abysmal and I have often wondered, having interacted with alumni of different institutions, how those universities or law schools ever got their recognition. I therefore definitely feel that the BCI needs to get its act together.

SN: The five year law courses were started with an idea to promote a combination of legal and social science education. Do you think five year law schools have really managed to do something substantially new to legal education or legal research?

RR: I definitely feel that the five year model is better than the three year model because the five year course gives an exposure to different disciplines, may not be in depth, but still it is a multi-disciplinary approach compared to the three year course where the person may have graduated either in economics, or political science or computer science. I definitely feel that it contributes to creating lawyers with better all-round skills.

SN: What do you think is the relevance of interdisciplinary legal education in the everyday practice of law for professional lawyers, like say in litigation?

RR: A litigating lawyer will be either a civil lawyer or a criminal lawyer or a commercial lawyer or a constitutional lawyer or a tax lawyer – whichever branch of law you practice, you need a broad exposure to society as a whole, and that can come only through an interdisciplinary exposure.

SN: In what way can practicing lawyers contribute to the development of an interdisciplinary tradition of legal studies?

RR: If a lawyer is himself the product of multidisciplinary course, he or she himself or herself will not be a technical lawyer but a lawyer who understands law in the overall context of society and economy.  Such a lawyer will definitely have a holistic perspective. For instance, I recently came to know that the National Institute of Public Finance and Policy has in its Policy Group inducted lawyers from the national law schools who has had some experience in working in the banking sector.  Take some modern courses offered by some law schools abroad, like Law and Economics, Law and Corporate Governance, Law, Science and Technology – all these highlight the convergence which is the hallmark of law in the 21^st century. Lawyers with a multidisciplinary approach can make an important contribution.

SN: Do you think judges should refer to social science literature or concepts in their judgments?

RR: Keeping in mind the same idea of convergence, social sciences are an important input in the adjudicatory process. But we must ensure that judges have a proper and comprehensive understanding of social science theories, and not make merely pedantic references.

SN: Thank you so much for speaking to us very candidly. Before we finish, is there something that you wish to tell law students wishing to join the profession?

RR: Today the legal profession is not the hereditary and dynastic profession it was at the time when I joined. If you are sincere and hard working, your chances of being successful in the legal profession, whether in the litigational or the transactional world, are very bright.

(The interviewer would like to thank Saptarshi Mandal, Satya Prateek and Jhalak Kakkar for helping him conduct this interview)

Images provided by Mr. Raju Ramachandran’s office

Preventive Detentions in Kashmir: Still a Lawless Law

Admin’s Note: The people residing in Kashmir and some parts of the North Eastern states have for long been subjected to atrocities and unnecessary interferences by the armed forces in their daily lives. The Jammu and Kashmir Public Safety Act, 1978 and the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 have been misused severely and this has attracted condemnation from several noted human rights activists and organisations. In 2011, Amnesty International had come out with a report titled ‘A Lawless Law’ on the Jammu and Kashmir Public Safety Act, 1978. The law was amended in response to this and thereafter Amnesty International again came out with a report to study the effect of the amendments. What follows in the report can be summed up by its title – ‘Still A Lawless law’. The term ‘lawless law’ was used by the Supreme Court of India to describe preventive detention laws in a number of cases. In this post, Gazala Peer a resident of Sopore in Kashmir has reviewed this report. She recently completed her LLM from the National University of Juridical Sciences, Kolkata and is an independent legal researcher since then. Incidentally, Sopore, her hometown has been continuously in the news since last month due to the public outcry over Afzal Guru’s hanging in Tihar jail and the subsequent clamping of curfew in that area for several weeks.

The political status of the territory of Jammu and Kashmir remains controversial for the past sixty-five years. After peaceful methods and negotiations failed, the people of Jammu and Kashmir took to arms in the year 1989. Since 1989, Jammu and Kashmir has seen fierce demand for self-determination and independence. To suppress the movement, the government of India and the government of Jammu and Kashmir joined hands. The methods of repression which were/are being used range from imposition of black laws to official impunity provided to the armed forces and rigorous use of certain old legislations. The Public Safety Act of 1978 and the Armed Forces Special Powers Act, 1990 are invoked by the armed forces to maintain “public order” or the “security of the state”. These laws although being used on the pretext of protecting the local population of Jammu and Kashmir have been the major cause of human rights violations.

Amnesty International in the year 2011 released a report titled ‘A Lawless Law’ on the Jammu and Kashmir Public Safety Act, 1978. After the report was released some major developments took place in Jammu and Kashmir. The UN Rapporteur was allowed to visit Kashmir after twenty years and this apart a team of Central Government appointed interlocutors was sent to assess the ground realities in Kashmir. The rapporteur urged India that it should take measures to ensure human rights are not violated and the interlocutors urged for removal of draconian legislations which do not serve the purpose. In this backdrop the PSA was amended in the year 2012 to bring it in tune with the constitutional and basic rights of the people. As a follow up, Amnesty International again assessed the PSA (amended) and released a report titled ‘Still A Lawless law’ to study whether the amendments have improved the human rights situation under this particular law or not.

The Amnesty International report of 2011 A ‘Lawless Law’ had raised concerns that the Act poses a threat to certain basic and fundamental rights of the people of Jammu and Kashmir: the right to life and liberty, right to freedom of speech and expression and right to free movement.  It further says that the abuse which is inherent in the Act poses serious threat to the safety and security of the population of Jammu and Kashmir.

The main feature of PSA are that the Act allows detention of any person on the grounds of mere suspicion that he/she may disrupt law and order in the state or may act in a manner prejudicial to the security of the state. Further, under this Act the state while preventing smuggling of timber or preventing presence of a foreigner or a person who is residing in the territory of Jammu and Kashmir under the occupation of Pakistan, may detain such person. The order of the detention under the PSA cannot be held to be inoperative or invalid on the grounds of technical issues, vagueness, nonexistence of one or more grounds or that the grounds are irrelevant, or the officer had no territorial jurisdiction to make such detention.  The government has powers to restrict or stop circulation of any documents in and out of the state and may seize those documents to prevent entry. The Act also empowers the government to declare any area as prohibited or protected and can restrict entry thereto.

Backed by case studies the Amnesty International in its report of 2011 immaculately and comprehensively analysed the PSA in Jammu and Kashmir and concluded that this Act is not only in serious violation of basic human rights but is in fact contrary to India’s obligation under domestic and international law. The report evidently demonstrates that in Jammu and Kashmir PSA is being used to detain people without charge or trial. This report reveals how PSA continues to be used in Jammu and Kashmir to detain individuals for years at a time, without any charge or trial.

For instance, Shabir Ahmad Shah has been kept “out of circulation” and in and out of prison for much of the time since 1989, when a popular movement and armed uprising for independence began in the Indian state of Jammu and Kashmir (J&K). As the leader of the Jammu and Kashmir Democratic Freedom Party he has been amongst the most vocal and consistent voices demanding an independent Kashmir. As a result he has spent over 25 years in various prisons, much of it in “preventive” or administrative detention, that is, detention by executive order without charge or trial.

The report showed that the PSA bypasses all the institutions, procedures and human rights safeguards of ordinary criminal justice system in order to secure a long detention term. The report further showed that the PSA incarcerates suspects without adequate evidence, a fair trial, without following rules of evidence, and the burden and standard of proof that one is expected to follow in order to minimize the risk of punishing the innocent, are bypassed under the Act.  It further highlights that from last five years there has been resurgence in the number of street protests in Jammu and Kashmir and that these protests largely comprise of young boys and children. State authorities have largely controlled these protests by extensive use of PSA being slapped on them. The report raises serious concerns that despite the shift in the situation (in terms of dying militancy) the government still uses such extraordinary measures in Jammu and Kashmir. Protestors in Kashmir are often labelled as “anti-national” solely because they express their political dissent through peaceful action. While reviewing background of the people booked under PSA, the report highlights that the people detained under PSA include political activists, lawyers and journalists. This report brings to light the fact that this Act allows the State and its law enforcement agencies to book people on mere suspicion and against whom no concrete proof of guilt can be established. While analysing the cases under PSA, the report interestingly highlights that the rate of conviction for possession of unlawful weapons which is one of the most common charges of detention is 0.5 per 100 cases, which is 130 times lower than the conviction rate in India for the same offense, if prosecuted before the civil court but the PSA allows State and its law enforcing agencies to detain people all together for years without any legal recourse and without any chance of them being produced before the court.

 As the report is quite extensive it also highlights that the PSA is violative of the principle of legality under international law. Delayed and secret reasons for detention (which are not communicated to the detainees), detainees having no recourse to justice (as no legal representation is permitted before the Advisory Board which is there to review the order of detention), the indefinite detention of foreign nationals and the immunity provided to the officials from prosecution under the Act.

In addition, the report raises some relevant issues that within the detention processes, the incidents of serious abuses committed by the officials (unacceptable under the international and human rights law) have been reported from Kashmir. Further elaborating on this point the report emphasizes that in the cases of incommunicado detentions: detentions in secret places and without any formal orders jeopardizes the safety and life of a detainee (given the fact of disappearances in Jammu and Kashmir) and that these detentions are done without any legal ground and are often based on vague or fabricated evidence and without any application of mind. Further highlighting the nature of ‘lawlessness’ experienced under the PSA, the report emphasizes that the families are often denied access to the detainees and that  family members are not even informed about the place of detention. The report further elaborates that the practice of torture and ill-treatment towards the detainees is rampant. Once a person is detained it becomes impossible or difficult to live a normal life as the officials then use ‘revolving door detentions’:  that even as soon as one detention order is quashed by the High Court a new detention order is slapped. Highlighting the seriousness of the situation the report notes that the number of habeas corpus petitions in the Jammu and Kashmir High Court is so enormous that one day of the week is reserved for the same only.

One of the major concerns that the report reflects on is that the government and the law enforcement agencies have put up a bench mark for detentions and every agency in a particular area has to meet the minimum target. This would mean that a particular agency can detain and in fact detains anybody to complete the target. In pursuit of reaching the minimum target the agencies often violate child rights under the PSA. The Jammu and Kashmir Juvenile Justice Act provides that any boy who has attained the age of 16 years and any girl who has attained the age of 18 years is a juvenile. Whereas the law for the rest of India, and the conventions on the rights of a child, which India has ratified, the age of a minor is below 18 years. Further, PSA does not provide any specific provisions to set an age bar below which no one could be detained. Thus this leads to a situation where a large number of children are being detained for pelting stones or otherwise for meeting the target for detentions. These children are slapped with some of the most serious charges that include rioting, attempt to secession, anti-national activities, waging war etc. The report A ‘Lawless Law’ thus recommended that PSA should be repealed as it violates the basic human rights of the people of Jammu and Kashmir. It also urges India to ratify without reservations, and fully implement in practice the UN Convention against Torture and its optional protocols. The report further urges India to withdraw its reservation to Article 9 of ICCPR in the presence of Article 22 of the constitution of India which provides for preventive detention. However, the UNHRC, the expert body charged under the ICCPR with overseeing its implementation, has specifically clarified that Article 9 would also apply in cases of preventive or administrative detention despite reservations. The report also recommended that provisions must be there for compensation of illegal detention which Indian law is yet to bring in.

In the back drop of the recommendations by Amnesty International the government of Jammu and Kashmir amended the Act in the year 2012. It was hoped that these amendments will bring the Act in consonance with the fundamental rights guaranteed to the people of Jammu and Kashmir.

Second report by Amnesty International on PSA titled ‘Still A Lawless Law’ was produced in continuation of the previous report titled ‘A Lawless Law’. The report focuses on whether the amendments have actually addressed the issues and concerns raised by Amnesty International earlier vis-a-vis Public Safety Act. While welcoming the amendments, Amnesty International has expressed hope that the state will further ensure that law and order situations are taken care of without compromising on the human rights. However, the report expresses serious concerns that even after the amendments the PSA continues to be an abusive law and continues to operate or being operated as A ‘Lawless Law’.

The second report in its introduction presents to the readers a classic case of detention under the PSA. The state authorities detain people on flimsy grounds and without any application of mind causing serious threat to the liberty of the people and making the whole population vulnerable to the abuse of the Act. This classical case further shows that the state has as a matter of policy used the tactics of  revolving door detentions (once the detention period is over or the court quashes the order and directs for the release, new detention order is slapped on that person) which puts the people behind the bars without any formal legal proceedings. The report expresses its concern majorly on the issues of detention without application of mind and revolving door detentions. The report suggests that under the Act there have been around 15,600 illegal detentions (this number is even acknowledged by S M Sahai, the chief of police in Kashmir Division). The report notes that the political status of Jammu and Kashmir has been controversial for decades as the people are fighting for their right to self-determination and independence. The report acknowledges that the laws like the PSA and the Armed Forces Special Powers Act are draconian and violate basic human rights of the people.

 The report takes a note of the amendments to the PSA. They are:

•  Section 8 of the PSA was amended to provide that no person under the age of 18 may be detained under the PSA for offenses under sections 8(a) and (a-1) of the PSA.

•  Section 13 was amended to add that the grounds of detention have to be communicated to the detainee within 10 days from the time of arrest and in a language that he or she understands.

• Section 14 was amended to introduce a maximum term of office for the Chair and members of the Advisory Board. Now, they can hold office for a maximum of three years, which will be extendable for a further period of two years. Prior to the amendments, there was no maximum term.

•  Following the amendment to section 16, the Advisory Board must submit its report to the Government within a period of six weeks from the date of detention. They had eight weeks to do so prior to the amendments.

•  Section 18 was amended to reduce the maximum period of detention under the PSA. This was reduced from 12 months to three months, extendable to 12 months, in the case of persons “acting in any manner prejudicial to public order”. It was reduced from two years to six months, extendable to two years, in the case of persons acting in “any manner prejudicial to the security of the state”.

The report explains that even after amendments to the law the main provisions of the Act remain as under:

Under section 8, a Divisional Commissioner or a District Magistrate may issue a detention order to prevent any person from acting in a manner prejudicial to the “security of the State” or “the maintenance of the public order”.

The authority is not required to disclose any facts “which it considers being against the public interest to disclose”.

As per section 22, no “suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith” under the PSA.

The report concludes that even after the amendments the PSA violates International Human Rights Law and international Human Rights Law in practice. The report focuses on the detention of children. Even though the PSA was amended to expressly bar detention of any person who is below the age of 18, the detention of children continue to be the practice in total disregard of the Act itself and the Convention on the Rights of a Child to which India is a signatory. The report provides us with the detailed proof where children below the age of 18 are falsely mentioned as 18 or above 18. In fact, Amnesty International found that in at least three cases authorities’ detained children by falsely recording their age as being above 18. Both Mohammad Rafiq Sheikh and Murtaza Manzoor Panzoo were detained when they were 17, but their grounds of detention stated that they were 19. This practice has become very rampant in the wake of stone pelting incidents. The report further raises concerns that necessary processes are being bypassed like communication of the grounds of detention are not made known to the detainees. Review by the Advisory Board is still done without any legal representation on behalf of the detainees and Revolving Door Detention remains the norm. Still detentions are made on the pretext of being supporters of pro-freedom parties and political dissent is still treated with slapping of PSA. The second report thus highlights that the amendments did not bring any significant change in torture trail or in other Ill-Treatment and lack of Medical Treatment to the detainees. The report rightly concludes that even after the amendments, PSA still remains a lawless law.

Image Courtesy: here, here, here, here, here, here, here, here, here, here, here, here and here

Response Post: Opportunities and Problems of Law School Legal Aid Clinics in Fostering Good Governance

by Promit Chatterjee

Responding to Enhancing Good Governance in India: Law Schools and Community-University Engagement by Jane Schukoske & Roopali Adlakha [3 (Monsoon) JILS 206 (2012)]

Of late, the term “good governance” is being increasingly used in development discourse as a driving factor behind the inclusive growth of the society and its populace.  Though the term itself is self-explanatory and may constitute the gamut of best practices of societal administration, it has a specific connotation in development discourse in the sense that it refers to the capability of citizens, civil society organizations and other non state actors to hold the state accountable and make it responsive to their needs.

The most fundamental example of such good governance initiatives in the Indian context that comes to my mind is the three-tier Panchayati Raj Institutions that were commissioned by the 73^rd Constitutional Amendment to formalize rural local self-governance. I would not like to go into any debate regarding the success or failure of PRIs towards attaining their mandated goals. Nevertheless, it is suffice to say that in addition to these formal democratic systems of grass-root government, external agencies such as civil society organizations, citizen support groups, public-funded institutions, etc. have an important role in advancing the cause of good-governance by active community-engagement at a micro-level.

In this context, Jane Schukoske and Roopali Adlakha’s paper highlights the role of Indian law schools in furthering community university engagement in order to enhance good governance at the grassroots level by fighting injustice and improving the delivery of entitlements to meet basic needs in disadvantaged communities. They elaborately examine the different legislations empowering law schools to involve students in legal aid clinics and study the role of these student centric organizations to fulfil the educational and societal development objectives of law schools.

However a pressing problem with respect to the effective functioning of legal aid clinics in law schools as facilitators of dispute resolution lies in the fact that the professors leading these clinics, with the aid of students, cannot appear before courts or tribunals to plead the cases of those who seek their assistance at the clinics. This is because as per the regulations of the Advocates Act, professors who are in full-time employment with their parent universities, de facto have their Bar Council licences temporarily suspended, and are not permitted to appear as advocates before any judicial forum. Two notable exceptions to this archaic norm are disputes before consumer fora (which do not statutorily require representation by lawyers) and public interest litigations before the higher judiciary (where the professors or even the students associated with the legal aid clinics can appear as party-in-person).

With respect to consumer rights activism, law schools have already taken great strides. The NUJS Legal Aid Society, with the help of its Faculty Advisors regularly defends cases before the District and State Consumer Rights Fora in West Bengal, which are referred to it by the Consumer Affairs Department of the state, based on their potential to form judicial precedents. A group of students of the National Law School  of India University at Bangalore, under the patronage of its Ministry of Consumer Affairs Chair has even successfully claimed compensation from FMCG major PepsiCo for its illegal practice of differential Maximum Retail Pricings.

However such enthusiasm is not quite reflected in case of PILs. A possible cause of this inaction may lie in the fact that PILs are more often than not, based on local issues and directed towards the inefficiency or malpractices of the State government administration. Since most national law schools receive substantial funding from their respective State Governments and are not financially independent, the legal aid clinics and most importantly the University authorities do not support such institutional filing of PILs in the apprehension of antagonizing the State government.

Moreover, since the legal aid clinics are only a subsidiary aspect of the main function of the universities as centres of knowledge creation and dissemination, the members of such clinics do not even have sufficient resources or time to pursue the role of a full-fledged lawyer.

Therefore in the light of the ground realities, I feel that the best way forward for the legal aid clinics would be to actively engage with the communities and empower them consequently to defend their own legal rights, instead of taking up individual cases of non-governance on a regular basis. Jane and Roopali’s paper has elaborately discussed about one such initiative—the Good Governance Now Project of IRRAD and Jindal Global Law School, Haryana. Besides, the National Legal Services Authority has initiated an ambitious scheme of Para Legal Volunteer Training whereby it is collaborating with law schools across the country. Under this scheme, volunteers are identified and selected from certain target groups who in turn act as harbingers of legal awareness and legal aid to all sections of people. NUJS Kolkata had recently conducted one such training programme of Para Legal Volunteers selected from Birbhum District of West Bengal.

Such training programmes, coupled with periodic legal awareness camps, would definitely go a long way in enhancing good governance in local communities, as envisaged by Jane and Roopali’s paper.

(Promit Chatterjee is currently the Treasurer of the Legal Aid Society at the National University of Juridical Sciences, Kolkata)

Will the Scourge of Manual Scavenging End: Analyzing the 2012 Bill

by Gayatri Loomba

Last Tuesday, the Central Government once again assured the Supreme Court that it would soon amend the law relating to manual scavenging in the country. The court was hearing an appeal filed by the Centre challenging a Madras high court order, which said if the Centre failed to amend the law to prevent manual scavenging in two months, the court would be constrained to direct the personal appearance of any of the high dignitaries.

Previously, the Ministry of Social Justice and Empowerment had introduced the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Bill, 2012 in the monsoon session of the Parliament under grave pressure by the Supreme Court to prioritize the elimination of the dehumanizing practice of manual scavenging.

The Bill acts as a successor to the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, which is considered by most to be a feeble and toothless legislation meant to outlaw the practice only on paper. Though the Act focused on sanitation requirements, it paid little or no attention to the deep rooted social problem of the degradation of human dignity and thus was unable to come up with long term sustainable measures to eradicate the practice. Even after eighteen years, as late as 2011, there have been reports of about 2.3 lakh families involved in manual scavenging at soiled railway tracks and blocked sewer lines along with construction of upto 26 lakh dry latrines, with almost no conviction of the wrong doers. There are some who advocate that the cost of mechanization of the latrines is what holds the Government back from taking active measures to implement the existing laws and schemes for the benefit of the scavengers. But financial incapacity can hardly be accepted as a reason to curb human rights violations, thus making one believe that the flaw lies in the legislative zeal, initiatives and the inability to accept the enormity of the problem at hand and bring about requisite changes. The new Bill proposes to be a better structured model and aims to bind all States unlike its predecessor which was not adopted by around twelve states.

The Bill expands the definition of manual scavengers to include any person engaged or employed for manually cleaning, carrying, disposing of or handling human excreta in an insanitary latrine or an open drain or pit or even a railway track, thus broadening the ambit of its application, but permits the employment of people for handling excreta with the help of protective gear; thereby undoing the advantages of the expanded definition. The terms ‘protective gear’ can be interpreted to even include mere gloves or protective clothing, thus providing for gaping loop holes in the law to be played with to sustain the practice with a few elementary changes in apparel. This escape route in the law defeats the purpose of protecting the human dignity and integrity of the manual scavengers, and does little to uplift their position in the society; nullifying the idea behind the implementation of the law. Further the definition does not include people who are engaged in the collection and disposal of solid wastes, inclusive of biomedical, chemical or biological wastes- thus restricting its scope considerably, especially in view of the waste generation in modern times.

A welcome panacea for debased workers, it starts on an apologetic note with the preamble stressing the attempt of the Bill to correct the disdained past. It increases the punishment for employing manual scavengers from a year and Rs. 20,000 as proposed in the 1993 Act to Rs. 50,000 and a year of imprisonment for the first commission of the offence. Furthering the same, subsequent offences are made cognizable and non-bailable with a prison sentence of up to five years for authorities and two years for families, serving as an exemplary punishment to effectuate deterrence. The presence of such stringent clauses does go miles to prove the seriousness of the legislature to achieve the ends, provided the terms are implemented with the same fervor.

The Bill requires the municipalities to survey insanitary toilets and manual scavengers in their jurisdictions within two months of the Bill being made an Act with the objective of issuing notices to the owners to demolish or convert dry latrines into sanitary months within a period of six months. Critics of the Act find this clause ambitious because the Government has so far as yet been unable to survey manual scavengers by themselves, and the mere issuance of notices has had little effect on public offenders in the past.

The Bill provides a meticulous roadmap for timely rehabilitation of the scavengers, a feature absent in the previous Bill which acts as a reason to believe the success of the same. The previous employers are legally bound to pay a monthly pension to the workers and assist them in securing alternative employment. The Bill further recommends the adoption of nutrition and social welfare schemes for the general well-being of the scavengers, thus bringing forth a sustainable model, though the efficacy of such social welfare models can be deeply questioned in itself. As a cover, some ex-scavengers are promised to be absorbed into the catering services or recruited as plumbers or electricians, and be given proper housing with adequate sanitation and infrastructural facilities.

The Bill also protects the future of the succeeding generations by promising fully sponsored quality education to allow the children to be absorbed in better vocations, a step that can be deeply questioned based on the existing models of free education and the reports on their efficiency. An explicit guarantee of free education, and vocational and computer training to females in particular can further strengthen the objectives of the Bill. The legislation proposed to made on the basis of the bill should introduce a clause for the pension and compensation of the people who had previously worked as manual scavengers, even prior to the implementation of the Act to ensure their social and economic well being

Both the expanded definition and the careful analysis and planning of rehabilitating the scavengers, so as to ensure that they are not made secondary victims, are the features of the Bill that catch the maximum attention. The Bill tries to incorporate economic and social considerations while framing the guidelines and laws. Though the Bill is appreciated for its sensitivity towards the cause, it still remains gender biased by assuming that scavengers and public authorities are, in most cases, males. Unless the Bill appreciates the need to focus on the needs of women scavengers, the legislation will fail to promote and provide adequate rehabilitation, following its predecessor leaving the task of liberation incomplete.

One of the features of the Bill that greatly demeans its successful implementation is that the Bill provides for no monitoring agency, with the exception of local bodies being handed the task of identifying areas of manual scavenging which as explained before has little significance because of the  lackadaisical attitude of the state governments and local bodies.  Timely surveillance of the scheme by community members associated with movements like the Safai Karamchari Andolan or deterrents by way of punishments to the public officials for dereliction of duty are necessary for achieving the purpose. A central or decentralized executive body must be made fully accountable for the implementation of the Act within a stipulated time limit, post which sanctions should be placed on state functionaries who allow the practice to continue in abdication of their duty.

Though the Bill is a step towards the elimination of the practice, without general awareness and social acceptance of the ex-scavengers, it would possible be a failure, yielding little or no advantage, primarily because the practice in itself does not directly affect the middle class or the ‘aam admi’. Thus non-governmental organizations are organizing movements like the Rashtriya Garima Abhiyan, Jansahas or the National March for the Total Eradication of Manual Scavenging simultaneously, with some 10,000 liberated women and 50,000 manual scavengers traversing the country  with the view of  sensitizing people, creating mass public uproar and consensus to lead a movement to eliminate the practice via legislation, once and for all. The anthem and the timing of the movement ‘Fight for your Dignity’ shows the urgency with which the community seeks to regain its pride and self-esteem after centuries of oppression and subjugation.

If the Bill is implemented by the Union Ministry of Social Justice and Empowerment, keeping all the loopholes in mind and working with an aim to bridge the gaps, it could serve as a beacon of hope for manual scavengers today. It will serve as the starting point of the elimination of the practice declaring it illegal and creating the necessary social stigma for the same, and if merged with social schemes it can help achieve a larger goal of eradicating caste based discrimination, thus preserving and safeguarding the dignity of the workers in actuality. In bringing the new law, the Parliament has shown its willingness to make amends and it is high time that well thought-out legislations and human right schemes do not suffer due to their weak implementation and the ignorant nature of the Government. India has reached a stage of where all social conventions necessitate the abolishment of this shame and this time round, the country and its citizens must not have to wait for two decades to see it translate into reality.

Image Courtesy: here, here, here and here

(Gayatri Loomba is an Associate Articles Editor with the Journal of Indian Law and Society)

The Issue of ‘Age of Consent’ in The Protection of Children From Sexual Offences Act, 2012

by Samyak Sibasish

Over the last few days, we have seen much public angst over the widely publicized rape of a young girl on a bus in Delhi. One wonders to what extent will the protesting masses ride on emotion and sentiment and hold aloft nauseating pictures demanding public hanging, stoning or castration of rapists, without understanding the ground reality of the simmering issue. Creating a uniform new law or modifying an existing one to award harsh punishment to perpetrators of rape, is not at all a feasible solution. Most of the protestors are unaware of the simple statistic that one-third of rape cases in India are filed by parents against boys when their daughter exercises her sexual choice and elopes with him.

In this perspective, the issue of “Age of Consent”, (i.e. the age at which the law should allow children to engage in sexual acts) in the recently enacted Protection of Children from Sexual Offences Act, 2012 assumes a wider importance. Until recently the age of consent to sexual relation was 16, but amid much controversy and debate, the newly passed Act has increased it to 18 years. According to the legislation all individuals under the age of 18 are ‘children’ and engaging in sexual activity with such individuals is a punishable offence. One major criticism that can be leveled against the provision, after the raging debates and deliberations over rape laws in India, is that, such ‘false cases’ of alleged rape will only increase, as all youngsters who indulge in sexual activity are prone to harassment by their families, the police and the authorities. Apart from that, this new legislation has reignited the debate over the validity of rationale behind age consent laws and the harmfulness of adolescent sex.

It is thus necessary to examine what role and up to what extent, does “age of consent” issue play, while dealing with laws relating to sexual offences.

It has always been a societal aim to regulate inappropriate sexual contact with children. Age of consent laws form a legislative latency period, sexuality held in abeyance until the specified age is reached. The emphasis of such laws is on setting a barrier to sexual conduct with children of a specific age. Fundamental to these age specific laws is the idea of consent. It is generally thought that it is morally and legally permissible to engage in sexual relations if the parties consent to do so. But that is not the case with minors. The very rationale behind age of consent laws is that minors are incapable of giving consent, let alone it being a valid one.

But is it true that minors are incapable of giving consent?

A person’s ability to consent to an act should be evaluated by reference to the mental capacities that are relevant to that decision and there is no reason to think that the relevant mental capacities of many minors are lower than the mental capacities of adults whom we regard as capable of giving morally transformative consent. Minors should have some say in what they do with their own bodies. They should be free to decide, as a matter of right, whether or not they want a sexual relationship. Even the British law accepts that older children have a developing competence to make autonomous decisions and that autonomy and competence doesn’t just appear on a given date in calendar. But the legislators in India have failed to realize that mental maturity and ability to consent is a continuous evolution process which starts right from the onset of puberty and reaches a near constant basic level in the age group of 16-18; we don’t flick our sexual switch to ‘on’ at 18; zoom from 0-60 on our eighteenth birthday and that individuals between the age group of 16-18 have nearly the same level of mental capacities. Equally faulty is the claim by the legislators that the recommendation to make consent “irrelevant” up to the age of 18 was in consonance with the United Nations Convention On The Rights Of The Child (UNCRC). For, nowhere does the UNCRC stipulate that the age of consent for sexual activities should be fixed at 18. This is borne out by the fact that an overwhelming majority of the countries, including advanced democracies, have adopted an age of consent that is below 18. The act in question takes no account of teenagers’ real lives and ignores people’s sexual development. In a social environment where teenagers are becoming increasingly aware about sexuality, the Act can have terrible consequences. It will criminalize hundreds of thousands of young people for normal, natural behavior. It would open floodgates for prosecution of the boys for offence of rape, on the basis of complaints by the parents of the girl, no matter the girl would have been the consenting party and the offer to have sexual intercourse may have come from her side. It may also indirectly promote illegal abortions endangering the life of the girl child in situations where pregnancy is not reported to the appropriate authorities fearing conviction of the girl child’s consensual partner.

What About Sexual Relations Between Married Minors?

Moreover the new legislation has added another chapter to the already wide subject of legal anomalies in India. In rural India where the problem of child marriage is rampant, sex between minors is obvious. Interestingly, while the Prohibition of Child Marriage Act, 2006 prohibits marriage below the age of 18 years for girls and 21 years for boys, it does not make a child marriage invalid or null and void unless either of the parties seeks an annulment. Now, after raising the age of sexual consent to 18 the legislators have clearly allowed sexual relationship between an underage wife and husband to be booked for a criminal act of sexual abuse. An otherwise legally married man can now thus be spending his heydays in detention. Even if the child marriage law is amended in future to automatically nullify a child marriage, young people will continue to enter into pre-marital sexual relationships. Coitus occurring after puberty, willingly undertaken by the youngsters, and representing the fulfillment of normal physiological need is very natural.

In addition to it, little thought appears to have been paid to the implications of contradicting clauses with the Indian Penal Code. How can the age of consent be both 16 and 18 in the same sexual context under two different laws? In its report tabled in Parliament in December, the standing committee addressed this critical question cursorily. All it said was: “Section 375 of IPC would operate in totally different circumstances when compared with provisions in clauses 3 and 7 of the present Bill.” This claim is far from true as one of the clauses in the legislation, clause 3 of the act, dealing with “penetrative sexual assault”, falls squarely under the ambit of Section 375 of IPC, with reference to cases where the victim is a female as rape covered under the said section of the IPC specifically deals with penetrative type of sexual abuse against females. This has created an atmosphere of uncertainty about the outcome in the event of occurrence of such instances.

It is clear that one of the most difficult issues for law is to strike “an appropriate balance between protecting children from sexual abuse and exploitation, on the one hand, and permitting the sexual expression of young persons as they proceed through adolescence into young adulthood, on the other.” But, in the excessive desire to protect their vulnerability, legislators could well be increasing their vulnerability. The present legislation is an example of this sort. It is a regressive and draconian law that tends to criminalize adolescent sex and prohibits sexual activity and expression on the part of teenagers. In the words of Additional session judge of a Delhi court, “the need is to correct the behavior and not punish it.”  This can be achieved more effectively by improving the quality of sex education in the country. It has generally been observed world over that the societies which are much more open about these issues, where it is easier for children to talk about such issues to their parents, children tend to delay their first intercourse. The evidences show that the more you talk to young people about sex, the more sensible they are, and the more willing they are to delay.

Image Courtesy: here, here and here

(Samyak Sibasish is an Assistant Editor with the Journal of Indian Law and Society. A recently published paper in the Journal of Indian Law and Society also discusses this issue elaborately)

Mental Health Law Reform: Challenges Ahead

by Aditya Ayachit

Mental disorders are complex physiological infirmities of the nervous system. While they continue be the tough riddles in the field of medical research, they pose even more daunting challenges in the socio-economic and legal contexts. In recent times the mental health laws across the world have undergone a significant change. A policy of segregation has been abandoned in favor of a policy of integration and protection. The prima facie reason for this shift appears to be the increasing influence of the Human Rights discourse over laws and policy making. Thus, a new mental healthcare paradigm has emerged which advocates that the mentally ill are not objects of charity or social protection but are subjects with rights and States and the International bodies are under an obligation to provide them with the means of enforcing these rights.The international consensus about the new paradigm was strongly conveyed by the near unanimous acceptance of the United Nations Convention on the Rights of Persons with Disabilities 2006(commonly known as the Disability Convention’) and Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (or simply the MI Principles).

India is a signatory to the Disability Convention. However, it has failed to bring its laws and institutions in tune with the standards set by the convention. To fulfill its commitments under the Disability Convention, 2006 and MI principles of 1991, India needs a major overhaul of its disability laws and policies dealing with mental health care. The Ministry of Health and Family Welfare (MHFW) recently came out with the Mental Health Care Bill 2012 responding to this formidable legislative challenge. The reactions to this bill were mixed with some groups lauding provisions decriminalizing attempted suicide by a mentally ill person, ensuring the availability of insurance for treatment of mental illness at par with physical illness and prohibition of certain medical procedures like the Electro Convulsive Therapy (in case of minors), Sterilization and Chaining, while others opposing the bill on the ground that its provisions curtailed patient autonomy and liberalized the laws for involuntary admissions to mental institutions. This post does not aim to comprehensively review the bill. Rather, it attempts to map the issues that the Bill appears to address and contrasts the status quo with the regime the bill seeks to establish.

Few Mental Health Practitioners and Institutions in India

A recent statistic from the MHFW indicates that about 7 percent of the Indian Population suffers from some form of mental disorder. Another startling statistic is that 90 percent of these disorders remain untreated. The leading cause behind this paradox is the acute shortage of mental health institutions and qualified mental health practitioners in India. Our large and populous country of 1.2 billion people has about 40 mental health institutions, 3,500 psychiatrists, 500 clinical psychologists, 300 psychiatric social workers and 1,000 psychiatric nurses to treat its mentally ill citizens. In addition to this, most of the institutions and practitioners are located in urban areas. This creates a serious problem in a country like India where over 70 percent of the population lives in rural areas.

According to the National Family Health Survey, the private medical sector remains the primary source of health care for the majority of households in both urban areas (70 percent) and rural areas (63 percent) of India. While private players contribute immensely to the health care industry, it remains the case that they generally shy away from investing in mental health institutions.  This is mainly due to low policy priority given to mental health sector, strict licensing requirements under the Mental Health Act 1987 and the lack of any special incentive for investing in this sector. Today in India, government health policies mainly focus on communicable diseases like HIV/AIDS, malaria and tuberculosis or on child malnutrition or on reproductive healthcare. Mental healthcare rarely finds mention in the policy. This underscores the importance of this sector and makes the investment environment in such services unattractive and discouraging.

Another factor that reduces the likelihood of private investment in mental health care is the strict licensing regime set up by the Mental Health Act 1987; the legislation that currently governs the mental health sector. This Act lays down a complicated procedure of issuing a non-transferable and non-heritable license to a person who wishes to open a mental healthcare institution. The act further discriminates between government established institutions and privately maintained institutions by exempting the government institutions from the statutory requirement of obtaining a license. If private participation is to be encouraged, this system of licensing needs to be rationalized.The Mental Health Care Bill 2012 goes a long way in this regard. The bill replaces the stringent licensing system with a simpler system of registration. The registration unlike a license is not linked to a particular person and is freely transferable for instance on the sale of the institution. It also allows the institution an appeal to the High Court if the grant of registration or renewal of registration or cancellation of registration is refused by the appropriate authority. While the bill seeks to relax the laws governing the setting up of mental health institutions it must ensure via its provisions that this does not in any way affect the quality of health care provided in these institutions. The issue of quality of health care will be taken up further in this post.

To ensure that rural areas also benefit from private investment, the incentives given to invest in rural areas could be greater than those given for investment in urban areas. Another way in which the presence of mental health facilities in rural areas can be increased is by proper implementation of the District Mental Health Program which was initiated by the Government of India in 1996. Currently, the program is under implementation in only 123 of the total 657 districts of the country. A proper implementation of the program would go a long way towards ensuring that rural areas have adequate mental care facilities in near vicinity.

Poor Quality of Mental Health Institutions

The second core issue in this area is the unacceptable quality of medical care provided to the mentally ill in the existing mental health institutions in our country. It would not be an overstatement to say that the patients who receive mental health treatment in India are treated in a most inappropriate and inhuman way in our mental institutions. The institutions usually resemble prisons where the mentally ill are debased and deprived of their dignity. They are made to live in unacceptable living conditions and are shackled down in chains for long hours. They are fed unhygienic prepared unwholesome meals, are subjected to painful medical procedures without their consent, are regularly beaten and in some cases are also subjected to sexual assault. Sometimes they are sterilized on the basis of a medical myth that sterilization cures mental disability. In essence, the patients never receive adequate treatment. Rather the treatment aggravates their condition and makes them sick and infirm for life completely eliminating any hope of rehabilitation or a chance of leading a normal life (see here and here for more). Any mental health care legislation must develop a structured mechanism for ensuring that our mental health institutions do not fall short of the internationally accepted standards of treatment and care. The Mental Health Act 1987 and the State Mental Health Rules 1990 provide detailed safeguards to ensure that the health institutions meet the statutory standard. While building upon this legacy, any new legislation must incorporate the minimum standards laid down in the Disability Convention of 2006 and the MI Principles of 1991. Further, steps must be taken to bring government maintained institutions under the purview of these regulatory procedures. It may be noted here that the Mental Health Act 1987 is quite inconsistent with the principles and safeguards laid down in the aforesaid international instruments and as government hospitals are deemed to be licensed institutions under the act, it is unclear whether the procedures laid down for revocation of license in cases of non-compliance are applicable against  government facilities.

Consent of the Mentally Ill Patients

Another aspect that would have to be substantially addressed in mental health legislations is with respect to consent of the patient to receive treatment. It is a cardinal principle of medical science that no one may be subjected to any medical procedure without his/her express consent and such procedure may not continue after the person has withdrawn his consent. Mental Healthcare raises complex questions regarding consent. The Mental Health Care Bill 2012 provides innovative solutions to the problem of consent. The bill allows persons to register an ‘advance directive’ with the appropriate mental health board. An ‘advance directive’ is a legal document containing details of the kind of treatment a person wishes to receive or does not wish to receive in the event of mental illness. It also contains the details of the person’s nominated representatives who are entitled to give consent on the person’s behalf when he is not in a position to give consent. The bill provides procedures for amendment or cancellation of advanced directives and also gives powers to the Central or State mental health board to review advance directives and to suspend or amend them in some special cases (for instance when the advance directive has been made under force, coercion, undue influence etc. or when it was made without proper knowledge). While many groups are touting advance directive as a foolproof solution to the problem of consent, it remains to be seen how this statutory tool would operate in real life. This provision has been opposed on the grounds that it would be susceptible to gross misuse especially in rural areas where the patients are illiterate and are not aware about their rights.

Rehabilitation and Social Awareness

Another issue that the bill attempts to address is rehabilitation and social awareness. These concepts are inter-related. The extent to which a patient can be restored back in his life (family, community and occupation) depends on the social understanding of mental illness and the attitude of the society towards the mentally ill. A society which rejects the mentally ill or which despises them cannot possibly assist in rehabilitation of the patient. As societal attitudes are shaped to a large extent by education, an awareness program which aims towards creating social understanding about mental illness can directly assist in making the society more suitable for rehabilitation of the patient. Mental Health Act 1987 does not contain any provisions regarding social education or patient rehabilitation. The Mental Health Care Bill 2012 addresses this lacunae and creates an obligation on the Central and State governments to spread awareness about mental illness and its appropriate treatments. The Bill lays emphasis on lowering the stigma associated with mental illness so that a patient’s rehabilitation in the society may be facilitated. It may be noted here that a proper implementation of the aforesaid provisions may go a long way in debunking the long standing myths about mental illness (like mental illness is caused due to demonic possession or that mental illness is incurable) and make the society a better place for the mentally ill.

Human well-being in a country cannot be ensured unless its citizens are physically and mentally fit. Mental health is prone to neglect because it is difficult to detect, difficult to cure and also difficult to explain to the people. The Mental Health Care Bill 2012 appears to be a commendable effort towards addressing the long standing problems encountered by patients and practitioners alike in the sector of mental healthcare and restoring the long lost dignity of the mentally ill.

Image Courtesy: here, here, here, here and here

(Aditya Ayachit is an Assistant Editor with the Journal of Indian Law and Society)