Introduction:
Forensic Psychiatry is a branch of Psychiatry that attempts to solve the legal issues through scientific and clinical expertise. It should be practised according to the ethical principles of psychiatry. In India, forensic psychiatry is still not a very common thing to use. It’s still very much neglected, ignored and misunderstood in India and other developing countries. As compared with developed nations like the USA, it is comparatively a very new and upcoming field.
In India, there are around 50 government mental hospitals, out of which most of the hospitals don’t even have fully furnished forensic psychiatry wards. Most of the Medical colleges also don’t have psychiatry units because of which training and teaching in forensic psychiatry in our country is also very low. That’s is why it is difficult to deal with a case that involves an element of both law and psychiatry. Presently the number of Forensic psychiatry experts in India are not sufficient.
History
During British Raj, Britishers established few mental hospitals with the aim to keep mentally unstable people different from the society. Mentally ill people were considered as different from so-called normal people and therefore were treated inhumanely. In India, Mental Health laws first came into existence in the year 1858, as the British government passed 3 acts. The first legislation being the Lunacy (Supreme Court) Act, 1858 which was about judicial inquisition as to lunacy in the presidency towns. The second legislation being the Lunacy (District Courts) Act, 1858 which was related to cases outside the presidency towns. The third legislation was the Lunatic Asylum Act, 1858 which was about the confinement of mentally unstable people in asylums.
In the year of 1912, the acts relating to mental health were replaced by the Indian Lunacy Act, 1912 with the objective to compile and consolidate the laws relating to lunatic people. After the independence also India was functioning under this act. It was in 1987 that this act of 1912 was replaced by Mental Health Act, 1987. From there onwards, India has witnessed various amendments in laws relating to people with mental illness.
What does criminal law say?
In this section of the article, we will discuss the various criminal law concepts & provisions and their impact on people with mental disorders and issues.
Insanity and automatism – In our country, insanity is a well-recognised defence under the Indian Penal Code, 1860. If the defence of insanity is established successfully in the Court of law, the accused is not acquitted or released rather he/she is sent to a mental hospital for treatment. In the infamous Mc’Naughten case, the court held that any unlawful won’t be an offence if it is committed by a person with an unsound mind. There are some acts that are performed in an unconscious state, such acts are called automatisms, for example, epilepsy. Such acts cannot be considered as examples of insanity, there is always a grey area between both of these defences. Automatism can also be used as a defence in criminal matters. Any person with any mental disorder is also not considered a competent witness. But it has to be proved that such an individual cannot understand the questions because of such a mental condition.
Suicide
Under Article 21 of the Constitution, the right to die is not included in the right to life. In Mulik case,[1] the court opined that mens rea should be present for the offence of attempt to suicide. In the case of Rathinam v. UOI,[2] the court declared the provision which states that a suicide attempt is a criminal offence as unconstitutional. But later in the case of Gian Kaur v. State of Punjab,[3] the apex court was forced to restore the act because an individual cannot be charged for abatement to suicide without the attempt to suicide is a criminal offence. This judgment was highly criticized by the mental health experts and professionals. After a lengthy protest by the people and mental health experts, the act was stuck down.
Capital Sentence
It is believed worldwide that any person with a mental disorder should not be punished with a capital sentence. In most of the case, courts in India have also accepted this viewpoint. However, in the case of A.B. Gupta v. UOI,[4] the court executed the accused suffering from mental illness by giving more importance to the welfare of the society.
What does civil law say?
Individuals with mental issues face a lot of disadvantages in their daily life on the fact that they are not competent to make various decisions for themselves. Even if they take decisions, the competency of such decisions comes into question. In this section we will discuss various civil laws and how do they affect people with mental disorders.
Right to Property
Under Hindu law traditionally there were various restrictions on right to property by a person with mental issues. In 1928, a forward step was taken by the legislators and various physical disabilities of an individual to possess property were removed but mental disabilities were not removed by the act. It was in 1956 that disqualification based on mental defect or deformity was removed by the legislators by virtue of the Hindu Succession Act, 1956.
Wills or Testaments
A will is considered valid only it is made in soundness of mind. A will be valid if it is made during the lucid periods of a person suffering from mental disorders. However, a person with an unsound mind or suffering from mental disorders can be made legatee under a testament.
Law of Contract and Partnership
Soundness of mind is a very important prerequisite for making any contract. This is to ensure that the person is able to understand the implication of the contract he has entered into. However, a person with an unsound mind can enter into a contract in his lucid periods, such a contract would be held valid. The same is the case with partnership, a person with an unsound mind cannot enter into a partnership.
Marriage
Under Hindu law, a person suffering from mental illness is disqualified from entering into marriage. Both the Special Marriage Act,1956 and Hindu Marriage Act, 1955 states that neither party to the marriage should suffer from unsoundness of mind which is unfit for marriage. But if a marriage takes place with a person with a mental disorder, such a marriage is voidable at the option of the other party to the marriage.
Political Rights
If it is declared by the court, the individual with a mental disorder loses his right to vote, elect, legislate or hold office in the capacity of the election agent. In absence of such a declaration of the court, his rights cannot be denied at any cost.
Human Rights
Any human being whether of sound or unsound mind should not be subjected to any kind of cruel, in-dignifying and disrespectful treatment. A lot of times, it could be seen that people suffering from mental illness are left to wander around or chained or confined like animals and not even given basic items of necessity. To tackle such a situation, various protective provisions are made. A police officer must report such cases to a magistrate.
Conclusion
In recent times, forensic psychiatry is an emerging and developing area. However, there is a lack of efforts from the side of various regulatory bodies and agencies. Most of the laws of India are old and outdated. There is a sharp need to bring changes and amendments to these British Era laws. Government should invest in the field of forensic science which is the need of the hour. There should be regular sensitization programmes. Forensic psychiatry in our country should focus on various programmes relating to research activities, teaching, training in this field for a better understanding of mental health legislation.
References:
[1] Mulik v. Emperor, AIR 1919 All 376.
[2] Rathinam P v. Union of India, 1994 (3) SCC 648.
[3] Gian Kaur v. State of Punjab, 1996 (2) SCC 648.
[4] A B Gupta v. Union of India, AIR 1977 SC 608.
Other Sources:
- S. Nambi & Lakshmi Prabhu, Forensic Psychiatry in India: Past, present and future, Indian Journal of Psychiatry, Vol. 58, issue 6 (20 February, 2021, 14:34 PM), https://go.gale.com/ps/anonymous?id=GALE%7CA476082451&sid=googleScholar&v=2.1&it=r&linkaccess=abs&issn=00195545&p=AONE&sw=w.
- India battles dearth of forensic psychiatrists, The Pioneer (20 February, 2021, 10:37 AM), https://www.dailypioneer.com/2018/india/india-battles-dearth-of–forensic-psychiatrists.html.
- T. V. Asokan, Forensic psychiatry in India: The road ahead, Indian Journal of Psychiatry, Vol. 56, issue 2 (2014).
- Raveesh BN, Anil KMN and Narendra KMS, Law & Psychiatry in India: An Overview, Journal of Forensic Science & Criminology, Vol. 1, issue 2 (2013).
- JN Pandey, Constitutional Law of India, Central Law Agency, Allahabad (1998).
- LP Shah, Forensic psychiatry in India current status and future development, Indian Journal of Psychiatry, Vol. 41, 179-85 (1999).
- JK Trivedi, Implication of erwadi tragedy on mental health care system in India, Indian Journal of Psychiatry Vol. 43, 293-4 (2001).
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