Author: Raunak Raj Tiwari
Disability means the stumbling block or curtailment of pursuit caused by the way society is organized. It can be either a physical or mental disability. The point of solicitude is that due to these disabilities such people are debarred and avert from taking part fully on equal terms in conventional society. A Person with a disability is the most disadvantaged section of society. They are not only treated differently in society but their families also neglect them.
India the world’s largest democratic country treats the person with a mental disability not as a person who deserves special treatment and care, but as a vaguely dangerous person. These people with mental disability have been subject to cruelty, neglect, and stigma. Mentally disabled persons, especially those suffering from mental illness and other barriers like mental retardation do not get proper attention from the authorities in the matter of access to justice. They have been sidelined in our country and try to view only from the prism of the social welfare aspect which looks upon them as merely a person who requires special protection by the state and society.
Earlier legislation in respect of mental health was only bothered with the custodial facet of persons with mental illness and preservation of the society. But the recent model is based on the presumption of legal capacity, equality, and dignity. There is many legislation that has been enacted by our government like, “The person with disabilities (Equal opportunities, protection of rights and full participation) Act” (PWD) 1995. Under this legislation it provided for various measures which shall be taken to prevent disabilities such as, staffs at the primary health centre shall be trained to prevent disabilities. Every child with a disability shall have the right to free education till the age of 18 years in integrated school or special schools.
India being a signatory to the UN Convention on the Rights of Persons with Disabilities (CRPD) 2006, and since our country has ratified the convention in 2008, our legal system is under an obligation to ensure human right and the fundamental freedom to persons with disability including a person with mental disabilities should enjoy equal basis with others and they should get equal recognition before the law and equal protection of the law guaranteed under Article 14 of our constitution.
Indian constitution which is defined as a Socio-Political document provides uniformity to every legal citizen of this country, whether they are healthy or mentally or physically disabled. The Right to Justice has been provided to both healthy as well as disabled citizens. Under Article 15(1) of the constitution, the government is under a duty not to discriminate against any citizen of India (including disabled) on the ground of religion, sex, or place of birth.
PROBLEM & PROSPECTS
According to a study conducted by National Commission on Macroeconomics and Health in 2005, nearly 5% of the total population of our country suffers from a common mental disorder. Though the numbers are quite high but till now 80% of our district does not have even one psychiatrist in public service. They do not get equal treatment in society, but over 90% of the mentally disabled are cared for within their communities by families. Many numbers don’t even receive a diagnosis. The most important problem was that there were NGOs and research institutions that collect data but, there is no national survey or data collection programme related to mental disability in our country. Though from 2013 onwards ministry of health and family welfare had began a survey on mental health disorder.
The main problem is with society, stigma and discrimination are still major obstacles to the development of mental health service. Society discriminates due to which rehabilitation is not possible for mentally disabled peoples. There is a shortage of mental disability professionals and facilities in India. This shortage is because during four and a half year long MBBS course, only two weeks of clinical posting is dedicated to psychiatry. Due to which there is no vast discussion related to mental disabilities issues even in urban areas.
Though there is legislation relating to mental disabilities like, “The person with disabilities (Equal opportunities, protection of rights and full participation) Act” (PWD) 1995, but the implementation of the provisions is yet too far. India has not been able to achieve the prevention or detection of disabilities.
There are many families where a mentally disabled person exists but, family members do not go for treatment of a mentally disabled person because they will have to face society and their brother or sister won’t find a suitable marriage person. They are ill-treated by their family member. Such people are also a human being and citizen of this country who has the right to live his life with full dignity.
At present, the right of the disabled in a matter of education, employment, accessibility and social security are primarily governed by “The person with disabilities act” 1995. Besides the PWD act, physical and mental disability is regulated by the Mental Health Act, 1987, Mental Retardation and Multiple Disabilities Act, 1999 and much more legislation. These all acts have been creatively interpreted by the judiciary to address some of the shortcomings of the original act.
Concern for the mentally disabled became visible in the public domain in the 1990s. The legislation enacted during that period was inadequate but, it marked the beginning by mainstreaming the issue. During the decade 2000, these laws were tested in courts by activists of the disability right movement. This led to the development of jurisprudence on mental disability in India. Though if a comparison is made between the evolution of jurisprudence on gender or environment and mental disability this field has remained slow in its growth.
In the landmark case of Indra Swaney v Union of India, popularly known as Mandal case, advocate S.K. Rungta intervened for the National Federation of the Blind on behalf of all persons with disabilities and wanted the Supreme Court to consider the specific issue of whether ‘backward classes of citizen’ as defined by the constitution could include a person with disabilities.
Supreme Court held that though ‘backward classes of citizen’ as used in Article 15 & 16 did not cover a person with disabilities the constitutional scheme and spirit of Article 14 allowed for affirmative action in favour of the person with disabilities.
In Javed Abidi v Union of India, the Supreme Court looked into the true spirit and objective for which “The person with disabilities (Equal opportunities, protection of rights and full participation) Act” (PWD) 1995, was enacted to create a barrier-free environment, to make special provision for the integration of the persons into the social mainstream apart from the protection of a right, provision of medical healthcare, education, and rehabilitation which are the prime objective of the act. Jurisprudential analysis has spread legal awareness on the issue of mental disabilities in our country.
Mental disabilities legislation should be viewed as a process rather than as an event that occurs once in a decade. The government should promote society to respect mentally disabled persons. They shouldn’t be treated differently as if they don’t belong to this society but their fundamental freedom and human rights are to be protected. Regulations should be laid down and should be enforced for the rehabilitation of mentally disabled person.
As enacting legislation is a long process in our country the legislation which already exists should be included with a provision for the establishment of regulation and can even outline the procedure for modifying them. There should be more regulatory bodies and agencies formed for the implementation of laws regarding mental disability and proper financial allotment should be granted to these bodies.
 Available at https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html (last visited on 13/4/2021)
 Available at https://www.who.int/macrohealth/action/Report%20of%20the%20National%20Commission.pdf (last visited on 17/3/2021)
 AIR 1993 SC 477
 (1999) 1 SCC 467