The Ongoing Process of Amendments in MHA-87 and PWD Act-95 and Their Implications on Mental Health Care

Article excerpt

Byline: Choudhary. Narayan, M. Narayan, Deep. Shikha

Earlier mental health legislations in India, i.e. Indian Lunatic Asylum Act 1858 and Indian Lunacy Act (ILA) 1912, were primarily concerned with custodial aspects, and human rights aspects were hardly addressed in these laws. After the Second World War, "Universal Declaration of Human Rights" was adopted by the UN General Assembly in 1948 and India was a signatory to it. Therefore, it became pertinent to make appropriate changes in the ILA, 1912, which was in force at that time in India. The need of a new law led the Indian Psychiatric Society (IPS) to submit a draft Mental Health Bill in 1950. [sup][1] But the government initiated the process for enactment only in 1978 and introduced the Mental Health Bill in the Lok Sabha. After a long and protracted course, Mental Health Act (MHA), 1987 was finally enacted in 1987. After framing of the Mental Health Rules in 1990, it was finally notified to come into force in all the States and Union Territories only on April 1, 1993. But because of a large number of very complicated procedures, defects, and absurdities in the Act and also in the Rules, it could never be implemented properly. [sup][2]

Similarly, "Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific region" was adopted by "Economic and Social Commission for Asian and Pacific Regions" at Beijing in December 1992, in which India was also a signatory. To fulfill obligation under the proclamation, Persons with Disabilities (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS, AND FULL PARTICIPATION) Act, 1995 was enacted. UN convention on right of people with disability (UNCRPD) was adopted in December 2006. [sup][3]

At its foundation are the inherent dignity and the equal and inalienable rights of all people. After India ratified the UNCRPD, revision of all legislations relating to persons with disabilities (PWD) to bring them in consonance with the UNCRPD became obligatory for the government. Therefore, the process of amendment in of the MHA, 1987 and the PWD Act, 1995 was initiated by the Government of India in 2010. Ministry of health and family welfare (MHFW) initiated the process of amendment in MHA-1987, whereas that in respect of PWD Act, 1995 was initiated by the ministry of social justice and empowerment (MSJE).

United Nations Convention for Rights of People With Disabilities

UNCRPD was adopted in December 2006 and it was ratified by the Government of India in September 2007. Later, it was approved by the Indian Parliament in May 2008. In fulfilment of their obligations under the UNCRPD, state parties are required to bring their laws and policies in harmony with the convention. The purpose of the UNCRPD is to promote, protect, and ensure full and equal enjoyment of all human rights and fundamental freedoms by all PWD and to promote respect for their inherent dignity. The convention marks a paradigm shift in thinking about disability from a social welfare concern to a human rights issue. The new paradigm is based on the presumption of legal capacity, equality, and dignity, and it acknowledges that societal barriers and prejudices are themselves disabling. There has to be non-discrimination, equality of opportunity, and full and effective participation and inclusion in the society for PWD. Clauses 2, 3 and 4 of the Article 12, which is concerned with legal capacity of PWD, are reproduced below.

2. States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. …