Academic journal article Indian Journal of Psychiatry

Indian Legal System and Mental Health

Academic journal article Indian Journal of Psychiatry

Indian Legal System and Mental Health

Article excerpt

Byline: Choudhary. Narayan, Deep. Shikha

Although there was a rich tradition of legal system in Ancient India, the present judicial system of the country derives largely from the British system and is based on English Common Law, a system of law based on recorded judicial precedents. Earlier legislations in respect of mental health were primarily concerned with custodial aspects of persons with mental illness and protection of the society. Indian laws are also concerned with determination of competency, diminished responsibility and/or welfare of the society. United Nations Convention for Rights of Persons with Disabilities (UNCRPD) was adopted in 2006, which marks a paradigm shift in respect of disabilities (including disability due to mental illness) from a social welfare concern to a human right issue. The new paradigm is based on presumption of legal capacity, equality and dignity. Following ratification of the convention by India in 2008, it became obligatory to revise all the disability laws to bring them in harmony with the UNCRPD. Therefore, the Mental Health Act - 1987 and Persons with Disability Act - 1995 are under process of revision and draft bills have been prepared. Human right activists groups are pressing for provisions for legal capacity for persons with mental illness in absolute terms, whereas the psychiatrists are in favor of retaining provisions for involuntary hospitalization in special circumstances.

Introduction

Indian Legal Systems refers to the system of law operative in India. In the ancient days, there was a distinct tradition of law, which had a historically independent school of legal theory and practice. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. [sup][1] The Arthashastra dating from 400 BC and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance. [sup][2] Manu's central philosophy was tolerance and pluralism and was cited across Southeast Asia. [sup][2] During the Islamic rule, Sharia law came to India, but that was applicable mainly to the Muslim population. When India became part of the British Empire, there was a break in the tradition, and Hindu and Islamic laws were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era. [sup][2] Much of the contemporary Indian Laws are largely based on English Common Law, a system of law based on recorded judicial precedents and shows substantial European and American influence and many of the legislations introduced by the British are still operative. Therefore, the roots of most of the legislations in respect of persons with mental disorders (PMI) can be traced to the British periods.

There is a dynamic relationship between the concept of mental illness, the treatment of the mentally ill and the law. [sup][3] As Rappeport has noted, for the psychiatrists the court is "another house … with its different motives, goals and rules of conduct." [sup][4] While the psychiatrist is concerned primarily with the diagnosis of mental disorders and the welfare of the patient, the court is often mainly concerned with determination of competency, dangerousness, diminished responsibility and/or the welfare of society. [sup][5] Therefore, in India also, most of the earlier legislations in respect of PMI were concerned with these aspects. However, legislations drafted after eighties tend to give some stress on the rights of PMI also.

The constitution of India

The constitution of India provides under Article 21 that no person shall be deprived of his life or personal liberty except according to procedures established by law. It has been held that right to life and personal liberty under this article includes "facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings. …

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