A Prison Inside the Mind
More than 5,000 people with mental illness are currently imprisoned across India and despite the law’s corrective measures, little has been implemented
According to the Mental Healthcare Act (MHA) 2017, a “prisoner with mental illness” means a person with mental illness who is an undertrial or has been convicted of an offence and detained in a prison. But this definition does not carry enough weight. Prisoners with mental illnesses are on a different footing and far more vulnerable than other prisoners. They are made fun of by fellow inmates, and the standard of care inside prisons is not what it should be.
Across prisons in India, 5,203 individuals have been diagnosed with mental illnesses, with Uttar Pradesh seeing the maximum number of mentally ill prisoners (781 individuals), followed by Odisha and West Bengal, with 554 and 433 prisoners, respectively. While no data is available on the detention period of these prisoners, it can extend to 20 to 30 years in some cases. Most should not even be there, and even for those who have to be imprisoned, it should not be for such abhorrently long periods.
Across prisons in India, 5,203 individuals have been diagnosed with mental illnesses, with Uttar Pradesh seeing the maximum number of mentally ill prisoners (781 individuals), followed by Odisha and West Bengal, with 554 and 433 prisoners, respectively.
Prisons embody a vicious cycle of mental disorders and human rights violations. The stigma, isolation and discrimination faced by inmates often results in rights violations, which subsequently brings out stress and frustration. Due to lack of any psychological support inside, this situation often precipitates into mental disorders, which can lead to serious impairments and disabilities. So while some prisoners commit crimes when mentally ill, there are many who become mentally ill while in detention. In both instances, courts can, after ensuring that the accused is of unsound mind and is incapacitated to stand trial, allow for postponement of the trial. The rationale behind the postponement lies in fair trial rights that require the accused to comprehend all charges levelled against him, instruct their lawyer during court processes and understand court hearings.
Even with the incorporation of some procedural safeguards through amendments in criminal law in 2008, which included the provision for bail for the care and protection of family members, all is not well. In addition to public stigma, mentally ill inmates are often disowned by their families. Many prisoners are accused of crimes against their own relatives, which naturally turns the families away from them. Locating their families is itself a Herculean task. When families are found, inmates are considered a burden if they return, especially in the case of women. Thus there is little incentive for their families to seek their release. As such, the ultimate outcome is that they serve de facto life sentences even though they are still undertrials. For instance, there is a prisoner from Nepal in West Bengal who has been detained for more than 37 years. Numerous attempts to find his family have failed.
In the absence of basic procedural safeguards—reasonable time limits on period of suspension of trial and regular review of such cases—the benefits that underpin postponement of trials have given way to other dangers. Though mentally ill prisoners are now a category of prisoners whose cases must be reviewed every quarter by Under Trial Review Committees (UTRC), releases have been rare. For instance, only 6 of 370 such prisoners identified by the UTRC were released between October and December 2016, and only 13 of 225 prisoners between January and March 2017. UTRCs were set up in all districts in April 2015 pursuant to a Supreme Court order to conduct quarterly review of cases of prisoners, and recommend for their release.
This begs the question: should those suffering from mental illness even be confined in a prison?
In legal terms, there are two kinds of mentally ill prisoners: non-criminal lunatics (NCLs) and criminal lunatics (CL), the difference being that the latter are accused of committing a criminal offence. While NCLs are prohibited from being detained in a prison by virtue of innumerable Supreme Court directives and National Human Rights Commission guidelines, the law regarding detention of CLs is ambiguous. This ambiguity has arisen out of certain legislative changes that came about in the Code of Criminal Procedure 1973 (CrPC) in 2008, and now with the enforcement of the Mental Healthcare Act, which attempts to codify India’s obligations under the 2006 United Nations Convention on the Rights of Persons with Disabilities.
The problem of confinement of mentally ill persons awaiting investigation, trial or conviction, is a longstanding and pressing social exigency that warrants immediate and concerted intervention—from legislative initiatives, administrative agency and judicial intervention down to micro-level societal and individual collaborative effort
For instance, Section 103 of the Act states that the government should set up a mental health establishment in the medical wing of at least one prison in each state, wherein prisoners would be referred to and cared for. The Act also states that the prison medical officer shall send a quarterly report to the concerned board certifying that the prison houses no prisoners with mental illness. Additionally, Section 330 of the CrPC, which provides for the release on bail of a mentally ill undertrial, is equally confusing. It empowers the court to release an accused on bail upon satisfaction of certain set criteria, but also suggests that where bail cannot be granted, it must order the accused to be kept in such a place where regular psychiatric treatment can be provided. If implemented, this would mean that mentally ill prisoners can no longer be kept inside a prison. The National Legal Services Authority’s (NALSA) Scheme for Mentally Ill Persons 2015 too supports the intent of Section 330, in as much as it directs state legal services authorities to carry out inspections in all jails with the assistance of state mental health authorities. These checks seek to ascertain whether there are mentally ill persons in prisons and if such persons are located, legal services authorities must seek appropriate directions to shift them out for treatment.
Despite these many provisions, ground-level implementation is non-existent. These issues are far away from the eye of the media and the lack of adequate mental health treatment facilities throughout the country further expounds this situation. In certain places, it would not be incorrect to say that prison mental healthcare facilities are better than State-run mental hospitals. The problem of confinement of mentally ill persons awaiting investigation, trial or conviction, is a longstanding and pressing social exigency that warrants immediate and concerted intervention—from legislative initiatives, administrative agency and judicial intervention down to micro-level societal and individual collaborative effort. It’s exhausting to manage a war inside your head every day; the least we can do is to provide support and protection.
The author is the coordinator of the Prison Reforms Programme at Commonwealth Human Rights Initiative.