(I am pleased to present this post by Ms. Ananya Narain Tyagi and Mr. Mohak Thukral, both are students currently pursuing their undergraduate law degree at Jindal Global Law School, Haryana)
“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”- Nelson Mandela.
"In December 2017, I visited the Ludhiana Central Jail as a part of my internship with the National Legal Services Authority. While I was discussing the prison conditions with the nominated Para-Legal Volunteer and the accompanying Panel Lawyer, loud shouts by a guy started being heard. “I want to go to my mother”, he shouted in Punjabi. The guards and the Para-Legal Volunteer told me about this mentally ill inmate and narrated a few stories of his violent acts. Within a few minutes, he came inside the office. Naturally, I was both shocked and afraid. On being called by a guard, around 5 other inmates gathered and dragged him out of the office. A week later, I visited the newly inaugurated Mandoli Complex of the Tihar Jail in New Delhi. To my utter surprise, this place was beautifully constructed. The guards gave us a tour of the place showing us the beautiful paintings made by the inmates on the walls and in the Art room. The guards showed us the dorms, the garden and the shops inside the complex. However, we weren’t allowed to visit the Music Room. On asking the reason, I received a shocking reply from the guard who hesitantly said, “A few days back, an inmate committed suicide inside the Music Room.” I was short of words. These two incidents made me realise the poor mental health conditions in Indian Prison Systems.” — Mohak Thukral
Among the many issues that India is currently facing, recognition and providing for an adequate response to the deploring mental health of the population is one of the most worrying concerns. Prisoners are yet another part of this vulnerable population whose mental health is usually neglected. In fact, general research has shown that there is a significantly higher rate of mental health problems with prisoners in India.
The purpose behind this essay is to highlight the effect of incarceration on a prisoner’s mental health and the system’s failure to recognise the same. We begin by highlighting components of the current prison system which are possible reasons for an inmate developing mental health issues during the course of imprisonment. Picking up from there, we will identify the provisions of the Criminal Procedure Code 1973 [Cr.P.C.], and other statutes, model guidelines, and reports to understand how mental health issues stem out during the arrest of a person.
Incarceration and Mental Health
Mental Health issues can arise due to lack of personal liberty and deprivation of basic necessities in prisons. The World Health Organization (WHO) has identified overcrowding, violence inside the prisons, lack of privacy, isolation from social networks, insecurities about future, along with the lack of effective mental healthcare in prisons as major reasons for rising mental illness issues in prisons.
Rabiya and Raghavan have further outlined that deploring mental health of prisoners can lead to lack of control by the administration, increase in the number of cases of self-harm, suicide, damage to property and the well-being of other inmates and the staff of the prisons being threatened. A prisoner with mental health problems is vulnerable to other issues like suffering from poor physical health, drug abuse, and inability to maintain relations inside the prison.
While discussing the situation in India, it would be interesting to note the struggle of Indian prisons with these factors, especially with overcrowding. Suicide was found out to be the leading cause of unnatural deaths in Indian Prisons, giving an insight into the instances of self-inflicted harm in India. Further, the Supreme Court through a commission identified the poor status of mental healthcare facilities in the prisons in the landmark case of Sheela Barse.
The Indian Legal Regime
The Mental Healthcare Act of 2017 is an exhaustive piece of legislation containing important provisions such as under section 31(2) it provides for mandatory training of all medical officers in prisons to provide basic and emergency mental healthcare. Additionally, under section 103(6) of the act, it mandates each state governments to set up mental health establishment in the medical wing of at least one prison in the state. While the act points out important concerns regarding mental health, we believe it is inconsistent with the ground realities as there is a lack of adequate infrastructure and qualified staff in the country. In fact, as per recent news reports, the implementation of the act has failed miserably.
To get a better understanding of the situation in prisons, we shall now briefly discuss the Model Prison Manual issued by the Ministry of Home Affairs in the year 2016. While management of prisons is a matter to be legislated upon by states (being entry number 2 in the State List), the Government of India releases suggestive guidelines and such model manuals time to time for states to emulate them. If we look at the Model Prison Manual itself, in a chapter towards medical care, it suggests for a minimum of one psychiatric counsellor in each type of prison. However, unlike for other positions mentioned, it does not deal with their appointment.
While the Manual deals extensively with aspects like mental health and rehabilitation, most states of the country till now have not successfully followed this model. In fact, the Supreme Court has observed that most of the states have even failed to model their rules on the basis of the earlier 2003 Model. In Jan Adalat v. State of Maharashtra, Raju Jagdish Paswan v. State of Maharashtra and in few other cases, the court has also commented on the inadequacies of different state models, expressing discontent on the poor emulation of reformative measures outlined in Model Prison Rules. To illustrate, the Chhattisgarh Jail Department’s “Prisoner’s welfare and Rehabilitation Policy”, consists of a single point directly regarding mental health. This policy is inadequate as the only proposed action is to keep the minds of prisoners busy and impart ethics and values to them .
The Indian Prison System has also failed to adopt the progressive rehabilitation techniques which are being followed by the EU/US Prison System which focus on peer support training and segregation of the mentally unfit from the general prison population in order to narrow down their scope for treatment.
The Criminal Process and Mental Health
According to the latest National Crime Records Bureau data on prisons, over six thousand of the total prisoners are suffering from some form of mental illness. And what is more shocking is that out of this number, around 52% are undertrials and detainees. The Cr.P.C. has a dedicated chapter with provisions dealing with instances where the accused is of an unsound mind. The important provisions of the chapter entail, providing bail to the accused even in the case of a non-bailable offence if identified as lunatic during the time of inquiry or trial (Sections 328 and 329). It also gives the Magistrate or the Court the right to order detainment of the accused in safe custody and resume the trial when the concerned person ceases to be of an unsound mind (Sections 330 and 331). Other provisions deal with procedures related to appearance in front of the Magistrate or court, and how a “lunatic” person is to be released when fit.
Our concerns with provisions of the Cr.P.C. are of 3 forms: lack of proper standards, inadequacy, and possibility of abuse.
Lack of Standards
The procedure outlined in the chapter uses different and varying expressions of qualification for the Magistrate or the court to take any action. For example, Section 330(2) of the Cr.P.C. which deals with cases when bail must not be given, the qualifying words used are “Opinion of the Magistrate or Court.” Similarly, Section 330(3) of Cr.P.C. uses terms like, “Sufficient Security” and “Opinion of the Magistrate” while dealing with discharge of the mentally ill accused.
We find usage of such terms to be problematic because an issue like bail to someone who is mentally ill may have varied and far-reaching consequences. Further, a Magistrate or a court cannot be expected to be the best judge of the accused’s mental condition. Therefore, we endorse the phrase “reason to believe” to replace “Opinion” and adding the term “Reasonable” before securities. Such qualifying words are endorsed because, under their application, the decision of the court and the magistrate can only be justified when there is a sufficient cause to believe it and not when there is a subjective satisfaction alone. For example, in the case of Amit Kumar Dey v. State of Tripura, it was observed that the Additional Sessions Judge, contrary to what was suggested in the reports submitted by medical experts, denied bail on his opinion of the mental condition of the accused. The High Court while adjudicating on the matter held that the conclusion of the trial judge must be based on sound evidence, thereby, ensuring a free and fair trial to the accused. We believe that this principle must be embodied in the provisions of Cr.P.C. itself to avoid any confusions or ambiguity.
We are of the opinion that the provisions of Cr.P.C. are inadequate while dealing with mental health. For example, Section 54 of the Act, provides for mandatory examination of the arrested person by a medical officer. While such medical officer is required to record marks of violence or injuries, the officer is not required to examine the mental condition or prepare a report on the mental health of the accused.
The mental health of an individual can be severely impacted while in the custody of the police. To account for the same, we believe this provision must be modified mandating the report of the mental health of each arrested person to be prepared. This would also give a better insight into the mental condition of the accused while committing the crime. Also, the Cr.P.C., in Section 330(2) makes reference to the Mental Health Act of 1987 which as of now stands repealed and is replaced by the Mental Healthcare Act of 2017. If we go according to the rules of the interpretation of a statute, it is implied that the Magistrate or the Court, must read the latest act but still we believe to avoid ambiguities especially in the lower judiciary, this rectification should be made as soon as possible.
Possibility of Abuse
The Indian Exclusion Report categorically highlights instances where individuals with poor mental health are arrested and detained without any cause owing to requests or bribes paid to the police. The problem is further fuelled as according to the same report, it becomes difficult for the the mentally ill population to access means of justice. While Section 304 of the Cr.P.C. provides for free legal aid to the accused, it has not been effective while dealing with the accused who are mentally ill. Even the National Legal Services Authority has acknowledged this and is currently working on its schemes for the welfare of the mentally ill. This again brings us to the persistent problem of quality of legal aid offered in India.
Hon’ble Justice Rajiv Sharma of the Uttarakhand High Court remarked “A prisoner may emerge from the prison not only without job skills, but also incapacitated for future work because of severe and lasting physical and mental health issues.” The far-reaching consequences of poor mental healthcare facilities in prisons have time and again been emphasised, guidelines have been issued, instructions have been given, and acts have been passed. However, there has been no significant change in the ground realities.
We believe that the main reasons behind this is a lack of acknowledgement and recognition of Mental Health as a serious issue. Before any change in the policies, it is this lack of concern towards mental health must be addressed.