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TO HEALTH AS A BASIC HUMAN RIGHT WITH EMPHASIS ON THE RIGHTS OF MENTALLY ILL

About Author:
Kapil Tomer
Assistant Professor of Law
IMIRC College of Law
Garh Mukteswar, Panchshell Nagar (Ghaziabad)
kpltomer75@gmail.com

ABSTRACT
In the modern age, we are now living with increasing stress owing to various factors. In the times to come, the stresses and strains will be further cared out, thereby making mental health a very significant issue. According to NIMHANS (National Institute of Mental Health and Neuro Sciences), there are over two crore persons in our country who are in need of treatment for serious mental disorder and about five crore people who are affected by common mental disorder.

In India, the provisions of Article 21 of the constitution have been judicially interpreted to expand the meaning and scope of the right to life to include the right to health and to make the later a guaranteed fundamental right which is enforceable by virtue of the Constitutional remedy under article 32 of the Constitution. It is therefore, imperative that the mentally ill persons receive good quality mental health care and human living conditions not only in any institutions but also in their homes. Some other provisions are also given under the Indian Constitutions which related with the health likes- article 24, 39(e), (f), 47 and some entries under schedule VII in state list.

Thus, mental health is an important component of the overall health of any individual. This was long recognized in ancient India, where in addition to the medical dimension, philosophical, religious, moral and ethical dimensions shaped and provided the ground for normal mental health and contributed to an integrated healing and welfare system for mental illness. The Vedic times provided a broadly conceptualized model of mental health and illness, supported by an ethos of nurturance, support, caring and family responsibility in treatment and rehabilitation of these mental disorders.

During the early Twentieth Century, care of mental ill became mainly limited to institutions which were rife with abuse and discrimination. The attention of both mental health professionals and the courts were drawn to human rights abuses of mentally ill persons within institutions.

Further, The Universal Declaration of Human Rights in 1948 proclaimed the basic human rights for all people, including people with any kind of infirmity. The National Human Rights Commission & lots of legislation have been playing the role of a catalyst to ensure direct action for the protection of the rights of vulnerable sections of society, including the mentally ill.

REFERENCE ID: PHARMATUTOR-ART-1685

INTRODUCTION
This might be the plight of every other person in the society if he has a mental disorder. The family and the society ostracize these people. This is so irrespective of the religious, financial and societal status of persons. It is in this context that the right of mentally ill gain importance especially the right to health. A recent study conducted by National Institute of Mental Health and Neuro Sciences (NIMHANS) has revealed that there are about 7,00,000 mentally ill persons in the state of Karnataka. An indifferent state and an impassionate society care less for these unfortunate mortals and as a result most of them end up in the streets where they lead a life devoid of protection of any constitutional and legal rights. The fact that substantial number of such mentally ill people is woman brings to the fore sexual exploitation and gender related issues which crave for better protection of constitutional, legal and Human Rights by the state.

Example - As area around Bagum Bagh is one of the most known and posh area of Meerut, a lady is often seen begging for food and money. She wears torn and dirty clothes and her hair looks as if she has not had a wash for days together. People who have known her for years say that she used to look healthier some years back. Now, she is mentally ill patient, though mot to extend of being violent and harmful to the people and society. No one knows how she became thus and there is no one to take care of her.

RIGHT TO HEALTH:-
The right to health has been recognized as a basic human right. But the right has not been defined. Health being a condition of person’s body or mind is relative and depends on individuals. Health of a person includes both physical and mental well being. Therefore, the term “Right to Health” may be defined in definite terms. The definitions will include the ambit of the right and the extent to which it may be claimed or enforced.

On the basis of international sources, the right to proper health care in case of mentally ill has been recognized worldwide. In 1991 the general assembly of the UN adopted 25 principles for the protection of persons with mental illness and for the improvement of mental health care. International agreements such as UDHR and ICESCR have express mention of the ‘Right to Health’.  International organizations such as WHO were established to take care of this right of the international community.

INCLUSION OF THE RIGTH IN INDIAN CONSTITUTION:-
The Indian constitution recognizes the right to health. Right to life is interpreted to include right to health, dignity full life etc. also by the Apex court in a number of decisions.

Article 21:-The Indian constitutional article 21 is the heart of the fundamental rights and has received expanded meaning from time to time after the decision of the Supreme Court in Maneka Gandhi vs. Union of India, Art. 21 guarantees a fundamental right to life –a life of dignity to be lived in a proper environment, free of danger of disease and infection.

In M.C. Mehta vs. Union of India, (Popularly known as “Oleum Gas Leak Case”) – The Supreme Court treated the right to live in pollution free environment as a part of fundamental right. Further the A.P. High Court in T. Damodar Rao vs. S.O., Municipal Corporation, Hyderabad, laid down that right to live in healthy environment was specially declared to be part of Art. 21 to the Constitution.

Article 24:- Article 24 of the Constitution speaks about exploitation of child labour. It says that “No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment” this provisions is certainly in the interest of public health and part of the environment. Further, this article also contents with the health of children.

Article39(e):- that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article39(f):- that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Art. 39 (e) and 39 (f)- Under Directive Principles of State Policy (DPSP) provide for the protection of the health and strength of children below the age of 14 years.

In people’s Union for Democratic Rights vs. Union of India, the Supreme Court held that the prohibition under Art. 24 could be enforced against any one, be it the State or private individual.  In pursuance of this obligation, parliament enacted the Child Labour (prohibition and Regulation) Act, 1986. The Act prohibits specifically the employment of children in certain industries.

Article 47:- it is the duty of the state to raise the level of nutrition and standard of living and to improve public health. In Tapan Kumar Sadhukhan V. Food Corporation of India, SC held that Food Corporation is an agency of the state. Therefore, it must conform to the letter and spirit of article 47 to improve public health. The state of rice found unsuitable for human consumption could not be sold by the corporation.

Schedule 7 (Entry number 23, 26 and 29 of concurrent list):- The Centre and the States have power to legislate in the matters of social security and social insurance, medical professions, and, prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants.

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HUMAN RIGHTS AND MENTAL ILLNESS:-
Human Rightis about balancing the rights of all of us as individuals within the community. Rights on the one hand refer to the privileges the mentally ill should enjoy in society, and protection against infringement of these rights on the other. This includes the rights to live, work as far as possible in the community, to privacy, and to lead a normal family life. The seriously mentally ill are a very special group with disabilities. The concerns with this group are twofold not only providing the privileges to live in society along with other citizens, but also ensuring their right to protection from exploitation. Such exploitation includes economic, sexual or any other form of abuse and treatment, both within and outside institutions, in public or in private. Many of these rights are actually guaranteed in our constitutions.

In 1948, the United Nations through its declaration to which India was also signatory, affirm the basic principle that a mentally ill person should at all times be treated with humanity and respect for the inherent dignity of the right to exercise all civil, political, social and cultural rights under given UN principle 1.4.The declaration on the rights of the disabled, which includes persons with mental illness, was adopted by the UN in 1975.

RIGTHS OF THE MENTALLY ILL:-
Mental health care and ensuring human rights should not confine itself to only remedial approaches but also recognize the contribution which mental health care can make towards the fulfillment of human rights and meeting the rights of the community to such are necessary. The mentally ill persons have rights as follows:-

•         Right to the equally, same fundamental rights as their fellow citizens includes the right to decent life, as normal and full as possible.

•         Legal safeguards against abuse.

•         Right to Appeal.

•         Necessary treatment in the least restrictive set up and as far as possible to be treated and cared for in the community.

•         Rehabilitations.

•         Personal autonomy, privacy, freedom of communication.

•         Educational rights.

•         Free and compulsory education rights toward article 21A

•         Training

•         Economic and social security

•         Employment

•         Protection against exploitation and discriminatory, abusive or degrading treatment

•         Assistance, including, legal, to protect their rights.

THE MENTAL HEALTH ACT, 1987 CHAPTER 8, SECTION 81:-
Under this act some special provisions are given for mental ill people those are as follows:-

•         All the categories of staff in the hospital from the medical superintendent to ward attenders should be made aware of these rights are protected should be ensured by the monitoring team within the hospital against the individual in addition to preventive steps.

•         Even though the right to health normally contemplated healthy surrounding and treatment for illness, in the case of mentally ill, health includes treatment, rehabilitation and prevention.

•         Mental health to be part of primary health: - since psychological disorders may be the cause of variety of physical illnesses, mental health care should be made part of primary health services.

EXISTING LEGISLATIONS IN INDIA:
The National Mental Health (NMH) programme for India was drawn in 1982 in furtherance of the resolutions passed in 1978 in Alma- Ata at the joint WHO – UNICEF International conference which discussed the issues relating to health care. Further, the mental health act was enacted in 1987. It is an act to consolidate and amend the law relating to the treatment and care of mentally ill persons.

There are also provisions relating to mentally ill persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the national trust for welfare of persons with autism, cerebral palsy, Mental Retardation and Multiple disabilities Act1999. The reality is that inspite of the specific provisions in different legislations the condition of mentally ill remains pathetic and this is brought out evidently by the different Supreme Court decisions. Death of 25 chained inmates in asylum fire in Tamil Nadu, In Re V. Union of India , the Hon’ble SC took suo moto action and directing the state government and the union of India that:

• Every state and union territory must undertake a district wise survey of all registered/ unregistered bodies by whatever name they may be called purporting to offer psychiatric/ mental health care. The detailed process for survey and licensing was given in the direction.

• The chief secretary or additional chief secretary designated by him shall be the nodal agency to coordinate all activities involved in implementation of the Mental Health Act,1987, the persons with disabilities Act 1995 and the National Trust for welfare of persons with Autism, cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999.

• Government run fully fledged mental hospital should be set up in every state and union territory.

• Both the central and state governments shall undertake a comprehensive awareness campaign with a special rural focus to educated the people about the provisions of law relating to mental health, rights of mentally challenged person, the fact that chaining of mentally challenged persons is illegal and that mental patients should be sent to doctors and not to religious places such as temples.

IN SHEELA BARSE V. UNION OF INDIA
Supreme Court based on the report of the commission appointed by it issued the following directions:

  • It’s declared that admission of non – criminal mentally ill persons to jails is illegal and unconstitutional.
  • Admission of mentally ill to jails be stopped in West Bengal.
  • It is directed that the function of getting mentally ill persons examined and sent to places of safe custody hither to being performed by executive Magistrate, shall hereafter be performed by Judicial Magistrate.

OBSTACLES IN ENFORCEMENT OF RIGTHS OF MENTALLY ILL:-
The right to health assumes greater importance when it comes to the mentally ill. In normal circumstance right to health can be enforced by any person who is aggrieved, but in case of mentally ill he is not in a position to understand and enforce his own right to health. He may not have the capacity to comprehend the aspects of the right or may not know as to how, when and against whom it can be enforced.

The state is bound to provide the right even if there is no specific demand for the same, and in case the state does not provide necessary facilities then that by itself is a violation of fundamental right. Thus, a positive action on the part of state is necessary for protecting the right. The constitution of India the mentally ill are an under privileged of society and have a right to equal status. The rights of mentally ill have emerged as a growing concern all over the world.

UNION BUDGET (2012-2013) REPORT ON HEALTH PROJECT:-
India is developing country and trying to provide the better facility in the health sector. We have much new policy given by our centre government but due to the reason of weak implementation could approach it. Now this year spoken through the mouth of Pranab mukherjee these are new polices launches by the union -

  • Exceeded the Scope of Accredited Social Health Activist.
  • National Urban Health Mission is being launched.
  • Relief in indirect taxes to sectors under stress; agriculture, infrastructure, mining, railways, roads, civil aviation, manufacturing, health and nutrition, and environment get duty relief.
  • Pradhan Mantri Swasthya Suraksha Yojana being expanded to cover up-gradation of 7 more Government medical colleges.

Under the constitution of India, in terms of distribution of sect-oral responsibilities in the federal set up, health is a state subject. Current the aggregate annual expenditure on health is 5.2 per cent of GDP. Out of this, about 17.3 per cent of aggrate spending is coming from the state, the rest being out of pocket expenditure borne by the citizens directly.

Public expenditure on health in India is one of the lowest in the world. Currently, public expenditure on health as a share of the aggregate annual public expenditure on health is 96.9 per cent in UK, 44.1 percent in USA, 45.4 percent in Sri Lanka, and 24.9 percent in China, but for India it is a meager 17.3 percent.The information shows that public expenditure on health in India is one of the lowest in the world.

CONCLUSION AND SUGGESTIONS:-
The financial constraints of the state cannot be a reason for the absence of effective laws or non- implementation of existing laws effectively. The state is duty bound to provide necessary health facilities to all the citizens in general and in particular the mentally ill. The Mental Health Act needs amendment to include the rights of mentally ill. The provision relating to private nursing homes are inadequate. Criteria to determine issuing the license to private hospitals may be drawn up. The mutual health authorities may be set up to conduct periodic inspections in both Government and private hospitals. The most significant part of the Government in this regard is to frame a national policy for mental health. This policy should highlight on mental health as part of primary health and should emphasize on community based treatment for mental illness. State may replace large custodial mental hospitals into community care centers, through providing psychiatric beds, with home care support. A long – term programme for rehabilitation of person cured from mentally disorders, also be put forward.

Above all a campaign should be conducted to create awareness regarding the rights of mentally ill and a programme chart for the said purpose is checked out. The non availability of trained professional in the field of mental health care is yet another person. In this regard the state should take necessary steps to introduce psychiatric courses in more number of medical colleges and psychiatric training to primary health officers may be imparted.

The conclusion drives us to the fact that the existing legislations relating to rights of mentally ill are not adequate to combat with the existing problems. Thus, an overall restructuring of existing legislations and their implementation mechanism is necessary to protect the rights of the mentally ill.

REFERENCES

  • Ranbir singh &  Ghanshyam singh “ Human Rights Education, Law and Society” Nalsar University.
  • Johan Samuel & Jagadananda Social Watch India ‘ citizen Report on Governance Development 2003”
  • Legal News & Views vol26  pg no-21
  • Legal News & Views vol26  pg no- 9
  • Law z ‘ Right of Education” july 2012
  • media2.intoday.in/indiatoday/images/budgeteng2012-b.pdf
  • indianexpress.com/news/healthcare.

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