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SUPREME COURT OF INDIA
M.N. Venkatachaliah. C.J.I. and S. Mohan, J.
Sheela Barse - Petitioner
versus
Union of India & Anr. - Respondents
Writ Petition (Cri) No. 237 of 1989
Decided on 17.8.1993
Counsel for the parties:
For the Petitioner: S. Muralidhar.
For the Respondents: Santosh Hegde, V.C. Mahajan, D.K. Sinha, J.R. Das, Mukul Mudgal, R.S. Suri, T.C. Sharma, Ms. Anil Katiyar and Ms. A. Subhashini.
Held:
(1) It is declared that admission of non-criminal mentally ill persons to jails is illegal and unconstitutional.
(2) It is directed that admission of mentally ill persons to jails in West Bengal on any ground whatsoever be stopped forthwith and the state of West Bengal is directed to issue instructions to this effect immediately.
(3) It is directed that the function of getting mentally ill persons examined and sent to places of safe custody hitherto performed by Executive Magistrate shall hereafter be performed only by Judicial Magistrates.
(4) The Judicial Magistrate will, upon a mentally ill person being produced, have him or her examined by a Mental Health Professional Psychiatrist and if advised by such MHP/Psychiatrist send the mentally ill person to the nearest place of treatment and care.
(5) The Judicial Magistrate will send reports every quarter to the High Court setting out the number of cases of persons sought to be screened and sent to places of safe custody and action taken by the judicial Magistrate thereon.
(6) The Government of West Bengal is hereby directed to:
(i) to take immediate action and issue instructions in the implementation of the directions given herein above.
(ii) order enquiry into the death of 19 persons in the Dum Dum Central Jail in December, 1991 and take action to rectify the factors that resulted in such a calamity. A copy of report of the enquiry and the details of the steps taken thereon to be placed before the court given a period of two months from today.
(iii) take simultaneous immediate steps for:
(a) immediate upgradation of mental hospitals
(b) selling up of psychiatric services in all teaching and district hospitals. This will including filling up the posts of psychiatrists in these places.
(c) Integrating mental health care with the primary health care systcm.
(iv) Regulate the admission to discharge from the mental hospitals in the West Bengal of mentally ill persons by a fresh set of instructions in accordance with the recommendations made in the report of the Commissioners. (guideline 10.2.9 to 10.1.13 at para 119-123)
(v) The Health Secretary of the State of West Bengal will send quarterly report to this Court on the steps taken to implement each of the directions given in this order. This will be in the form of an Affidavit.
Any difficulty enCourttered in the implementation of the order will be forthwith brought to the notice of this Court
(7) The High Court of Judicature at Calcutta is requested to appoint a committee of a mental health professional/psychiatrist, a social worker and a law person to evaluate the state of the existing mentally ill in jails. The Committee will in a report make detailed recommendations to:
(a) discharge such of those persons found fit and ensure their return to their homes and/or their rehabilitation.
(b) move out such of those persons requiring continued treatment and care from out of the Jails, to the nearest places of treatment and care.
The report will be submitted within two months of its appointment by the Committee to the High Court with a copy to this Court. The High Court is requested to monitor, in such manner as it deems fit, the implementation of the recommendations of the Committee. This Court will be kept informed of the steps taken in this regard.
ORDER
S. Mohan, J. - This Writ petition has been preferred by Ms. Sheela Barse, a social activist. She has forwarded a copy of the write-up under the title "Jailing the mentally ill." This write up was published by her.
The said write-up narrates the following:
Many children and adults are committed to jail in Calcutta as lunatics. In fact they are not mentally ill at all. Some are normal, some temporarily under stress or undergoing a phase of mental disturbance, and a few are mentally retarded. Once they are jailed, they are all categorised as "Non-criminal Lunatics". This jailing deprives them of their liberty on the pretext that he is interned for treatment. When these persons were produced before the Judicial or the Executive Magistrate of West Bengal and instant assessment is made of their mental health and they are committed to jail without fixing the case, date of hearing or the duration of detention. Thereafter they are never produced before the Magistrate. During their confinement these persons lost all the contacts to the outside World, more often than not the Magistrate purporting to act under section 13 of the Lunancy Act (which Act has been repealed) arrogating themselves a power which they do not have.
There are no health facilities inside the jail. Their conditions are miserable. The apathy on the part of the various departments of the State Government is a matter of regret. Having failed to get the necessary redressal from the authorities this petition has come up to be moved. Having regard to the nature of allegations the matter being of a great public importance, requiring judicial notice; this court ordered to issue notice to the State of West Bengal and Union of India.
The state of West Bengal has filed a Courtter. It is averred that the jails in West Bengal receive prisoners only on the authority of a writ/warrant! custody etc. issued by a competent court under seal and signature of a Magistrate or Judge for detention in such jails. In case of non-criminal Lunatics, also these jails act upon and honour the orders of the court.
"The medical Officers of the jails look after these inmates sent by the courts and also observe their-mental condition and submit report to the court, as desired. There are visiting Psychiatrists in Central Jails but in case of other smaller jails the Medical Officer of the jail performs this function. Jails are meant for lodging criminal charges under the Indian Penal Code, Criminal Penal Code and other/ law of the land. Jails are not equipped with men and material to lodge Non-criminal Lunatics permanently. However, with the financial constraints and available men and materials every possible effort is made to look after the Non-criminal Lunatics so long they are inside the jail.
Alipore Special Jail is still functioning as a jail under the prisons Directorate and this Jail is lodging only curable and cured Non-criminal Lunatics who are looked after and treated by well-known visiting psychiatrists, medical officers, part-time psychologist and female nursing staff. There are many cases where cured Non-criminal Lunatics have been released to the care of their relatives.
Most of the Non-criminal Lunatics, mentally ill-persons are lodged in Presidency Jail, Dum Dum Central Jail, Alipore Special Jail, Alipore Central Jail, Berhampore Central Jail and Midnapore Central Jail. Only a few such persons are detained in other districts, special and Sub-jails.
Non-criminal Lunatics are supplied with wearing apparels including bedding while in jails, Male inmates are provided with Jangia, Pajamas and Kurtas and female inmates are provided with sarees, Blouse and other clothes. They are also provided with Blankets, Bed Sheets and Napkins for their daily use.
In Presidency Jail, Calcutta, a Television Set has also been provided inside the Non-criminal Lunatic ward for their recreation. Interview and letter writing facilities are also extended to them very liberally.
These Non-criminal Lunatics are also provi
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