Dr. S. Muralidhar, J.

Introduction

1. The Petitioner came to this Court on 25th November 2017 with this writ petition under Article 226 of the Constitution of India, seeking a writ of habeas corpus for the release of his 71 year old father, Mr. Ram Kumar @ Ram Kanwar (Respondent No.4), from illegal detention at the Institute of Human Behaviour and Allied Sciences (‘IHBAS’) (Respondent No.3) at Shahdara, Delhi.

2. In the course of the hearing of this petition on 25th November 2017, it transpired that, on 3rd November 2017, pursuant to the order of the Judge of the Motor Accidents Claims Tribunal (MACT) -2, Rohini, an Assistant Sub-inspector (ASI) attached to the Police Post (PP) at the Rohini District Court took Respondent No.4 in custody for medical check up to the nearby Baba Saheb Ambedkar (BSA) Hospital. Subsequently pursuant to a ‘reception order’ passed by the Duty Metropolitan Magistrate (MM) at Rohini, Respondent No.4 was, unbeknownst to his family, taken away to IHBAS for observation for two days. His unlawful detention at IHBAS was continued by orders dated 5th November of the Duty MM and 20th November 2017 of the MM at Rohini.

3. On 25th November 2017, after hearing counsel for the parties i.e. the State (Respondents 1 and 2) and IHBAS, this Court directed the immediate release of Respondent No.4 after finding his detention to be illegal and unconstitutional. The Court on a prima facie examination of the record of IHBAS and the provisions of the Mental Health Act, 1987 (MHA) set aside the orders dated 3rd, 5th and 20th November 2017. The writ petition was nevertheless retained on board for consideration of the constitutional and legal issues that arose, after the reply of IHBAS to the petition was received.

4. In the judgment that follows the Court first discusses the background facts and the circumstances under which Respondent No.4 landed up at IHBAS and remained there till 25th November 2017. The second part sets out the defence of IHBAS and its doctors. The affidavit of ASI Krishan Kumar is also discussed. In the third part, the Court then discusses the illegalities that have taken place. The Court concludes that there have been egregious violations of the rights to personal liberty and dignity of Respondent No.4 particularly in light of the provisions of the Constitution of India.

5. Although in this case, there was no occasion to invoke MHA and order the detention thereunder of Respondent No.4, since IHBAS has pleaded ‘bonafide confusion’ about the orders passed by the Duty MM and MM, the Court has, in the fourth part, undertaken a detailed analysis of Sections 23, 24 and 28 of the MHA. The Court has traced the development of the mental health law internationally and domestically. This includes discussion of the relevant provisions of the Convention on the Rights of People with Disabilities (CRPD), ratified by India. Decisions in other jurisdictions and the ‘best interest’ principle in treatment and care of mental illness are also discussed in this part.

6. The fifth part of the judgment summarises the legal position under the MHA. The sixth part traces the numerous instances where there has been an abuse of the powers under the mental health law in this country i.e. under the Indian Lunacy Act 1912 (ILA) and later the MHA. This emphasises the need to view the mental health law as essentially concerning the right to treatment and care of persons with mental illness whilst respecting their rights to liberty and dignity and need for autonomy in respect of decisions concerning themselves. It calls for a complete dismantling of the penal custodial model of mental health care. The seventh part of the judgment recapitulates the illegalities committed in the present case, an afterword, the scope of the habeas corpus jurisdiction and the consequential directions.

Background facts

7. The Petitioner and Respondent No.4 are defending MACP No. 4277/2016 before the MACT in the Rohini Courts, Delhi. This is a claim filed or