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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN & THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH
Nathalie Vandenbyvanghe
Versus
The State of Tamil Nadu, Rep. by its Secretary to Government & Others
Habeas Corpus Petition No.1041 of 2008
Decided on : 19-09-2008
(B) Constitution of India-Art.226, 21-Right to life-Mentally ill persons are entitled.
Mentally ill persons are entitled to the right of life with dignity and they have the Fundamental Rights same as others. Para 9
(C) Administration of justice-Duty of subordinate judiciary-They have to protect fundamental rights of citizens.
Junior level officers of the judiciary are perhaps under the misapprehension that in their Courts, procedural law alone has to be followed. They should change their mindsets. They are equally charged with the obligation of protecting the fundamental rights of the litigants. The work they do day after day cannot run afoul of the Constitutional Obligations.
Para 9
(D) Mental Health Act, 1987(14 of 1987)-Sec.23, 24-Exercise of powers-Persons exercising powers to put themselves in the place of the marginalized.
It would be better, in fact imperative, that the police, the doctors and the judicial officers put themselves in the shoes of these marginalized groups of persons who are treated as if they are non-persons before they deal with their rights. Para 15
(E) Mental Health Act, 1987(14 of 1987)-Sec.23, 24-Mentally ill person-Exercise of powers-Every person wandering in street is not mentally ill.
Every person wandering on the street is not mentally ill. The police should not "round up" people as if they were stray cattle and deal with them as such. Each individual should be dealt with as a separate case, he/she shall be treated as a human being with all the Constitutional rights. This will be possible if the police/NGO or any other person bring up each case individually as and when it arises. Para 16
(F) Mental Health Act, 1987(14 of 1987)-Sec.23, 24-Exercise of powers-Police to act promptly-Mentally ill persons to be treated with humanity and dignity.
The police need not wait to reach such a huge number in order to produce such persons before the Judicial Magistrate concerned. They shall act promptly as and when they happen to see an abandoned or destitute or mentally affected or suspected ill persons wandering in the public places. When such mentally ill persons are handled by the police, they are to be treated with humanity and dignity and they should not be treated as chattel. The police officers who are actually executing the work of taking cognizance of the mentally ill persons who are roaming in the streets and other public places shall deal with them as per Section 23 of the Mental Health Act, 1987. Para 17
(G) Mental Health Act, 1987(14 of 1987)-Sec.23, 24-Exercise of powers-Doctors-Importance of careful examination of a person before certification-Stressed.
The doctors cannot mindlessly certify a person as mentally ill. If they need time for examination, they shall insist on that time being given. Importantly, a person does not deserve any less attention than another merely because he/she is found on the street or is poor or is a beggar. The doctors shall also attend immediately to any physical injury that is found on the said person. Para 18
(H) Mental Health Act, 1987(14 of 1987)-Sec.23, 24-Exercise of powers-Magistrates-How to exercise their powers-Directions issued.
The Judicial Magistrates concerned should have examined the persons to assess their capacity to understand and cause him to be examined by the Medical Officer and to make such enquiries in relation to such person whenever necessary. Para 19
The mentally ill persons shall not be made to wait unduly long before reception orders are issued. The Magistrates shall remember the trust and faith reposed on them while they discharge their duty under this Act. What happened in this case must not ever recur. Para 19
Prabha Sridevan, J.
A foreign national came to our country as a tourist, he lost his passport, he could not speak English. He has no mental illness, yet, he was rounded up along with more than 100 persons, and was issued reception orders under the Mental Health Act, 1987. Disturbed that he did not return to his homeland, his daughter filed this habeas corpus petition.
2. The facts are these :
The father of the petitioner herein, one Roger Vandenbyvanghe, aged about 61 years, was visiting India to seek the blessings of Matha Amritandamayi. He had a valid passport and visa. His visa was valid upto 6. 2008. He lost his passport and other travel documents along with his personal belongings, including his clothes. He knew only French language and no other language. He was also unable to communicate with anybody. He was wandering on the roads in Kanyakumari District. He had no money and he had to live seeking alms and that is how he made his survival. When he did not return to his home country beyond the date of expiry of his visa, his daughter was alarmed. When she enquired with the French Embassy, she was informed that her father had been admitted into the Mental Health Institute, Chennai. It came as a rude shock to the petitioner since her father was not a mentally ill person. Therefore, she came to Chennai to take her father back. She made a request to the hospital authorities to discharge her father, but they refused to do so. Her complaint was that her father, was illegally kept in the custody of the hospital authorities. Therefore, she filed this habeas corpus petition.
3. On 27. 2008, this Court passed an order in this petition and the relevant portions of the said order are extracted below, since we feel it is necessary :
"This habeas corpus petition portrays a sad state of affair in handling a foreign national by name Roger Vandenbyvanghe, aged 61 years, who could not have dreamt when he came to India and landed during January, 2008 that his life is going to be miserable at the hands of the police.
...
On 7. 2008, the Inspector of Police, Kottar Police Station surrounded 50 male persons and the Inspector of Police, Nesamony Nagar Police Station surrounded 45 male persons as well as 20 female persons totalling 115 persons and resorted to invoke the provisions of Section 23 of the Mental Health Act, 1987 and a case in Cr.No.800 of 2008 was registered. They made all of them appear before a team of doctors consisting of Dr.Y.Arul Prakash, Assistant Surgeon, Government Medical College & Hospital, Nagercoil and Dr.P.Natarajan, Tutor in Psychiatry, Kanyakumari Government Medical College & Hospital, Nagercoil at Asaripallam on the same day. The French national in question was one among the 115 persons who was produced before the above team of doctors and was certified to be suffering from Bipolar disorder mania and a certificate to this effect was issued by the team of doctors. Likewise, similar certificates were also issued in respect of the remaining 114 persons as well. On the strength of the above certificates, the Inspectors of Police of Kottar & Nesamony Nagar Police Stations made applications before the learned Judicial Magistrate No.II in-charge, Nagercoil, Kanyakumari District to pass reception orders authorising the detention of the French national and other 114 persons as in-patients in the Institute of Mental Health, Kilpauk, Chennai. The said applications were ordered again on the very same day and the reception orders were also served in Form-5. Based on the said reception orders, all 115 persons were brought to Chennai and were admitted in the Institute of Mental Health, Kilpauk, Chennai for further treatment.
...
They were brought to Chennai and were admitted in the Institute of Mental Health. The detenu was put on observation for a period of ten days. Ultimately, the Institute of Mental Health found that Mr.Roger Vandenbyvanghe does not exhibit any abnormality or psychopathology during the entire period
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