Mentally disabled not to be Kept in Jails

Sheela Barse (II) and Others vs. Union of India and others

Filed under:Articles 21 and 32 of the Constitution of India
Appellant:Sheela Barse (II) and Others
Respondent:Union of India and others
Citation:(1986) 3 Supreme Court Cases 632
Court:In the Supreme Court
Judge:PN Bhagwati and Ranganath Misra

This is a public interest litigation filed before the Supreme Court of India bringing to the notice of the Court the practice of keeping physically, mentally retarded children and destitute children in jails, and requesting appropriate intervention.

Facts

On July 12, 1986 the Supreme Court passed an order and issued various directions in regard to physically and mentally retarded and abandoned or destitute children who were lodged in various jails in the country for ‘safe custody’. The Court had also directed the Director General of the All India Radio and the Director General of Doordarshan to give publicity to this issue for seeking cooperation of non-governmental social service organizations in the task of rehabilitation of these children.

The Court observed that a child was a national asset and it was the duty of the State to look after children and to ensure full development of their personality. For this reason all the statutes dealing with children provided that a child should not be kept in jail. The Court expressed regret over the fact that despite the statutory provisions there were a large number of children in different jails in the country. This was evident from the reports of the survey made by the District Judges in response to the order passed by the Supreme Court in 1986.

The Court further pointed out that even when the children were accused of offenses they must not be kept in jails. That the state had not enough number remand or observation homes or other places where children could be kept was considered to be a justifiable reason to lodged children in jails. The Court also dismissed the argument raised by the State that there was a separate ward where the children were kept. According to the Court it was the atmosphere of the jail, which had a negative effect on the children.

The Court held that the State Governments must set up necessary remand and observations homes where children accused of an offense could be lodged. On no account should children be kept in jail and if the State Government did not have sufficient accommodation in its remand or observation homes, the children should be released on bail instead of being subjected to stay in jail.

The Court further observed that the problem of detention of children accused of an offense would become much more easy if the investigation by the police and the trial by the magistrate could be accelerated. The reports of the survey done by the District Judges showed that in some places children had been in jail for long periods. The Court failed to see why investigation into offenses alleged to have been committed by children could not take place within a reasonable period of time. The Court also urged the State Governments to set up Juvenile Courts, one in each district and these Courts should have a special cadre of magistrates who should be suitably trained for dealing with children.

The Court also directed that where a complaint was filed or an FIR was lodged against a child below the age of 16 years for an offense punishable with imprisonment of not more than 7 years, the investigation should be completed within a period of 3 months. If within three months, the charge-sheet was filed against a child in case of an offense punishable with imprisonment of not more than 7 years, the case must be tried and disposed of within a further period of 6 months at the outside and this period should be inclusive of the time taken in proceedings. If this were not done, the prosecution against the child would be liable to be quashed. The Court also held that it would be desirable if the Central Government initiated a Parliamentary Legislation on the subject of Children’s Act.

The matters were to be taken further in the next hearing of the petition.

Sections Referred:

  • Articles 21, 32 of the Constitution of India

Cases Referred:

  • Hussainara Khatoon (I) vs. Home Secretary, State of Bihar, (1980) I SCC 81: (1979) 3 SCR 169: AIR 1979 SC 1360

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Miss Veena Sethi vs. State of Bihar and others

Filed under: Articles 21 and 32 of the Constitution of India
Appellant: Miss Veena Sethi
Respondent: State of Bihar and others
Citation:(1982) 2 Supreme Court Cases 583
Court: In the Supreme Court
Judges:PN Bhagwati and DA Desai

Facts

The Free Legal Aid committee sent a letter to one of the Judges of the Supreme Court on January 15, 1982, drawing his attention to the unjustified and illegal detention of certain prisoners in Hazariabagh Central Jail for two or three decades. The Supreme Court treated it as a Writ Petition and passed the following order. The Court issued a notice to the State of Bihar for the purpose of ascertaining the facts in regard to these prisoners.

The State of Bihar responded to this notice and filed a counter-affidavit giving detailed particulars of the 16 prisoners in Hazariabagh Central Jail who were ‘insane’ or of ‘unsound mind’ at the date when they were received in the jail and who barring two of them, were still in jail. The lawyer appearing for the Free Legal Aid Committee prepared a list summarizing the particulars in regard to these prisoners as furnished by the State of Bihar.

Observations of the Court

The Court examined each of these cases and the circumstances surrounding them. With respect to five such prisoners, the records showed that Dr AK Prasad, Psychiatrist Specialist of Mansik Arogyashala, last examined them on January 24, 1982 in the jail hospital and found that they were still of an unsound mind. The Court held that it could not order release of such prisoners taking into account their mental condition. However, the Court also pointed out that it was quite unfortunate that most of these prisoners had been in jail for over 25 years and it was a matter of shame for the society that they had been kept in jail because of a lack of adequate institutions for treatment of the mentally sick. There was only one institution in the State of Bihar for treatment of persons with unsound mind and this institution was already overcrowded and there was no room for admitting these prisoners.

The Court also commented upon the plight of these lunatic asylums and held that the conditions in these institutions were quite revolting. The Court took this opportunity to stress to the State Government the importance of having adequate number of institutions for looking after the mentally sick. The Court also pointed out that it was not a desirable practice to send persons of unsound mind to the jail for safe custody since it was not a place for treating the mentally sick. The Court directed the State Government to drop the cases which were pending against these prisoners since they had been in jail for the last 25 years.

The Court then went on to examine the cases of 8 prisoners who had been allowed to suffer in jail for several years. Gomia Ho, one such prisoner had been convicted in 1945 for an offense and had been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 100 and in default to undergo rigorous imprisonment for a further period of six months. He was kept under observation in the Hazaribagh Central Jail since he appeared to be of unsound mind. In the year 1948 it was directed that he should be kept in safe custody in the jail and given proper medical treatment until a bed was made available in the Ranch Mansik Arogyashala, Kanke. Gomia Ho tried to commit suicide and a case was registered against him. This case could not proceed since he was of unsound mind and incapable of making his defense.

In the year 1966, his medical examination revealed that he had regained his sanity. Despite this no steps were taken by the Superintendent of the Hazaribagh Central jail to inform the Deputy Commissioner. It was only three years later that the Deputy Commissioner was informed. However, it was only in the year 1982 when his case came up to the Supreme Court through the letter submitted by the Free Legal Aid Committee. The Court saw no reason why Gomia Ho should be detained in jail even for a day more. He had been in the jail for 37 years and the Court quashed the charge against him and directed that he should be set free and the State Government should provide him with sufficient funds for the expenses of his journey to his native place and also maintenance for a period of one week.

Similarly, the Court took up the other 7 cases and in all these cases the main point that emerged was that these individuals were detained in jail, even when they had regained their soundness of mind, without any justification. The Court held that all these prisoners should be set free without any delay. The Court also made it clear that they would take up these cases once again to consider the issue of compensation from the State Government for the illegal detention of these prisoners, which was violative of Article 21 of the Constitution. The Writ Petition was adjourned for further directions.

Sections Referred:

  • Article 21 and 32 of the Constitution of India.

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Sheela Barse vs. Union of India

Filed under:Article 21 and 32 of the Constitution of India
Mental Health Act, 1987
Mental Health Authority Rules, 1990
Section 13 of the Lunacy Act 1912
Appellant:Sheela Barse
Respondent:Union of India
Citation:(1993)4 SCC 24
Court: In the Supreme Court of India
Judges:M.N. Venkatachaliah and S. Mohan

Facts

This is a pubic interest litigation concerning the condition of the children and adults confined to jail, in Calcutta, as lunatics. However, they were not mentally ill at all, some were normal, some temporarily under stress or undergoing a phase of mental disturbance and a few were mentally retarded, but they had all been jailed as ‘non criminal lunatics’. The absence of health facilities in the jails left these people in absolute misery.

The concerned departments of the State Government also did not pay any heed to the worsening conditions. This public interest litigation was thus filed to bring justice to the sufferers. Giving due regard to the nature of allegation, the matter being of public importance and requiring immediate judicial action, the court issued a notice to the state of West Bengal and the Union of India.

Arguments made on behalf of the State of West Bengal and the Union of India

It was argued on behalf of the State that the jails in West Bengal received prisoners only on the authorization of a competent court under the seal and signature of a Magistrate or Judge. The Medical officer of the jail looked after the inmates, observed their mental condition and submitted reports to the court. It was also stated that the ‘non-criminal lunatics’ were supplied with clothing and other necessities and food in the same scale as that of the under trial prisoners. It was further argued that in addition, they were also provided with extra diet and medical diet consisting of loaf, meat, egg, butter milk, fruit, curd, etc. on the advice of the medical officer.

The Union of India filed a counter affidavit arguing that it had already established and constituted, an authority called Central Mental Health Authority and had requested the State Government to do the same. The State Government and the Union Territories administrations had confirmed they had established, as per the rules stated under the Mental Health Act.

Observations of the Court

The points, vis-à-vis the condition of the ‘non-crimin court appointed a Commission to look into the state of affairs in the jails. The commission its report made the following al lunatics’:

  • That there was significant delay before the patient was shown to a specialist
  • There was lack of specialized human resource
  • There was lack of supervision and care
  • A mental health team was absent in all jails
  • Treatment facilities necessary for mental health care were scarce and lacking

Several recommendations to better the prevelant circumstances were also made by the Commission.

On the basis of this report and on an anxious consideration of matter, the court issued the following directions:

  1. The admission of non-criminal mentally ill persons to jails was illegal and unconstitutional.
  2. The admission of mentally ill persons to jails in West Bengal on any ground whatsoever was to be stopped forthwith.
  3. The function of getting mentally ill persons examined and sent to places of safe custody which was performed by Executive Magistrate would hereafter be performed only by a Judicial Magistrate.
  4. The Judicial Magistrate would have to send reports every quarter, to the High Court stating the number of cases of persons sought to be screened and sent to places of safe custody and the action taken by him.
  5. The Government of West Bengal was directed to take immediate action and issue instructions in the implementation of the directions given above.
  6. The High Court of Judicature at Calcutta was requested to appoint a committee comprising a mental health professional/psychiatrist, a social worker and a Law person to evaluate the state of the existing mentally ill persons in the jails.

With these directions, the Writ Petition was disposed off.

Sections Referred:

  • Article 21 and 32 of the Constitution of India

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R.D. Upadhyay vs. State of A.P. and others

Filed under: Articles 21 and 32, Constitution of India
Appellant: R.D. Upadhyay
Respondent: State of A.P. and others
Citation: (2001) 1 Supreme Court Cases 437
Court: In the Supreme Court
Judges: A.S. Anand, M. Jagannadha Rao and V.N. Khare

Facts

Ajoy Ghosh was arrested in the year 1962 and thereafter he was produced in the Court on various dates till 8-2-1964. However, after this the next order was dated 12-11-1983. What happened during the 19 years from 1964 to 1983 was not known. There was nothing on the record to show as to how Ajoy was treated during this entire period and what the state of his health was.

Ajoy was then produced before the Court on 18-11-1983 and it was stated that he was to be produced before the Court when he was found to be physically and mentally fit. However, Ajoy was not produced before the Court for the next date; instead, a medical report was sent to the Court, which revealed that Ajoy was not mentally fit to face his trial. The Court opined that Ajoy would remain in judicial custody till he was mentally and physically fit.

Again, there was a long gap and during this period, only medical reports appeared. These reports were sent from the Presidency Jail, Calcutta to the Court of the Additional Chief Metropolitan Magistrate (ACMM). In the year 1989 Shri P.K. Sinha, an advocate drawing the attention of the High Court to the plight of prison inmates, filed a Public Interest Litigation. The case of Ajoy Ghosh also surfaced here and was taken up by the two Judge Bench of the Calcutta High Court. 

Thereafter Ajoy was produced before that Court on 20-12-1994 and a direction was given to the IG (Prisons) to get him examined by a Board of Doctors. The Board of Doctors opined that Ajoy was of unsound mind and unfit to stand trial. Thereafter he was shifted from one jail to another and under the Direction of the High Court, a Special Officer was appointed by the Court to see to the welfare of the prisoners and at this stage that Ajoy was transferred to Antaragram Psychiatrist Center.

An affidavit was filed which stated that the Medical officer had opined that complete recovery for Ajoy seemed a remote possibility and considering his age he would benefit from staying in an old-age home under the supervision of a psychiatrist rather than at Antaragram Psychiatrist Centre. The Chief psychiatrist also gave a similar opinion. However, no steps were taken in accordance with the opinion of the psychiatrist.

The DIG (prisons) also attached a medical report from the Chief Psychiatrist of Antaragram Psychiatric Center, which stated that Ajoy needed prolonged care in a sheltered environment and the possibility of complete cure seemed remote. No steps were taken on the basis of this report either.

The Supreme Court requested the Chief Justice of the High Court of Calcutta to nominate a Chief Judicial Magistrate to hold an enquiry into the matter. The Chief Judicial Magistrate was to submit the report through the High Court to the Supreme Court within six weeks.

Observations of the Court

On the basis of the report submitted by the Chief Judicial Magistrate the Court observed that the Magistrate’s Court had made no efforts to take any action in the case of ‘lunatic’ under-trial prisoner Ajoy Ghosh who had been in the prison since 1962. Even medical treatment was provided to him only after the High Court intervened. The ACMM and the jail authorities had taken no action in that direction.

The Court held that there had been a complete violation of the statutory provisions in dealing with the case of Ajoy. The Court also suggested to the lawyer appearing for the State of West Bengal to file a submission/suggestion note for assistance of the Court to issue such guidelines and directions that may be necessary for ensuring that prisoners such as Ajoy do not suffer the way Ajoy had.

It was also observed that Ajoy, under the directions of this Court had been accommodated in the home maintained by the Missionaries of Charity (Brothers) at Kancharapara. The letter from this organization showed that they would take care of Ajoy and their services would be completely free and the State Government need not pay for his expenses.

The Court also noted that Missionaries of Charity cared for the poor and sick destitutes free of cost and depended upon donations. Thus, it directed that a sum of Rs. 2 lakhs should be paid by the State of West Bengal to the Missionaries of Charity (Brothers), Howarh by way of donation.

The Court also held that this payment was not being made by way of expenses for taking care of Ajoy Ghosh but only with the view to assist the Missionaries of Charity to carry on with the good work they were doing. This donation was to be made by the State within six weeks. The matter was adjourned for seven weeks during which period a submission/suggestion note was to be filed.

Sections Referred:

  • Articles 21 and 32 of the Constitution of India

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Golo vs. Union of India

Filed under: Section 13, 18 and 23 of the Indian Lunacy Act
Article 32 of the Constitution of India
Appellant: Golo
Respondent: Union of India
Citation: 1967(III) DLT 506
Court: In the High Court of Delhi
Judge: I.D. Dua

Facts

Golo with his brother Doga had come to India from Tibet when the China-Tibet conflict started. He was working as a ‘mule teer’ when he developed a mental illness. He was hospitalized for treatment and was cured. Thereafter, he started regular work and continued to work for two years.

Then for a duration of 5-6 days, it was noticed that Golo was talking irrelevant things and throwing stones at people. His brother took him for treatment but his condition seemed to deteriorate. The Station House Officer arrested Golo in this condition. He was then kept in the jail with directions from the Court to the Superintendent of the hospital to prepare a report on his condition.

The Superintendent submitted a report stating that he was rational but it was difficult to understand his speech and expressed the need to interview his relative or someone who knew him before giving any opinion.

The Court issued a notice to the State of Himachal Pradesh in view of the detention of Golo and others in jails, without the authority of law. The premise for the notice was that Golo and others were mentally ill persons who should have been admitted in asylums and not detained in jails.

Observations of the Court

The Court held that it may be true that it always took considerable time before a ‘lunatic’ could actually be admitted to a mental hospital due to the limited quota of seats available but this could not justify the delay in securing proper medical treatment Golo. The Court further held that such indifferent attitude on the part of the office of Health Services tended to suggest that the welfare state is a shame and mockery.

It was also stated that it was the duty of the administration to make suitable arrangements for a separate asylum for the requisite treatment of its people who are mentally unsound, because no obligation was higher than to take effective steps to see that its members were mentally fit and sound. In case the financial resources of the administration were too inadequate to tackle the matter then steps were to be taken to seek aid from the Union Government.

Sections Referred:

  • Article 32 of the Constitution of India

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