MENTAL HEALTHCARE ACT, 2017: LEGISLATION WITH A FLAWLESS FACADE

The Mental Healthcare Act, 20171 (hereinafter referred as MHCA, 2017) is a landmark
legislation which revolutionized the mental healthcare system of the nation. It is true that the
MHCA, 2017 is a great leap in principle, which not only attempted to exorcise stigmatisation
of mental illness but also anesthetized provisions such as section 309 of the Indian Penal
Code2 (hereinafter referred as IPC), which criminalizes attempt to commit suicide. However,
this legislation comes with major limitations when its legal principles are juxtaposed against
its social implications. In order to identify the socio-legal fallacies, the write-up is divided
into three parts, where the first part establishes that the same provision which was enacted to
act as a shield against section 309, contrarily, acts as a sword. The second part highlights the
social limitations within the legislation from a legal standpoint. Following which, the paper
culminates by analysing the recent reckless media reporting of celebrity suicide cases with no
heed being paid to the PCI guidelines on reporting of suicide cases.

Section 309 of the Indian Penal Code, 1860 which criminalizes attempt to commit suicide is
nullified to a great extent by virtue of section 115(1) of the Mental Healthcare Act, 2017 3. It
provides that, any person who attempts to commit suicide, unless proved otherwise, shall be
presumed to be under stress and shall not be tried or punished under the Indian Penal Code. A
plain reading of this section would mean that, it is enacted to save a distressed mind from the
torment of trial. However, the question is, whether it truly does so? The answer is no.

A person who attempts to commit suicide may be presumed to be under stress. However, this
presumption comes with a concomitant diction of ‘unless proved otherwise’, thus making it
clear that this presumption can be disproved. The definition of the word ‘disproved’ is
provided under the illustration of section 3 of the Indian Evidence Act, 1872 4, according to
which, a fact is said to be ‘disproved’ when the Court decides it after considering the matters
before it, which purports that, on the basis of the evidences adduced by both the parties.
Following this definition, it can be concluded that the stages of evidence would naturally
entangle the suicide victim, requiring him to testify before Court, about the incidence which

1
The Mental Healthcare Act, 2017, No. 10, Acts of Parliament 2017 (India) [hereinafter MHCA, 2017].
2
INDIA PEN.CODE [hereinafter IPC].
3
The Mental Healthcare Act, 2017, No. 10, Acts of Parliament 2017 (India).
4
The Indian Evidence Act, 1872, No. 1, Acts of Parliament 1872.
made him to take the penultimate step and in a way the same presumption of stress which
was to act as a shield for the person contrarily would act as a sword making him re-visit all
the facts, and subjecting him to a more severe stress, even greater than the stress presumed
under the legislation. However, “what is needed to take care of suicide prone persons are
soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor
following harsh treatment meted out by a heartless prosecutor” 5 Moreover, the above
discussion establishes the fact that s. 155(1) of the MHCA, 2017 6 is nothing more than a
paradox which despite providing that a stressed person must not face the rigors of trial,
indirectly make that person undergo the same.

It is also pertinent to note that the draft bill of MHCA, 2013 contained the word ‘mental
illness’7 which was replaced by ‘severe stress’ in the MHCA, 2017.8 The reason for such
replacement being, the stigma attached to the word ‘mental illness’ and the ostracism faced
by a person who attempted suicide.9 As a result of the replacement, now the presumption is
drawn only regarding mental stress and no presumption is drawn as to whether such stress is
qualified to take the shape of mental illness. As a consequence of the moniker, now it is
nebulous as to whether Chapter XXV of the Criminal Procedure Code, 197310 would apply to
a person who attempted to commit suicide. Hence, a person may be mentally ill, but the
legislation subscribes this ‘illness’ as ‘stress’ vis-à-vis depriving him of the provisions
encapsulated in the Criminal Procedure Code, 1973 for person with unsoundness of mind.
Apart from the prejudice caused to the person, the replacement of the word ‘mental illness
with ‘mental stress’ is contributing in perpetuating the same stigma for which the
replacement was done by deterring people from considering the fact that sometimes ‘mental
stress’ turns out to be a sub-set of ‘mental illness’ too.11

At the outset, section 115(1) the MHCA, 2017 creates a distinction between attempt to
commit suicide under stress and a stress free attempt. However, such distinction overrules the
decision of Thomas Master v. Union of India12 which held that, no distinction can be made
5
P.Rathinam v. Union Of India, 1994 SCC (3) 394 (India).
6
The Mental Healthcare Act, 2017, No. 10, Acts of Parliament 2017 (India).
7
LaxmiNareshVadlamani, Mahesh Gowda, Practical implications of Mental Healthcare Act 2017: Suicide and
suicide attempt, NATIONAL CENTER FOR BIOTECHNOLOGY INFORMATION,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6482674/.
8
Id.
9
Id.
10
INDIA CODE CRIM. PROC.
11
Arthur, A.R. (2005), When stress is mental illness: A study of anxiety and depression in employees who use
occupational stress counselling schemes. Stress and Health, 21: 273-280. doi:10.1002/smi.1069.
12
Thomas Master v. Union of India, 2000 SCC Online Ker 430 (India).
between persons those commit suicide or attempt to commit suicide under stress and those
who decided to end their life after leading a successful one. 13 The Court vehemently went on
to say that, there cannot be any distinction between suicides committed impulsively or after
great thought. Thus, the MHCA, 2017 is quintessence of perfunctory exercise of judicial
power in the name of legislative power14 where the provision which draws the presumption of
stress, at the first instance, when proved otherwise i.e. the attempt was not made under any
stress, the same provision pushes a stress free person into the vicious circle of stress by
permitting a trial of the corpus in a Court of Law which may even crystallize into
punishment.

The determination of the fact as to whether a person has attempted to commit suicide out of
stress or otherwise, is a dicey floor too. As it is evidenced in the case of Thomas Master15, an
80 year old man, after living a fruitful and respectful life as a teacher, expressed to end his
life not by committing suicide rather prayed to the Court for establishment of Voluntary-
Death Clinic. The Court rejected the petition citing the case of Gian Kaur16. Now, for the
sake of argument, if it is assumed that this same petitioner after getting no relief from the
Court of Law, attempts to commit suicide, whether such an attempt would qualify as an
attempt under stress? An answer in simpliciter is no, because the petitioner himself admitted
that he was in good mental and physical health with no stress. Thus, according to the MHCA,
2017, the petitioner may be tried and even punished. However, a close scrutiny, would lead
us to the fact that, the person was under severe stress due to the fear of pain, misery or
suffering in old age, or being dependent on others.17

In developing countries such as India, people with mental illness and their situations, are
compounded by socio-economic and cultural factors such as lack of access to health care,
superstitiousness, and lack of awareness, stigma and discrimination.18 However, the mental
Health Care Act does not offer much on prevention and early intervention.

The act upholds the idea that all citizens, including those with mental illness, have a right to
equality and non-discrimination. By bringing voluntary admission of mental health-care

13
Id.
14
MAHENDRA PAL SINGH, V. N. SHUKLA’S CONSTITUTION OF INDIA, 797 (13th ed. 2017).
15
Thomas Master v. Union of India, 2000 SCC Online Ker 430 (India).
16
Smt. GianKaur v.The State Of Punjab, 1996 SCC (2) 648 (India).
17
Thomas Master v. Union of India, 2000 SCC Online Ker 430 (India).
18
Rakesh Kumar Chadda et al, Recent developments in community mental health: Relevance and relationship
with the mental health care bill,31.INDJSP 153,153-160(2015).
patients under the regulatory gaze, the state is infringing on the principles of equality and
non-discrimination described in section 21 of the act.19

The state shall provide all care for the persons admitted for the safety of the other under
Section 89 of the Mental Health Care Act, 2017.20 It is clear that the state wants the private
companies to take care of the patients admitted under Supported Admissions. However the
act does not specify how the state is going to fulfil the moral and ethical responsibilities as is
prevalent in the modern societies.21 On the other hand the act stipulates that without the
application from the Nominated Representative (NR) a patient cannot be admitted to a
hospital against his or her will.22 Families already dealing with a debilitating illness, and now
burdened with forced admission, much of which the patient does not accept. This makes the
families the primary focus for the anger and frustration of the patient. 23 Hence, such a role
should not be forcefully thrust on the family and should be optional instead.

In its rush to escape accountability for the treatment of mentally ill, the new act left enormous
uncertainties and lots of unanswered questions. If a NR does not behave in the best interests
of a patient, the NR preferably should be removed. 24 Patient who lacks capacity cannot
remove an existing NR. Even while having capacity, they may not have the courage or
financial freedom to remove a family member as NR. The act, as it stands now, states that
only the patient can revoke or change the NR. Unfortunately, the patient can do so only if
they have the capacity, and if they had the capacity, they would not have needed a NR in the
first place.25

India's Press Committee, headed by Justice C.K. Prasad, at a release dated September 13,
2019, has adopted guidelines on reporting on suicides, based on guidelines from the WHO.26
Undoubtedly celebrity suicide has great news value however it can also influence the
vulnerable and suicidal people. The death of Bollywood actor Sushant Singh Rajput has
19
The Mental Health Care Act, 2017, No.10, Acts of Parliament, 2017.
20
The Mental Health Care Act, 2017, No.10, Acts of Parliament, 2017.
21
Alec Bucharan, Mental Capacity,Legal competence and consent to treatment,97.JR.Soc.Med 410,415-
420(2004).
22
The Mental Health Care Act, 2017, No.10, Acts of Parliament, 2017.
23
DS Goel, Why Mental Health Services in low and middle-income countries are under-resource, under-
performing:An Indian Prospective, 24. NatlMedJ India 94, 94-97(2011).
24
VasudevanNamboodiri, Capacity for mental healthcare decisions under the Mental Healthcare Act, 61.
INDJSP 676, 676-679(2019).
25
Mandira Kala, New Mental Health Bill Provisions and Some Challenges in their implications, THE INDIAN
EXPRESS (August 10, 2016 12:06:20 am), https://indianexpress.com/article/explained/new-mental-health-bill-
provisions-rajya-sabha-2964545/.
26
AnooBhuyan, Press Council’s New Guidelines Ask Media to not sensationalise reports on suicide, THE WIRE
(16 Sept 2019 11.20 PM), https://thewire.in/media/press-council-new-guidelines-reporting-suicide.
caused shockwave in the entertainment industry but it does not stop the main stream media
from overtly sensationalising the matter, despite several reporting guidelines on suicide
provided by Press Council of India (PCI). 27 As examples of highly irresponsible reporting,
some of the reports described the method of suicide while some others added image of the
person lying down on his bed, both of which flout the guidelines provided by PCI. Zee News
put out a tweet with the caption “How did the Dhoni of cinemas get “out” in Real Life”.
AajTak also put out a similar caption in the ticker stating “How did Sushant get a Hit
wicket”.28 The above examples of reporting are strictly in conflict with the guidelines
presented by PCI, especially with regard to the “use of language which sensationalise or
normalises suicide” Practicing advocate of Delhi High Court Mohit Singh has served a legal
notice of defamation on Editor-In-Charge of the India Today Group for “demeaning” the
tragic loss. “By this comment AajTak has insinuated that the death of Rajput is equivalent to
that of a batsman hitting his own wicket. Such careless use of words portray that news
channel AajTak has shed its responsibility towards the Indian mases”, the notice reads.29
Much has been written about the toll of celebrity culture on their private lines. There are
bereft of privacy even in death. The right to Privacy is protected as an intrinsic part of the
right to life and personal liberty under Article 21 of the Constitution of India.30 It is also to be
noted that death by suicide makes the people in the private lives of the celebrities uniquely
vulnerable. Suicide survivors in psychotherapeutic terms are people who have lost a loved
one in suicide. In addition, suicide survivors are at a greater risk of dying by suicide
themselves. Protecting the friends and family of the deceased is not only a moral imperative
for the media, but there is also evidence to show that it can prevent further harm.

The above discussion leads us to the squitter that, the MHCA, 2017 is a double edged-sword,
which may help plenty of those who are inculpated under section 309 IPC but at the same
time it fails to embrace vivid possibilities and counterproductive results of the same
protective provision. Moreover, the Government is yet to attach much more safety valves in
the mechanism of the Act along with a proactive vow to tackle the TRP game played by the
mainstream media.
27
ArchisChowdhury, The Irresponsible reporting of Sushant Singh Rajput’s Death, BOOM NEWS (14 Jun 2020
11:17 PM), https://www.boomlive.in/fact-file/the-irresponsible-reporting-of-sushant-singh-rajputs-death-8479.
28
David D Luxton et.al, Social Media and Suicide:A Public Health Perspective, 102. AJPH 190, 195-200(2012).
29
Richa Mukherjee, Legal Notice served to AajTak for ‘Insensitive’ Reporting on death of actor Sushant Singh
Rajput, THE LOGICAL INDIAN (15 Jun, 2020), https://thelogicalindian.com/news/lawyer-sends-notice-to-
india-today-group-for-allegedly-spreading-misinformation-on-death-of-actor-sushant-singh-rajput-
21703#:~:text=A%20practicing%20advocate%20in%20Delhi,Bollywood%20actor%20Sushant%20Singh
%20Rajput.
30
INDIA CONST. art. 21.