The legal position

Print edition : December 17, 2004

MENTALLY ill prisoners are often the most hapless victims of human rights violations. In 2000, they constituted around 0.1 per cent of the total prison population in the country.

The Criminal Procedure Code, 1973, deals specifically with the procedure to be followed in the trial of a person of unsound mind. If the court finds the accused to be of unsound mind it may, whether the case is one in which bail may be taken or not, release him or her on sufficient security being given that he or she will be properly taken care of and prevented from causing injury to himself/herself or any other person. But the magistrate can order that the accused be detained in safe custody if he or she feels that it is a case where bail should not be given, or if sufficient security is not given.

For a person to be declared fit to stand trial, he or she has to be aware of the nature of the crime and the charges and allegations against him or her. He or she should also be able to guide his or her counsel and challenge the opposite counsel. The High Court also has inherent powers under Section 482 of the Criminal Procedure Code to issue orders "to prevent the abuse of the process of any court or otherwise to secure the ends of justice".

In specific situations like that of Jai Singh, or if for any other reason the magistrate places the accused in custody, there are a number of Supreme Court judgments that clearly lay down guidelines on the treatment of undertrials. The most important of these are Hussainara Khatoon vs Home Secretary, Bihar and Veena Sethi vs State of Bihar. In the former the Supreme Court took suo motu notice of reports in Indian Express, which referred to many undertrials languishing in Bihar's jails up to 10 years without their trials having commenced. The court said that free legal aid was an inalienable element of reasonable, fair and just procedure.

In Veena Sethi vs State of Bihar, the Legal Aid Committee, Jamshedpur, through its lawyer Veena Sethi, directed that all charges be dropped against 16 prisoners kept in the Hazaribagh jail for over 25 years because they were of "unsound mind". The Supreme Court said that there must be an adequate number of institutions for looking after mentally sick prisoners and that the practice of sending persons of unsound mind to jail for safe custody was not a healthy or desirable one because jail was not an appropriate place for treating those who were mentally ill. The court directed the jail superintendent to have such mentally ill undertrials examined by psychiatrists every six months and submit a report to the District Judge. It said that if, as a result of such examination, it is found at any stage that the prisoner concerned had become sane, the District Judge should immediately order his or her release from the jail. The State government would provide the necessary funds for meeting the expenses of the journey to his or her native place and his or her maintenance for a period of one week, the court said. The state has to provide legal aid in such cases.

One of the most shocking cases was that of Ajoy Ghose vs State of West Bengal. Ajoy Ghose was arrested in 1962 on the charge of murdering his brother. Subsequently, he was certified insane. After his mother died in 1968, there was none to visit him. While he remained an undertrial, the trial judge and all the witnesses died. He could not be acquitted unless tried and since he was declared to be of "unsound mind" he could not be tried. Finally, in November 1999, 37 years after he first stepped into a prison, the Supreme Court ordered his transfer from the Presidency Jail in Kolkata to a home run by the Missionaries of Charity.

The "Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care" adopted by the United Nations General Assembly Resolution 46/119 of 1991 says that every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognised in the "Universal Declaration of Human Rights", the "International Covenant on Economic, Social and Cultural Rights", the "International Covenant on Civil and Political Rights", and in other relevant instruments such as the "Declaration on the Rights of Disabled Persons" and the "Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment". According to these principles, if for the reason of his or her mental illness a person lacks legal capacity, any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law.

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