The need to recognise the human rights of persons who have actual or perceived mental-health impairments has been hard to accept, even for the staunchest social-justice warrior. The alienation of persons with psychosocial disabilities—which is the rights-based terminology to describe persons with mental illness—by deeming them as dangerous, unable to make decisions for themselves, and incapable of participation in society continues to be seen in popular culture, media reports, and even legislation and policy. The recent Mental Healthcare Act, 2017, passed in both houses of parliament as of 30 March 2017 and enacted on 7 April, is being widely celebrated as landmark legislation. Granted, the mental-health standards are so poor in this country that any step is seen to be a step in a positive direction. This act, however, may be a case of too little, too late. There are inherent contradictions between the stated goals of the act and its provisions, which allow for the deprivation of individual liberty and capacity without providing effective support to the individual and their choices.
The first indication of such a contradiction is the enactment of a separate mental- health law despite the enactment of the Rights of Persons with Disabilities Act in 2016. There is a need to protect the rights of persons with psychosocial disabilities, as they are prone to abuse and exploitation in the name of treatment. These safeguards could easily be brought within the ambit of mainstream legislations relating to health, disability rights, or even criminal law. But this is not the norm because of the common misconception that a person with a psychosocial disability would always, without cause, be resistant to treatment, and therefore coercive measures must be undertaken for the treatment. As a result, mental-health laws tend to create exceptions to the rights found in health and disability laws, such as the necessity for informed consent—or any consent—to medical treatment.
The Mental Healthcare Act must be analysed in the context of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in order to fully understand its shortcomings. The CRPD was the fastest negotiated human-rights treaty and had the highest number of signatories, which included India, to a UN convention on an opening day. Adopted on 13 December 2006, it contextualised existing human rights for persons with disabilities and addressed the means by which they were excluded from enjoyment of the same. For instance, the right to liberty under the CRPD was drafted to recognise involuntary commitment to a psychiatric institution as a form of detention that resulted in the deprivation of liberty.