MENTAL HEALTH ACT 1987

THE MENTAL HEALTH ACT, 1987
(No. 14 of 1987)1
[22nd May, 1987]
An Act to consolidate and amend the law relating to the treatment and care of mentally
ill persons, to make better provision with respect to their properly and affairs and for
matters connected therewith or incidental thereto.
STATEMENT OF OBJECTS AND REASONS OF ACT 14 of 19872
1. The attitude of the society towards persons afflicted with mental illness has
changed considerably and it is now realised that no stigma should be attached to
such illness as it is curable, particularly, when diagnosed at an early stage. Thus the
mentally ill persons are to be treated like any other sick persons and the
environment around them should be made as normal as possible.
2. The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has
revealed that it has become out-moded. With the rapid advance of medical science
and the understanding of the nature of malady, it has become necessary to have
fresh legislation with provisions for treatment of mentally ill persons in accordance
with the new approach.
3. It is considered necessary –
i. to regulate admission to psychiatric hospitals or psychiatric nursing homes
of mentally ill-persons who do not have sufficient understanding to seek
treatment on a voluntary basis, and to protect the rights of such persons
while being detained;
ii. To protect society from the presence of mentally ill persons who have
become or might become a danger or nuisance to others;
iii. To protect citizens from being detained in psychiatric hospitals or
psychiatric nursing homes without sufficient cause;
iv. To regulate responsibility for maintenance charges of mentally ill persons
who are admitted to psychiatric hospitals or psychiatric nursing homes;
v. To provide facilities for establishing guardianship or custody of mentally ill
persons who are incapable of managing their own affairs;
vi. To provide for the establishment of Central Authority and State Authorities
for Mental Health Services;
vii. To regulate the powers of the Government for establishing, licensing and
controlling psychiatric hospitals and psychiatric nursing homes for mentally
ill persons;
viii. To provide for legal aid to mentally ill persons at State expense in certain
cases.
4. The main object of the Bill is to implement the aforesaid proposals.
COMMENTS
It is well settled that when the language of the statute is clear and admits of no ambiguity,
recourse to the Statement of Objects and Reasons for the purpose of construing a
statutory provision is not permissible. Court must strive to so interpret the statute as to
protect and advance the object and purpose of the enactment. Any narrow or technical
interpretation of the provisions would defeat the legislative policy. The Court must,
therefore, keep the legislative policy in mind in applying the provisions of the Act to the
facts of the case2.
The law is well settled that though the Statement of objects and Reasons accompanying a
legislative bill could not be used to determine the true meaning and effect of the
substantive provisions of a statute, it was permissible to refer to the same for the purpose
of understanding the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the statute sought to remedy3.
PREAMBLE – It is established law that preamble discloses the primary intention of the
statute but does override the express provisions of the statute4. Although a preamble of a
statute is a key to interpretation of the provisions of the Act, but the intention of
Legislature is not necessarily to be gathered from the preamble taken by itself, but to be
gathered from the provisions of the Act. Where the language of the Act is clear, the
preamble cannot be a guide, but where the object or meaning of the provisions of the Act
is not clear then an aid from the preamble can be taken into consideration for purpose of
explaining the provisions of the Act5.
It is now well settled that the preamble of a statutory instrument cannot control the
express clear language and sweep of the operating provisions of such an instrument. Nor
can the express language of a statutory provision be curtailed or read down in the light of
the preamble in the absence of any ambiguity in the enacted provisions6.
Be it enacted by Parliament in the Thirty-eighth Year of the Republic of India as follows:
CHAPTER 1
PRELIMINARY
1. SHORT TITLE, EXTENT AND COMMENCEMENT –
1. This Act may be called the Mental Health Act, 1987.
2. It extends to the whole of India
3. It shall come into force on such date1 as the Central Government may, by
notification, appoint and different dates may be appointed for different
States and for different provisions of this Act, and any reference in any
provision to the commencement of this Act in a State shall be construed as
a reference to the coming into force of that provision in that state.
COMMENTS
The Act repeals the Indian Lunacy Act, 1912 ( 4 of 1912), and the Lunacy Act, 1977
(Jammu and Kashmir Act 25 of 1977). The provisions of the Indian Lunacy Act 1912 and
the Amending Act which compendiously called Lunacy Act, 1912-1926 were not
absolutely exhaustiv2.
S.O. 43 (E), DATED 11TH JANUARY, 1993 – In exercise of the powers conferred by
sub-section (3) of Sec. 1 of the Mental Health Act, 1987 (14 of 1987), the Central
Government hereby appoints the Ist day of April, 1993 as the date on which the said Act
shall come into force in all the States and Union Territories.
RULE OF INTERPRETATION.- It is an accepted proposition of law that Acts must be
construed as a whole. Guidance with regard to the meaning of a particular word or phrase
may be found in other words and phrases in the same section or in other sections although
the utility of an extensive consideration of other parts of the same statute will vary from
case to case3.
In interpreting the provisions the exercise undertaken by the Court is to make explicit the
intention of the Legislature which enacted the legislation. It is not for the Court to reframe
the legislation for the very good reason that the powers to “legislate” have not been
conferred on the Court4.
In order to sustain the presumption of constitutionality of a legislative measure, the Court
can take into consideration matters of common knowledge, matters of common report, the
history of the times and also assume every state of fact which can be conceived existing at
the time of the legislation5.
The principle of the interpretation that no word used by the Legislature in a legislation is
useless, cannot be fitted into the situation where the question relates to the interpretation
of an agreement. An agreement is not to be culled out from ambiguity6.
INTERPRETATION OF STATUTE-DUTY OF THE COURT – It is well settled that the
Courts should read different provisions of an Act in a manner that no part thereof is held
to be superfluous or surplus and that where language of statute leads to manifest
contradictions the Court must construe them on the basis of which the said provisions can
survive1.
GENERALIA SPECIALIBUS NON DEROGANT- It is well-known proposition of law that
when a matter falls under any specific provision, then it must be governed by that
provision and not by the general provision (Generalia specialibus non derogant)2.
CONSTRUCTION OF WORK- It is settled view that in determining the meaning or
connotation of words and expressions describing an article one should be construed in the
sense in which they are understood. The reason is that it is they who are concerned with it
and, it is the sense in which they understand it which constitutes the definitive index of the
legislative intention3.
2. DEFINITIONS
In this Act, unless the context otherwise requires –
a. “cost of maintenance”. In relation to a mentally ill person admitted in a
psychiatric hospital or psychiatric nursing home, shall mean the cost of
such items as the State Government may, by general or special order,
specify in this behalf;
b. “District Court” means, in any area for which there is a city Civil Court,
that Court, and in any other area the principal Civil Court of original
jurisdiction, and includes any other Civil Court which the State
Government may, by notification, specify as the Court competent to deal
with all or any of the matters specified in this Act:
c. “Inspecting Officer” means a person authorised by the State Government or
by the licensing authority to inspect any psychiatric hospital or psychiatric
nursing home;
d. “license” means a licence granted under Sec.8;
e. “licensee” means the holder of a licence;
f. “licensed psychiatric hospital” or “licensed psychiatric nursing home”
means a psychiatric hospital or psychiatric nursing home, as the case may
be, licensed, or deemed to be licensed, under this Act;
g. “licensing authority” means such officer or authority as may be specified by
the State Government to be the licensing authority to the purposes of this
Act;
h. “Magistrate” means –
1. in relation to a metropolitan area within the meaning of Cl (k) of
Sec. 2 of the Code of Criminal Procedure, 1973 (2 of 1974), a
Metropolitan Magistrate;
2. in relation to any other area, the Chief Judicial Magistrate, Sub-
Divisional Judicial Magistrate or such other Judicial Magistrate of
the first class as the State Government may, by notification,
empower to perform the functions of a Magistrate under this Act:
i. “medical officer” means a gazetted medical officer in the service of
Government and includes a medical practitioner declared, by a general or
special order of the State Government, to be a medical officer for the
purposes of this Act;
j. “medical officer in charge” in relation to any psychiatric hospital or
psychiatric nursing home, means the medical officer who, for the time
being, is in charge of that hospital or nursing home;
k. “medical practitioner” means a person who possesses a recognised medical
qualification as defined –
i. in Cl (h) of Sec 2 of the Indian Medical Council Act, 1956 (102 of
1956), and whose name has been entered in the State Medical
Register, as defined in Cl. (k) of that section;
ii. in Cl (h) of sub-section (1) of Sec. 2 of the Indian Medicine Central
Council Act, 1970 (48 of 1970), and whose name has been entered
in a State Register of Indian Medicine, as defined in cl (j) of subsection
(1) of that section; and
iii. in Cl. (g) of sub-section (1) of Sec. 2 of the Homoeopathy Central
Council Act, 1973 (59 of 1973), and whose name has been entered
in a State Register of Homoeopathy, as defined in Cl. (I) of subsection
1) of that section;
l. “Mentally ill person” means a person who is in need of treatment by person
of any mental disorder other than mental retardation;
m. “mentally ill prisoner” means a mentally ill person for whose detention in,
or removal to, a psychiatric hospital, psychiatric nursing home, jail or other
place of safe custody, an order referred to in Sec. 27 has been made;
n. “minor” means a person who has not completed the age of eighteen years;
o. “notification means a notification published in the Official Gazette;
p. “prescribed” means prescribed by rules made under this Act;
q. “psychiatric hospital” or “psychiatric nursing home” means a hospital, or as
the case may be, a nursing home established or maintained by the
Government or any other person for the treatment and care of mentally ill
persons and includes a convalescent home established or maintained by the
Government or any other person for such mentally ill persons; but does not
include any general hospital or general nursing home established or
maintained by the Government and which provides also for psychiatric
services;
r. “psychiatrist” means a medical practitioner possessing a post-graduate
degree or diploma in psychiatry, recognised by the Medical Council of
India, constituted under Indian Medical Council Act, 1856 (102 of 1956),
and includes, in relation to any State, any medical officer who, having
regard to his knowledge and experience in psychiatry, has been declared by
the Government of that State to be a psychiatrist for the purposes of this
Act;
s. ” reception order” means an order made under the provision of this Act for
the admission and detention of a mentally ill person in a psychiatric
Hospital or psychiatric nursing home;
t. ” relative” includes any person related to the mentally ill person by blood,
marriage or adoption;
u. “State Government” in relation to a Union territory, means the
Administrator thereof.
COMMENTS
This section defines the various expressions occurring in the Act.
INTERPRETATION OF SECOTION – The Court can merely interpret the section; it
cannot re-write, recast or redesign the section1.
RELATIVE – MEANING OF -certainly the word “relative” used in Sec. 3 of the Lunacy
Act (since repealed by this Act) has to be understood in a legal sense and it has to be
understood in the setting where that word is used in the provisions of the statute,
particularly, the provision enabling a relative to entertain a petition under Sec. 63 of the
Lunacy Act2.
CHAPTER II
MENTAL HEALTH AUTHORITIES
3. CENTRAL AUTHORITY FOR MENTAL HEALTH SERVICES.
. The Central Government shall establish an authority for mental health with
such designation as it may deem fit.
a. The Authority established under sub-section (1) shall be subject to the
superintendence, direction and control of the Central Government.
b. The authority established under sub-section (1) shall –
0. be in charge of regulation, development, direction and coordination
with respect to Mental Health Services under the Central
Government and all other matters which, under this Act, are the
concern of the Central Government or any officer or authority
subordinate to the Central Government.
1. Supervise the psychiatric hospitals and psychiatric nursing homes
and other Mental Health Service Agencies (including places in
which mentally ill persons may be kept or detained) under the
control of the Central Government.
2. Advise the Central Government on all matters relating to mental
health; and
3. Discharge such other functions with respect to matters relating to
mental health as the Central Government may require.
EXPLANATION – For the purposes of this section and Sec.4 “Mental Health
Services” include, in addition to psychiatric hospitals and psychiatric nursing
homes, observation wards, day-care centres, in patient treatment in general
hospitals, ambulatory treatment facilities and other facilities, convalescent homes
and half-way-homes for mentally ill persons.
COMMENT
This section empowers the Central Government to establish Central Authority for
Mental Health Services.
EXPLANATION- It is now well settled that an explanation added to a statutory provision
is not a substantive provision in any sense of the term but as the plain meaning of the word
itself shows it is merely meant to explain or clarify certain ambiguities which may have
crept in the statutory provision1.
4. STATE AUTHORITY FOR MENTAL HEALTH SERVICES –
. The State Government shall establish an authority for mental with such
designation as it may deem fit.
a. The Authority established under sub – section (1) shall be subject to the
superintendence, direction and control of the State Government.
b. The Authority established under sub – section (1) shall –
0. be in charge of regulation, development and co-ordination with
respect to Mental Health Service under the State Government and
all other matters which, under this Act , the concern of the state
Government or any officer or authority subordination to the State
Government :
1. supervise the psychiatric hospitals and psychiatric nursing homes
and other Mental health Services Agencies (including places in
which mentally ill persons may be kept or detained )under the
control of the State Government :
2. advise the State Government on all matters relating to mental health
; and
3. discharge such other functions with respect to matters relating to
mental health as the State Government may require.
COMMENT
This section empowers the State Government to established State authority for
Mental Health services.
CHAPTER III
PSYCHIATRIC HOSPITALS AND PSYCHIATRIC NURSING HOMES
5. ESTABLISHED OR MAINTENANCE OF PSYCHIATRIC
HOSPITALSAND PSYCHIATRIC NURSING HOMES –
. The Central Government may, in any part of India, or the state government
may, within the limits of its jurisdiction, established or maintain psychiatric
hospitals hospitals or psychiatric nursing homes for the admission , and
care of mentally ill persons at such places as it thinks fit ; and separate
psychiatric hospitals and psychiatric nursing homes may be established or
maintained for, –
a. those who are under the age of sixteen years;
b. those who are addicted to alcohol or other drugs which lead
to behavioural changes in a persons ;
c. those who have been convicted of any offence; and
d. those belonging to such other or category of persons as may
be prescribed .
a. Where a psychiatric hospital or psychiatric nursing home is established or
maintained by the Central Government, any reference in this Act to the
State Government shall, in relation to such hospital or nursing home, be
construed as a reference to the Central Government.
COMMENT
This section empowers the Central Government or the State Government to
established or maintain psychiatric nursing homes.
6. ESTABLISHMENT OR MAINTENANCE OF PSYCHIATRIC
HOSPITALS OR PSYCHIATRIC NURSING HOMES ONLY WITH
LICENCE.
. On and after the commencement of this Act, no person shall established or
maintain a psychiatric hospital or psychiatric nursing home unless he holds
a valid licence granted to him under this Act:
Provided that a psychiatric hospital or psychiatric nursing home (whether
called asylum or by any other name) licensed by the central government or
any state Government and maintained as such immediately before the
commencement of this Act may continue to be maintained, and shall be
deemed to be a licensed psychiatric hospital or licensed phychiatric nursing
home, as the case may be, under this Act,-
a. for a period of three months from such commencement,
b. if an application made in accordance with Sec. 7 for a
licence is pending on the expiry of the period specified in
CI. (a) till the disposal of such application.
a. Nothing contained in sub-section (1) shall apply to a psychiatric hospital or
psychiatric nursing home established or maintained by a Central
Government or a State Government.
COMMENT
This section prohibits establishment or maintenance of any psychiatric hospital or
psychiatric nursing home by any person, unless he holds a valid licence granted to
him under the Act.
7. APPLICATION FOR LICENCE. –
. Every person, who holds, at the commencement of this Act, a valid licence
authorising that person to establish or maintain any psychiatric hospital or
psychiatric nursing home, shall, if the said person intends to establish or
continue the maintenance of such hospital or nursing home after the expiry
of the period referred to in Cl. (a) of the proviso to sub-section (1) of Sec.
6, make at least one month before the expiry of such period, an application
to the licensing authority for the grant of a fresh licence for the
establishment or maintenance of such hospital or nursing home, as the case
may be.
a. A person, who intends to establish or maintain, after the commencement of
this Act, a psychiatric hospital or psychiatric nursing home, shall, unless the
said person already holds a valid licence, make an application to the licence
authority for the grant of a licence.
b. Every application under sub-section (1) or sub-section (2) shall be in such
form and be accompanied by such fee as may be prescribed.
COMMENT
This section provides for application for licence for establishment or maintenance
of psychiatric hospital or psychiatric nursing homes.
8. GRANT OR REFUSAL OF LICENCE –
On receipt of an application under Sec.7, the licensing authority shall make such
inquiries as it may deem fit and where it is satisfied that –
. the establishment or maintenance of the psychiatric hospital or psychiatric
nursing home or the continuance of the maintenance of any such hospital or
nursing home established before the commencement of this Act is
necessary;
a. the applicant is in a position to provide the minimum facilities prescribed
for the admission, treatment and care of mentally ill persons; and
b. The psychiatric hospital or psychiatric nursing home, will be under the
charge of medical officer who is a psychiatrist.
it shall grant a licence to the applicant in the prescribed form, and where it is not so
satisfied, the licensing authority shall, by order, refuse to grant the licence applied
for:
Provided that, before making any order refusing to grant a licence, the licensing
authority shall give to the applicant a reasonable opportunity of being heard and
every order of refusal to grant a licence shall set out therein the reasons for such
refusal and such reasons shall be communicated to the applicant in such manner as
may be prescribed.
COMMENT
This section empowers the licensing authority to grant or refuse licence for
establishment or maintenance of psychiatric hospital or psychiatric nursing homes.
9. DURATION AND RENEWAL OF LICENCE –
. A licence shall not be transferable or heritable.
a. Where a licensee is unable to function as such for any reason or where a
licensee dies, the licensee or, as the case may be, the legal representative of
such licensee shall forthwith report the matter in the prescribed manner to
the licensing authority and notwithstanding anything contained in subsection
(I), the psychiatric hospital or psychiatric nursing home concerned
may continue to be maintained and shall be deemed to be a licensed
psychiatric hospital or licensed psychiatric nursing home, as the case may
be –
0. for a period of three months from the date of such report or in the
case of the death of the licensee from the date of his death, or
1. if an application made in accordance with sub-section (3) for a
licence is pending on the expiry of the period specified in Cl. (a), till
the disposal of such application.
b. The legal representative of the licensee referred to in sub-section (2) shall,
if he intends to continue the maintenance of the psychiatric hospital or
psychiatric nursing home after the expiry of the period referee to in subsection
(2), make , at least one month before the expiry of such period, an
application to the licensing authority for the grant of a fresh licence for the
maintenance of such hospital or nursing home, as the case may be, and the
provisions of Sec. 8 shall apply in relation to such application as they apply
in relation to an application made under Sec.7
c. Every licence shall, unless revoked earlier under Sec. 11, be valid for a
period of five years from the date on which it is granted.
d. A licence may be renewed from time to time, on an application made in
that behalf to the licensing authority, in such form and accompanied by
such fee, as may be prescribed, and every such application shall be made
not less than one year before the date on which the period of validity of the
licence is due to expire:
Provided that the renewal of a licence shall not be refused unless the licensing
authority is satisfied that –
e. the licensee is not in a position to provide in a psychiatric hospital or
psychiatric nursing home, the minimum facilities prescribed for the
admission, treatment and care therein mentally ill persons; or
f. the licensee is not in a position to provide a medical officer which is a
psychiatrist to take charge of the psychiatric hospital or psychiatric nursing
home, or
g. the licensee has contravened any of the provisions of this Act or any rule
made thereunder.
COMMENT
This section empowers the licensing authority to grant or refuse licence for
establishment or maintenance of the psychiatric hospital or psychiatric nursing
home, under certain circumstances.
10. PSYCHIATRIC HOSPITAL AND PSYCHIATRIC NURSING HOME TO
BE MAIN TRAINED IN ACCORDANCE WITH PRESCRIBED
CONDITIONS –
Every psychiatric hospital or psychiatric nursing home shall be maintained in such
manner and object to such condition as may be prescribed.
COMMENT
This section lays down that every psychiatric hospital/nursing home shall be
maintained properly according to the prescribed conditions.
11. REVOCATION OF LICENCE –
. The licensing authority may, without prejudice to any other penalty that
may be imposed on the licensee, by order in writing, revoke the licence if it
is satisfied that –
0. the psychiatric hospital or psychiatric nursing home is not being
maintained by the licensee in accordance with the provisions of this
Act or the rules made thereunder; or
1. the maintenance of the psychiatric hospital or psychiatric nursing
home is being carried on in a manner detrimental to the moral,
mental or physical well-being of other in-patients thereof:
Provided that no such order shall be made except after giving the licensee a
reasonable opportunity of being heard, and every such order shall set out
therein the grounds for the revocation of the licence and such grounds shall
be communicated to the licensee in such manner as may be prescribed.
a. Every order made under sub-section (1) shall contain a direction that the
in-patients of the psychiatric hospital or psychiatric nursing home shall be
transferred to such other psychiatric hospital or psychiatric nursing home as
may be specified in that order and it shall also contain such provisions
(including provisions by way of directions) as to the care and custody of
such in-patients pending such transfer. Every order made under sub-section
(1) shall take effect –
0. where no appeal has been preferred against such order under Sec.
12, immediately on the expiry of the period prescribed for such
appeal; and
1. where such appeal has been preferred and the same has been
dismissed, from the date of the order of such dismissal.
COMMENT
This section empowers the licensing authority to revoke the licence in case the
psychiatric hospital or nursing home is not maintained properly or its maintenance
is detrimental to the well-being of the in-patients thereof.
12. Appeal –
. Any person aggrieved by an order of the licensing authority refusing to
grant or renew a licence, or revoking a licence, may, in such manner and
within such period as may be prescribed, prefer an appeal to the State
Government:
Provided that the State Government may entertain an appeal preferred after
the expiry of the prescribed period if it is satisfied that the appellant was
prevented by sufficient cause from preferring the appeal in time.
a. Every appeal under sub-section(1) shall be made in such form and
accompanied by such fee as may be prescribed.
COMMENT
This section makes provision for preferring an appeal to the State Government by
any aggrieved person against the order of the licensing authority refusing to grant
or renew a licence, or revoking a licence for establishment or maintenance of the
psychiatric hospital/nursing home.
13. INSPECTION OF PSYCHIATRIC HOSPITALS AND PSYCHIATRIC
NURSING HOME AND VISISTING OF PATIENTS-
. An Inspecting Officer may, at any time, enter and inspect any psychiatric
hospital or psychiatric nursing home and require the production of any
records, which are required to be kept in accordance with the rules made in
this behalf, for inspection: Provided that any personal records of a patient
so inspected shall be kept confidential except for the purposes of subsection
(3).
a. The Inspecting Officer may interview in private any patient receiving
treatment and care therein –
0. for the purpose of inquiring into any complaint made by or on
behalf of such patient as to the treatment and care.
1. in any case, where the Inspecting Officer has reason to believe that
any in-patient is not receiving proper treatment and care.
b. Where the Inspecting Officer is satisfied that any in-patient in a psychiatric
hospital or psychiatric nursing home is not receiving proper treatment and
care, he may report the matter to the licensing authority and thereupon the
licensing authority may issue such direction as it may deem fit to the
medical officer-in-charge of the licensee of the psychiatric hospital, or, as
the case may be, the psychiatric nursing home and every such medical
officer-in-charge or licensee shall be bound to comply with such directions.
COMMENT
This section empowers an Inspecting Officer to inspect psychiatric hospitals /
nursing homes, records thereof and to visit and interview patients receiving
treatment and care therein.
14. TREATMENT OF OUT- PATIENT –
Provision shall be made in every psychiatric hospital or psychiatric nursing homes
for such facilities as may be prescribed for the treatment of every mentally ill –
persons, patients or who, for the time being, is not undergoing treatment as in –
patients.
COMMENT
This section makes, provision for the treatment of mentally ill persons in the
psychiatric hospital / nursing home, as an out – patients, in case his condition dies
not warrant his admission or an in – patient.
CHAPTER IV
ADMISSION AND DETENTION IN PSYCHIATRIC HOSPITAL OR
PSYCHIATRIC
NURSING HOME
PART I
ADMISION ON VOLUNTARY BASIS
15. REQUEST BY MAJOR FOR ADMISION AS VOLUNTARY PATIENTS
Any persons (not being a minor), who considers himself to be a mentally ill person
and desires to be admitted to any psychiatric nursing home for treatment, may
request the medical officer in charge for being admitted as a voluntary patient.
COMMENT
This section makes provision for admission to a psychiatric hospital / nursing home
for Treatment as a voluntary patient on request by a major mentally ill person.
16. REQUEST BY GUARDIAN FOR ADMISSION OF A WARDWhere
the guardian of a minor considers such minor to be a mentally ill person and
desires to admit such minor in any psychiatric hospital or psychiatric nursing home
for treatment, he may request the medical officer-in-charge for admitting such
minor as a voluntary patient.
COMMENT
This section makes provision for admission of a minor mentally ill person to a
psychiatric hospital/nursing home for treatment as a voluntary patient, on request
by guardian of such minor.
17. ADMISSION OF,AND REGULATION WITH RESPECT
TO,VOLUNTARY PATIENTS-
. On receipt of a request under Sec.15 or Sec.16, the medical officer-incharge
shall make such inquiry as he may deem fit within a period not
exceeding twenty- four hours and if satisfied that the applicant or, as the
case may be, the minor requires treatment as an in – patients in the
psychiatric hospital or psychiatric nursing home, he may admit therein such
application or, as the case may be, minor as a voluntary patient.
a. Every voluntary patient admitted to a psychiatric hospital or psychiatric
nursing home shall be bound to abide by such regulations as may be made
by the medical officer – in – charge or the licensee of the psychiatric
hospital or psychiatric nursing home.
This section deals with the matter relating to admission of, and regulation with
respect to voluntary patients.
18. DISCHARGE OF VOLUNTARY PATIENTS –
. The medical officer-in-charge of a psychiatric hospital or psychiatric
nursing home shall, on a request made in that behalf –
0. by any voluntary patient; and
1. by the guardian of the patient, if he is a minor voluntary patient,
discharge, subject to the provisions of sub-section (3) and within
twenty-four hours of the receipt of such request, the patient from
the psychiatric hospital or psychiatric nursing home.
a. Where a minor voluntary patient who is admitted as an in-patient in any
psychiatric hospital or psychiatric nursing home attains majority, the
medical officer-in-charge of such hospital or nursing home, shall, as soon
as may be, intimate the patient that he has attained majority and that unless
a request for his continuance as an in-patient is made by him within a
period of one month of such intimation, he shall be discharged, and if,
before the expiry of the said period, no request is made to the medical
officer-in-charge for his continuance as an in-patient, he shall, subject to
the provisions of sub-section (3), be discharged on the expiry of the said
period.
b. Notwithstanding anything contained in sub-section (1) or sub-section (2)
where the medical officer-incharge of a psychiatric hospital or psychiatric
nursing home is satisfied that the discharge of a voluntary patient under
sub-section (1) or sub-section (2) will not be in the interest of such
voluntary patient, he shall, within seventy-two hours of the receipt of a
request under sub-section (1), or, if no request under sub-section (2) has
been made by the voluntary patient before the expiry of the period
mentioned in that sub-section within seventy-two hours of such expiry
constitute a Board consisting of two medical officers and seek its opinion
as to whether such voluntary patient needs further treatment and if the
Board is of the opinion that such voluntary patient needs further treatment
in the psychiatric hospital or psychiatric nursing home the medical officer
shall not discharge the voluntary patient, but continue his treatment for a
period not exceeding ninety days at a time.
COMMENT
This section lays down the procedure for discharge of voluntary patient from the
psychiatric hospital or psychiatric nursing home.
PART II
ADMISSION UNDER SPECIAL CIRCUMSTANCES
19. ADMISSION OF MENTALLY ILL PERSONS UNDER CERTAIN
SPECIAL CIRCUMTANCESAny
mentally ill persons who does not, or is unable to, express his willingness for
admission as a voluntary patient, may be admitted and kept as an in-patient in a
psychiatric nursing hospital or psychiatric nursing home on an application made in
that behalf by a relative or a friend of the mentally ill persons if the medical
officers-in-charge is satisfied that in the interest of the mentally ill persons it is
necessary so to do:
COMMENT
This section deals with the matters relating to admission of, and regulation with
respect to voluntary patients.
20. DISCHARGE OF VOLUNTARY PATIENTS-
. The medical officers-in-chargeof a psychiatric hospital or psychiatric
nursing home shall, on a request made in that behalf
0. by any voluntary patients; and
1. by the guardian of the patient, if he is a minor voluntary patients,
discharge, subject to the provisions of sub-section (3) and within
twenty-four hours of the receipt of such request, patients from the
psychiatric hospitals or psychiatric nursing home.
a. where a minor voluntary patients who is admitted as an in-patient in any
psychiatric hospital or psychiatric nursing home attains majority, the
medical officer-in- charge of such hospital or nursing home shall, as soon
as may be, intimate the patient that he has attained majority and that unless
a request for his continuance as an in-patient is made by him within a
period of one month of such intimation, he shall be discharged, and if,
before the expiry of the said period, no request is made to the medical
officer-in-charge for his continuance as an in-patients, he shall, subject to
the provisions of sub-section (3), be discharged on the expiry of the said
period.
b. Notwithstanding anything contained in sub-section (1) or sub-section (2),
where the medical officers-in-charge of a psychiatric hospital or psychiatric
nursing home is satisfied that the discharge of a voluntary patients under
sub-section (1) or sub-section (2) will not be in the interest of such
voluntary patient, he shall, within seventy-two hours of the receipt of a
request under sub-section(1) or, if no request under sub-section (2) has
been made by the voluntary patient before the expiry of the period
mentioned in that sub-section within seventy-two hours of such expiry
constitute a Board consisting of two medical officers and seek its opinion
as to whether such voluntary patient needs further treatment and if the
Board is of the opinion that such voluntary patient needs further treatment
in the psychiatric hospital or psychiatric nursing home the medical officer
shall not discharge the voluntary patient, but continue his treatment for a
period not exceeding ninety days at a time.
COMMENT
This section lays down the procedure for discharge of voluntary patient from the
psychiatric hospital or psychiatric nursing home.
PART II
ADMISSION UNDER SPECIAL CIRCUMSTANCES
21. ADMISSION OF MENTALLY ILL PERSONS UNDER CERTAIN
SPECIAL CIRCUMSTANCES-
. Any mentally ill person who does not, or is unable to, express his
willingness for admission as a voluntary patient, may be admitted and kept
as an in-patient in a psychiatric hospital or psychiatric nursing home on an
application made in that behalf by a relative or a friend of the mentally ill
person if the medical officer-in-charge is satisfied that in the interests of the
mentally ill person it is necessary so to do;
Provided that no person so admitted as an in-patient shall be kept in the
psychiatric hospital or psychiatric nursing home as an in-patient for a
period exceeding ninety days except in accordance with the other
provisions of the Act.
a. Every application under sub-section (1) shall be in the prescribed form and
be accompanied by two medical certificates, from two medical practitioners
of whom one shall be a medical practitioner in the service of Government,
to the effect that the condition of such mentally ill person is such that he
should be kept under observation and treatment as an in-patient in a
psychiatric hospital or psychiatric nursing home;
Provided that the medical officer, in charge of the psychiatric hospital or
psychiatric nursing home concerned may, if satisfied that it is proper so to
do, cause a mentally ill person to be examined by two medical practitioners
working in the hospital or in the nursing home instead of requiring such
certificates.
b. Any mentally ill person admitted under sub-section (1) or his relative or
friend may apply to the Magistrate for his discharge and the Magistrate
may, after giving notice to the person at whose instance he was admitted to
the psychiatric hospital or psychiatric nursing home and after making such
inquiry as he may deem fit either allow or dismiss the application.
c. The provisions of the foregoing sub-section shall be without prejudice to
the powers exercisable by a Magistrate before whom the case of a mentally
ill person is brought, whether under this section or under any other
provision of this Act, to pass a reception order, if he is satisfied that it is
necessary so to do in accordance with the relevant provision of this Act.
COMMENT
This section makes provision for admission of mentally ill persons to a psychiatric
hospital/nursing home, under special circumstances. No person shall however be
kept there as in-patient for a period exceeding ninety days, except in accordance
with the other provisions of this Act.
PART III
RECEPTION ORDERS
22. APPLICATION FOR RECEPTION ORDER
. An application for a reception order may be made by –
0. the medical officer-in-charge of a psychiatric hospital or psychiatric
nursing home, or
1. by the husband, wife or any other relative of the mentally ill person.
a. Where a medical officer-in-charge of a psychiatric hospital or psychiatric
nursing home in which a mentally ill- person is undergoing treatment under
a temporary treatment order is satisfied that –
0. the mentally ill person is suffering from mental disorder of such a
nature and degree that his treatment in the psychiatric hospital or as
the case may be, psychiatric nursing home is required to be
continued for more than six months, or
1. It is necessary in the interests of the health and personal safety of
the mentally ill person or for the protection of others that such
person shall be detained in a psychiatric hospital or psychiatric
nursing home.
He may make an application to the Magistrate within the local limits of
whose jurisdiction the psychiatric hospital or, as the case may be,
psychiatric nursing home is situated, for the detention of such mentally illperson
under a reception order in such psychiatric hospital or psychiatric
nursing home, as the case may be.
b. Subject to the provisions of sub-section (5), the husband or wife of a
person who is alleged to be mentally ill or, where there is no husband or
wife, or where the husband or wife is prevented by reason of any illness or
absence from India or otherwise from making the application, any other
relative of such person may make an application to the Magistrate within
the local limits of whose jurisdiction the said person ordinarily resides, for
the detention of the alleged mentally ill-person under a reception order in a
psychiatric hospital or psychiatric nursing home.
c. Where the husband or wife of the alleged mentally ill person is not the
applicant, the application shall contain the reasons for the application not
being made by the husband or wife and shall indicate the relationship of the
applicant with the alleged mentally ill person and the circumstances under
which the application is being made.
d. No person –
0. who is a minor, or
1. who , within fourteen days before the date of the application, has
not seen the alleged mentally ill person, shall make an application
under this section.
e. Every application under sub-section (3) shall be made in the prescribed
form and shall be signed and verified in the prescribed manner and shall
state whether any previous application had been made for inquiry into the
mental condition of the alleged mentally ill person and shall be
accompanied by two medical certificates from two medical practitioners of
whom one shall be a medical practitioner in the service of Government.
COMMENT
This section details the procedure for disposal of application for reception order.
23. FORM AND CONTENTS OF MEDICAL CERTIFICATES –
Every medical certificate referred to in sub-section (6) of Sec. 20 shall contain a
statement –
. that each of the medical practitioner referred to in that sub-section has
independently examined the alleged mentally ill person and has formed his
opinion on the basis of his own observations and from the particulars
communicated to him;
a. that in the opinion of each such medical practitioner the alleged mentally ill
person is suffering from mental disorder of such a nature and degree as to
warrant the detention of such person in a psychiatric hospital or psychiatric
nursing home and that such detention is necessary in the interests of the
health and personal safety of that person or for the protection of others.
COMMENTS
The section prescribes form and contents of medical certificates.
24. PROCEDURE UPON APPLICATION FOR RECEPTION ORDER
. on receipt of an application under sub-section (2) of Sec. 20, the
Magistrate may make a reception order, if he is satisfied that –
0. the mentally ill person is suffering from mental disorder of such a
nature and degree that it is necessary to detain him in a psychiatric
hospital or psychiatric nursing home for treatment; or
1. it is necessary in the interests of the mental and personal safety of
the mentally ill person or for the protection of others that he should
be so detained, and a temporary treatment order would not be
adequate in the circumstances of the case and it is necessary to
make a reception order.
a. On receipt of an application under sub-section
b. of Section.20, the Magistrate shall consider the statements made in the
application and the evidence of mental illness as disclosed by the medical
certificates.
c. If the Magistrate considers that there are sufficient grounds for proceeding
further, he shall personally examine the alleged mentally ill person unless,
for reasons to be recorded in writing, he thinks that it is not necessary or
expedient to do so.
d. If the Magistrate is satisfied that a reception order may properly be made
forthwith, he may make such order, and if the Magistrate is not so satisfied,
he shall fix a date for further consideration of the application and may make
such inquiries concerning the alleged mentally ill-person as he thinks fit.
e. The notice of the date fixed under sub-section (4) shall be given to the
applicant and to any other person to whom, in the opinion of the
Magistrate such notice shall be given.
f. If the Magistrate fixes a date under sub-section (4) for further
consideration of the application, he may make such order as he thinks fit,
for the proper care and custody of the alleged mentally ill person pending
disposal of the application.
g. On the date fixed under sub-section (4), or on such further date as may be
fixed by the Magistrate, he shall proceed to consider the application in
camera, in the presence of –
0. the applicant:
1. the alleged mentally ill person (unless the Magistrate in his
discretion otherwise directs);
2. the person who may be appointed by the alleged mentally ill person
to represent him; and
3. Such other person as the Magistrate thinks fit.
and if the magistrate is satisfied that the alleged mentally ill person,
in relation to whom the application is made, is so mentally ill that in
the interests of the health and personal safety of that person or for
the protection of others it is necessary to detail him in a psychiatric
hospital or psychiatric nursing home for treatment, he may pass a
reception order for that purpose and if he is not so satisfied, he shall
dismiss the application and any such order may provide for the
payment of the costs of the inquiry by the applicant personally or
from out of the estate of the mentally ill person, as the Magistrate
may deem appropriate.
h. If any application is dismissed under sub-section(7), the Magistrate shall
record the reasons for such dismissal and a copy of the order shall be
furnished to the applicant.
COMMENT
This section lays down the procedure for disposal of application for a reception
order.
B- Reception orders on production of mentally ill Persons before Magistrate
25. POWERS AND DUTIES OF POLICE OFFICERS IN RESPECT OF
CERTAIN MENTALLY ILL PERSONS –
. Every officer in charge of a police station –
0. may take or cause to be taken into protection any person found
wandering at large within the limits of his station whom he has
reason to believe to be so mentally ill as to be incapable of taking
care of himself, and
1. shall take or cause to be taken into protection any person within the
limits of his station whom he has reason to believe to be dangerous
by reason of mental illness.
a. No person taken into protection under sub-section (1) shall be detained by
the police without being informed, as soon as may be, of the grounds for
taking him into such protection, or where, in the opinion of the officer
taking the person into protection, such person is not capable of
understanding those grounds, without his relatives or friends, if any, being
informed of such grounds.
b. Every person who is taken into protection and detained under this section
shall be produced before the nearest Magistrate within a period of twentyfour
hours of taking him into such protection excluding the time necessary
for the journey from the place where he was taken into such protection of
the Court of the Magistrate and shall not be detained beyond the said
period without the authority of the Magistrate.
COMMENT
This section empowers the police officer in charge of a police station to take action
in respect of certain mentally ill persons.
26. PROCEDURE ON PRODUCTION OF MENTALLY ILL PERSON-
. If a person is produced before the Magistrate under sub-section (3) of
Sec.23, and if in his opinion, there are sufficient grounds for proceeding
further, the Magistrate shall –
0. examaine the person to assess his capacity to understand.
1. Cause him to be examined by a medical officer, and
2. Make such inquiries in relation to such person as he may deem
necessary.
a. After the completion of the proceeding under sub-section (1), the
Magistrate may pass a reception order authorising the detention of the said
person as an in-patient in a psychiatric hospital or psychiatric nursing home

0. if the medical officer certifies such person to be a mentally ill
person, and
1. if the Magistrate is satisfied that the said person is a mentally ill
person and that in the interest of the health and personal safety of
that person or for the protection of others, it is necessary to pass
such order.
Provided that if any relative or friend of the mentally ill person desires that the
mentally ill person be sent to any particular licensed psychiatric hospital or licensed
psychiatric nursing home for treatment therein and undertakes in writing to the
satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill
person in such hospital or nursing home, the Magistrate shall, if the medical officer
in charge of such hospital or nursing home consents, make a reception order for
the admission of the mentally ill person into that hospital or nursing home and
detention therein;
Provided further that if any relative or friend of the mentally ill person enters into a
bond, with or without sureties for such amount as the Magistrate may determine,
undertaking that such mentally ill person will be properly taken care of and shall be
prevented from doing any injury to himself or to others, the Magistrate may,
instead of making a reception order, hand him over to the care of such relative or
friend.
COMMENT
This section lays down procedure on production of mentally ill person before a
Magistrate.
27. ORDER IN CASE OF MENTALLY ILL PERSON CRUELLY TREATED
OR NOT UNDER PROPER CARE AND CONTROL –
. Very officer in charge of a police station is mentally ill and is not under
proper care and control, or is mentally ill person, shall forthwith report the
fact to the Magistrate within the local limits of whose jurisdiction the
mentally ill person resides.
a. Any private person who has reason to believe that any person is mentally ill
and is not under proper care and control,, or is ill-treated or neglected by
any relative or other person having charge of such mentally ill person, may
report the fact to the Magistrate within the local limits of whose
jurisdiction the mentally ill person resides.
b. If it appears to the Magistrate, on the report of a police officer or on the
report or information derived from any other person, or otherwise that any
mentally ill person within the local limits of his jurisdiction is not under
proper care and control, or is ill-treated or neglected by any relative or
other person having the charge of such mentally ill person, the Magistrate
may cause the mentally ill person to be produced before him, and summon
such relative or other person who is, or who ought to be in charge of, such
mentally ill person.
c. If such relative or any other person is legally bound to maintain the
mentally ill person, the Magistrate may, by order, require the relative or the
other person to take proper care of such mentally ill person and where such
relative or other person willfully neglects to comply with the said order, he
shall be punishable with fine which may extend to two thousand rupees.
d. If there is no person legally bound to maintain the mentally ill person, or if
the person legally bound to maintain the mentally ill person refuses or
neglects to maintain such person, or if, for any other reason, the Magistrate
thinks fit so to do, he may cause the mentally ill person to be produced
before him and, without prejudice to any action that may be taken under
sub -section (4) , proceed in the manner provided in Sec.24 as if such
person had been produced before him under sub-section (3) of Sec. 23.
COMMENT
In case the Magistrate, within the local limits of whose jurisdiction the mentally ill
person resides, comes to know that the said mentally ill person is being ill treated,
neglected or cruelly treated, he is empowered under this section, to pass orders
requiring the relative or other person to take care of such mentally ill person. This
section also makes provision for punishment in case of non-compliance of the
aforesaid orders.
C – Further provisions regarding admission and detention of certain mentally ill
persons.
28. ADMISSION AS IN-PATIENT AFTER INQUISITION –
If any District Court holding an inquisition under Chapter VI regarding any person
who is found to be mentally ill is of opinion that it is necessary so to do in the
interests of such person, it may ,by order, direct that such person shall be admitted
and kept as an in-patient in a psychiatric hospital or psychiatric nursing home and
every such order may be varied from time to time or revoked by the District court.
COMMENT
This section provides for admission of mentally ill person as in-patient in a
psychiatric hospital or psychiatric nursing home.
29. ADMISSION AND DETENTION OF MENTALLY ILL PPRISONER –
An order under Sec. 30 of the Prisoners Act, 1900 (3 of 1900) or under Sec. 144
of the Air Force Act, 111950 (45 of 1950), or under Sec. 145 of the Army Act
1950 (46 of 1950), or under Sec. 143 or Sec. 144 of the Navy Act, 1957 (62 of
1957), or under Sec. 330 or Sec. 335 of the Code of Criminal Procedure 1973 ( 2
of 1974), directing the reception of a mentally il prisoner into any psychiatric
hospital or psychiatric nursing home, shall be sufficient authority for the admission
of such person in such hospital or, as the case may be, such nursing home or any
other psychiatric hospital or psychiatric nursing home to which such person may be
lawfully transferred for detention therein.
COMMENT
This section provides for admission of mentally ill prisoner into any psychiatric
hospital or psychiatric nursing home.
30. DETENTION OF ALLEGED MENTALLY ILL PERSON PENDING
REPORT BY MEDICAL OFFICER –
. When any person alleged to be a mentally ill person appears or is brought
before a Magistrate under Sec. 23 or Sec. 25, the Magistrate may, by order
in writing, authorise the detention of the alleged mentally ill person under
proper medical custody in an observation ward of a general hospital or
general nursing home or psychiatric hospital of psychiatric nursing home or
in any other suitable place for such period not exceeding ten days as the
Magistrate may consider necessary for enabling any medical officer to
determine whether a medical certificate in respect of that alleged mentally
ill person may properly be given under Cl. (a) of sub-section (2) of Sec.24.
a. The Magistrate may, from time to time, for the purpose mentioned in subsection
(1), by order in writing, authorise such further detention of the
alleged mentally ill person for periods not exceeding 10 day at a time as he
may deem necessary:
Provided that no person shall be authorised to be detained under this sub-section
for a continuous period exceeding thirty days in the aggregate.
COMMENTS
This section provides for detention of the alleged mentally ill person under proper
medical custody pending receipt of medical report. The period of such detention
should not exceed a period of ten days at a time and thirty days in the aggregate.
SCOPE OF THE SECTION – The provision which the Magistrate could probably
have thought of to justify his action is Sec. 16 of the Lunacy Act (since repealed by
this Act). No other provision gives him the power of detention before adjudging a
person as lunatic. Section 16(1) confers jurisdiction on a Magistrate to deal with a
person who is alleged to be lunatic when he is brought before the Magistrate under
the provisions of Sec. 13 of Sec.15. Such a person can be detained by an order of
the Magistrate, “for such time not exceeding 10 days as may be, in his opinion
necessary to enable the medical officer to determine whether such alleged lunatic is
a person in respect of whom a medical certificate may be properly given”. The
proviso to sub-section (2) imposes a ban on the Magistrate against extension of the
period of detention beyond a total period of 30 days1.
31. DETENTION OF MENTALLY ILL PERSON PENDING HIS REMOVAL
TO PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME –
Whenever any reception order is made by a Magistrate under Sec. 22, Sec. 234 or
Sec. 25, he may by reasons to be recorded in writing, direct that he mentally ill
person in respect of whom the order is made may be detained for such period not
exceeding thirty days in such place as he may deem appropriate. Pending the
removal of such person to a psychiatric hospital or psychiatric nursing home.
COMMENT
This section empowers a Magistrate to issue directions for detention of mentally ill
person for a period not exceeding thirty days in an appropriate place, pending this
removal to psychiatric hospital or psychiatric nursing home;
D – Miscellaneous provision in relation to orders under this chapter.
32. TIME AND MANNER OF MEDICAL EXAMINATIO OF MENTALLY
ILL PATIENT –
Where any other order under this Chapter is required to be made on the basis of a
medical certificate, such order shall not be made unless the person who has signed
the medical certificate, or where such order is required to be made on the basis of
two medical certificates, the signatory of the respective certificates, has certified
that he has personally examined the alleged mentally ill person –
. in the case of an order made on an application, not earlier than ten clear
days immediately before the date on which such application is made; and
a. in any other case, not earlier than ten clear days immediately before the
date of such order;
Provided that where a reception order is required to be made on the basis of two
medical certificates such order shall not be made unless the certificates show that
the signatory of each certificate examined the alleged mentally ill person
independently of the signatory of the other certificate.
COMMENT
This section prescribes the time and manner of medical examination of mentally ill
person.
33. AUTHORITY FOR RECEPTION ORDER –
– A reception order made under this Chapter shall be sufficient authority –
. for the applicant or any person authorised by him, or
a. in the case of a reception order made otherwise than on an application, for
the person authorised so to do by the authority making this order.
To take the mentally ill person to the place mentioned in such order or for his
admission and treatment as an in-patient in the psychiatric hospital or psychiatric
nursing home specified in the order or, as the case may be, for his admission and
detention, therein or in any psychiatric hospital or psychiatric nursing home to
which he may be removed in accordance with the provisions of this Act, and the
medical officer-in-charge shall be bound to comply with such order:
Provided that in any case where the medical officer-in-charge finds
accommodation in the psychiatric hospital or psychiatric nursing home inadequate,,
he shall, after according admission, intimate that fact to the Magistrate or the
District Court which passed the order and thereupon the Magistrate or the District
Court, as the case may be, shall pass such order as he or it may deem fit:
Provided further that every reception order shall cease to have effect –
b. on the expiry of thirty days from the date on which it was made, unless
within that period, the mentally ill person has been admitted to the place
mentioned therein, and
c. on the discharge, in accordance with the provisions of this Act, of the
mentally ill person,
COMMENT
This section makes provision for sufficient authority for a reception order. It shall
however cease to have effect on the expiry of thirty days from the date of the order
or on the discharge of the mentally ill person.
34. COPY OF RECEPTION ORDER TO BE SENT TO MEDICAL OFFICERIN-
CHARGE –
Every Magistrate or District Court making a reception order shall forthwith send a
certified copy thereof together with copies of the requisite medical certificates and
the statement of particulars to the medical officer in charge of the psychiatric
hospital or psychiatric nursing home to which the mentally ill person is to be
admitted.
COMMENT
This section makes provision for supply of certified copy of reception order to
medical officer in charge of psychiatric hospital or psychiatric nursing home.
35. RESTRICTION AS TO PSYCHIATRIC HOSPITALS AND
PSYCHIATRIC NURSING HOMES INTO WHICH RECEPTION ORDER
MAY DIRECT ADMISSION
No Magistrate or District Court shall pass a reception order for the admission as
an in-patient to, or for the detention of any mentally ill person, as an in-patient to,
or for the detention of any mentally ill person, in any psychiatric hospital or
psychiatric nursing home outside the State in which the Magistrate or the District
Court exercises jurisdiction:
Provided that an order for admission or detention into or in a psychiatric hospital
or psychiatric nursing home situated in any other State may be passed if the State
Government has by general or special order and after obtaining the consent of the
Government of such other State, authorised the Magistrate or the District Court in
that behalf.
COMMENT
This section imposes restriction to the passage of reception order for admission or
detention of any mentally ill person, as an in-patient in any psychiatric hospital or
psychiatric nursing home outside the State, unless the State Government has by
general or special order authorised for the same.
36. AMMENDMENT OF ORDER OR DOCUMENT
If, after the admission of any mentally ill person to any psychiatric hospital or
psychiatric nursing home under a reception order, it appears that the order under
which he was admitted or detained or any of the documents on the basis of which
such order was made defective or incorrect, the same may, at any time thereafter
be amended with the permission of the Magistrate or the District Court, by the
person or persons who signed the same and upon such amendment being made, the
order shall have effect and shall be deemed always to have had effect as if it had
been originally made as so amended, or, as the case be, the documents upon which
it was made had been originally furnished, also amended.
COMMENT
This section makes provision for amendment of order or document in case it is
detected that any of the documents on the basis of which such order was made is
defective or incorrect.
37. POWER TO APPOINT SUBSTITUTE FOR PERSON UPON WHOSE
APPLICATION RECEPTION ORDER HAS BEEN MADE –
. Subject to the provisions of this section the Magistrate may, by order in
writing (hereinafter referred to the orders of substitution), transfer the
duties and responsibilities under this Act, of the person on whose
application a reception order was made, to any other person who is willing
to undertake the same and such other person shall thereupon be deemed for
the purposes of this Act to be the person on whose application the
reception order was made and all references in this Act to the latter person
shall be construed accordingly:
Provided that no such order of substitution shall absolve the person upon
whose application the reception order was made or, if he is dead, his legal
representatives, from any liability incurred before the date of the order of
substitution.
a. Before making any order of substitution, the Magistrate shall send a notice
to the person on whose application the reception order was made if he is
alive, and to any relative of the mentally ill person who, in the opinion of
the Magistrate, shall have notice.
b. The notice under sub-section (2) shall specify the name of the person in
whose favour it is proposed to make the order of substitution and the date
(which shall be not less than twenty days from the date of issue of the
notice) on which objections, if any, to the making of such order shall be
considered.
c. On the date specified under sub-section (3), or on any subsequent date to
which the proceedings may be adjourned, the Magistrate shall consider any
objection made by any person to whom notice was sent or by any other
relative of the mentally ill person, and shall receive all such evidence as may
be produced by or on behalf of any such person or relative and after
making such inquiry as the Magistrate may deem fit make or refrain from
making the order of substitution:
Provided that, if the person on whose application the reception order was
made is dead and any other person is willing and is, in the opinion of the
Magistrate, fit to undertake the duties and responsibilities under this Act of
the former person, the Magistrate shall, subject to the provisions contained
in the proviso to sub-section (1), make an order to that effect.
d. In making any substitution order under this section, the Magistrate shall
give preference to the person who is the nearest relative of the mentally ill
person, unless, for reasons to be recorded in writing the Magistrate
considers that giving such preference will not be in the interests of the
mentally ill person.
e. The Magistrate may make such order for the payment of the costs of an
inquiry under this section by any person or from out of the estate of the
mentally ill person as he thinks fit.
f. Any notice under sub-section (2) may be sent by post to the last known
address of the person for whom it is intended.
COMMENTS
This section empowers Magistrate to appoint substitute for a person upon whose
application reception order has been made.
Proviso – A proviso to a section is not independent of the section calling for independent
of the section calling for independent consideration or construction detached from the
construction to be placed on the main section as it is merely subsidiary to the main section
and is to be construed in the light of the section itself1.
It is settled that a proviso cannot expand or limit the clear meaning of the main provision2.
38. OFFICERS COMPETENT TO EXERCISE POWERAS AND DISCHARGE
FUNCTIONS OF MAGISTRATE UNDER CERTAIN SECTIONS –
– In any area where a Commissioner of Police has been appointed, all the powers
and functions of the Magistrate under Secs. 23,24,25 and 28 may be exercised or
discharged by the Commissioner of Police and all the functions of an officer-incharge
of a police station under this Act may be discharged by any police officer
not below the rank of an Inspector.
COMMENTS
Under the provisions of this section all the powers and functions of the Magistrate
under Secs. 23,24,25 and 28 may be exercised or discharged by the Commissioner
of Police in the area where the said office is appointed.
COMMISSIONER, IF INCLUDES “DEPUTY” OR “ASSISTANT” – It is clear
that in the present case the Deputy Commissioner who acted in the matter had no
power under Sec.17 of the Lunacy Act (since repealed by this Act). In any case, no
such power could be conferred upon him even by the State Government. Because
Lunacy Act, (since repealed by this Act) has not reognized conferment of such
power upon any Deputy or Assistant to the Commissioner1.
CHAPTER V
IN SPECTION, DISCHARGE, LEAVE OF ABSENCE AND REMOVAL
OF MENTALLY ILL PERSONS
PART I
INSPECTION
39. APPOINTMENT OF VISITORS –
. The State Government or the Central Government, as the case may be,
shall appoint for every psychiatric hospital and every psychiatric nursing
home, not less than five visitors, of whom at least one shall be a medical
officer, preferably a psychiatrist and two social workers.
a. The head of the Medical Services of the State or his nominee preferably a
psychiatrist be an ex officio visitor of all the psychiatrist hospital and
psychiatric nursing homes in the State.
b. The qualifications of persons to be appointed as visitors under sub-section
(1) and the terms and conditions of their appointment shall be such as may
be prescribed.
COMMENT
This section makes provision for appointment of visitors for every psychiatric
hospital/nursing home. The number of visitors should not be less than five, of
whom at least one should be a psychiatrist or at least a medical officer and two
social workers.
40. MONTHLY INSPECTION BY VISITORS –
Not less than three visitors shall at least once in every month, make a joint
inspection of every part of the psychiatric hospital or psychiatric nursing home in
respect of which they have been appointed and examine every minor admitted as a
voluntary patient under Sec 17 and, as far as circumstances will permit, every other
mentally ill person admitted therein and the order for the admission of and
subsequent to the joint inspection immediately preceding, and shall enter in a book
kept for that purpose such remarks as they deem appropriate in regard to the
management and condition of such hospital or nursing home and of the in-patient
thereof:
Provided that the visitors shall not be entitled to inspect any personal records of an
in-patient which in the opinion of the medical officer-in-charge are confidential in
nature:
Provided further that if any of the visitors does not participate in the joint
inspection of the psychiatric hospital or psychiatric nursing home in respect of
which he was appointed a visitor for three consecutive months, he shall cease to
hold office as such visitor.
COMMENT
This section provides for monthly joint inspection by not less than three visitors of
the psychiatric hospital/nursing home, for which they have been appointed, and for
recording their remarks in respect of the management and condition of such
hospital or nursing home and of the in-patients thereof visitors are not empowered
to inspect personal records of in-patients.
41. INSPECTION OF MENTALLY ILL PRISONERS –
. Notwithstanding anything contained in Sec. 38, where any person is
detained under the provisions of Sec. 144 of the Air Force Act, 1950 (45
of 19150), or Sec. 145 of the Army Act, 1950 (46 of 1950), or Sec. 143 or
Sec. 144 of the Navy Act 1957 (62 of 19957) or Sec. 330 or Sec. 335 of
the Code of Criminal Procedure 1973 ( 2 of 1974) –
0. the Inspector-General of Prisons, where such person is detained in a
jail ; and
1. all or any three of the visitors including at least one social worker
appointed under sub-section (1) of Sec. 37, where such person is
detained, in a psychiatric hospital or psychiatric nursing home.
Shall, once in every three months visit such person at the place where he is
detained, in order to assess the state of mind of such person and make a
report thereon to the authority under whose order such person is so
detained.
a. The State Government may empower any of its officers to discharge all or
any of the functions of the Inspector-General of Prisons under Sub-section
(1).
b. The medical officer in charge of a psychiatric hospital or psychiatric
nursing home wherein any person referred to in sub-section (1) is detained,
shall once in every six months, make a special report regarding the mental
and physical condition of such person to the authority under whose order
such person is detained.
c. Every person who is detained in jail under the provisions of various Acts
referred to in sub-section (1) shall be visited at least once in every three
months by a psychiatrist, or where a psychiatrist is not available, by a
medical officer empowered by the state Government in this behalf and such
psychiatrist or, as the case may be, such medical officer shall make a special
report regarding the mental and physical condition of such person to the
authority under whose order such person is detained.
COMMENT
This section makes provision for inspection of mentally ill prisoners.
PART II
DISCHARGE
42. ORDER OF DISCHARGE BY MEDICAL OFFICER-IN-CHARGE –
Notwithstanding anything contained in Chapter IV., the medical officer-in-charge
of a psychiatric hospital or psychiatric nursing home may, on the recommendation
of two medical practitioners one of whom shall preferably be a psychiatrist, by
order in writing, direct the discharge of any person other than a voluntary patient
detained or undergoing treatment therein as an in-patient, and such person shall
thereupon be discharged from the psychiatric hospital or psychiatric nursing home:
Provided that no order under this sub-section shall be made in respect of a
mentally ill prisoner otherwise than as provided in Sec.30 of the Prisoner Act,
1900 (3 of 1900),or in any other relevant law.
(2)Where any order of discharge is made under sub-section (1)in respect of a
person who had been detained or is undergoing treatment as in-patient in
pursuance of an order off any authority , a copy of such hospital/nursing home.
43. DISCHARGE OF MENTALLY ILL PERSONS ON APPLICATION –
Any person detained in a psychiatric hospital or psychiatric nursing home under an
order and in pursuance of an application made under this Act, shall be discharged
on an application made in that behalf to the medical officer in charge by the person
on whose application the order was made;
Provided that no person shall be discharged under this section if the medical officer
in charge certifies in writing that the person is dangerous and unfit to be at large.
COMMENT
This section lays down that mentally ill persons be discharged on application, from
a psychiatric hospital/nursing home and that no person be discharged unless the
medical officer certifies for the same.
44. ORDER OF DISCHARGE ON THE UNDERTAKING OF RELATIVES OR
FRIENDS ETC., FOR DUE CARE OF MENTALLY ILL PERSON
. Where any relative of friend of a mentally ill person detained in a
psychiatric hospital or psychiatric nursing home under Sec. 22, Sec. 24 or
Sec. 25 desires that such person shall be delivered over to his care and
custody, he may make an application to the medical officer-in-charge who
shall forward it together with his remarks thereon to the authority under
whose orders the mentally ill person is detained.
a. where an application is received under sub-section (1), the authority shall,
on such relative or friend furnishing a bond, with or without sureties, for
such amounts as such authority may specify in this behalf, undertaking to
take proper care of such mentally ill person, and ensuring that the mentally
ill person shall be prevented from causing injury to himself or to others,
make an order of discharge and thereupon the mentally ill person shall be
discharged.
COMMENT
The section makes provision for discharge of mentally ill person from the
psychiatric hospital or psychiatric nursing home on the undertaking of relatives or
friends for due care of such mentally ill person.
45. DISCHARGE OF PERSON ON HIS REQUEST –
. Any person (not being a mentally ill prisoner) detained in pursuance of an
order made under this Act who feels that he has recovered from his mental
illness, may make an application to the Magistrate, where necessary under
the provisions of this Act, for his discharge from the psychiatric hospital or
psychiatric nursing home.
a. An application made under sub-section (1) shall be supported by a
certificate either from the medical officer incharge of the psychiatric
hospital or psychiatric nursing home where the applicant is undergoing
treatment or from a psychiatrist;
b. The Magistrate may, after making such inquiry as he may deem fit, pass an
order discharging the person or dismissing the application.
COMMENT
This section makes provision for the discharge of mentally ill person from
psychiatric hospital or psychiatric nursing home, on his request. This section does
not apply to a mentally ill prisoner.
46. DISCHARGE OF PERSON SUBSEQUENTLY FOUND ON INQUISITION
TO BE OF SOUND MIND –
If any person detained in a psychiatric hospital or psychiatric nursing home in
pursuance of a reception order made under this Act is subsequently found, on an
inquisition held in accordance with the provisions of Chapter VI, to be of sound
mind or capable of taking care of himself and managing his affairs, the medical
officer-in-charge shall forthwith, on the production of a copy of such finding duly
certified by the District Court, discharge such person from such hospital or nursing
home.
COMMENT
This section deals with the matter relating to discharge of person, detained in a
psychiatric hospital or psychiatric nursing home, subsequently found to be of
sound mind.
PART III
LEAVE OF ABSENCE
47. LEAVE OF ABSENCE
. An application for leave of absence on behalf of any mentally ill person (not
being a mentally ill prisoner) undergoing treatment as an in-patient in any
psychiatric hospital or psychiatric nursing home may be made to the
medical officer-inc-charge,
0. in the case of a person who was admitted on the application of the
husband or wife, by the husband or wife of such mentally ill person,
or where by reason of mental or physical illness, absence from India
or otherwise, the husband or wife is not in a position to make such
application, by any other relative of the mentally ill person duly
authorised by the husband or wife, or
1. in the case of any other person, by the person on whose application
the mentally ill person was admitted.
Provided that no application under this sub-section shall be made by a
person who has not attained the age of majority.
a. Every application under sub-section (1) shall be accompanied by a bond,
with or without sureties for such amount as the medical officer-in-charge
may specify, undertaking –
0. to take proper care of the mentally ill person,
1. to prevent the mentally ill person from causing injury to himself or
to others, and
2. to bring back the mentally ill person to the psychiatric hospital, or ,
as the case may be, psychiatric nursing home, on the expiry of the
period of leave.
b. On receipt of an application under sub -section (1), the medical officers-incharge
may grant leave of absence to the mentally ill persons for such
period as the medical officers-in-charge may deem necessary and subject to
such condition as may, in the interests of the protection of others, be
specified in the order :
Provided that the total number of days for which leave of absence may be
granted to a patient under this sub-section shall not exceed sixty days.
c. Where the mentally ill persons is not brought back to the psychiatric
hospital or psychiatric nursing home on the expiry of the leave granted to
him under this section the medical officer-in-charge shall forthwith report
that fact to the Magistrate within the local limits of whose jurisdiction such
hospital or nursing home is situate and the Magistrate may, after making
such inquiry as he may deem fit, make an order directing him to be brought
back to the psychiatric hospital or psychiatric nursing home, as the case
may be,
48. GRANT OF LEAVE OF ABSENCE BY MAGISTRATE –
. Where the medical officer-in-charge refuses to grant leave of absence to a
mentally ill person under Sec. 45, the applicant may apply to the Magistrate
within the local limits of whose jurisdiction the psychiatric hospital or
psychiatric nursing home wherein the mentally ill person is detained is
situate, for the grant of leave of absence to the mentally ill person and the
Magistrate may if he is satisfied that it is necessary so to do, and on the
applicant entering into a bond in accordance with the provisions of subsection
(2), by order grant leave of absence to the mentally ill person for
such period and subject to such conditions as may be specified in the order.
a. Every bond referred to in sub-section (1) shall be with or without sureties
and for such amount as the Magistrate may decide and shall contain the
undertaking referred to in sub-section (2) of sect.45.
b. The Magistrate shall forward a copy of the order to the medical officer-incharge
and on receipt of such order the medical officer-in-charge shall
entrust the mentally ill person to the person on whose application the leave
of absence was granted under this section.
COMMENT
Sections 45 and 46 deal with the matter relating to grant of leave of
absence.Under Sec.. 45 the medical officer is empowered to grant leave of
absence. In case he refuses to grant leave of absence to a mentally ill
person, Magistrate is empowered under Sec. 46 to grant leave of absence.
PART IV
REMOVAL
49. REMOVAL OF MENTALLY ILL PERSON FROM ONE PSYCHIATRIC
HOSPITAL OR PSYCHIATRIC NURSING HOME TO ANY OTHER
PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME.
. Any mentally ill person other than a voluntary patient referred to in Sec. 15
or Sec. 16 may, subject to any general or special order of the State
Government, be removed from any psychiatric hospital or psychiatric
nursing home to any other psychiatric hospital or psychiatric nursing home
within the State, or to any other psychiatric hospital or psychiatric nursing
home in any other State with the consent of the Government of that other
State:
Provided that no mentally ill person admitted to a psychiatric hospital or
psychiatric nursing home under an order made in pursuance of an
application made under the Act shall be so removed unless intimation
thereof has been given to the applicant.
a. The State Government may make such general or special order as it thinks
fit directing the removal of any mentally ill prisoner from the place where
he is for the time being detained, to any psychiatric hospital, psychiatric
nursing home, jail or other place of safe custody in the State or to any
psychiatric hospital, psychiatric nursing home, jail or other place of safe
custody in any other State with the consent of the Government of that
other State.
COMMENT
This section permits removal of any mentally ill person from one psychiatric
hospital or psychiatric nursing home to another within the State or even to any
other State with the consent of the Government of that other State.
The provisions of this section however does not apply to a voluntary patient.
50. ADMISSION, DETENTION AND RETAKING IN CERTAIN CASES –
Every person brought into a psychiatric hospital or psychiatric nursing home under
any order made under this Act, may be detained or, as the case may be, admitted
as an in-patient therein until he is removed or is discharged under any law, and in
case of his escape from such hospital or nursing home he may, by virtue of such
order, be retaken by any police officer or by the medical officer-in-charge or any
officer or servant of such hospital or nursing home, or by any other person
authorised in that behalf by the medical officer-in-charge and conveyed to, and
received and detained or, as the case may be , kept as an in-patient in such hospital
or nursing home;
Provided that in the case of a mentally ill person (not being a mentally ill prisoner)
the power to retake as aforesaid under this section shall not be exercisable after the
expiry of a period of one month from the date of his escape.
COMMENT
This section deals with the matter relating to admission, detention or retaking of
certain mentally ill persons. This section does not apply to a mentally ill prisoner.
51. APPEAL FROM ORDERS OF MAGISTRATE
Any person aggrieved by any order of a Magistrate, passed under any of the
foregoing provisions may, within sixty days from the date of the order, appeal
against that order to the District Court within the local limits of whose jurisdiction
the Magistrate exercised the powers, and decision of the District Court on such
appeal shall be final.
COMMENT
This section empowers any person aggrieved by any order of a Magistrate to
appeal against it to the District Court.
JUDICIAL INQUISITION REGADING ALLEGED MENTALLY ILL
PERSION POSSESSING PROPERTY, CUSTODY OF HIS PERSION AND
MANAGEMENT OF HIS PROPERTY
52. APPLICATION FOR JUDICIAL INQUISITION
. Where an alleged mentally ill person is possessed of property, an
application for holding an inquisition into the mental condition of such
person may be made either –
0. by any of his relatives, or
1. by a public curator appointed under the Indian Succession Act,
1925 (39 of 1925) or
2. by the Advocate-General of the State in which the alleged mentally
ill person resides, or
3. where the property of the alleged mentally ill person comprises land
or interest in land, or where the property or part thereof is of such a
nature as can lawfully be entrusted for management to a Court of
Wards established under any law for the time being in force in the
State, by the Collector of the District in which such land is situate,
to the District Court within the local limits of whose jurisdiction the
alleged mentally ill person resides.
a. On receipt of an application under sub-section (1), the District Court shall,
by personal service or by such other mode of service as it may deem fit,
serve a notice on the alleged mentally ill person to attend at such place and
at such time as may be specified in the notice or shall, in like manner, serve
a notice on the person having the custody of the alleged mentally person to
produce such person at the said place and at the said time, for being
examined by the District Court or by any other person from whom the
District Court may call for a report concerning the mentally ill person:
Provided that, if the alleged mentally ill person is a woman, who according
to the custom prevailing in the area where she resides or according to the
religion to which she belongs, ought not to be compelled to appear in
public, the District Court may cause her to be examined by issuing a
commission as provided in the Code of Civil Procedure, 1908 ( 5 of 1908).
b. A copy of the notice under sub-section (2) shall also be served upon the
applicant and upon any relative of the alleged mentally ill person or other
person who, in the opinion of the District Court, shall have notice of
judicial inquisition to be held by it.
c. For the purpose of holding the inquisition applied for, the District Court
may appoint two or more persons to act as assessors.
COMMENTS
JURISDICTION – The Lunacy (Supreme Courts) Act, 1958, gives power to those Courts
to direct an inquiry as to “any person subject to the jurisdiction of the Court”. The
preamble of the Lunacy (Districts Courts) Act of the same year states that it is expedient
to make better provisions for the case of the states of lunatics “not subject to the
jurisdiction of the Supreme Courts of adJudicature”. In 1981 the Allahabad high court
decided that, under its own letters patent, it had no original jurisdiction in respect of the
persons and estates of lunatics who were natives of India. In the course of that case, the
Court ascertained from the Registrar of the original side of the Calcutta High Court that at
that date its powers in the matters of lunacy as the successor and inheritor of the powers
of the old Supreme Court were, as regards natives of India, only exercised within the
limits of the town of Calcutta itself, and that in other respects the procedure directed by
the Lunacy (District Court) Act, 1958,was followed in Lower Bengal. The Court
expressed the view that this practice was correct. The Lunacy Act, 19121 repealed both
the Acts of 1958, but made no alteration in the law with regard to the matter now under
consideration. For a person to come under that chapter he must be not subject to the
jurisdiction of a High Court, and must be resident within the jurisdiction of a District
Court. The question of jurisdiction was considered in Anila Bala Chowdhurani V.
Dhirendra Nath Saha2 where it was held that the jurisdiction of the Pabna District Court
was ousted because the alleged lunatic (an Indian) resided both at Pabna and at Calcutta,
but it is clear from that case that, but for his residence at Calcutta, the Pabna District
Court would have had jurisdiction and the original side of the Calcutta High Court would
not. In in re Taruchandra Ghosh,3 the Court held that, under Cl. 17 of the Charter, the
Court had power to appoint a guardian of an Indian infant resident outside the original
jurisdiction. The order was made ex parte on the father’s application, it being stated there
was no opposition.The attention of the Court was not drawn to 13 Geo. 3, c. 63, nor to
the cases referred to above. Moreover, the language of Cl.25 of the Charter of 1774 as
regards infants, differs from its language as regards lunatics. The original side of the
Calcutta High Court has no jurisdiction to direct an inquisition or appoint a guardian of
person or property in the case of an Indian not resident in Calcutta4.
WHAT HAS TO BE FOUND UNDER THE ACT – What has to be found under the Act
is that the person is of unsound mind and that the unsoundness of mind is such as to make
him incapable of managing his affairs. A person who is incapable of managing his affairs is
not necessarily of unsound mind and a person of unsound mind may not be incapable of
managing his affairs. The Court must hold that both unsoundness of mind and incapacity
to manage his affairs are present and that the latter is due to the former5.
DUTY OF THE COURT – It has, at the very outset to be realized that an order declaring
a person to be of unsound mind and incapable on that account of managing his affairs is an
order of a very serious character. It has the effect of disqualifying him from using his own
property in the manner he desires and placing a drastic check on his rights and privileges
which as a normal individual, he would be entitled to enjoy. In Teka Devi V. Gopal Das6,
it was observed that:
“It is, therefore, the duty of the Court before proceeding further, the determine judicially
whether the person alleged to be incapable of managing himself or his affairs, is really a
lunatic in this sense. Secondly, it must be remembered that this finding has got very farreaching
consequences and must be given after very great care and deliberation. It may
have the immediate effect of putting a human being
d. Act 4 of 1912 repealed by Act 14 of 1987.
e. I.L.R. 48 of Cal.577
f. I.L.R. 57 Cal 535.
g. In the matter of Phanindra Chandra Set,35 C.W.N. 1045 at pp 1046-
47:A.I.R. 1932 Cal.91.
h. Sesha Ammal V.Venkatanarasimha Bhattachariar 67 M.L.J 797 at p.798;
A.I.R. 1935 Mad.91
i. A.I.R. 1930 Lah.209.
Being under restraint. It might deprive him for a time, or forever of the possession
and management of his property. It will be prima facie evidence of his lunacy, and
may be read in proof of it in other proceedings. The Legislature has, therefore, laid
down an elaborate procedure for conducting an enquiry into this matter, and this
procedure must be strictly followed. The Court cannot and ought not to deal
lightheartedely with this important question, and it should not consider itself
relieved of its responsibility by the mere circumstance that some or all the relatives
of the person concerned have declared that he is lunatic”.
The above is undoubtedly an accurate statement of the policy underlying the
precaution enjoined by the Legislature in the various provisions of the Act as a
preliminary condition to the final exercise of jurisdiction by the Court in declaring a
person as a lunatic1.
The smallest attention to the words of the Indian Lunacy Act2 whether they be the
words of Sec. 62 or the words of Sec. 38 shows this that the Legislature
appreciates that to have an inquisition into the state of health, the state of mind, the
state of property and general capacity of a person is a thing which affects that
person so prejudicially that it ought not to be taken except it be first ordered upon
a careful consideration of evidence3. It was said in a case reported in Muhammad
Yaqub V. Nazir Ahmad4: “It is true that nothing is contained in the Act itself to
direct or guide a Judge as to how he shall consider applications for an inquisition
and probably no rules exist for dealing with the matter; but ordinary commonsense
would appear to dictate to a tribunal before whom such an application comes that
care should be exercised in a painful matter of this kind, namely, an enquiry into a
man’s or woman’s state of mind; specially in the case of people in conformable
circumstances who merely wish to lead a quiet life care should be exercised that
they are not suddenly flung without sufficient reason into an elaborate inquisition
which after all is nothing more or less than a trial involving sometimes the history
of a person’s life back for many years, medical evidence, and all sorts of family
witnesses”.
INQUISITION – The Lunacy Act does not contain any procedure or permit any
procedure by which a man today can be declared to be a lunatic ten years ago in
the past5.
JURISDICTION OF THE LUNACY COURT – The jurisdiction of the Lunacy Court
depends on normal residence of the alleged lunatic and not on his temporary residence
except in the cases of the High Courts of Calcutta, Madras and Bombay where different
rules are applicable under the Charters and Letter Patent. The principles of residence are
clearly laid down by a Bench of three learned Judges consisting of Sir Ashutosh
Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ. In Anila Bala
Choudhurani V. Dhirendra Natha Saha1. That decision is an authority on the proposition
that Sec. 38 of the Lunacy Act does not define the test to be applied to determine whether
a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial
inquisition as to lunacy. But the proceedings are directed primarily against the person and
only secondarily against his property. Such authority over the person may, unless
otherwise directed by statute, be ordinarily exercised in the case of residents within the
local limits of the jurisdiction of the Court. No doubt it may also be exercised over nonresidents,
if there is statutory provision to that effect. The third proposition laid down by
this decision is that before a District Court can institute inquisition of a person possessed
of property and alleged to be a lunatic it must be established not merely that such person is
residing within the jurisdiction of that Court but also that he is not subject to the
jurisdiction of any of the High Courts mentioned in Sec. 37 of the Lunacy Act. Therefore,
in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Sec.
37, the District Court has no jurisdiction under Sec. 62, even though the person may
reside within the local limits of the jurisdiction of the District Court. In other words, the
jurisdiction of the High Court and District Court are not concurrent, but the jurisdiction of
the High Court excludes that of the District Court; although if the alleged lunatic resides in
two districts, the jurisdiction of the two Courts are concurrent and not mutually
exclusive2.
PROOF OF INSANITY- The question of insanity requires a most careful examination and
it is difficult to think that bare assertion by witnesses unsupported by any details of the
cause, the course and the treatment of the malady ought to be accepted as satisfactory
proof3.
NOTICE – DIRECTING AN INQUISITION – The notice contemplated by Sec. 40 is a
notice to be drawn up after there has been an order directing an inquisition. It is notice of
such order and of the time and place at which the inquisition is to be held. It is notice of
the petition. The notice prescribed is a notice that the Court has determined to hold an
inquisition. So far as the alleged lunatic concerned, it is a most important notice. It is a
notice which tells him that he is in such a serious position that Court has determined to
enquire into his state of mind and that his liberty and his right to manage his own affairs is
now in peril by virtue of a considered judgement of a District Judge. There is nothing in
the Lunacy Act about general notices. There is a definite provision in the Lunacy Act for
notice to he lunatics and to such relatives or other persons as the District Judge may think
it desirable to give notice to. Under the Guardians and Wards Act the provision for notice
to the minor is a provision about general notice, that is to say, the notice has to be affixed
in the Court-house and a copy has to be affixed to the permanent place of residence of the
minor4.
53. ISSUES ON WHICH FINDING SHOULD BE GIVEN BY DISTRICT
COURT AFTER INQUISITION –
On completion of the inquisition, the District Court shall record its findings on –
. whether the alleged mentally ill person is in fact mentally ill or not, and
a. Where such person is mentally ill, whether he is incapable of taking care of
himself and managing his property, or incapable of managing his property
only.
COMMENT
This section empowers District Court to record its findings on certain issues.
54. PROVISION FOR APPOINTING GUARDIAN OF MENTALLY ILL
PERSON AND FOR MANAGER OF PROPERTY –
. Where the District Court records a finding that the alleged mentally ill
person is in fact mentally ill and is incapable of taking care of himself and of
managing his property, it shall make an order for the appointment of a
guarding under Sec. 53 to take care of his person and of a manager under
Sec. 54 for the management of his property.
a. Where the District Court records a finding that the alleged mentally ill
person is in fact mentally ill and is incapable of managing his property but
capable of taking care of himself, it shall make an order under Sec.54
regarding the management of his property.
b. Where the District Court records a finding that the alleged mentally ill
person is not mentally ill, it shall dismiss the application.
c. Where the District Court deems fit, it may appoint under sub-section (1)
the same person to be the guardian and manager.
COMMENT
This section makes provision for appointment of guardian of mentally ill person
and for manager or property.
55. APPOINTMENT OF GUARDIAN OF MENTALLY ILL PERSON –
. Where the mentally ill person is incapable of taking care of himself, the
District Court or, where a direction has been issued under sub-section (2)
of Sec.54, the Collector of the District, may appoint any suitable person to
be his guardian.
a. In the discharge of his functions under sub-section (1), the Collector shall
be subject to the supervision and control of the State Government or of any
authority appoin
ted by it in that behalf
COMMENT
This section empowers the District Court or the Collector to appoint guardian of
mentally ill person.
56. APPOINTMENT OF MANAGER FOR MANAGEMENT OF PROPERTY
OF MENTALLY ILL PERSON –
. Where the property of the mentally ill person who is incapable of managing
it is such as can be taken charge of by a Court of Wards under any law for
the time being in force, the District Court shall authorise the Court of
Wards to take charge of such property, and thereupon notwithstanding
anything contained in such law, the Court of Wards shall assume the
management of such property in accordance with that law.
a. Where the property of the mentally ill person consists in whole or in part of
land or of any interest in land which cannot be taken charge of by the Court
of Wards, the District Court may, after obtaining the consent of the
Collector of the District in which the land is situate, direct the Collector to
take charge of the person and such part of the property or interest therein
of the mentally ill person as cannot be taken charge of by the Court of
Wards.
b. Where the management of the property of the mentally ill person cannot be
entrusted to the Court of Wards or to the Collector under sub-section (1)
or sub-Section (2), as the case may be, the District Court shall appoint any
suitable person to be the manager of such property.
COMMENTS
APPOINTMENT OF MANGER – There is no prohibition in the Gwalior law and the
Indian Lunacy Act (since repealed by this Act), against appointment or re-appointment of
persons already acting as managers of the estate of a person during his minority who later
on became a lunatic/mentally ill person either before or after attainment of majority1.
Since the vendor did not obtain any order from the competent Court under the Lunacy Act
(since repealed by this Act), to have him appointed as Manager of the joint family to
alienate the property, the sale is per se illegal. The sale, therefore, appears to be to defeat
the statutory right of the appellant2.
57. APPOINTMENT OF MANAGER BY COLLECTOR –
Where the property of a mentally ill person has been entrusted to the Collector by
the District Court under sub-section (2) of Sec. 54, he may, subject to the control
of the State Government or of any authority appointed by it in that behalf, appoint
any suitable person for the management of the property of the mentally ill person.
COMMENT
This section empowers the Collector to appoint manager of the property of a
mentally ill person.
58. MANAGER OF PROPERTY TO EXECUTE BOND –
Every person who is appointed as the manager of the property of a mentally ill
person by the District Court or by the Collector shall, if so required by the
appointing authority, enter into a bond for such sum, in such form and with such
sureties as that authority may specify, to account for all receipts from the property
of the mentally ill person.
COMMENT
This section requires the manager of property to execute bond.
59. APPOINTMENT AND REMUNERATION OF GUARDIANS AND
MANAGERS –
. No person, who is the legal heir of a mentally ill person shall be appointed
under Sec. 53, 54 or 55 to be the guardian of such mentally ill person or, as
the case may be, the manager of his property unless the District Court or,
as the case may be, the Collector, for reasons to be recorded in writing,
considers that such appointment is for the benefit of the mentally ill person.
a. The guardian of a mentally ill person or the manager of the property or
both appointed under this Act shall be paid, from out of the property of the
mentally ill person, such allowance as the appointing authority may
determine.
COMMENT
This section deals with appointment and remuneration of guardians and managers.
60. DUTIES OF GUARDIAN AND MANAGER –
. Every person appointed as a guardian of a mentally ill person or manager
of his property, or of both, under this Act shall have the care of the
mentally ill person or his property or of both , and be responsible for the
maintenance of the mentally ill person and of such members of his family as
are dependent on him.
a. Where the person appointed as guardian of a mentally ill person is different
from the person appointed as the manager of his property, the manager of
his property shall pay to the guardian of the mentally ill person such
allowance as may be fixed by the authority appointing the guardian for the
maintenance of the mentally ill person and of such members of his family as
are dependent on him.
COMMENT
“FAMILY” – A married daughter living with her husband and separate from her
father is not entitled to a separate maintenance being allowed to her against her
father’s estate, when that estate is taken charge of by the Court under the
provisions of Lunatic Act (since repealed by this Act).
The word “family” includes persons living with the lunatic/mentally ill person as
members of his family, that is to say, persons actually depending upon him for their
maintenance1.
In the instant case, under the relevant Medical Rules, the father was a member of
the family of his son and was wholly dependent on him and the 2nd respondent
was thus fully entitled to reimbursement for the expenses incurred on the treatment
of his father and other travelling expenses2.
61. POWERS OF MANAGER –
. Every manager under this Act shall, subject to the provisions of this Act,
exercise the same powers in regard to the management of the property of
the mentally ill person in respect of which he is appointed as manager, as
the mentally ill person would have exercised as owner of the property had
he not been mentally ill and shall realise all claims due to the estate of the
mentally ill person and pay all debts and discharge all liabilities legally due
from that estate:
Provided that the manager shall not mortgage, create any charge on, or ,
transfer by sale, gift, exchange or otherwise, any immoveable property of
the mentally ill person or lease out any such property for a period
exceeding five years, unless he obtains the permission of the District Court
in that behalf.
a. The District Court may, on an application made by the manager, grant him
permission to mortgage,. Create a charge on, or, transfer by sale, gift,
exchange or otherwise, any immoveable property of the mentally ill person
or to lease out any such property for a period exceeding five years, subject
to such conditions or restrictions as that Court may think fit to impose.
b. The District Court shall cause notice of every application for permission to
be served on any relative or friend of the mentally ill person and after
considering objections, if any, received from the relative or friend and after
making such inquiries as it may deem necessary, grant or refuse permission
having regard to the interests of the mentally ill person.
COMMENT
A manager is empowered to exercise the same powers in regard to the
management of the property of the mentally ill person as the mentally ill person
would have exercised as owner of the property had he not been ill.
The manager shall, however, not mortgage, create any charge on, or, transfer by
sale, gift etc. any immoveable property without the prior permission of the District
Court.
62. 60. MANAGER TO FURNISH INVENTORY AND ANNUAL ACCOUNTS –
. Every manager appointed under this Act shall, within a period of six
months from the date of his appointment, deliver to the authority, which
appointed him, an inventory of the immoveable property belonging to the
mentally ill person and of all assets and other moveable property received
on behalf of the mentally ill person, together with a statement of all claims
due to and all debts and liabilities due by, such mentally ill person.
a. Every such manager shall also furnish to the said appointing authority
within a period of three months of the close of every financial year, an
account of the property and assets in his charge, the sums received and
disbursed on account of the mentally ill person and the balance remaining
with him.
COMMENT
Under this section manager has to furnish inventory and annual accounts in respect
of the property of the mentally ill person to the appointing authority.
63. MANAGER’S POWER TO EXECUTE CONVEYANCES UNDER
ORDERS OF DISTRICT COURT –
Every manager appointed under this Act, may, in the name and on behalf of the
mentally ill person –
. execute all such conveyance and instruments of transfers by way of sale,
mortgage or otherwise of property of the mentally ill person as may be
permitted by the District Court; and
a. Subject to the orders of the District Court, exercise all powers vested in
that behalf in the mentally ill person, in his individual capacity or in his
capacity as a trustee or as a guardian.
COMMENT
This section empowers the manager to execute conveyances in the name and on
behalf of the mentally ill person, under the orders of the District Court.
64. MANAGER TO PERFORM CONTRACTS DIRECTED BY DISTRICT
COURT –
Where the mentally ill person had, before his mental illness, contracted to sell or
otherwise dispose of his property or any portion thereof, and if such contract is, in
the opinion of the District Court, of such a nature as ought to be performed, the
District Court may direct the manager appointed under this Act to perform such
contract and to do such other acts in fulfilment of the contract as the Court
considers necessary and thereupon the manager shall be bound to act accordingly.
COMMENT
This section empowers the manager to perform contracts on behalf of the mentally
ill person as per directions of the District Court.
65. DISPOSAL OF BUSINESS PREMISES –
Where a mentally ill person had been engaged in business before he became
mentally ill, the District Court may, if it appears to be for the benefit of the
mentally ill person to dispose of his business premises, direct the manager
appointed under this Act in relation to the property of such person to sell and
dispose of such premises and to apply the sale proceeds thereof in such manner as
the District Court may direct and thereupon the manager shall be bound to act
accordingly.
COMMENT
The District Court is empowered to direct disposal of business premises of a
mentally ill person, who was engaged in business prior to becoming mentally ill, for
the benefit of the said ill person.
66. MANAGER MAY DISPOSE OF LEASES –
Where a mentally ill person is entitled to a lease or under lease, and it appears to
the manager appointed under this Act in relation to the property of such person
that it would be for the benefit of the mentally ill person to dispose of such leas or
under lease, such manager may, after obtaining the orders of the District Court,
surrender, assign or otherwise dispose of such lease or under lease to such person
for such consideration and upon such terms and conditions as the Court may
direct.
COMMENT
This section empowers manager of a mentally ill person to dispose of lease for the
benefit of the mentally ill person, after obtaining the orders of the District Court.
67. POWER TO MAKE ORDER CONCERNING ANY MATTER
CONNECTED WITH MENTALLY ILL PERSON –
The District Court may, on an application made to mentally ill person or his
property, make such order, subject to the provisions of this Chapter, in relation to
that matter as in the circumstances it thinks fit.
COMMENT
This section empowers the District Court to pass order concerning any matter
connected with mentally ill person.
68. PROCEEDING IF ACCURACY OF INVENTORY OR ACCOUNTS IS
IMPUGNED –
If any relative of the mentally ill person or the collector impugns, by a petition to
the District Court, the accuracy of the inventory or statement referred to in subsection
(1), or, as the case may be, any annual account referred to in sub-section
(2) of Sec.60, the Court may summon the manager and summarily inquire into the
matter and make such order thereon as it thinks fit.
Provided that the District Court may, in its discretion, refer such petition to any
Court subordinate to it, or to the Collector in any case where the manager was
appointed by the Collector and the petition is not presented by the Collector.
COMMENT
This section lays down the procedure for disposal of petition challenging accuracy
of inventory or account.
69. PAYMENT INTO PUBLIC TREASURY AND INVESTMENT OF
PROCEEDS OF ESTATE –
All sums received by a manager on account of any estate in excess of what may be
required for the current expenses of the mentally ill person or for the management
of his property, shall be paid into the public treasury on account of the estate, and
shall be invested from time to time in any of the securities specified in Sec.20 of
the Indian Trusts Act, 1882 (2 of 1982), unless the authority which appointed him,
for reasons to be recorded in writing, directs that, in the interests of the mentally ill
person such sums be otherwise invested or applied.
COMMENT
A manager of mentally ill person is required under this section, to make payment
into public treasury on account of estate.
70. RELATIVE MAY SUE FOR ACCOUNT –
Any relative of a mentally ill person may, with the leave of the District Court, sue
for an account from any manager appointed under this Act, or from any such
person after his removal from office or trust, or from his legal representative in the
case of his death, in respect of any property then or formerly under his
management or of any sum of money or other property received by him on account
of such property.
COMMENT
This section empowers relative of a mentally ill person, with the leave to the
District Court, to sue for account from any manager.
71. REMOVAL OF MANAGERS AND GUARDIANS-
. The manager of the property of a mentally ill person may, for sufficient
cause and for reasons to be recorded in writing, be removed by the
authority which appointed him and such authority may appoint a new
manager in his place.
a. Any manager removed under sub-section (1) shall be bound to deliver the
charge of all property of the mentally ill person to the new manager and to
account for all moneys received or disbursed by him.
b. The District Court may, for sufficient cause, remove any guardian of a
mentally ill person and appoint in his place a new guardian.
COMMENT
This section makes provision for removal of managers and guardians of a mentally
ill person
72. DISSOLUTION AND DISPOSAL OF PROPERTY OF PARTNERSHIP ON
A MEMBER BECOMING MENTALLY ILL –
. Where a person, being a member of a partnership firm, is found to be
mentally ill, the District Court may, on the application of any other partner
for the dissolution of partnership or on the application of any person who
appears to that Court to be entitled to seek such dissolution, dissolve the
partnership.
a. Upon the dissolution under sub-section (1), or otherwise, in due course of
law, of a partnership firm to which that sub-section applies, the manager
appointed under this Act may, in the name and on behalf of the mentally ill
person, join with the other partners in disposing of the partnership property
upon such terms, and shall do all such acts for carrying into effect the
dissolution of the partnership, as the District Court may direct.
COMMENT
This section makes provision for dissolution and disposal of property of
partnership firm when a member becomes mentally ill.
73. POWER TO APPLY PROPERTY FOR MAINTENANCE OF MENTALLY
ILL PERSON WITHOUT APPOINTING MANAGER IN CERTAIN
CASES
. Notwithstanding anything contained in the foregoing provisions, the
District Court may, instead of appointing a manager of the estate, order
that in the case of cash, the cash and in the case of any other property the
produce thereof, shall be realised and paid or delivered to such person as
may be appointed by the District Court in this behalf, to be applied for the
maintenance of the mentally ill person and of such members of his family as
are dependent on him.
a. A receipt given by the person appointed under sub-section (1) shall be valid
discharge to any person who pays money or delivers any property of the
mentally ill person to the person so appointed.
COMMENT
This section empowers the District Court to order for application/utilization of
cash and the produce of other property for maintenance of mentally ill person
without appointing a manager of the estate.
74. POWER TO ORDER TRANSFER OF STOCK, SECURITIES OR SHARES
BELONGING TO MENTALLY ILL PERSON IN CERTAIN CASES –
Where any stock or Government securities or any share in a company (transferable
within India or the dividends of which are payable therein) is or are standing in the
name of, or vested in, a mentally ill person beneficially entitled thereto, or in the
manager appointed under this Act or in a trustee for him, and the manager dies
intestate, or himself becomes mentally ill, or is out of the jurisdiction of the District
Court, or it is uncertain whether the manager is living or dead, or he neglects or
refuses to transfer the stock, securities or shares, or to receive and pay over
thereof the dividends to a new manager appointed in his place, within fourteen
days after being required by the Court to do so, then the District Court may direct
the company or Government concerned to make such transfer, or to transfer the
same, and to receive and pay over the dividends in such manner as it may direct.
COMMENT
This section empowers the District Court to pass order for transfer of stock,
securities or share belonging to mentally ill person, when the manager dies or
himself becomes mentally ill or neglects or refuses to transfer stock, securities, etc.
75. POWER TO ORDER TRANSFER OF STOCK, SECURITIES OR SHARES
OF MENTALLY ILL PERSON RESIDING OUT OF INDIAWhere
any stock or Government securities or share in a company is or are standing
in the name of, or vested in , any person residing out of India, the District Court
upon being satisfied that such person has been declared to be mentally ill and that
his personal estate has been vested in a person appointed for the management
thereof, according to the law of the place where he is residing, may direct the
company or Government concerned to make such transfer of the stock, securities
or shares or of any part thereof, to or into the name of the person so appointed or
otherwise, and also to receive and pay over the dividends and proceeds, as the
District Court thinks fit.
COMMENT
This section empowers the District Court to issue directions for transfer of stock,
securities or shares of mentally ill person residing out of India.
76. POWER TO APPLY PROPERTY FOR MENTALLY ILL PERSON’S
MAINTENANCE IN CASE OF TEMPORARY MENTAL ILLNESS –
If it appears to the District Court that the mental illness of a mentally ill person is
in its nature temporary, and that it is expedient to make provision for a temporary
period, for his maintenance for the maintenance of such members of his family as
are dependent on him, the District Court may, in like manner as under Sec. 71,
direct his property or a sufficient part thereof to be applied for the purpose
specified therein.
COMMENT
The District Court is empowered, under this section, to apply property of the
mentally ill person for his maintenance in case of temporary mental illness.
77. ACTION TAKEN IN RESPECT OF MENTALLY ILL PERSON TO BE
SET ASIDE IF DISTRICT COURT FINDS THAT HIS MENTAL ILLNESS
HAS CEASED –
. Where District Court has reason to believe that any person who was found
to be mentally ill after inquisition under this Chapter has ceased to be
mentally ill, it may direct any Court subordinate to it to inquire whether
such person has ceased to be mentally ill.
a. An inquiry under sub-section (1) shall, so far as may be, conducted in the
same manner as an inquisition conducted under this Chapter.
b. If after an inquiry under this section, it is found that the mental illness of a
person has ceased, the District Court shall order all actions taken in respect
of the mentally ill person under this Act to be set aside on such terms and
conditions as that Court thinks fit to impose.
COMMENT
This section makes provision for setting aside the action taken in respect of
mentally ill person if the District Court finds that his mental illness has ceased.
78. APPEALS –
An appeal shall lie to the High Court from every order made by a District Court
under this Chapter.
COMMENT
This section makes provision for appeal in High Court from every order of the
District Court.
79. POWER OF DISTRICT COURT TO MAKE REGULATIONS –
The District Court may, from time to time, make regulations for the purpose of
carrying out the provisions of this Chapter.
COMMENT
This section empowers the District Court to make regulations for carrying out the
provisions of this Chapter.
CHAPTER VII
LIABILITY TO MEET COST OF MAINTENANCE OF MENTALLY ILL
PERSONS DETAINED IN PSYCHIATRIC HOSPITAL OR
PSYCHIATRIC NURSING HOME
80. COST OF MAINTENANCE TO BE BORNE BY GOVERNMENT IN
CERTAIN CASES –
The cost of maintenance of a mentally ill person detained as an in-patient in any
psychiatric hospital or psychiatric nursing home shall, unless otherwise provided
for by any law for the time being in force, be borne by the Government of the State
wherein the authority which passed the order in relation to the mentally ill person
is subordinate, if –
. that authority which made the order has not taken an undertaking from any
person to bear the cost of maintenance of such mentally ill person, and
a. no provision for bearing the cost of maintenance of such a District Court
under this Chapter.
COMMENT
This section makes provisions for maintenance of mentally ill person at
Government cost, in certain cases.
81. APPLICATION TO DISTRICT COURT FOR PAYMENT OF COST OF
MAINTENANCE OUT OF ESTATE OF MENTALLY ILL PERSON OR
FROM A PERSON LEGALLY BOUND TO MAINTAIN HIM –
. Where any mentally ill person detained in a psychiatric hospital or
psychiatric nursing home has an estate or where any person legally bound
to maintain such person has the means to maintain such person, the
Government liable to pay the cost of maintenance of such person under
Sec. 78 or any local authority liable to bear the cost of maintenance of such
mentally ill person under any law for the time being in force, may make an
application to the District Court within whose jurisdiction the estate of the
mentally ill person is situate or the person legally bound to maintain the
mentally ill person and having the means therefor resides, for an order
authorising it to apply the estate of the mentally ill person to the cost of
maintenance or, as the case may be, directing the person legally bound to
maintain the mentally ill person and having the means therefor to bear the
cost of maintenance of such mentally ill person.
a. An order made by the District Court under sub-section (1) shall be
enforced in the same manner, shall have the same force and effect and be
subject to appeal, as a decree made by such Court in a suit in respect of the
property or person mentioned therein.
COMMENT
When a mentally ill person has an estate or any person legally bound to maintain
such person has means to maintain such ill person, application may be preferred to
the District Court for payment of cost of maintenance of mentally ill person.
82. PERSONS LEGALLY BOUND TO MAINTAIN MENTALLY ILL
PERSON NOT ABSOLBED FROM SUCH LIABILITY –
Nothing contained in the foregoing provisions shall be deemed to absolve a person
legally bound to maintain a mentally ill person from maintaining such mentally ill
person.
COMMENT
The provisions of the Act do not absolve person legally bound to maintain mentally
ill person from maintaining such ill person.
CHAPTER VIII
PROTECTION OF HUMAN RIGHTS OF MENTALLY ILL PERSONS
83.
0. No mentally ill person shall be subjected during treatment to any
indignity (whether physical or mental) or cruelty.
1. No mentally ill person under treatment shall be used for purposes of
research, unless –
a. such research is of direct benefit to him for purposes of diagnosis or
treatment, or
b. Such person, being a voluntary patient, has given his
consent in writing or where such person (whether or not a
voluntary patient) is incompetent, by reason of minority or
otherwise, to give valid consent, the guardian or other
person competent to give consent on his behalf, has given
his consent in writing, for such research.
2. Subject to any rules made in this behalf under Sec.94 for the
purpose of preventing vexatious or defamatory communications or
communications prejudicial to the treatment of mentally ill persons,
no letters or other communications sent by or to a mentally ill
persons under treatment shall be intercepted, detained or destroyed.
COMMENT
PENALTIES AND PROCEDURE
84. PENALTY FOR ESTABLISHMENT OR MAINTENANCE OF
PSYCHIATRIC HOSPITAL OR PSYCHIATRIC NURSING HOME IN
CONTRAVENTION OF CHAPTER III –
. Any person who establishes or maintains a psychiatric hospital or
psychiatric nursing home in contravention of the provisions of Chapter III
shall, on conviction, be punishable with impriisonment for a term which
may extend to three months, or with fine which may extend to two hundred
rupees, or with both, and in the case of a second or subsequent offence,
with imprisonment for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
a. Whoever, after conviction under sub-section(1) continues to maintain a
psychiatric hospital or psychiatric nursing home in contravention of the
provisions of Chapter III shall, on conviction, be punishable with fine
which may extend to one hundred rupees, for every day after the first day
during which the contravention is continued.
COMMENT
This section makes provision for penalty for establishment or maintenance of
psychiatric hospital/nursing home in contravention of the provisions of Chapter III.
85. PENALTY FOR IMPROPER RECEPTION OF MENTALLY ILL PERSON

Any person who receives or detains or keeps a mentally ill person in a psychiatric
hospital or psychiatric nursing home otherwise than in accordance with the
provision of this Act, shall, on conviction, be punishable with imprisonment for a
term which may extend to two years or with fine which may extend to one
thousand rupees, or with both.
COMMENT
This section makes provision for penalty for improper reception of mentally ill
person.
86. PENALTY FOR CONTRAVENTION OF SOECS. 60 AND 69 –
Any manager appointed under this Act to manage the property of a mentally ill
person who contravenes the provisions of Sec. 60 or sub-section (2) of Sec. 69,
shall, on conviction, be punishable with fine which may extend to two thousand
rupees and may be detained in a civil prison till he complies with the said
provisions.
COMMENT
This section makes provision for penalty for contravention of the provisions of
Secs. 60 and 69.
87. GENERAL PROVISION FOR PUNISHMENT OF OTHER OFFENCES –
Any person who contravenes any of the provisions of this Act or of any rule or
regulation made thereunder, for the contravention of which no penalty is expressly
provided, in this Act, shall, on conviction, be punishable with imprisonment for a
term which may extend to six months, or with fine which may extend to five
hundred rupees, or with both.
COMMENT
This section makes general provision for punishment of other offences.
88. OFFENCES BY COMPANIES –
. Where an offence under this Act has been committed by a company, every
person who, at the time of offence was committed, was in charge of, and
was responsible to, the company for the conduct of the business of the
company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished
accordingly:
a. Notwithstanding anything contained in sub-section (1), where an offence
under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary
or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of that offence and shall be liabale
to be proceeded against and punished accordingly.
EXPLANATION – For the purposes of this section –
b. “company” means a body corporate and includes a firm or other association
of individuals; and
c. “director”, in relation to a firm, means a partner in the firm. COMMENTS
This section deals with the offences under this Act committed by
companies.
PENAL PROVISION – Penal provision is to be construed rigidly1.
89. SANCTION FOR PROSECUTIONS

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), no Court shall take cognizance of any offence punishable under Sec. 82,
except with the previous sanction of the licensing authority.
COMMENT
Under this section previous sanction of the licensing authority has to be obtained
for presecutions.
90. PROVISION AS TO BONDS –
The provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 (2 of
1974) shall, as far as may be apply to bonds taken under this Act.
COMMENT
This section makes provision as to bonds taken under this Act.
91. SREPORT BY MEDICAL OFFICER –
The medical officer in-charge of a psychiatric hospsital or psychiatric nursing home
shall, as soon as may be, after any mentally ill person detained therein has been
discharged make a report in respect of his mental and physical condition to the
authority under whose orders such person had been so detained.
COMMENT
This section requires the medical officer to make a report about the mental and
physical condition of the discharged person to the authority under whose orders
the mentally ill person was detained in the psychiatric hospsital/nursing home.
92. PENSION, ETC. OF MENTALLY ILL PERSON PAYABLE BY
GOVERNMENT –
. Where any sum is payable in respect of pay, pension, gratuity or any
allowance to any person by any Government and the person to whom the
sum is payable is certified by a Magistrate under this Act to be a mentally ill
person, the officer under whose authority such sum would be payable, may
pay to the person having charge of the mentally ill person so much of the
said sum as he thinks fit, having regard to the cost of maintenance of such
person and may pay to such member of the family of the mentally ill person
as are dependent on him for maiantenance, the susrplus, if any, or such part
thereof as he thinks fit, having regard to the cost of maintenance of such
members.
a. Where there is any further surplus amount available out of the funds
specified in sub-section (1) after making payments as provided in that subsection,
the Government shall hold the same to be dealt with as follows
namely:
0. where the mentally ill person is certified to have ceased to be
mentally ill person by the District Court within the local limits of
whose jurisdiction such person resides or is kept or detains, the
whole of the surplus amount shall be paid back to that person;
1. Where the mentally ill person dies before payament, the whole of
the surplus amount shall be paid over to those of his heirs who are
legally entitled to receive the same:
2. Where the mentally ill person dies during his mental illness without
leaving any person legally entitled to succeed to his estate, the
whole of the surplus amount shall, with the prior permission of the
District Court, be utilised for such charitable purpose as may be
approved by the District Court.
b. The Central Government or the State Government, as the case may be ,
shall be discharged of all liability in respect of any amount paid in
accordance with this section.
COMMENT
This section makes provision for payment of pay, pension, gratuity, etc. of
mentally ill person payable by Government.
93. LEGAL AID TO MENTALLY ILL PERSON AT STATE EXPENSE IN
CERTAIN CASES –
. Where a mentally ill person is not represented by a legal practitioner in any
proceeding under this Act before a District Court or a Magistrate and it
appears to the District Court or Magistrate that such person has not
sufficient means to engage a legal practitioner, the District Court or
Magistrate shall assign a legal practitioner to represent him at the expense
of the State.
a. Where a mentally ill person having sufficient means to engage a legal
practitioner is not represented by a legal practitioner in any proceding
under this Act before a District Court or a Magistrate and it appears to the
District Court or Magistrate, having regard to all the circumstances of the
case, that such person ought to be represented by a legal practitioner, the
District Court, or Magistrate may assign a legal practitioner to represent
him and direct the State to bear the expenses with respect thereto and
recover the same from out of the property of such person.
b. The High Court may, with the previous approval of the State Government,
make rules providing for-
0. the mode of selecting legal practitioners for the purpose of Subsection
(1) and (2);
1. the facilities to be allowed to such legal practitioners;
2. the fees payable to such legal practitioners by the Government and
generally for carrying out the purpose of sub-sections (1) and (2).
EXPLANATION – In this section “legal practitioner” shall have the meaning
assigned to it in Cl. (I) of Sec. 2 of the Advocates Act, 1961 (25 of 1961).
COMMENTS
This section provides for legal and to mentally ill person at State expense in certain
cases.
EXPLANATION – It is now well settled that an explanation added to a statutory provision
is not a substantive provision in any sense of the term but as the plain meaning of the word
itself shows it is merely meant to explain or clarify certain ambiguities which may have
crept in the statutory provision1.
94. PROTECTION OF ACTION TAKEN IN GOOD FAITH –
. No suit, prosecution or other legal proceeding shall lie against any person
for anything which is in good faith done or intended to be done in
pursuance of this Act or any rules, regulations or orders made thereunder.
a. No suit or other legal proceeding shall lie against the Government for any
damage caused or likely to be caused for anything which is in good faith
done or intended to be done in pursuance of this Act or any rules,
regulations or orders made thereunder.
COMMENT
This section grants immunity from legal proceedings to persons for anything done
or intended to be done under this Act in good faith.
95. CONSTRUCTION OF REFERENCE TO CERTAIN LAWS, ETC.
. Any reference in this Act to a law which is not in force in any area shall, in
relation to that area, be construed as a reference to the corresponding law,
if any, in force in that area.
a. Any reference in this Act to any officer or authorityshall, in relation to any
area in which there is no offer or authority with the same designation, be
construed as a reference to such officer or authority as may be specified by
the Cengral Government by notification.
COMMENTS
This section provides for construction of reference to certain laws. – In construing
social welfare legislation, the Courts should adopt a beneficent rule of construction
and in any event, that construction should be preferred which fulfils the policy of
the legislation. Construction to be adopted should be more beneficial to the
purposes in favour of and in
SOCIAL WELFARE LEGISLATION whose interest the Act has been passed1.
96. POWER OF CENTRAL GOVERNMENT AND STATE GOVERNMENT
TO MAKE RULES –
. The Central Government may, by notification, make rules providing for the
qualifications of persons who may be appointed as Mental Health Authority
under Sec. 3 and the terms and conditions subject to which they may be
appointed under that section and all other matters relating to such
authority.
a. Subject to the provisions of sub-section (1), the State Government, with
the previous approval of the Central Government may, by notification,
make rules for carrying out the provisions of this Act:
Provided that the first rules shall be made by the Central Government by
notification.
b. In particular, and without prejudice to the generality of the foregoing
power, rules made under sub-section (2) may provide for all or any of the
following maters, namely:
0. the qualifications of persons who may be appointed as Mental
Health Authority and the terms and conditions subject to which
they may be appointed under Sec. 4 and all other matters relating to
such authority;
1. The class or category of persons for whom separate psychiatric
hospitals and psychiatric nursing homes may be established and
maiantained under Cl (d) of sub-section (1) of Sec. 5;
2. The form in which, –
. an application, may be made for grant or renewal of a
licence and the fee payable in respect thereof under Sec. 7
or as the case may be, Sec. 9;
a. a licence may be granted for the establishment or
maintenance of a psychiatric hospital or a psychiatric
nursing home under Sec.8;
b. an application may be made for a reception order under Sec.
20
3. the manner in which an order refusing to grant, or revoking, a
licence shall be communicated under Sec. 8 or, as the case may be
Sec. 11;
4. the manner in which a report may be made to the licensing authority
under sub-section (2) of Sec.9;
5. the minimum facilities referred to in the proviso to sub-section (5)
of Sec. 9 including –
. psychiatrist-patient ratio;
a. other medical or para-medical staff;
b. space requirement;
c. treatment facilities; and
d. equipment:
6. the manner in which and the conditions subject to which a
psychiatric hospital or psychiatric nursing home shall be maintained
under sec. 10.
7. The form and manner in which and the period within which an
appeal against any order refusing to grant or renew a licence or
revoking a licence shall be preferred and the fee payable in respect
thereof under sec.12;
8. The mananer in which records shall be maintained under subsection
(1) of sec.13.
9. The facilities to be provided under Sec. 14 of the treatment of a
mentally ill person as an out-patient;
10. The manner in which application for a reception order shall be
signed and verified under sub-section (6) of Sec. 20;
11. The qualification of persons who may be appointed as visitors and
the terms and conditions on which they may be appointed, under
Sec.37 and their functions.
12. Prevention of vexatious or defamatory communications and other
matters referred to in sub-section (3) of Sec.81;
13. Any other matter which is required to be, or may be, prescribed.
COMMENTS
This section empowers the Central Government and State Government to
make rules for carrying out the purposes of the legislation.
RULES OF CONSTRUCTION – It is well-settled canon of construction that the rules
made under a statute must be treated exactly as if they were in the Act and are of the same
effect as if contained in the Act. There is another principle equally fundamental to the rules
of construction, namely, that the rules shall be consistent with the provision of the Act1.
97. RULES MADE BY CENTRAL GOVERNMENT OR THE STATE
GOVERNMENT TO BE LAID BEFORE THE LEGISLATURE –
. Every rule made by the Central Government under this Act shall be laid, as
soon as may be after it is made, before each House of Parliament, while it is
in session , for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter
have effect only if such modified form or be of no effect, as the case may
be; so, however, that anay such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule.
a. Every rule made by the State Government under this Act shall be laid, as
soon as may be after it is made, before the State Legislature.
COMMENT
This section provides that the rules framed by the Central Government or
the State Government shall be laid before each Houses of Parliament or the
State Legislature, as the case may be.
98. EFFECT OF ACT ON OTHER LAWS –
The provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force and to the extent
of such inconsistency that other law shall be deemed to have no effect.
COMMENT
This section lays down that the provisions of othis Act shall have effect on other
laws.
99. POWER TO REMOVE DIFFICULTY –
If any difficulty arises in giving effect to the provisions of this Act in any State, the
State Government may, by order, do anything not inconsistent with such
provisions which appears to it to be necessary or expedient for the purpose of
removing the difficulty.
Provided that no order shall be made under this section in relation to any State
after the expiry of two years from the date on which this Act comes into force in
that State.
COMMENT
This section empowers the State Government to remove difficulty.
100. REPEAL AND SAVING –
. The Indian Lunacy Act, 1912 (4 of 1912) and the Lunacy Act, 1977
[Jammu and Kashmir Act 25 of 1977 (1920 AD)] are hereby repealed.
a. Notwithstanding such repeal, anything done or any action taken under
either of the said Acts shall, in so far as such thing or action is not
inconsistent with the provisions of this Act, be deemed to have been done
or taken under the corresponding provisions of this Act and shall continue
in force until superseded by anything done or any action taken under this
Act.
COMMENT
EFFECT OF IMPLIED REPEAL – If there is a repugnancy between the two pieces of
legislation, to such an extent that both cannot stand together and operate simultaneously,
the latter will have the effect of impliedly repealing theformer1.
SAVING PROVISION – EFFECT OF – While giving effect to a saving provision, when it
provides that something which is done or issued under the repealed provision must be
treated as having been treated or issued under the newly enacted provision, an earlier
order can be saved only if such a direction or an order could be effectively and validdly
made under the new provisions of law, which had repealed the earlier provisions2.
THE STATE MENTAL HEALTH RULES 1990
G.S.R. 1005 (E), DATED 29TH DECEMBER 19901 – In exercise of the powers
conferred by the proviso to sub-section (2) ofSec. 94 of the Mental Health Act
1987 (14 of 1987), read with Sec. 22 of the General Clauses Act, 1897 (10 of
1897 (10 of 1897) the Central Government hereby makes the following rules
namely:
CHAPTER I
PRELIMINARY
b. SHORT TITLE AND COMMENCEMENT –
0. These rules may be called the State Mental Health Rules, 1990.
1. They shall come into force in a State on the date of commencement
of the Act in the State.
c. DEFINITIONS
– In these rules unless the context otherwise requires –
0. “Act” means the Mental Health Act, 1987 (14 of 1987);
1. “applicant” means the person who makes an application to the
licensing authority for grant of a licence;
2. “authority” means the State Mental Health Authority constituted
under Sec. 4 of the Act;
3. “Chairman” means the Chairman nominated undder rule 5;
4. “Form” means Form annexed to these rules;
5. “licence” means licence granted under Sec. 8 of the Act;
6. “member” means a membber of the Authority appointed under rule
3;
7. “membership” means membership of the Authority established
under Sec. 4 of the Act;
8. “non-official member” means a member appointed under sub-rule
(2) of rule 3;
9. “official member” means a member appointed under sub-rule (1) of
rule 3;
10. “secretary” means Secretary to the Authority appointed under rule
13;
11. words and expressions used herein and not defined but defined in
the Act shall respectively have the meanings assigned to them in the
Act.
COMMENT
“MEANS – EXPRESSION OF. – The expression “means” in a definition clause renders
the definition exhaustive of the matter defined. Where an interpretation clause defines a
word to mean a particular thing, the definition is explanatory and prima faci restrictive2.
CHAPTER II
STATE MENTAL HEALTH AUTHORITY
d. CONSTITUTION OF THE AUTHORITY – The Authority shall consist
of the following members, namely;
0. Official Members:
. Secretary, Department of Health;
a. Joint Secretary, Department of Health dealing with Mental
Health;
b. Director of Health Services;
c. Medical Superintendent, Government Mental Hospital or
Head of the Department of Psychiatry, Government Medical
College and Hospital.
1. Non-official Members:
Three members including one social worker, one Clinical Psychologist and
one Medical Psychiatrist, who in the opinion of the State Government,
have special interest in the field of Mental Health.
COMMENT
This rule provides for constitution of the Auathority for purpose of the
rules.
e. DISQUALIFICATION – A person shall be disqualified for being
appointed as a member or shall be removed from membership by the State
Government, if he –
0. has been convicted and sentenced to imprisonment for an offence
which in the opinion of the State Government involves moral
turpitude; or
1. is an undischarged insolvent; or
2. is of unsound mind and stands so declared by a competent court; or
3. has been removed or dismissed from the service of the Government
or a body corporate owned or controlled by the Government.
f. CHAIRMAN –
0. The State Government may nominate any official member to act as
the Chairman of the Authority.
1. The Chairman shall cease to hold office when he ceases to be a
member of the Authority.
g. TERM OF OFFICE OF MEMBERS –
0. Every official member shall hold office as such member so long as
he holds the office by virtue of which he was so appointed.
1. Every non-official member shall hold office for a period of three
years from the date of his appointment and shall be eligible for reappointment.
2. A non-official member may at any time resign from membership of
the Authority by forwarding his letter of resignation to the
Chairman and such resignation shall take effect only from the date
on which it is accepted.
3. Where a vacancy occurs by resignation of a non-official member
under sub-section (3) or otherwise, the State Government shall fill
the vacancy by appointing from amongst category of persons
referred to in sub-rule (2) of rule 3 and the person so appointed,
shall hold office for the remainder of the term of office of the
member in whose place he was so appointed.
4. Where the term of office of any non-official membr is about to
expire, the State Government may appoint a successor at any time
within three months before the expiry of the term of such member
but the successor shall not assume duty until the term of the
member expires.
CHAPTER III
PROCEEDING OF THE AUTHORITY
h. MEETINGS OF THE AUTHORITY –
0. The Authority shall ordinarily meet once in every six months at
such time and place as may be fixed by the Chairman: Provided that
the Chairman –
. may call a special meeting at any time to deal with any
urgent matter requiring the attention of the Authority.
a. shall call a special meeting if he receives a requisition in
writing signed by not less than four members and stating the
purposes for which they desire the meeting to be called.
1. The first meeting of the Authority to be held in any calendar year
shall be the annual meeting for that year.
COMMENT
PROVISO. – It is a cardinal rule of interpretation that a proviso to a particular provision of
a statute only embrances the field, which is covered by the main provision. It carves out an
exception to the main provision to which it has been enacted by the proviso and to no
other. The proper function of a proviso is to except and deal with a case which would
otherwise fall within the general language of the main enactment, and its effect is to
confine to that case. Where the language of the main enactment is explicit and
unambiguous, the proviso can have no repercussion on the interpretation of the main
enactment, so as to exclude from it, by implication what clearly falls within its express
terms. The scope of the proviso, therefore, is to carve out an exception to the main
enactment and it excludes something which otherwise would have been within the rule. It
has to operate in the same field and if the language of the main enactment is clear, the
proviso cannot be torn apart from the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at naught the real object of the main
enactment, unless the words of the proviso are such that it is its necessary effect1.
i. SUBJECTS FOR SPECIAL MEETING – Where a meeting referred to in
the proviso to sub-rule(1) of rule 7 has been convened, only the subjects
for the considerations of which the meeting was convened, shall be
discussed.
j. SUBJECTS FOR THE ANNUAL MEETING – At the Annual Meeting of
the Authority, the following subbjects shall be considered and disposed of
namely;
0. Review of the progress of implementation of the various provisions
of the Mental Health Act during the preceding one year;
1. Other business brought forward with the consent of the Chairman
or where he is absent with the consent of the Officer presiding at
the meeting.
k. PROCEDURE FOR HOLDING MEETINGS –
0. Every notice calling for meeting of the Authority shall –
. specify the place, date and hour of the meeting;
a. be served upon every member of the Authority not less than
twenty-one clear days in the case of annual meeting and
fifteen clear days in the case of other meetings before the
day appointed for the meeting.
1. The Secretary shall prepare and circulate to the members along with
the notice of the meeting, an agenda for the meeting showing the
business to be transacted.
2. A member who wishes to move a resolution on any matter included
in the agenda, shall give notice thereof to the Secretary not less
than seven days before the date fixed for the meeting.
3. A member who wishes to move any motion not included in the
agenda shall give notice thereof to the Secretary not less than
fourteen days before the date fixed for the meeting.
COMMENT
This rule lays down the procedure for holding the meetings.
l. PROCEEDINGS OF THE AUTHORITY –
0. The Chairman or in his absence any member authorised by him,
shall preside at the meetings of the Authority.
1. The quorum for the meeting of the Authority shall be four
members.
2. If within half an hour from the time appointed for holding a meeting
of the Authority, quorum is not present, the meeting shall be
adjounred to the same day in the following week at the same time
and place and the presiding officer of such meeting shall inform the
members, present and send notice to other members.
3. If at the adjounred meeting also, quorum is not present within half
an hour from the time appointed for holding the meeting the
members present shall constitute the quorum.
4. In the adjounred meeting if the Chairman is not present and no
member has been authorised to preside at such meeting, the
members present shall elect a member to preside at the meeting.
5. Each member including the Chairman shall have one vote. In the
case of an equality of votes, the Chairman or any member presiding
over such meeting, shall in addition, have a casting vote.
6. All decisions of the meeting of the Authority shall be taken by a
majority of the members present and voting.
m. APPROVAL BY CIRCULATION – Any business which may be necessary
for the Authority to transact except such as may be placed before the
annual meeting, may be carried out by circulation among all members and
any resolution so circulated and approved by a majority of members shall
be valid and binding as if such resolution had been passed at the meeting of
the Authority.
n. SECRETARY TO THE AUTHORITY –
0. The Chairman shall coause to be appointed a Secretary to the
Authority from amongst persons possessing post-graduate degree
in Psychiatric and having three years’ experience in the field of
psychiatry.
1. The Secretary shall be a full-time or part-time servant of the
Authority and shall function as the Administrative Officer of the
Authority.
2. The Secretary shall be responsible for the control and management
of office accounts and correspondence.
3. The Secretary shall attend and take notes of the proceedings of the
meeting of the Authority.
4. The Secretary shall cause to be appointed such members of the
ministerial and non-ministerial staff which are essential for efficient
functioning of the Authority.
5. The Secretary shall exercise such other powers and discharge such
other functions as may be authorised in writing by the Chairman for
the efficient functioning of the Authority.
o. FORWARDING OF COPIES OF THE PROCEEDINGS OF THE
AUTHORITY TO THE STATE GOVERNMENT –
The Secretary shall forward copies of the proceedings of the Authority to
the State Government periodically.
CHAPTER IV
LICENCE
p. APPLICATION FOR LICENCE –
0. Every application for a licence under sub-section (1) or sub-section
(2) of Sec. 7 of the Act shall be –
1. made to the licensing authority in Form I or Form II as the case
may be;
2. accompanied by a fee of rupees two hundred in the form of a bank
draft drawn in favour of the licensing authority.
q. GRANT OF LICENCE – If the licensing authority is satisfied that the
applicant fulfils the conditions laid down in Cls. (a), (b) and (c) of Sec. 8 of
the Act, it shall grant the licence in Form III.
r. REFUSAL OF LICENCE AND MANNER OF COMMUNICATING
THE ORDER –
0. If the licensing authority is satisfied that the applicant does not fulfil
the conditions laid down in Sec. 8 of the Act, it may, after giving
the applicant a reasonable opportunity of being heard against the
proposed refusal of licence, by order setting out the reasons therein,
refuse to grant the licence.
1. Every order refusing to grant a licence under Sec. 8 shall be
communicated to the applicant by sending a copy of the order by
registered post to the address given in the application.
2. A copy of the order shall also be conspicuously displayed on the
notice-board of the licensing authority.
s. APPLICATION FOR RENEWAL – Every application for renewal of a
licence under sub-section (5) of Sec. 9 of the Act shall be –
0. made to the licensing authority in Form IV.
1. Accompanied by a fee of rupees one hundred in the form of a bank
draft drawn in favour of the licensing authority.
t. REFUSAL OF LICENCE –
0. If the licensing authority is satisfied that the conditions mentioned
in the proviso to sub-section (5) of Sec. 9 of the Act are not
attracted, it shall renew the licence.
1. If the licensing authority is of the opinion that the licence should
not be renewed in view of the fact the conditions mentioned in the
proviso to sub-section (4) of Sec. 9 are attracted, it may, after
giving the applicant a reasonable opportunity of being heard against
the proposed refusal of renewal of the licence by order setting out
the reasons therein, refuse to renew the licence.
2. Every order refusing to renew the licence under the proviso to subsection
(5) of Sec. 9 shall be communicated to the applicant by
sending a copy of the order by registered post to the address given
in the application for renewal.
u. MANNER AND CONDITIONS OF MAINTAINING PSYCHIATRIC
HOSPITALS OR PSYCHATRIC NURSING HOMES – Every
Psychiatric hospital or nursing home shall be maintained subject to the
condition that, –
0. such hospital or nursing home is located only in an area approved
by the local authority;
1. such hospital or nursing home is located in a building constructed
with the approval of the local authority;
2. the building, where such hospital or nursing home is sisstuate, has
sufficient ventilation and is free from any pollution which may be
detrimental to the patients admitted in such hospital or nursing
home;
3. such hospital or nursing home has enough beds to accommodate
the patient;
4. the nurses and other staff employed in such hospital or nursing
home are duly qualified and competent to handle the work assigned
to them;
5. the supervising officer-in-charge of such hospital or nursing home is
a person duly qualified having a post-graduate qualification in
Psychiatry recognised by the Medical Council of India.
v. TIME FOR APPEAL
0. any person aggrieved by the order of the licensing authority
refusing to grant or renew a licence or revoking a licence, may
prefer an appeal to the State Government within sixty days of the
communication of such ordero: Provided that the State
Government may entertain an appeal preferred after the expiry of
the period ospecified in sub-rule (1) if it is satisfied that the
applicant was prevented by sufficient cause from preferring the
appeal in time.
1. The appeal shall be in “Form V” and shall be sent to the State
Government by registered post or by appearing in person before
and delivering the same to the Secretary to State Government,
Department of Health or any other officer nominated by him in this
behalf.
2. Every appeal shall be accompanied with a fee of rupees five
hundred.
CHAPTER V
PSYCHIATRIC HOSPITAL AND NURSING HOME
w. MINIMUM FACILITIES FOR TREATMENT OF OUT-PATIENTS –
The minimum facilities required for every psychiatric hospital or psychiatric
nursing home for treatment of patients mentioned in Sec. 14 of the Act
shall be as follows:
0. Staff for 10 bedded hospital or nursing home –
. One full time qualified Psychiatrist.
a. One Mental Health Professional Assistant (Clinical)
Psychologist or Psychiatrist Social Worker.
b. Staff Nurses in the nurse : patient ratio 1:3
c. Attendrs in the attender: patient ratio 1:5
1. Physical features – Adequate floor ospace depending on the number
of beds shall be provided.
2. Support/facilities – The minimum support/facilities shall be as
under:-
. Provision for emergency care for out-patient and for
handling medical emergencies for out-patients and inpatients;
a. A well equipped Electro Convolsive Therapy facility;
b. Psychodiagnostic facilities;
c. Provision for recreational/rehabilitation activities; and
d. Facilities for regular out-patient care.
x. REVOCATION OF LICENCE –
0. Where the licensing authority is satisfied that the licence of any
psychiatric hospital or nursing home is required to be revoked in
pursuance of Cl. (a) or (b) of sub-section (1) of Sec. 11 of the Act,
it may, after giving the licensee a reasonable opportunity of being
heard against the proposed revocation by order setting out the
grounds therein, revoke the licence.
1. Every order revoking the licence under sub-rule (1) shall be
communicated to the licensee by sending a copy of the order by
registered post to the address given in the application.
2. A copy of the order shall also be conspicuously displayed on the
notice-board of the office of the licensing authority and in the
psychiatric hospital or nursing home.
y. MAINTENANCE OF RECORDS –
Every Psychiatric hospital or a psychiatric nursing home shall maintain the
records of the treatment of patient in Form VI.
CHAPTER VI
MISCELLANEOUS
z. ADMISSION AND DETENTION IN PSYCHIATRIC HOSPITAL OR
PSYCHIATRIC NURSING HOME –
0. Application by Medical Officer-in-charge –
. The application for reception order may be made by the
Medical Oficer-in-charge of a Psychiatric hospital or
Psychiatric nursing home in “Foorm VII” or
a. by the husband, wife or any other relative of the mentally ill
person in “Form VIII”.
1. Application from husband or wife:
. Every application by the husband or wife, relative or friend
of a person who is alleged to be mentally ill shall be
accompanied by necessary medical certificates;
a. Such application shall be signed either by the husband or
wife or relative or friend as the case may be, and verified by
two independent witnesses;
b. The name, address, occupation and other details of all the
applicants and the attesting witnesses shall be clearly given
in such application.
aa. THE QUALIFICATION AND FUNCTIONS OF THE VISITORS –
0. The qualifications of persons to be appointed as visitors under Sec.
37 of the Act shall be as follows:
. A degree in Medicine with post-graduate degree in
psychiatry awarded by any University in India recognised by
the Medical Council of India and having at least ten years’
standing in the profession, who has held/is holding the post
of Medical Superintendent/Professor in Psychiatric hospital
or psychiatric wing of a hospital; or
a. Experience as a social worker/clinical
psychologist/psychiatric nurse connected with any mental
hospital for a period of not less than ten years.
1. The visitors appointed by the Government under Sec. 37 of the Act
shall be responsible for –
. review of admission and discharge of patients;
a. inspection of the wards, outdoor patient department and
kitchen;
b. facilities to be provided;
c. suggestion for improvement; and
d. functioning as liaison officer between the Government and
hospital.
bb. LEAVE OF ABSENCE –
Every application by relative or any other person on behalf of the patient
for leave of absence under Sec. 45 of the Act shall be made in “Form IX”.
cc. INTERCEPTION OF THE LETTERS AND OTHER
COMMUNICATIONS ADDRESSED TO THE MENTALLY ILL
PERSONS –
No letter of other communication addressed to a mentally ill person
intended for delivery either through the postal department or otherwise
shall be intercepted, detained or destroyed except under following
circumstances, namely –
0. any letter or other communication intended for delivery to a
mentally ill person shall be opened only if the person having the
supervisory control over the hospital or nursing home is of the
opinion that such letter or communication contains any information
or material which if communicated to such patient will be
detrimental to his health; or
1. that the interception, detention or destruction of any letter or
ocommunication intend to be delivered to the mentally ill person is
necessary in the interests of the public or the State.
FORM I
(See rule 15)
To
The………………………Officer,
Government……………………….
…………………………….………
Dear Sir/Madam,
I/We intend to establish/maintain a Psychiatric Hospital/Psychiatric Nursing
Home in respect of which I am/we are holding a valid licence for the
establishment/maintenance of such hospital/nursing home. The details of the
hospital/nursing home are given below:
2. Name of Applicant
3. Details of licence with reference to the name of the Authority issuing the
licence and date.
4. Age……………….
5. Professional experience in Psychiatry
6. Permanent address of the applicant
7. Location of the proposed Hospital/Nursing Home.
8. Address of the proposed Nursing Home/Hospital
9. Proposed accommodations:
. Number of rooms
a. Number of beds
Facilities provided:
10. Out-patient
11. Emergency services
12. In-patient facilities
13. Occupational and recreational facilities
14. ECT facilities
15. X-ray facilities
16. Psychological testing facilities
17. Investigation and laboratory facilities
18. Treatment facilities.
Staff Pattern:
19. Number of Doctors
20. Number of Nurses
21. Number of Attenders
22. Others.
I am sending herewith a bank draft for Rs………………. Drawn in favour of
………………… as licence fee.
I hereby undertake to abide by the rules and regulations of the Mental Health
Authority.
I request you to consider my application and grant the licence for
establishment/maintenance of Psychiatric Hospital/nursing home.
Yours faithfully,
Signature………………………………….
Name ……………………………………
Date ……………………………………..
FORM II
(See Rule 16)
APPLICATION FOR ESTABLISHMENT OF PSYCHIATRIC
HOSPITAL/NURSING HOME UNDER SUB SECTION (2) OF SEC. 7
To
The………………….
Government………………………….
………………………………………..
Dear Sir/Madam,
I/We intend to establish a Psychiatric Nursing Home/Psychiatric Hospital at
…………….. (mention the place). I am herewith giving you the details.
1. Name of the Applicant
2. Qualification of Medical officer to be incharge of Nursing Home/Hospital
(Certificate to be attached).
3. Age ………………….
4. Professional experience in Psychiatri
5. Permanent Address of the applicant
6. Location of the proposed Hospita/Nursing Home
7. Address of the proposed Nursing Home/Hospital
8. Proposed accommodation:
a. Number rooms,
b. Number of beds.
Facilities provided:
i. Out-patient
j. Emergency services
k. In-patient facilitiesl
l. Occupational and recreational facilities
m. ECT facilities
n. X-ray facilities
o. Psychological testing facilities
p. Investigation and laboratory facilities
q. Treatment facilities
Staff Pattern:
r. Number of Doctors
s. Number of Nurses
t. Number of Attenders
u. Others.
I am herewith sending a bank draft for Rs…………………..drawn in favour of
…………………….. as licence fee.
I hereby undertake to abide by the rules and regulations of the Mental Health Authority. I
request you to consider my application and grant licence.
Yours faithfully,
Signature…………………………………
Date
………………………………………
FORM III
(See rule 16)
GRANT OF LICENCE FOR ESTABLISHMENT OF PSYCHIATRIC
HOSPITAL/NURSING HOME
I…………..being the licensing authority under the Mental Health Act, 1987, after
considering the application received under Sec. 7 and satisfying the requirements provided
for in Sec. 8 and the other provisions of the Mental Health Act, 1987 (Central Act 14 of
1987) and the rules made thereunder, hereby grant the licence for
establishment/maintenance of a psychiatric hospital or nursing home in favour of
……………………..( the applicant).
2. The licence shall be valid for the period commencing from……………… and ending
with………………. The licence shall be subject to the conditions laid down in the Mental
Health Act, 1987 (14 of 1987) and the rules made thereunder.
Licensing Authority
Place……………
Date ………………
FORM IV
(See rule 18)
APPLICATION FOR RENEWAL OF LICENCE
SEAL
From
Dr……………………
………………………
………………………
To
District Health Officer
……………………
……………………
Sir,
Subject : Renewal of Licence No…………………dated………….. I request you
to kindly renew my licence No………… dated the…………for the next 5 years. I
am providing the facilities as prescribed by the Act and the rules framed
thereunder. I have herewith attached a demand draft for Rs. 100 only.
Thanking you.
Yours faithfully
Signature…………………………….
Name ………………………….
Place…………………
Date………………….
FORM V
(See rule 21)
APPLICATION FOR APPEAL
To,
The Appellate Authority
Government ……………………
…………………………………
Sir,
I, Dr…………………………….of……………………………..had
applied for licence for establishing a Pspychiatric Nursing Home/Hospital
at……………………..(copy of the earlier application to be attached). My
application was rejected by the licensing authority as per his/her letter
No.————– Dated ————————- with the following:
1.
2.
3.
(copy enclosed)
The above reason(s) appear to be not valid. I request you to
reconsider my application. My justifications are:
4.
5.
6.
I am willing to appear before you for a personal hearing, if necessary. I am
herewith enclosing a draft for Rs. 500.
Thanking you.
Yours faithfully,
Signature………………………….
Name ……………………………
Place…………………
Date…………………
FORM VI
(See rule 24)
PROFORMA OF CASE RECORD
Name of the hospital/nursing home…………………….Patient’s
name……………………….. Age……………..Sex……………..Date of
admission………………………….date of discharge……….. Mode of
admission………………………………Voluntary.
Reception order.
Complaints (report from relative/other sources)
Mental State Examination
Physical Examination
Laboratory investigations
Provisional diagnosis.
Initial treatment
Treatment and Progress notes
Clinical State and side effect Treatment
Date
Final diagnosis
Condition at discharge
Follow-up recommendations.
FORM VII
(See rule 25)
APPLICATION FOR RECEPTION ORDER
(By Medical Officer-in charge of a Psychiatric Hospital)
From
Dr……………….
To
*The Magistrate
………………………….
………………………….
Sir,
Subj: Reception order for………………………………..son/daughter of
……………………I, Dr……………………maintain psychiatric hospital/nursing
home at………………………………….. Under licence No…………….
dated………………
I request you to issue reception order in respect of Sh/Smt………
son/daughter Of…………… who is being treated at my hospital as a voluntary
patient and is not willing to continue. He/she has the following symptoms and/or
signs.
1.
2.
3.
4.
5.
He/She requires to be in the hospital for treatment/personal safety/others
Protection.
Thanking you.
Yours sincerely
Place………………………..
Signature……………………………..
Date:………………………
Name………………………………..
o “Magistrate” means –
1. in relation to a metropolitan area within the meaning of Cl.(k) of
Sec. 2 of the Code of Criminal Procedure. 1973, a Metropolitan
Magistrate.
2. In relation to any other area, the Chief Judicial Magistrate, Sub-
Divisional Judicial Magistrate or such other Judicial Magistrate of
the first class as the State Government may, by notification,
empower to perform the functions of a Magistrate under this Act.
FORM VIII
(See rule 25)
APPLICATION FOR RECEPTION ORDER
(By relative or other)
To
…………………………
………………………..
……………………….
Sir,
Subject: Admission of ………………..son/daugher of………..into psychiatry
hospital/nursing home as in-patient.
I……………….son/daughter of……………..residing
at……………………………………request you kindly arrange for admission in
respect of Sh/Smt………………………………………………………. Aged
……………. Years ………………..son/daugher of………………………. An inpatient
To……………..(name of the hospital) or any other hospital/nursing home.
He/She has the following suggestive of mental illness.
1.
2.
3.
4.
5.
I, who is ……………..(relationship) of Sh./Smt…………………………… have an
income ……………..Rs………… and agree to pay the charges of treatment, if any of the
institution. I state that, I have/bave not made any such regard to the mental condition of
………………….as required. I herewith enclose the two medical certificates needed for
the purpose.
Witnesses:
Yours faithfully,
1. Name………………….
Signature…………………………
address…………………..
Name in Capital…………….
2.Occupation……………………….
FORM IX
(See rule 27)
APPLICATION FOR LEAVE OF ABSENCE
(By relative or others)
To
Dr. —————————-
………………………..
Sir,
Subject: Request for leave of absence of
Sh/Smt……………..aged…………………..years Admitted on
………………………….to your Institute.
I request that Sh/Smt……………..son/daughter of……………. Be delivered to
my care and custody on leave of absence.
I hereby bind myself that on the said Sh/Smt…………………………………
being made over to my care and custody, I will have him here/properly taken
care of and prevent from doing injury to himself or to others.
Yours faithfully,
Signature…………………………..
Name …………………………..
THE CENTRAL MENTAL HEALTH AUTHORITY RULES 1990
G.S.R. 1004 (E) DATED 20TH DECEMBER 1990.1 – In exercise of the powers
conferred by sub-section (1) of Sec. 94 of the Mental Health Act, 1987, (14 of 1987), read
with Sec. 22 of the General Clauses Act, 1897 (10 of 1897), the Central Government
hereby makes the following rules, namely:
CHAPTER I
PRELIMINARY
1. SHORT TITLE AND COMMENCEMENT

1. These rules may be called the Central Mental Health Authority Rules,
1990.
2. They shall come into force on the date of commencement of the Act.
2. DEFINITIONS
– In these rules unless the context otherwise requires –
a. “Act” means the Mental Health Act, 1987 (14 of 1987);
b. “Authority” means the Central Mental Health Authority established
under Sec. 3 of the Act;
c. “Chairman” means the Chairman nominated under rule 5;
d. “Member” means member of the Authority appointed under rule 3.
e. “Membership” means the membership of the Authority established
under rule 3.
f. “Non-Official Member” means a member appointed under sub-rule
(2) of rule3;
g. “Official Member” means a member appointed under sub-rule (1) of
rule3;
h. “Secretary” means the Secretary to the Authority appointed under
rule 13;
i. words and expressions used herein and not defined but defined in
the Act shall respectively have the meaning assigned to them in the
Act.
CHAPTER II
CEMTRAL MENTAL HEALTH AUTHORITY
3. CONSTITUTION OF THE AUTHORITY
– The Authority shall consist of the following members, namely;
0. Official Member –
a. Secretary or Additional Secretary, Ministry of Health and Family
Welfare, Government of India.
b. Joint Secretary, Ministry of Health and Family Welfare dealing with
Mental Health.
c. Additional Director-General of Health Services dealing with Mental
Health.
d. Director, Central Institute of Psychiatry ,Ranchi.
e. Director, National Institute of Mental Health and Neuro Sciences,
Bangalaore.
f. Medical Superintendent, Hospital for Mental diseases, Shahdara,
Delhi.
1. Non-Official Members- Three members including one social Worker, one
clinical psychologist and one Medical psychiatric who, in the opinion of the
central Government, have speical interest in the field of Mental Health.
COMMENT
This rule provides that the Authority under this rule shall consist of certain official and
non-official members mentioned therein.
4. DISQUALIFICATION
– A persons shall be disqualification for being appointed as a members or shall be
removed from membership by the Central Government if he,-
. has been convicted and sentenced to imprisonment for an offence which in
the opinion of the Central Government involves moral turpitude ; or
a. is an undischarged insolvent ;or
b. is of unsound mind and stands so declared by a competent court, or
c. has been removed or dismissed from the Government or a body corporate
owned or controlled by the Government.
5. CHAIRMAN –
0. The Central Government may nominate any official member to act as the
Chairman of the Authority.
1. The Chairman shall cease to hold office when he ceases to be a member of
the Authority.
6. TERM OF OFFICE OF MEMBERS

0. Every official member shall hold office as such member so long as he holds
the office by virtue of which he was appointed.
1. Every non-official member shall hold office for a period of three years from
the date of his appointment and shall be eligible for re-appointment.
2. A non-official member may at any time resign from membership of the
Authority by forwarding his letter of resignation to the Chairman and such
resignation shall take effect only from the date on which it is accepted.
3. Where a vacancy occurs by resignation of a non-official member under subrule
(3) or otherwise, the Central Government shall fill the vacancy by
appointing from amongst category of persons referred to in sub-clause (2)
of rule 3 and the person so appointed, shall hold office for the remainder of
the term of office of the member in whose place he was so appointed.
4. Where the term of office of any non-official member is about to oexpire the
Central Government may appointment a successor at any time within three
months before the expiry of the term of such member but the successor
shall not assume office until the term of the member expires.
CHAPTER III
PROCEEDINGS OF THE AUTHORITY
7. MEETINGS OF THE AUTHORITY –
0. The authority shall ordinarily meet once in every six months at such time
and place as may be fixed by the Chairman. Provided that the Chairman –
i. may call a special meeting at any time to deal with any urgent matter requiring the
attention of the Authority.
ii. Shall call a special meeting if he receives a requisition in writing
signed by not less than four members and stating the purpose for
which they desire the meeting to be called.
1. The first meeting of the Authority to be held in any calendar year shall be
the annual meeting for that year.
8. SUBJECTS FOR SPECIAL MEETINGWhere
a meeting referred to in the proviso to sub-rule (1) of rule 7 has been convened,
only the subjects for the consideration of which the meeting was convened, shall be
discussed.
9. SUBJECTS FOR THE ANNUAL MEETING
– At the Annual Meeting of the Authority, the following subjects shall be
considered and disposed of namely;-
0. review of the progress of implementation of the various provisions of
Mental Health Act during the preceding one year.
1. Other business on the agenda; and
2. Any other business brought forward with the consent of the Chairman or
where he is absent, with the consent of officer presiding at the meeting.
10. PROCEDURE FOR HOLDING MEETINGS

0. Every notice calling for a meeting of the authority shall –
. specify the place, date and hour of the meeting:
a. be served upon every member of the Authority not less than
twenty-one clear days in the case of annual meeting and fiteen clear
days in the case of other meetings before the day appointed for the
meeting.
1. The Secretary shall prepare and circulate to the members alongwith the
notice of the meeting an agenda for such meeting showing the business to
be transacted.
2. A member who wishes to move a resolution on any matter included in the
agenda shall give notice thereof to the Secretary not less than seven days
before the date fixed for the meeting.
3. A member who wishes to move any motion not included in the agenda shall
give notice to the Secretary not less than fourteen days before the date
fixed for the meeting.
COMMENT
This rule lays down the procedure for holding the meeting.
11. PROCEEDINGS OF THE AUTHORITY
0. The Chairman or in his absence any member authorised by him shall preside
at the meetings of the Authority.
1. The quorum for the meeting of the Authority shall be four members.
2. If within half an hour from time appointed for holding a meeting of th
Authority quaorum is not present, the meeting shall be adjounred to the
same day in the following week at the same time and place and the
presiding officer of such meeting shall inform the members present and
send notice to other members.
3. If at the adjourned meeting also, quorum is not present within half an hour
from the time appointed for holding the meeting, the members present shall
constitute the quorum.
4. In the adjourned meeting if the Chairman is not present and no member has
been authorised to preside at such meeting, the members present shall elect
a member to preside at the meeting.
5. Each member including the Chairman shall have one vote. In the case of an
equality of votes, the Chairman or any member presiding over such meeting
shall in addition, have a casting vote.
6. All decisions of the meeting of the Authority shall be taken by a majority of
the members present and voting.
12. APPROVAL BY CIRCULATION
– Any business which may be necessary for the Authority to transact except as such may
be placed before the annual meeting, may be circulated and approved by a majority of
members, shall be valid and binding as if such resolution had been passed at the meeting of
the Authority.
13. SECRETARY TO THE AUTHORITY

0. The Chairman shall cause to be appointedd a Secretary to the Authority
from amongst persons possessing post-graduate degree in psychiatry and
having three years’ experience in the field of psychiatry.
1. The Secretary shall be a full-time or part-time servant of the Authority and
shall function as the Administrative Officer of the Authority.
2. The Secretary shall be responsible for the control and management of office
accounts and correspondence.
3. The Secretary shall cause to be appointed such members of the ministerial
and non-ministerial staff which are essential for the efficient functioning of
the Authority.
4. The Secretary shall exercise such other powers and discharge such other
functions as may be authorised in writing by the Chairman for the efficient
functioning of the Authority.
14. FORWARDING OF COPIES OF THE PROCEEDINGS OF THE
AUTHORITY TO THE CENTRAL GOVERNMENT
– The Secretary shall forward copies of the proceedings of the Authority to the
Central Government periodically.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: