Sheathing a Double-Edged Sword: Recent amendments to the CrPC in the context of accused persons of ‘unsound mind’

(This is a guest post by Aarthi Rajan. She’s an Advocate currently working in the Chambers of Mr. Mohan Parasaran, ASG and is preparing a paper for Commonwealth Human Rights Initiative on the rights of mentally ill prisoners. She was conned into giving up her winter vacations to work on this… so that I could enjoy my winter break without having to meet C20 deadlines. As penitence, I am going to write about cricket for C20 over the weekend. She says there’s a special place in hell for me. – Alok)

As far as effecting structural changes to the criminal procedure law in this country goes, these are tumultuous times. Recent amendments to the Code of Criminal Procedure, 1973 (“CrPC”) by the Amending Acts of 2008 and 2010, have instituted substantial changes to important provisions concerning inter alia trials of rape victims, victim compensation, and courts’ powers to adjourn proceedings. The new provisions aimed at curbing police powers of arrest in particular, generated enough controversy for Parliament to delay their notification under the previous 2008 Amendment Act only to subsequently enact them into law in 2010. With these structural changes in place, the premises of debate and analysis are quickly narrowing to focus on the nuts-and-bolts issues of non-enforcement and administrative/executive failings.

For the purpose of this brief post which is concerned with the lesser-discussed but equally far-reaching amendments to criminal procedure in respect of persons of ‘unsound mind’, I argue that it remains crucial to prioritise legislative changes, call out deficiencies in the larger legal framework, and advocate the creation of better statutory standards that ultimately achieve an integrated system of rights and protections for mentally ill persons in general.

The reason for this is simple; where mentally unsound persons in criminal procedure are concerned, the problem has not been so much the lack of enforcement of available legal remedies, as much as that the law itself mandated protracted trial, leading to a disproportionately large number of mentally ill persons being kept confined in prisons whilst awaiting trial.

The mentally ill accused person stands on a different footing from other undertrial prisoners for the fact that such a person’s mental condition, when it falls for consideration before the adjudicating authorities, brings into play specific procedures under sections 328 and 329 of the CrPC that allow for postponement of her trial. If it appears to the adjudicative authorities that the accused is of ‘unsound mind’, and, that she is so incapacitated by her unsoundness of mind to be unable to defend herself or stand trial, the authorities are compelled under the CrPC to postpone her trial. The rationale underpinning postponement is easy enough to deduce – the fundamental right to a fair trial should not be violated in respect of a person who by reason of her mental condition is unable to instruct her counsel or comprehend the charges levelled against her or put forth her defence.

But, without basic procedural safeguards such as – a reasonable time limit on the period of postponement of trial, legal entitlement to treatment at mental health care facilities during the period of postponement, waiver of the condition to provide surety on release, and confinement (if at all) in a place other than a prison- postponement has proven to be the proverbial “double-edged sword”*. It is invoked to protect the fair trial rights of the mentally ill accused but in reality, causes and perpetuates prolonged, even lifelong confinement of such persons in prisons.

Courts have relied on the remedial jurisprudence of fundamental rights to address some of the problems of mandatory postponement of trial. For instance, in Veena Sethi v State of Bihar 1982 (2) SCC 583, when it came to light that subsequent to the postponement of their trials, mentally ill undertrials were being kept confined in prison for as long as 20 to 40 years, and that such confinement continued even where an accused regained sanity/lucidity, it was held that such confinement of mentally ill undertrials was an infringement of their constitutional rights under Article 21. Judicial review, however, cannot displace the harm caused by a fundamentally deficient legislative framework which is why the recent amendments to the CrPC are welcome, even if long overdue.

The amendments do go some distance in addressing obvious repercussions of postponement and instituting basic safeguards. Sections 328 and 329 now mandate medical examination of the undertrial and allow for the release of a mentally unsound undertrial if the court determines that there is no prima facie case against her. If the court is able to make out a prima facie case against such an accused person, it has to order the postponement of trial till such time as the clinical psychiatrist opines that she is required for treatment.

The earlier provision for providing surety on release has been done away with and corresponding amendments to section 330 of the CrPC now extend the powers of the court to release mentally ill accused persons on bail on account of their inability to stand trial or make out a defence. It is the legal entitlement to medical/psychiatric treatment that renders postponement for treatment as not just intuitively fair, but effectively protective of the mentally ill accused person’s fundamental rights.

On the other hand, there has been precious little discussion on the need for complementary legislative initiatives to meet the logistical requirements of the newly amended provisions, for instance, the requirement for more mental health treatment facilities. A prison is certainly no place for a mentally ill person in need of treatment and care, especially if she is kept confined awaiting legal process. Yet, as the Supreme Court itself observed in Mrs. Veena Sethi v State of Bihar ( 1982 (2) SCC 583 it is the lack of mental health institutions/ treatment facilities on account of which jails/prisons (defined as places of ‘safe custody’ under section 2 of the Mental Health Act, 1987) continue to be the main place of detention for such persons.

Issues such as this can be only be effectively dealt with by going beyond making progressive amendments to the existing procedural and substantive laws, and rethinking the entire legislative regime so as to prioritise positive rights and protections for the mentally ill. Given India’s recent ratification of the UN Convention on the Rights of Persons with Disabilities (“CRPD”), as pointed out in a previous post, it is all the more necessary and relevant for a continuing, collaborative process between the legislature, executive authorities, and mental health professionals to chalk out a holistic, integrated approach to developing such a rights-based legal framework.

There is little doubt that instituting structural changes to the existing legal order as has been done, is a step forward in incorporating and realising some of the UN-adopted principles and universal rights, into the domestic legal regime. As for assessing the efficacy of these amendments, these are early days still, and enforcement will have to be actively managed on a priority basis so as to make something of a dent in the inordinately large numbers of mentally ill undertrial prisoners who remain incarcerated throughout the country.

*As also noted by Amita Dhanda in her seminal work on mental health law: Dhanda, A. (2000) Legal Order and Mental Disorder.

[An earlier version of this post quoted an NCRB report on the numbers of mentally ill undertrial prisoners whose accuracy has been challenged by CHRI through an RTI application seeking fuller details. Aarthi wanted me to remove it pending accurate statistics being discovered by the CHRI or any other organization. - Alok]

[29.04.2012 11.12 Edited to provide correct reference and link to Veena Sethi v State of Bihar instead of Hussainnara Khatoon v Union of India in line with correction mentioned in comments below.]