Widely cited, but still undefined

Published - April 23, 2017 12:02 am IST

The term ‘unsound mind’ appears frequently in Indian law — a colleague found more than 150 laws using this term. The Constitution of India too disqualifies a person from being a Member of Parliament or Legislative Assembly of States “if he is of unsound mind and stands so declared by a competent court”.

Given this widespread use of the term and its effects on a person’s civil and political rights, one expects the term ‘unsound mind’ to be well defined in Indian law. Like me, any reader will be horrified to learn that ‘unsound mind’ is not defined anywhere in Indian law!

How about defining a ‘sound mind’? You must go back to 1872 to find such a definition. The Indian Contract Act of 1872, which continues to remain in force to this day and governs all contracts in India, says a person is of sound mind if at the time of making a contract, he is “capable of understanding it and forming a rational judgment as to its effects upon his interests”. Interestingly, the Act also gives examples of what is and what is not a sound mind. This is so important that I will quote it in full here:

(a) A patient in a lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals.

(b) A sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.

From the definition and illustrations, it is clear that ‘soundness of mind’ is task-specific and not generalised (understands a particular contract) and mental illness is neither necessary nor sufficient for a finding of unsound mind.

Undone by a phrase

Unfortunately, the Supreme Court in 2008 in Hari Singh Gond vs State of MP did great disservice to persons with mental illness in India. It rightly said there was no definition of unsoundness of mind, and that courts have mainly treated this expression as the equivalent of insanity. However, the judges further said insanity itself has no precise definition but, and I quote “is a term used to describe varying degrees of mental disorder”. The Supreme Court by equating unsoundness of mind with mental disorder had equated legal incapacity (i.e. unsound mind) which required a competent court to make a finding, with medical incapacity based on a medical finding of mental illness. All the care taken by enlightened drafters of law in 1872 not equating mental illness with unsound mind or in 1950 requiring a competent court to make a finding of unsound mind, had been undone by a single phrase of the Supreme Court in 2008.

We should all be concerned about this issue. Why? First, the National Mental Health Survey in 2016 said that 150 million people in India have mental illness of a severity that needs treatment. If we use the Supreme Court’s definition, all these people are of unsound mind. Lawyers will tell you that unsound mind is akin to ‘civil death’ – once you are found to be of unsound mind, you can have a guardian imposed, you are not allowed to manage your financial affairs (e.g. operate your bank account), the Hindu Marriage Act gives your spouse the right to divorce you on grounds of unsound mind and the Constitution of India bars you from voting or standing for election. Thus, you stand to lose all your citizenship rights. To highlight the ridiculousness of the situation created, a famous actress who recently talked publicly of her mental illness (depression) is also of ‘unsound mind’ and should not be operating her bank account or signing film contracts!

Case of discrimination

Equating ‘unsound mind’ with mental illness is an example of institutional discrimination against persons with mental illness who are denied civil, political, economic, social and cultural rights. It also increases stigma against mental illness because the law itself affirms the incompetence of persons with mental illness. The United Nations Convention on Rights of Persons with Disabilities, ratified by India and applicable to persons with mental illness, says that ‘unsoundness of mind’ and other such discriminatory labels are not legitimate reasons for the denial of legal capacity to persons with mental illness.

Parliament or the Supreme Court needs to rectify this situation and rescue the citizenship rights of a large minority in this country with mental illness. They need to properly define legal incapacity (discarding the term ‘unsound mind’) and ensuring it is not equated with mental incapacity (mental illness).

Soumitra Pathare is Consultant Psychiatrist and Director of Centre for Mental Health Law & Policy, Indian Law Society, Pune

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