Although the legal system in Ancient India had a rich history, the country’s modern judicial  system is largely based on the British system and is based on English Common Law, a system of law based on recorded judicial precedents. Earlier mental health laws were mainly concerned with the custodial aspects of people with mental illness and the safety of society. Indian laws also deal with the determination of society’s competence, diminished obligation and/or welfare. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was introduced in 2006, marking a paradigm change from social care problems to human rights considerations in terms of disabilities (including disability due to mental illness)The assumption of legal capacity, equality and dignity is the foundation of the new paradigm. After India’s ratification of the Convention in 2008, it became mandatory for all disability laws to be amended in order to bring them into line with the UNCRPD. The Mental Health Act 1987 and the Individuals with Disability Act 1995 are also under consideration and draught bills have been drawn up. Groups of human rights advocates are calling for legal capacity protections for people with mental illness in absolute terms, while Physicians are in favour of maintaining protections in specific cases for compulsory hospitalisation.

Indian Legal Structures applies to India’s operating system of law. There was a different tradition of law in ancient days, which had a traditionally independent school of legal theory and practise. In India, law has an illustrious history as a matter of religious prescriptions and philosophical discourses. The Arthashastra dating from 400 BC and the Manusmriti from 100 AD were prominent treatises in India, texts considered to be authoritative legal guidelines.


Article 21 of the Constitution of India provides that no person shall be deprived of his or her life or personal liberty, except in accordance with the procedures laid down by law. 

Under this article, the right to life and personal freedom requires “facilities for reading , writing, and expressing oneself in different ways, freely travelling, mixing and coming with fellow human beings”.

An individual is disqualified for registration in an electoral roll if he is of unsound mind and  stands so declared by a competent court, according to the Representation of People Act, 1950 (sec 16). Therefore, under the Constitution, a person so disqualified can not hold public offices, such as President, Vice-President, Ministers or Member of Parliament and State Legislatures.


At the time of PMI therapy, the relationship between psychiatry and legislation most frequently comes into play. PMI therapy also includes the curtailment of psychiatric patients’ personal independence. Most countries worldwide have regulations covering the care of psychiatric patients. 

While in different treatises in Ayurveda there are detailed explanations of various types of  mental disorders, the treatment of mentally ill people in asylums in India is a British invention. Following the British Crown’s takeover of India’s government in 1858, a large number of laws were passed in rapid succession to regulate the care and treatment of mentally ill people in British India. These laws were:

● The Lunacy (Supreme Courts) Act, 1858

● The Lunacy (District Courts) Act, 1858

● The Indian Lunatic Asylum Act, 1858 (with amendments passed in 1886 and 1889)

● The Military Lunatic Acts, 1877.

These Acts provided guidance for the establishment of mental asylums and the admission of mental patients. In that period in India, the British scene that occurred in the middle of the 19th century acted as the history of lunacy legislation. Naturally, the different Acts of 1858 mirrored the legalistic system for mentally ill management.

Persons with disability (equal opportunities, protection of rights, full participation) Act, 1995 (PDA-95)

In 1995, PDA95 was introduced to eradicate discrimination in the distribution of  developmental resources with nondisabled individuals and to discourage violence and exploitation of people with disabilities (PWD). Mental retardation and mental disorder are classified as disability conditions under PDA-95. Therefore, as provided under the Act, the PMI is entitled to the benefits applicable to the PWD. In government employment, there is a provision of 3% reservation, but the PMI does  not have it.

National Trust Act, 1999

This Act was enacted in 1999 to allow and encourage people with autism, cerebral palsy, mental retardation and various disabilities to live as independently and as close to the society to which they belong and to promote the realisation of equal opportunity and the preservation of rights. 

United Nations convention for rights of persons with disabilities-2006 and Indian laws:

In December, 2006, UNCRPD was introduced. It was ratified in May, 2008 by the Parliament of India. It is the responsibility of countries which have signed and ratified the UNCRPD to  put their laws and policies into line with it. 

Therefore, all the disability laws in India are currently being updated. In relation to disabilities, the convention marks a paradigm change from a social care concern to a human   rights issue. The assumption of legal capacity, equality and dignity is the foundation of the new paradigm.

Indian Contract Law

Any person of a sound mind can make a contract, according to the Indian Contract Act, 1872. Section 12 of the Act provides that a person is said to be of sound mind for the purpose of making a contract if he is able to understand it at the time he makes it and to make a fair decision as to its effect on his interests. An individual who is usually of an unsound mind, but occasionally of a sound mind, when he is of a sound mind, can make a contract. A person who is normally of a sound mind, but sometimes of an unsound mind, when he is of an unsound mind, does not make a contract. 

It means that a PMI that is currently free of psychotic symptoms can make a contract, while a contract can not be made by a person who is currently intoxicated or delirious.

Marriage and Divorce

Conditions about mental illnesses, which must be met before marriage is solemnised under the Act, are as follows under the Hindu Marriage Act , 1955. 

● As a result of unsoundness of mind, neither party is incapable of giving legitimate consent. 

● Even if they are capable of consenting, they must not suffer from psychiatric illnesses of such a kind or to such a degree that they are unfit for child marriage and procreation.

● Do not suffer from repeated fits of madness.

The word “mental condition” involves schizophrenia and means mental illness, arrested or incomplete development of the mind, psychopathic condition or some other disorder or impairment of the mind.

Testamentary Capacity

Testamentary ability is the legal status of being capable of executing a Will, a legal declaration of the testator ‘s intention in relation to his property, which he wishes to take effect after his death. Among other things, the Indian Succession Act, 1925 (Section 59) provides:

● Any sound-minded individual can build a will. 

● Individuals who are typically crazy, though they are of sound mind, can build a will during an interval.

● When he is in such a state of mind, no person can make a will, whether arising from intoxication or from disease or from some other cause, so that he does not know what he is doing. 

● Testamentary ability includes the full sense and mental wellbeing of a person to affirm and sign the Will after knowing what his properties contain and what he does by making a Will.


Indian Penal Code, 1860 states that “Nothing is an offence, which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” McNaghten Rules define the criminal responsibility of mentally ill in our courts and it has been incorporated in Section 84.10 It has been held by the Supreme Court that the law presumes every person of age of discretion to be sane and defence on ground of insanity needs to be proved. 

If defence is established on ground of insanity, such persons are committed to the Psychiatric Hospitals as per Section 471 (i) of the Cr.P.C., 1973. On account of mental illness, there were instances of lesser punishment.


Important legal requirements have been debated with respect to the PMI in the Indian legal  system. British influence is clearly evident as most of the laws were either framed during the colonial era or their roots can be traced to the era. PMI laws are currently at a crossroads, as most of them are being updated to bring them into harmony with UNCRPD-2006.

Human rights groups are calling for PMI ‘s legal potential in absolute terms, while psychiatrists are in favour of preserving requirements in exceptional cases for involuntary hospitalisation. It must be stressed that the welfare of the PMI and of society as a whole should be the ultimate purpose of every legal provision.


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