Abstract: The article delineates the importance of mental health as a human right especially with the advent of the Covid 19 pandemic. Special emphasis has been placed on the legal system of India. In the research, I found out that there was a paucity in the implementation of the existing mechanisms to meet the emerging mental health crisis. An interview was conducted consisting of 35 people from divergent age brackets to develop a better discernment of the public opinion on the concerned issues.

The constitution of India under Article 21 covenants the right to life[1].  The right to life does not insinuate mere existence but emphasizes on the right to health as a paramount factor to the article. However, mostly when we talk about health we refer to only the physical well-being of a person. More than ever, today India needs to apprehend that right to mental health is a human right and an indispensable facet of the healthcare the constitution seeks to provide.

The question of whether our world was in a disposition of mental health crisis before the pandemic remains unanswered. The national mental health survey of 2016 exhibited that approximately 150 million people in India live with a mental health disorder. The survey places an estimation between 70% and 92% of people being unable to ingress quality services[2].

The Covid 19 pandemic has further manifested the underlying aperture in access to mental health care. It’s noteworthy that the pandemic does not limit itself to physical constraints but leaves a fleck on our sociological and psychological happiness. The life choices we make are also dependent on our mental state. It should be crystal-clear that being healthy does not mean the mere absence of diseases. World Health Organization expounds on health being a ‘state of physical, mental and social prosperity’[3]. In Vincent v Union of India, Supreme Court emphasized the healthy body to be the very ‘establishment of all human activities’[4].

India realizes the exigency of mass vaccination. In March 2020 India witnessed the first nationwide lockdown. Within the next three months, reports of people slithering into a state of despondency, inflicting self-injury, and ultimately attempting suicide emerged[5]. Additionally, the nemesis of the economy and loss of jobs hasn’t been helping. In Delhi, two brothers were found hanging, leaving a suicide note for their family, adducing the pecuniary predicament as ‘the reason behind their extreme step’[6]. We cannot disregard the rise in anxiety levels amongst the human race created by the pandemic. Neither do all of us have a corresponding state of mind nor have we equally adapted to the new normal. 

 Section 309 of the Indian Penal Code enumerated the attempt to suicide as an offense. In 2017 the Mental Healthcare act was passed. Under section 115[7] of the designated act, a suicide attempt was decriminalized. The Act surmised that a person attempting suicide must be under severe stress. The onus of providing relief, treatment, and rehabilitation to eliminate or reduce the risk of a reoccurrence of the attempts lies with the government. However, the problem does not recline in the intention of the act but its on-ground implementation and its contradiction with section 309. Section 309 reads “Whoever attempts to commit suicide and does any act towards the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both]”[8]. On the other hand Section 115 states “Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code”[9]. The Supreme Court panel lead by the erstwhile Chief Justice of India issued a notice to the Attorney general of India and sought clarification regarding the contradiction. Another argument here can be that not every person is under stress while attempting suicide. A real-life example would be the practice of santhara. The Rajasthan high court adjudicated that santhara a practice of voluntary death by the Jain community was illegal as it amounted to committing suicide. This ruling was overruled by the Supreme Court after fervid protests from the community. Santhara is observed by Jain monks as a path to moksha[10]. They believe in the expulsion of karmas meaning the actions of one’s life and not creating any new ones. Unlike sati, santhara is not coerced. Men and women both have the alternative of opting in or out of the practice. The praxis is believed to lead to non-violence. Infatuation and fervor are seen as the root cause of violence by the community and by observing santhara they subjugate the passion of the mortal body. ‘Michhami Dukkadam’[11] is also practiced as a part of this tradition where the person undertaking santhara apologizes for the wrong they caused to others in the lifetime.  Moreover, there has been a lack of communication on part of the government. There was not adequate awareness about the intrinsic changes that the act seeks to bring to society.  The environment should be fostering enough for people to openly seek help. The attitude of the public towards the act is momentous. Conducting surveys, better resource allocation, and bridging the communication interstice can be a way forward. 

I decided to conduct a short survey on people from Kolkata. Obviously, due to the second wave of the mutated strand of Covid 19, I couldn’t go around interviewing people but it was peremptory to understand the average man’s perception of mental health. I approached a group of people from distinct age circles. 23 people belonged to the age bracket of 40 or more and 11 people aged between 25 and 40.  Considering a mix of the age groups augmented the ambit of research and was essential for incorporating a blend of multiple opinions. For the 1st set of people I found out that even though they seemed to be aware of the terminology, the conception of the gravity of mental health hadn’t dissolved and settled in. One of them went ahead to describe contemplations on mental health as a ‘deliberation of the cowards.’ For the second set, I found a mix of un-informed and educated people. Not everyone was aware of the technicalities or the constitutional prominence of mental health but they sure saw it as a topic that needs more discussion. Stress and anxiety were the quotidian problems they wished to discuss. Finally, I approached a psychology professor who has been an advocate of mental health as a fundamental right for over 17 years. To delve into the realms of the subject matter it’s consequential to bring experience to the table. The professor had some riveting insights to offer. He mentioned that with the rising suicide rates and mental health issues it’s become imperative that we lay greater emphasis on the right to mental health, especially for men. Toxic masculinity is a reality today. Men should not cry or openly express their feelings is an ideology that corresponds to an orthodox mindset. He explained that irrespective of gender the most efficient way to tackle the problem is to let people open up. We need not judge the person. We don’t know their struggles, their setbacks, and the mental state they are in. We don’t have to enforce these conversations. Everyone needs their own space and it should be given to them. What might be a mere problem for us actually might have the capacity to leave a scar on another individual’s thoughts. The takeaway was to keep an open mind and inculcate the same in our surroundings.

A high-level group was constituted under the 15th finance commission of India. The group dealt with the health sector and recommended that the right to mental health be declared a fundamental right[12]. This needs to be done to ameliorate access to mental health. In the State of Punjab & Ors v Ram Lubhaya Bagga, the court endorsed the State’s responsibility to sustain health services[13]. The mere acknowledgment of mental health isn’t enough. It needs to be at the forefront today. It’s time that we fathom mental health not as a privilege but as a fundamental right.

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[1] Bachal.V.M, Judicial Interpretation of Article 21 of the Constitution of India,25 IPSA 231,234-236 (1964)

[2] Varma Amriti et al & Fernandes Tanya, Public Mental Health in India Is an Issue of Rights and Accessibility, SCIENCE THE WIRE, (Dec, 2020), https://science.thewire.in/health/public-mental-health-rights-accessibility/#:~:text=According%20to%20the%20National%20Mental,unable%20to%20access%20quality%20services.

[3] Parran Thomas, Charter for World Health, 61 SAGE. 1265, 1265-1266 (1946).

[4] Peiris.G.L, Public Interest Litigation in the Indian Subcontinent: Current Dimensions,40 CUP 66, 66-83(1991)

[5] Sharma Aditya, Corona Virus Triggers Mental Health Crisis in India, DW(July 1,2020) https://www.dw.com/en/coronavirus-triggers-mental-health-crisis-in-india/a-54011738

[6] Sharma Vibha, Delhi: Bullion traders pushed to the wall as Covid takes shine off business, THE TIMES OF INDIA,(Aug 27,2020,2:11pm), https://timesofindia.indiatimes.com/city/delhi/bullion-traders-pushed-to-the-wall-as-covid-takes-shine-off-business/articleshow/77772418.cms

[7] Kattyakayam J Jiby, A Job Left Half Done, THE TIMES OF INDIA, (September 13, 2020, 7:27),https://timesofindia.indiatimes.com/blogs/jibber-jabber/a-job-left-half-done/

[8] Gaur K.D, Poor Victim Of Uses and Abuses of Criminal Law and Process in India, 35 ILI 183,183-202(1993)

[9]Thaver Mohammed, Sec 309 IPC: Questions and Issues around an Archaic Section of the Law, Sec 309 IPC: Questions and issues around an archaic Section of the law, THE INDIAN EXPRESS, (June 23, 2020 3:03:04 pm) https://indianexpress.com/article/explained/sec-309-ipc-questions-and-issues-around-an-archaic-section-of-the-law-6468338/

[10] Cort E. John, The Svetambar Murtipujak Jain Mendicant, 26 RAI 651, 651-662, (1991).

[11] Rastogi Anubhuti, Santhara an Acceptable Suicide, LAW TIMES JOURNAL (Jan 26,2019), http://lawtimesjournal.in/santhara-an-acceptable-suicide/

[12] Noronha Gaurav, Fifteenth Finance Commission’s high level group on health to work with World Bank on recommendations for health sector, THE ECONOMIC TIMES,(July 7,2020, 07:38pm) https://economictimes.indiatimes.com/news/economy/finance/fifteenth-finance-commissions-high-level-group-on-health-to-work-with-world-bank-on-recommendations-for-health-sector/articleshow/76837594.cms

[13] Sudarshan Aditya, Constitutional Perspectives on Good Governance, 17 SAC 15, 15-32, (2005).