The involuntary admission and treatment of persons with mental illness is a breach of privacy and autonomy. It can also be a dehumanising experience for the patient and there have been calls for its abolition. Despite such concerns, this form of treatment continues to be a common practice in mental healthcare both in India and abroad. The case of Dr. Sangamitra Acharya (2018) is a chilling example in which there was a clear abuse of the involuntary treatment (‘IT’) provisions. I argue that this case illustrates why involuntary treatment must be critically reviewed in India due to the failure of legal provisions exacerbated by cultural gender norms.

In this case, an adult woman living independently was illegally committed to a mental hospital by her parents. In response, her teacher filed a habeas corpus petition before Delhi High Court (‘DHC’). The family argued that their actions were for the welfare of their daughter. The DHC disagreed with this claim, providing relief and compensation to the detained woman. The DHC noted that her constitutional rights to life, dignity and equality under Article 21 were “flagrantly violated” [161]. The ‘involuntary admission’ procedure under the relevant legislation, Section 19 of the Mental Health Act, 1987 required two medical practitioners certifying that the person required involuntary treatment in their best interest. However, this certification did not take place.

This case was decided under the 1987 law but the present law, the Mental Health Act, 2017 (‘MHA, 2017’) does provide certain checks to prevent causing harm to individuals in case of a misuse of the IT provisions. The MHA, 2017 allows for IT (termed as ‘supported admission’) provided there is an application submitted by a nominated representative of the patient in addition to medical satisfaction. A nominated representative is generally one who is nominated by the affected person and support them in making decisions about their treatment.  Medical satisfaction implies a medical officer certifying that the patient has a severe mental health condition that requires supported admission. Further, the MHA, 2017 does allow for certain protections prior to and during a supported admission. This includes capping the total period treatment to thirty days and also notifying the hospital board within three days in case of a minor or woman being admitted. There is also a mechanism to challenge any supported admission case before a six-member Review Board.

The MHA, 2017 is a rights-based legislation that improves upon the 1987 Act but is still flawed for several reasons such as a reported lack of human and financial resources in constituting the Review Board and other protective mechanisms. This implies that despite being the present law having more protections, due to lack of implementation it is still possible for the checks to not be functional.

The lack of legal checks affects women disproportionately. Women have historically been thought of as “weak, physically and mentally,” and their medical treatment was often grounded upon on their non-compliance with gendered social expectations. For instance, a woman expressing strong emotions in 19^th century England  was deemed mad and many women were institutionalised to demonstrate the consequences of defying the social structure of patriarchy that governed gender roles.  Some grounds for sending women to asylums even included over-education and refusal to marry. Such attitudes show up even today in the way choices of adult women are held to question by authorities and institutions such as the family and the law- simply because of their gender. The 2018 Hadiya case is a contemporary example of this phenomenon. Hadiya was a young Hindu woman who converted to Islam when she was 21 years old and later married a Muslim man. Her father moved a writ petition in Kerala High Court (‘KHC’) alleging that his daughter had been misled and forced to convert to Islam. The KHC annulled Hadiya’s marriage calling it a sham because it was made without the “active involvement” of her parents. The Supreme Court finally set aside the annulment, noting that it was a manifestation of “patriarchal autocracy.”

The present case is another example of this attitude in action. The DHC noted that in Indian society, unmarried daughters despite reaching the age of majority are expected to reside with their family.[78] However, the woman decided to live separately as an adult. Her rebellion from cultural norms led to the parents making false claims that their daughter was mentally unwell so that she would reside with them again. [79]

The shield became the sword in this case – provisions that sought to provide support for mentally ill persons subdued the independent choices of an adult woman. While the DHC was able to provide relief to the young woman, such a resolution is often not the norm. Many women in similar circumstances are unable to overcome the many obstacles to justice such as lack of external support and resources. Hence, the implementation of the present law with reference to IT as it pertains to women, requires urgent review.