Rights of Persons with Mental Illness (Sections 18–28)

For over a century India treated mental illness as a problem of confinement, not of rights. The Indian Lunacy Act, 1912 and even the Mental Health Act, 1987 framed the person with mental illness as an object to be detained and managed. Chapter V of the Mental Healthcare Act, 2017 inverts that logic. Sections 18 to 28 set out a justiciable charter of rights, drafted to give effect to India's obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). These provisions move the patient from the periphery to the centre, guaranteeing access, dignity, equality, confidentiality, communication and legal aid, and they are reinforced by a fast-developing constitutional jurisprudence that now reads the right to mental health into Article 21 itself.

The scheme of Chapter V and its CRPD foundation

Chapter V of the Mental Healthcare Act, 2017 (sections 18 to 28) is the operative core of the statute. It enumerates eleven distinct rights: access to mental healthcare (section 18), community living (section 19), protection from cruel, inhuman and degrading treatment (section 20), equality and non-discrimination (section 21), information (section 22), confidentiality (section 23), restriction on release of information (section 24), access to medical records (section 25), personal contacts and communication (section 26), legal aid (section 27) and the right to make complaints about deficiencies in services (section 28).

The chapter is the legislative response to India's ratification of the CRPD in 2007. The Convention obliges States Parties to recognise persons with disabilities, including psychosocial disabilities, as rights-holders rather than objects of charity or control. The 2017 Act, read with its introductory framework and its definitional architecture, was therefore drafted to repeal the paternalist Mental Health Act, 1987 and to substitute a rights-based model. The shift is not merely rhetorical: each of these rights is enforceable, and a breach can be carried before the Mental Health Review Boards and ultimately the constitutional courts.

Section 18: the right to access mental healthcare

Section 18 is the keystone. Sub-section (1) declares that every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government. Sub-section (2) gives that right content: the services must be of affordable cost, of good quality, available in sufficient quantity, geographically accessible, and provided without discrimination on grounds of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability, and in a manner acceptable to persons with mental illness and their families and care-givers.

Sub-sections (3) and (4) place a positive duty on the appropriate Government to make sufficient provision for a range of services, including out-patient and in-patient facilities, half-way homes, sheltered accommodation, supported accommodation, hospital and community based rehabilitation, and child and old-age mental health services. The most socially significant guarantee is sub-section (7): a person with mental illness living below the poverty line, whether or not in possession of a BPL card, or who is destitute or homeless, is entitled to treatment and services free of any charge at all mental health establishments run or funded by the appropriate Government and at other establishments designated by it. This clause directly addresses the abandoned and homeless mentally ill, removing the financial barrier that historically left them in beggars' homes or on the streets.

Section 19: the right to community living

Section 19 enacts the principle of deinstitutionalisation. Every person with mental illness has the right to live in, be part of, and not be segregated from society. Crucially, sub-section (1)(b) provides that a person shall not continue to remain in a mental health establishment merely because he does not have a family, or is not accepted by his family, or is homeless, or because community-based facilities are absent. Sub-section (2) casts a duty on the appropriate Government to provide for less restrictive community-based establishments, including half-way homes, group homes and supported accommodation.

The practical urgency of this right is illustrated by the long-running litigation arising from conditions in custodial mental health institutions, such as the proceedings in Reena Banerjee v. Government of NCT of Delhi, where the courts confronted the warehousing of recovered patients who had nowhere to go. Section 19 makes clear that absence of family or community infrastructure is no longer a lawful reason to detain a person who is medically fit for discharge. The provision works in tandem with the nominated representative machinery, which provides a support structure for community reintegration.

Section 20: protection from cruel, inhuman and degrading treatment

Section 20 guarantees the right to live with dignity and to be protected from cruel, inhuman and degrading treatment in any mental health establishment. Sub-section (2) particularises this: the person is entitled to a safe and hygienic environment, sanitary conditions, adequate provisions for clothing and food, recreational facilities, privacy, and protection from all forms of physical, verbal, emotional and sexual abuse. The person shall not be forced to undertake work in the establishment and any voluntary work must be appropriately remunerated.

This section is the legislative answer to a history of abuse epitomised by the Erwadi tragedy of August 2001, in which twenty-five chained inmates of a mental asylum perished in a fire. The Supreme Court's suo motu and connected proceedings after Erwadi exposed the routine chaining and confinement of the mentally ill. Section 20, read with the express prohibitions in Chapter XII of the Act (notably the bar on electro-convulsive therapy without anaesthesia and the bar on chaining), now makes such practices unlawful. The dignity guarantee resonates with the constitutional standard later affirmed in Common Cause (A Regd. Society) v. Union of India (2018), where the Constitution Bench held that the right to live with dignity is the very core of Article 21.

Section 21: the right to equality and non-discrimination

Section 21(1) requires that every person with mental illness be treated as equal to persons with physical illness in the provision of all healthcare, including emergency, ambulance and inpatient services. There is to be no discrimination in the quality or standard of care. Sub-section (2) extends the parity principle into financing: it directs that mental health be treated on par with physical health in the design of insurance, and this clause is the statutory hook for the Insurance Regulatory and Development Authority's later directions requiring insurers to cover mental illness on the same terms as physical illness.

The non-discrimination guarantee also reaches the historically contentious question of sexual orientation. Section 3 of the Act bars classification of a person as mentally ill solely on the basis of, among other things, sexual orientation, reinforcing the trajectory later completed in Navtej Singh Johar v. Union of India (2018). Section 21 thus embeds the equality code of Articles 14 and 15 of the Constitution into the delivery of mental healthcare, and its operation depends in turn on a correct determination of mental illness under the statute's diagnostic safeguards.

Section 22: the right to information

Section 22 secures informed participation. A person admitted to a mental health establishment, and his nominated representative, has the right to be informed, in a language and manner he understands, of the provision of the Act under which he has been admitted, the nature of his mental illness, the proposed treatment plan including likely side effects, alternative treatments available, the receipt of any reports concerning him, and his right to apply to the concerned Board for review of the admission. Where the person is unable to understand the information at the time of admission, sub-section (2) requires that it be given to him as soon as he is in a fit state to receive it.

This provision operationalises the doctrine of informed consent in the mental health context and is intimately linked to the chapter on the capacity to make treatment decisions. A person who does not know why he is detained, or what is being done to him, cannot meaningfully exercise the review and complaint rights that the rest of the chapter confers. Section 22 therefore functions as the procedural gateway to the substantive protections that follow.

Section 23: the right to confidentiality

Section 23(1) declares that a person with mental illness has the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare. Sub-section (2) binds health professionals not to release such information except in defined situations: with the consent of the person, where release is necessary to protect the person or another from harm, where there is a danger to public safety, where required by an order of a court, or where necessary to protect public safety and security. The confidentiality obligation is the statutory recognition that stigma is itself an injury, and that disclosure of psychiatric history can devastate a person's employment, family and social standing.

The right is rooted in the constitutional right to privacy crystallised in Justice K. S. Puttaswamy (Retd.) v. Union of India (2017), where a nine-judge bench held informational privacy to be intrinsic to Article 21. Section 23 translates that abstract guarantee into a concrete, enforceable duty on every clinician and establishment, with the exceptions narrowly drawn so that confidentiality is the rule and disclosure the carefully circumscribed exception.

Section 24: restriction on release of information to the media

Section 24 complements section 23 by targeting a specific and recurrent abuse: media exposure. It provides that no photograph or any other information relating to a person with mental illness undergoing treatment at a mental health establishment shall be released to the media without that person's consent. The section expressly extends the confidentiality protection to information stored in electronic or digital format, in real or virtual space, anticipating the harms of social-media circulation of patient images.

The provision reflects a hard-won recognition that the sensationalist filming of asylum conditions, even when well-intentioned, can re-victimise the very persons it purports to help. Read with section 23, section 24 establishes that the dignity and privacy of the mentally ill survive their entry into an institution; the institution acquires custody, not a licence to expose. Together these two sections form the privacy core of the Chapter V rights charter.

Section 25: the right to access medical records

Section 25(1) confers on every person with mental illness the right to access his basic medical records as may be prescribed. Sub-section (2) creates a narrow and clinically grounded exception: the mental health professional in charge of the records may withhold specific information where its disclosure would result in serious mental harm to the person, or where it would reveal the identity of a person who has provided information on condition of confidentiality. Where information is withheld, the person and his nominated representative must be informed of the fact and may apply to the concerned Board for an order directing disclosure.

This right embodies the principle of transparency in the therapeutic relationship and is the necessary counterpart to the right to information in section 22. A person cannot meaningfully contest a diagnosis, an admission, or a treatment plan if the underlying records are sealed from him. The Board-supervised exception ensures that the clinician's protective judgment is itself subject to review, preventing the withholding power from becoming a shield for arbitrary detention.

Section 26: the right to personal contacts and communication

Section 26 protects the social lifeline of the institutionalised person. A person admitted to a mental health establishment has the right to refuse or receive visitors and to refuse or receive, and to make, telephone or mobile calls at reasonable times, subject to the norms of the establishment. The person may send and receive mail, including by electronic mail. The section permits restriction only in limited circumstances, such as where the person informs the medical officer in charge that he does not wish to receive communication from a named person, in which case communication from that person may be restricted.

The provision reverses the historic isolation of asylum inmates, who were routinely cut off from the outside world. By guaranteeing communication, section 26 sustains the very community ties that section 19 seeks to preserve and rebuild. It recognises that contact with family, friends, lawyers and the nominated representative is not a privilege to be earned but a right to be respected, breached only where the person himself, or a genuine clinical or safety concern, requires it.

Section 27: the right to legal aid

Section 27 makes the rest of the chapter real by ensuring it can be enforced. A person with mental illness is entitled to receive free legal services to exercise any of his rights under the Act. Sub-section (2) imposes an affirmative duty on a wide range of actors, the magistrate, the police officer, the person in charge of a custodial institution, and the medical officer or mental health professional in charge of an establishment, to inform the person that he is entitled to free legal services under the Legal Services Authorities Act, 1987 or any other relevant law, and to provide the contact details for accessing those services.

This is a significant institutional design choice: it does not wait for the person to ask. The duty-bearers must proactively inform, recognising that a person who may lack capacity, or who is detained and disoriented, cannot be expected to know or assert his entitlement. Section 27 thereby aligns the Act with Article 39A of the Constitution and the access-to-justice jurisprudence flowing from Hussainara Khatoon v. State of Bihar (1979), which established free legal aid as a component of the fair-procedure guarantee under Article 21.

Section 28: the right to make complaints about deficiencies in services

Section 28 provides the internal grievance mechanism. Any person with mental illness, or his nominated representative, has the right to complain regarding deficiencies in the provision of care, treatment and services in a mental health establishment. The complaint is to be made first to the medical officer or mental health professional in charge; if not satisfied, to the concerned Mental Health Review Board; and thereafter to the State Authority. Sub-section (2) makes clear that this internal route is without prejudice to the person's right to seek any judicial remedy for the violation of his rights, whether under the Act or under any other law.

The provision creates a tiered, accessible escalation pathway while expressly preserving the constitutional remedies under Articles 32 and 226. The Mental Health Review Boards established under the Act thus function as the front-line adjudicators of the Chapter V rights, but the courts remain the ultimate guarantors. This dual structure ensures that a deficiency in services, from inadequate sanitation to unlawful restraint, can be remedied swiftly through the Board or, where the breach is grave, directly through the writ jurisdiction.

The constitutional overlay: Article 21 and the right to mental health

The Chapter V rights do not stand alone; they are increasingly read alongside an expanding constitutional jurisprudence. The decisive recent authority is Sukdeb Saha v. State of Andhra Pradesh, 2025 INSC 893 (decided 25 July 2025), where a bench of Justices Vikram Nath and Sandeep Mehta held in terms that mental health is an integral component of the right to life under Article 21 of the Constitution. Arising from the suspicious death of a seventeen-year-old NEET aspirant in a hostel, the Court not only transferred the investigation to the CBI but issued a comprehensive set of binding interim directions, the so-called Saha Guidelines, mandating mental health policies, trained counsellors and suicide-prevention measures across educational and student-centric institutions.

This decision constitutionalises the statutory premise of the 2017 Act: that mental healthcare is a matter of fundamental right, not welfare discretion. It builds on the dignity holding in Common Cause v. Union of India (2018), which recognised the right to die with dignity, including through an advance directive, as part of Article 21, and on the earlier Constitution Bench in Gian Kaur v. State of Punjab (1996), which located the right to live with dignity within the right to life. Together these authorities supply the constitutional ceiling beneath which the statutory rights operate.

Interface with criminal law: decriminalised suicide and post-conviction mental illness

Two further threads complete the picture. First, section 115 of the Act decriminalises attempt to suicide: notwithstanding anything in the Penal Code, a person who attempts suicide is presumed, unless proved otherwise, to be suffering from severe stress and shall not be tried or punished, while the appropriate Government bears a duty to provide care, treatment and rehabilitation. This statutory presumption operates over the surviving text of section 309 of the Indian Penal Code (now mirrored in the reorganised penal code), and it transforms the suicidal person from an offender into a person owed support. It marks a decisive break from the position in Gian Kaur, where the constitutionality of section 309 was upheld even as the Court left the policy question open.

Second, in Accused 'X' v. State of Maharashtra (2019), a three-judge bench of the Supreme Court recognised post-conviction mental illness as a mitigating, even commuting, circumstance in capital sentencing. The Court commuted the death sentence of a convict who had developed schizophrenia during prolonged death-row incarceration, and directed that his case be considered under the mental healthcare framework. The judgment treats severe mental illness as a supervening factor that the courts must weigh, weaving the rights-based ethos of the 2017 Act into the law of sentencing and reinforcing the wider message of Chapter V: that mental illness calls for care, not condemnation. For the full statutory map, see the Mental Healthcare Act notes hub.