Project Panopticon

Historically, India has always been a diverse, and more importantly inclusive nation. 

Transgender people have been a part of Indian society for centuries. There is evidence in Puranic texts of people whose gender was neither male nor female, called the third gender, who were prevalent in ancient India. This prevalence stretched to the Mughal Empire, where transgender individuals had powerful and respected roles within the Royal Court of the Mughal Empire as administrators, political advisors, and generals. 

Indian society was equally accepting of Persons with Disabilities (PwD) as well. PwD have been revered rulers, musicians, and philosophers; take, for example, Ashtavakra, a Vedic sage born with eight deformities, who developed the foundations of Hinduism with his Aṣṭāvakra Gītā. From King Dridharashtra to court and government officials in Medieval India, PwD were always accepted. 

Similarly, mental health conditions were not looked down upon the way they are in modern society. Though, it is hard to state the extent to which they were historically integrated into society given the differences in nature (physical against mental), it is clear that the British Raj played a significant role in developing taboos. Taboos that Indian society still suffers from. The British Raj’s legislature introduced the conservatism of Victorian society, closing the open arms India welcomed everybody with. The British imposed the Indian Lunatic Asylum Act 1858, followed by the Indian Lunacy Act, 1912, declaring all those with mental health conditions to be ‘insane’. The Criminal Tribes Act, of 1871 permanently classified transgender people as criminals, denying them eligibility for human rights. With this institutionalised discrimination, disenfranchised minorities including PwD would be treated extremely harshly by Indian society. In this sense, it is even more clear that we have forgotten our heritage of kindness and inclusivity. 

Now, in the last few decades, new legislatures have been passed to undo the wrongs of the past with the Rights of Persons with Disabilities Act, 2016, the Mental Healthcare Act, 2017 and the Transgender Persons (Protection of Rights) Bill, 2019. Years later, under the pressure of the COVID-19 pandemic, have these acts been effective in clearing various stigmas or is India still ideologically backwards?

Starting with PwD, the 2016 Act was a legislative milestone in India aimed to uphold the rights and dignity of individuals with disabilities. The act replaced the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995, going beyond by expanding the definition of disabilities, introducing new categories, and emphasizing the principles of autonomy, accessibility, and social integration. 

Ms L.V. Jayashree, the Director at the Spastics Society of Tamil Nadu who has spent more than 30 years in the field said the act is a ‘game changer – a paradigm shift’ in the Indian sociopolitical landscape. It is undeniable that the act is extremely significant, because of the simple fact that rights are now being discussed. There is now the right to participation. Generally, it is a step towards spreading ‘homogeneity and harmony across the law of the lands’.

Professor Sujata Bhan, Head of the Special Education Department and Professor at SNDT Women’s University, similarly thinks that the Act is important. ‘It’s high time that we got a Persons with Disabilities Act’, she said. Earlier there were only 7 disabilities; now there are 21. PwD employment rates have improved, with the hospitality industry, pharmacies, and malls providing valuable opportunities for work. Disabled students have benefitted, getting the concessions they have a right to with various forms of aid and access to calculators. 

The Act is in spirit well thought out, but there is a lacuna between intent and application; there are many shortcomings in its implementation. People are not aware of the act and people disregard it if they are aware. There is a lack of resources to accommodate PwD. Moreover, there is a lack of focus on rural areas as PwD facilities are currently big-city-centric. A key point raised by interviewees is that the government must give more funds and those funds must be properly allocated. And proper allocation will only take place if the coordination between the Government, state governments, and civil society is intact and efficient. This coordination must be bolstered. 

It should be noted that the Act itself does not require reform. What has been said on paper is very good for the PwD. Rather, it is the implementation that must be better. Slowly, but steadily the change is happening. But, more NGOs, more stakeholders, and more PwD need to speak up. 

We should be optimistic but also proactive about it with strong advocacy to normalise and demystify disability

On to mental healthcare, the 2017 Act replaced its controversial 1987 predecessor that criminalised attempt to suicide. Thus, a key positive of the 2017 Act was the decriminalisation of attempt to suicide, undoing a mistake that should never have been made. Additionally, Vaishavi Joshi, a mental health professional specialising in counselling psychology and research head at Antarman Counselling Services, highlighted that the Act is more “holistic and culturally sensitive” as it includes AYUSH doctors as mental health professionals—an important step for India.

Another pro is the government’s introduction of training and rehabilitation programs for those institutionalised due to a mental health illness, so that these individuals may avoid forms of structural unemployment and successfully integrate back into society. 

This is where the stark cons of the act can be seen, similar to the PwD act. According to Nirbhika Sachdeva, somebody who has the perspective of practitioner and patient as a registered therapist with a well-regulated bipolar disorder, there has been ‘a poor job in telling people what their rights are and how to avail them’, especially in rural areas. It is clear why the Mental Health Act has not made strides in improving taboos and destigmatising society. People are simply not aware that India is changing, and thus it is hard for people to change along with it.

There are also problems on the mental health professional side. Prashansha Luthra, a counselling psychologist working in the corporate sector, talked about the major issues with licensing in the industry, which the act has not been able to mitigate at all. The act states that there should be more stringent licensing to create a concrete distinction between who is qualified to be a mental health professional and a clinical psychologist and who is not. But, Luthra says that ‘there is a lack of emphasis on it and we need more actions towards it’. Without this emphasis, incorrect diagnoses are given. This is a very dangerous issue. 

In January of this year, the NHRC found all 46 mental health institutions in India to be in deplorable condition. This is a huge con for the act and it reveals the poor implementation and execution of the act. Of course, this is the fault of the officials and bureaucracy, but further, is it an issue of taboo or budget? Either way, the problems with both must be resolved. 

Finally, on to Transgender Rights, the 1871 Criminal Tribes Act, despite being repealed in 1952 permanently criminalised the transgender community in the minds of many. Concrete attempts at improving the community’s situation began in 2014 with the National Legal Services Authority (NALSA) v. Union of India judgement, which officially recognised transgender people and affirmed that fundamental rights of the Constitution were applicable to them. The judgement was followed by a bill in 2016, which would be amended in 2018, and amended once again the next year. Each attempt at improving transgender rights has been criticised

But, has the 2019 Act been successful in its objectives? Unfortunately, no. Unlike the other two Acts, the legislation itself has problems. Professor Patel said the Act has given too much control to doctors and medical authorities in assigning genders. ‘Should a magistrate or doctor be able to incorrectly assign a gender on your behalf?’ Such circumstances are beneficial and can be harmful, especially when dealing with underprivileged transgender individuals who can be exploited and cannot speak up. The Act has not provided the essential rights to self-determination, privacy, and autonomy. This must be resolved. 

Otherwise, the Act follows the same trend of shortcomings in implementation. Over the pandemic, the enforcement of Acts was ‘essentially frozen’. As a result, the number of suicides and cases of domestic violence against transgender individuals, specifically minors, increased. The biggest healthcare organisations and NGOs said they would not give healthcare kits to transgender persons or sex workers. If India is to progress, then political legislation must mean something. They must be properly thought through and backed. Policymakers, authorities, and bureaucrats must be educated and sensitised. According to Professor Patel, ‘the NALSA judgement was a step forward, the 2019 Act was a step back.’

The common thread across all three acts aimed towards disenfranchised minorities is legislation versus societal action. Can legislation lead to societal change? Can societal change take place without legislation? The answer to both is yes, but both elements must work together. 

Of course, specific actions must be taken for the specific acts. They are unique in the matters they address. But, generally, there must be better fund allocation, more people need to be made aware, authorities need to be trained, details in the legislature must be resolved, and implementation must improve. Only then can India progress and return to the reputation we once had: a diverse and inclusive nation. 

In-depth op-ed:

It began with the Indian Lunatic Asylum Act 1858, followed by the Indian Lunacy Act, 1912. Then the Mental Health Act, 1987. And finally, the Mental Healthcare Act, 2017. Has India really progressed in the mental health field or has it only moved past crude taxonomies in a country still riddled with taboo? 

Three of the four acts amended their predecessors. The 1858 act imposed by the British established asylums for the ‘native’ insane. 1912 act effectively declared all those with mental health conditions to be ‘insane’. The 1987 act used better nomenclature and attempted to remove some of the taboo. However, better nomenclature did not mean a better understanding of mental health. With clauses like the infamous criminalisation of the attempt to suicide, legislative bodies were still ideologically backward. 30 years on, the 2017 act would seek to make much wider leaps in revitalising and thoroughly improving the state of mental health services, institutions, and stigma. It’s opening paragraph states this exactly:

‘A law to provide for mental healthcare and services for people with mental illness and to protect, promote and fulfil the rights of such people during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.’

But, 6 years later, has the act been successful in achieving these goals? This op-ed aims to explore this question through the perspectives of various mental health experts who were interviewed to help with this study. 

To begin, some pros. One of the key positives of the act is the decriminalisation of the attempt to suicide, unanimously agreed on by the mental health professionals interviewed and arguably, all of India, to have been a very good decision, undoing a mistake that should never have been made. 

Vaishnavi Joshi, a mental health professional specialising in counselling psychology and research head at Antarman Counselling Services, said that the act is more ‘holistic and culturally-sensitive’. This is primarily because of the inclusion of AYUSH (a term for the six prevalent Indian systems of medicine - Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy) doctors as mental health professionals. Joshi explained that by embracing these traditional healing practices whilst trying to improve the status of mental health, the country is ‘merging Indian and Eastern philosophies with Western practices which is somewhat the masses need.’

Another positive is that the government introduced training and rehabilitation programs for those institutionalised due to a mental health illness, so that these individuals may avoid forms of structural unemployment and successfully integrate back into society. 

All the experts said that the act was a good step forward in destigmatising mental health illness. The very chronology of mental health acts in India from 1858 to the 2017 and even the current day represents the progression of Indian society. The act has helped in treating the matter as relevant, with urgency and by bringing the problem to the forefront of India. The attention that mental health received and is continuing to receive shows that the taboo is being discussed rather than be shunned. But has this really happened? 

According to Professor Vibuti Patel, an expert in gender studies and economics, with The Transgender Persons (Protection of Rights) Bill, 2019, the Transgender community was extremely active in protests and articulate in speaking out and giving ultimatums and incentives to the government to agree to the community’s demands. This much action did not take place for the 2017 mental health act. So, though the act would have been brought to the forefront of newspapers and headlines, has it come to the forefronts of minds, so as to influence behaviour and create a positive impact in society? It doesn’t seem so. 

This is where the stark cons of the act can be seen. It is a matter of what was written on paper against what has actually been implemented, and implementation is where the act suffers. An example of this was given by Nirbhika Sachdeva, somebody who has the perspective of practitioner and patient as a registered therapist with a well-diagnosed bipolar disorder, said that there has been ‘a poor job in telling people what their rights are and how to avail them’. This is especially the case in rural areas. With this kind of issue, it is clear why the mental health act has not made strides in improving taboos and destigmatising society. People are simply not aware that India is changing, and thus it is hard for people to change along with it. This takes us back to the topic of legislation versus societal action. Can legislation lead to societal change? Can societal change take place without legislation? The answer to both is yes, but both elements must work together. If the government does not advertise and communicate the mental health act and laws in general, legislation and societal change will not coalesce.

There are also problems with the mental health professional aspect. Prashansha Luthra, a counselling psychologist working in the corporate sector, talked about the major issues with licensing in the industry, which the act has not been able to mitigate at all. Though the act states that there should be more stringent licensing to create a concrete distinction between who is qualified to be a mental health professional and a clinical psychologist and who is not. But, Luthra says that ‘there is a lack of emphasis on it and we need more actions towards it’. This problem is indeed dangerous as an unclear distinction in licensing leads to wrong diagnoses and harmful advice. Joshi gave an example of this, where a patient (biographical details were not disclosed for privacy) was diagnosed with 8-9 mental health disorders. This diagnosis was made by a supposed clinical psychologist, qualified through a very blurred distinction in licensing. Consequently, the patient was given antipsychotics, antidepressants, lithium medication, and SSRIs (Selective Serotonin Reuptake Inhibitors). In reality, the patient had only 2 of those disorders and the aftereffects of these disorders were incorrectly taken as symptoms for other mental health illnesses, resulting in a huge number of diagnoses. For example, One of them was borderline personality disorder which leads to mood swings. These mood swings were taken to be symptoms of bipolar disorder. This series of grave mistakes was the result of a lack of strict licensing rules which the act has not worked on.

When Sachdeva was elaborating on her situation and backstory, she said that she was making about Rs. 25,000/month as the sole earner of her household with rent costing Rs. 28,000/month. She would make a few hundred rupees per hour when counselling patients. It was not healthy’, she reflected. This situation of hers was 5 years after the act, forcing her to shift to consulting who had to turn to consulting due to the lack of support in the professional mental health field. Evidently, the act had not helped the professionals in this regard. If the government does not, then, naturally, the industry will decline as experts will not be able to last in an unsustainable career. This will undermine the entire effort of improving mental health as a subject in India. 

In January of this year, the NHRC found all 46 mental health institutions in India to be in deplorable condition. This is a huge con for the act and it reveals the poor implementation and execution of the act. Of course, this a fault of the officials and bureaucracy, but further, is it an issue of taboo or budget? When asked, the interviewees all agreed that taboo did play a role, however, there was an interesting point made in regards to the budget.

After this discussion, it is clear that though the 2017 mental health act is a step forward, it has not been completely successful in implementing its goals. Based on expert opinions, the government should take the following steps to remedy the problems:

* Get the masses to understand the act and their rights

* Properly allocate funds

* Regulate mental health services

* Fix licensing issues

* Improve the conditions of mental health hospitals

These steps will be an even bigger step forward in advancing the status of mental health in India. They should be acted on with utmost urgency.