The Mental Healthcare Act, 2017 (MHCA), which came into force in 2018, marked a significant shift in India’s approach to mental healthcare. The MHCA seeks to protect the rights of persons with mental illness by recognising their autonomy, legal capacity, and right to access mental healthcare and treatment without discrimination.
The importance of this legislation can be understood amidst the long history of abuse, stigma, discrimination, and coercion experienced by people with mental health conditions. Across the world, mental illness was often viewed through a custodial or punitive lens, resulting in institutionalisation, social exclusion, and denial of basic rights. Over time, evolving understandings of mental health and disability prompted a shift towards person-centred, rights-based approaches that emphasise dignity, autonomy, and community inclusion.
This article traces the history of mental health legislation in India, examines the status of MHCA’s implementation through the Mental Healthcare Act, 2017 Implementation Tracker (MHCA Tracker), outlines where gaps remain in the Act’s implementation, and explores how these gaps can be addressed.
A brief history of India’s mental health legislation
The first mental health legislation in India, the Indian Lunacy Act, 1912 (ILA), introduced by the British colonial government, was modelled on the English Lunacy Act, 1890. The Act used terms such as ‘lunatic’, reflecting prevailing prejudices that persons with mental illness lacked rationality and decision-making capacity.
The ILA vested substantial authority in magistrates to determine whether a person was of ‘unsound mind’, order their detention in asylums, appoint guardians or managers for their property, and oversee their affairs. It treated persons with mental illness largely as subjects of control rather than holders of rights.
The ILA was eventually repealed and replaced by the Mental Health Act, 1987 (MHA). The MHA, however, did not fundamentally depart from the custodial and paternalistic approach that had characterised the ILA.
The MHA continued to subject persons with mental health conditions to significant medico-legal control. Although the Act contained a chapter on the protection of human rights, it failed to recognise or guarantee specific rights for persons with mental illness, leaving room for widespread rights violations within psychiatric institutions.
The CRPD placed responsibility on governments and institutions to remove barriers and ensure the full participation of persons with disabilities in society.
A significant incident that exposed these failures was the Erwadi fire in 2001, in which 28 persons with mental illness who had been chained in a faith-based institution in Tamil Nadu perished in a fire. Further concerns were documented by Human Rights Watch, whose report on abuses faced by women and girls with intellectual and psychosocial disabilities in Indian institutions recorded inhuman treatment, prolonged institutionalisation, sexual abuse, physical restraints, unsanitary conditions, and the systematic denial of basic rights. It was against this backdrop that the Mental Healthcare Act, 2017 was enacted.
The introduction of the Act was catalysed by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which marked a fundamental shift in the understanding of disability and mental health. Moving away from the medical and welfare model, which viewed disability as individual impairments requiring cure or correction, the CRPD embraced a social model of disability that acknowledged that disability is shaped by barriers outside the individual, such as access to opportunities, socio-economic status, discrimination, and social exclusion. It placed responsibility on governments and institutions to remove these barriers and ensure the full participation of persons with disabilities in society. The CRPD’s foundational understanding of ‘nothing about us, without us’ placed persons with disabilities at the centre of decisions that affect their lives, recognising them as rights-holders rather than recipients of top-down care.
The ratification of the CRPD placed an obligation on the Indian state to revise existing laws and policies in compliance with the Convention.
What the MHCA 2017 promises
Grounded in the principles of the CRPD, the MHCA marks a shift towards a rights-based framework for mental health in the country. The Act mandates a supported decision-making framework (SDM) for persons with mental illness (PwMIs) to make their own decisions regarding their treatment and care with support as required.
The Act enables a SDM framework through two independent mechanisms:
- Advance Directives (ADs) enable PwMIs to document, in advance, how they wish to be treated during a mental health crisis, which treatments they consent to and refuse, and where they wish to be cared for. This only remains in force while they lack capacity to make decisions. The MHCA recognises the right to refuse treatment too.
- The Nominated Representative (NR) pathway enables PwMIs to appoint someone they trust as their representative to make decisions on their behalf. This NR does not have to be family or next of kin. NRs decide modes of care and treatment pathways, when and if PwMIs lose the capacity to make decisions and only until they regain that capacity.
The Act has a dedicated chapter on the rights of persons with mental illness that sets out rights such as the right to mental healthcare services that are affordable, of good quality, and provided without discrimination, and the right to live within the wider society.
The Act also lays down guidelines for mental healthcare and service delivery and provides individuals with formal pathways to seek redress when their rights are violated.
To operationalise these rights, the law outlines a governance and monitoring framework. This is through the Central Mental Health Authority (CMHA) at the national level, State Mental Health Authorities (SMHAs) in each state and union territory, and Mental Health Review Boards (MHRBs) at the district level.
The role of CMHA and SMHAs is to:
- prescribe standards of care and oversee compliance.
- oversee the implementation of the Act, registering mental health establishments and professionals, and safeguarding the rights of PwMIs.
- publish digital registers of all mental health establishments and professionals.
MHRBs role is to:
- create a primary redressal mechanism available to PwMIs, adjudicating complaints regarding decisions around their care and safeguarding rights under the Act.
- oversee how the supported decision-making framework of the Act is given effect, including mechanisms for appeal.
Gaps in publicly available information
It has been nearly a decade since the MHCA came into force. However, in the years following the enactment of the Act, a series of petitions and Right to Information (RTI) requests revealed significant gaps in transparency and information regarding its implementation.
Information was either unavailable in the public domain or scattered across multiple sources, making it difficult to access. This remains the case at present too. Consequently, people with lived experience, caregivers, researchers, and advocates are limited in their ability to hold responsible authorities accountable for deficiencies in care and rights violations.
The MHCA Tracker was developed to bridge this gap–to track the establishment and functioning of the regulatory and adjudicatory bodies laid down by the MHCA across national, state, and union territory levels.
The questions in the tracker look at:
- Whether the CMHA, SMHAs, and MHRBs have been formally constituted with the required members.
- Whether these bodies are operational. If they have framed regulations, notified rules under the Act, and if the CMHA and SMHA funds have been established.
- Whether the CMHA and SMHAs have created and published digital registers of mental health establishments and mental health professionals, whether mechanisms for complaints regarding deficiencies in services at mental health establishments exist, and whether SMHAs have conducted training on the provisions of the Act.
- Whether insurers are providing coverage for treatment of mental illness on par with physical illness, and whether the appropriate government has formulated and implemented public health programmes to reduce suicide and attempted suicide.
What the tracker reveals
Five years of tracking the MHCA have revealed profound gaps in its implementation:
1. Failure to reconstitute SMHAs and MHRBs at regular intervals
The MHCA clearly states that members of SMHAs and MHRBs are to be reconstituted every three years. However, for several states, including Himachal Pradesh, Jharkhand, West Bengal, and Telangana, much of the publicly accessible information predates 2023. This makes it difficult to ascertain how these bodies are functioning on-ground, and points to a significant problem of a lack of transparency.
Even when SMHAs are reconstituted, the available data tends to focus on the recruitment of ex-officio and non-official members, with very little substantive information on their actual functioning, such as their meeting deliberations, the grievances they have resolved, or the oversight they have exercised over mental health establishments. This is of deep concern, as these bodies are caught in bureaucratic cycles of constitution, reconstitution and dissolution, with very little evidence of their functional outcomes to strengthen governance and uphold rights of PwMIs.
2. The need for judicial intervention
Court intervention has often been necessary to ensure the framework of establishing SMHAs and MHRBs is actually implemented. In Delhi, significant steps to constitute the SMHA and expedite the appointment of its members were taken only on the directions of the Delhi High Court, in response to public interest litigations (PILs) filed before it. More recently, the Punjab and Haryana High Court has similarly pushed for the Act’s implementation in the region.
3. Limited progress on key implementation requirements
As a result of these gaps, only eight states have issued state mental healthcare regulations, and barely one-third of states and UTs have notified SMHA rules, which function to regulate mental health services and protect the rights of people with mental health conditions.
Just seven of the 36 states and UTs have constituted the SMHA fund, crucial for the expenses incurred by the SMHA in its functioning. Moreover, only 16 states and no UTs have formed MHRBs, making it challenging for people with mental health conditions to access redressal services if the need arises.
On a more positive note, Kerala and Karnataka largely meet the criteria mapped in the tracker and meticulously maintain this information on dedicated websites.
How can these gaps be addressed?
Stronger governance, greater transparency, and better awareness among those the Act is intended to safeguard are the three pillars on which effective implementation rests.
1. Stronger governance
It is imperative for governments to establish and sufficiently resource SMHAs and MHRBs to safeguard the rights of PwMIs.
One approach could be to develop state-specific mental health policies and implementation mechanisms.
One approach could be to develop state-specific mental health policies and implementation mechanisms that are linked to their SMHAs. These can help identify mental health needs, service delivery and administrative pathways that are responsive to the local context while supporting implementation of the MHCA.
Sikkim’s Integrated Mental Health and Suicide Prevention Strategy is one such framework. Strengthening governance and leadership for mental health and suicide prevention is identified as a key strategic area of action within the strategy, identifying the establishment and functioning of the state’s SMHA and MHRBs as specific outcomes.
We also see this in the Meghalaya Mental Health and Social Care Policy of 2022, where SMHAs form an important part of the state’s mental health policy implementation strategy. The policy recommends establishing a ‘Policy Implementation Unit’ within the SMHA, with the SMHA being responsible for multi-pronged, state-wide mental healthcare services. Such a governance structure could provide SMHAs with institutional capacities to bridge implementation gaps and oversee coordination across departments.
2. Information availability
As per the MHCA, the CMHA and SMHAs are required to prepare annual reports that offer a full account of their activities each year and submit annual work plans. These are then forwarded to the Centre (for the CMHA), and to the state legislatures (for the SMHAs). Governments should ensure that this process is adhered to as per the Act, and that updated information about the functioning of these bodies are available to the public in a timely manner.
States should also consider creating dedicated websites for SMHAs and MHRBs, as seen in Karnataka and Kerala to provide information such as rules and regulations, meeting minutes, registers of mental health establishments and professionals, notices and advertisements, annual work plans, and other updates.
3. Awareness building
While the MHRBs are available as a mechanism for redressal under the MHCA, people with lived experience of mental health conditions and their caregivers are often unaware about how these boards can be accessed to seek support. Poor awareness contributes to the limited use of MHRBs, which masks underlying gaps in their functioning.
This calls for ground-up efforts to generate awareness amongst service users and their caregivers about the redressal rights and accountability mechanisms available to them, such as the right to register Advanced Directives with MHRBs or to appoint Nominated Representatives.
Several civil society organisations and nonprofits have taken steps to bridge this gap. For instance, Studio Nilima, an action research collective based out of Assam, organises rights-based training under the MHCA 2017 and capacity building for legal aid providers, prison officials and other stakeholders working within prisons. They filed a PIL that led to directions for the establishment and functioning of MHRBs across districts in Assam. Another organisation, Iswar Sankalpa, supports persons with psychosocial disabilities in attaining their rights under the Act through community outreach, mental health awareness, service navigation, and rehabilitation support. The MHCA 2017 App is another initiative to make the MHCA easier for the public to understand. The app simplifies the Act’s provisions, procedures, and rights, making mental health laws more accessible to service users and PwMIs, caregivers, professionals, and the general public.
The MHCA 2017 is a landmark legislative instrument that protects the rights of people with mental health conditions. However, legislation is only as meaningful as its implementation, which is critical to ensure that that these rights are realised in practice.
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Know more
- Read about the power of stories in anti-caste mental health practices.
- Read more about the implementation gaps of mental healthcare legislation in India.
Do more
- If you’re involved in information about the implementation of the MHCA, contribute to the MHCA tracker by filling out this form.
