Mentally Retarded People and the Rights Conferred to them Under the Law

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Mental retardation can be defined as developmental disability and it is an intellectual functioning level which is below average and brings limitations in daily living of a person which appears in children below 18 years of age. In the total population of a nation this occurs usually among 3% of the people. Mental retardation starts in childhood and stays throughout the adulthood where an IQ score will be below 70-75 and this is mostly caused by hereditary reasons.

In earlier days mentally ill persons were treated very badly with meagre care by the society, as they were considered burden and unproductive to the society.  Disabled persons usually do not get proper attention from others in relation to access to justice too. Traditionally, mentally retarded people are not considered fully humans and so they were not given equal rights and equal citizenship status in many nations. These people have suffered a lot and are being denied basic rights like right to travel, right to liberty, right to education, right to vote, right to buy insurance, right to association and privacy.  If mentally retarded person are charged with crimes they cannot understand their charges and tell their version of the story and thus cannot defend themselves and so they confess to the crimes. They have complete right to communication with the outside world,but many institutions where they are kept restrict them on meeting people or their family members or their communication is usually monitored and thus their freedom of communication is restricted which has to be changed with some privacy to be given to these patients with their loved ones.

Indian Constitution provides the disabled a right of justice, liberty of thought, expression, belief, and worship, equality of status and opportunity.  There can be no discrimination on the basis of race, religion, sex, caste etc and assures dignity of individuals. To live a dignified life is a human right which is recognised by many treaties of the world. Article 41 states that every State has to secure right to work, education and public assistance for old, sick and disabled persons.Right to get treatment and proper health care under Article 21 of the Constitution is applied even to mentally retarded persons. When a mentally retarded person is given treatment their consent has to be obtained prior starting such treatment to them. To provide humane living conditions in all mental hospitals and any other places of living to every mentally retarded persons. State legal services should organise training programme by setting up special legal aid clinics in psychiatric hospitals and nursing homes and co-ordination of NGOs and other volunteer social organisations to deal with the issues relating to mentally retarded persons. Legal services are provided to all the psychiatric hospital who provide legal aid to mentally retarded persons. Legal services will also be provided to such persons who are forcefully admitted to psychiatric hospitals.

In one of the famous case relating to mentally retarded person was, Suchita Srivastava v. Chandigarh Administration(28 August, 2009) that occurred in Chandigarh NariNiketan, where a 19 year old girl who was raped and had become pregnant, who was also mildly mentally retarded had appealed Supreme Court to keep the pregnancy and deliver the baby, which the Punjab High Court had rejected. In Supreme Court a bench comprising of Chief Justice P Sathasivam, Justices B S Chauhan and Justices K G Balakrishnan had upheld her right of motherhood.  Court held that termination of pregnancy should be done only with the woman’s consent even if she has any disability and thus this was a landmark judgment relating to mentally ill person.

1981 year was declared as International Year of Disabled Persons and World Programme of Action was formed relating to disabled persons which was adopted in 1982.  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was also enacted which can be considered as a stepping stone to ensure equality to disabled persons.  India has signed the UN Convention on Rights of Persons with Disabilities 2008 and since it has ratified this, it is under obligation to make sure the human rights and their fundamental freedom of such disabled persons are not violated and are given equal protection under the law.

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In America,as per Dr Richard Redding a mentally retarded persons has same legal rights to marry and drive cars as long as they have passed DMV tests they can drive a car and live in a place that they like. Public schools cannot consider that mentally retarded children should be sent to special classrooms under federal law. Disabilities Act in America has had a significant change in relation to housing laws to mentally retarded people where no landlord can deny housing facility to a person just on the ground that he/she is mentally retarded. World Health Organisation in 1996 enacted the Mental Health Care Law with Ten Basic Principles to be followed:

  • “Promotion of mental health and prevention of mental disorders
  • Access to basic mental health care
  • Mental health assessments in accordance with internationally accepted principles
  • Provision of least restrictive type of mental health care
  • Self-determination
  • Right to be assisted in the exercise of self-determination
  • Availability of review procedure
  • Automatic periodic review mechanism
  • Qualified decision-maker
  • Respect of the rule of law”

Under National Trust Act 1999 where mentally retarded persons who are orphans will get a guardian appointed which is quite significant for their benefit and assistance. Legal services should not discriminate mentally ill people as they are to be treated equally under law. These institutions should follow up the mentally ill persons to monitor the progress of their treatment in the psychiatric hospitals. All mentally ill persons should get the same privileges like any other normal human being around the world. Every year 10 October will be observed as World Mental Health day and programmes will be made to create awareness about mental illness and promote mental health among these kind of people. Mentally retarded persons are actually suffering because of development disorder but such retardation which is permanent cannot be cured.

by Sushma Javare.

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Reference:

  1. Mental Retardation Definition http://medical-dictionary.thefreedictionary.com/mentally+retarded
  2. Human and Legal Rights of Mentally Retarded Persons http://mn.gov/mnddc/parallels2/pdf/70s/77/77-IJH-NAC_Chapter_4.pdf
  3. National Legal Services Authority (Legal Services To The Mentally Ill Persons And Persons With Mental Disabilities) Scheme, 2010http://chdslsa.gov.in/right_menu/schemes/pdffiles/mentally_ill.pdf
  4. A legal precedent : reproductive rights of mentally retarded persons in India http://ijme.in/index.php/ijme/article/view/389/1190
    Human Rights Of Mentally Ill Persons http://www.legalserviceindia.com/articles/mentai.htm
  5. What Are the Legal Rights of the Retarded? http://www.slate.com/articles/news_and_politics/explainer/2001/07/what_are_the_legal_rights_of_the_retarded.html
  6. Mental Health Care Law : Ten Basic Principles http://www.indianjpsychiatry.org/cpg/cpg2009/article6.pdf
  7. National Legal Services Authority http://chdslsa.gov.in/right_menu/schemes/pdffiles/mentally_ill.pdf