When the Mental Health Act (MHA) was notified under the Indian law in 2017, legislators oversaw it as a welcome step because of the decriminalization of an attempt to suicide. The Indian Penal Code (IPC) saw the attempt to suicide as a crime punishable with imprisonment for a year. The discussions leading to the drafting of the MHA noted that a person contemplating suicide is under mental or emotional stress and, therefore, should not be punished for it under law.
However, this provision of the Act seems to be the only one worth applauding. The overall Act has not made any substantial difference in the care and well-being of persons with a mental illness.
The most fundamental hurdle created by this Act is that it does not cover all persons with mental illness but only those who have “substantial disorders.”
Here’s a look at the definition of Mental Illness as per the Act:
“a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life,
mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence.”
The exclusionary nature of this definition prevents many persons with mental health illnesses from supporting this Act. This is especially true regarding the accessibility of opportunity in labour and
employment. While the Right to Life under Article 21 of the Indian Constitution includes the Right to Health, the extension of this concept to mental health is severely lacking in implementation. The Act’s aim, as stated, is to safeguard the rights of people with mental illness. However, there is little direction in the legislation to guide those suffering from mental illnesses as they navigate the stigma their condition might bring them in the workplace.
When an employer suspends an employee or removes the employee from a position with an implicit bias due to a mental health condition that the employee would have revealed or would have exhibited specific symptoms, finding legal recourse can be challenging, even establishing that the employee was removed due to their mental health condition might be difficult.
At the other end of the spectrum, it might be challenging to join the workforce when the employee has mental health symptoms that are not “serious” as per the conventional understanding of mental illnesses. These obstacles might be more layered if the employee is a woman or belong to the LGBTQIA+ community, both of which face intersectional discrimination in the workplace.
Demanding accommodations and appropriate behaviour from your employer are your rights. Your mental health illness should never be a ground for discrimination in any sphere of life, and your professional environment must reflect respect, understanding, and empathy to foster a healthy working space for you.
Although the legal landscape for mental illness is still nascent, the judiciary’s stance to adopt a socio-legal lens to scrutinize and interpret the scope and provisions of the MHA is laying down a progressive jurisprudence. In recent times, the court’s landmark decisions in various cases are a step forward – that mental retardation is different from mental illness, non-conformity towards social norms cannot be considered a mental illness, depression is not considered as unsoundness of mind and it cannot be taken as a defense for crimes, there should be no discrimination between physical illness and mental illness in providing medical health insurance by the insurance companies, and that a bipolar person can be a judicial officer because merely the fact that they may need medication and treatment throughout their lives, or may suffer setbacks from time to time, cannot be a reason to deny equal opportunity to assimilate them in society, make their contribution, and have a life of dignity. These judgments reflect that the judiciary is opening new paths for all of us to adopt and move towards a more inter-sectoral approach to mental health, taking into account the role and influence of structural determinants and barriers; however, the responsibility of implementing and monitoring the MHA to protect and promote the rights of persons with mental illness does not lie only with the judiciary but with the other stakeholders as well.
As India enters the third year of its fight against the global pandemic, the focus of the public health sector will be to further strengthen the health systems at primary, secondary, and tertiary levels in responding effectively to the future wave of infections. In 2022-23, the budget estimate for the health sector has increased substantially compared to the 2021-22 budget estimate, which was grossly underfunded. Besides augmenting the health infrastructure, the government has also prioritized another critical issue related to the pandemic: mental health. Over some time, the field has made great strides. Still, the process is an ongoing, arduous one and a lot more is yet to be done, achieved, and created.
Every employee should address and challenge any discrimination they face in the workplace with proper legal assistance. We at Chase Legal would look forward to assisting in addressing these discriminations by vetting employee contracts or organizational policies that allow for veiled discriminatory behaviour under the garb of rules and “corporate culture”, challenging direct or indirect discriminatory remarks concerning the employee’s mental illness or any other mistreatment attributable to the mental health condition when the employees is trying to restart the workforce or is a part of any work force/organization.