Friday, 20 April 2018

Delhi High court granted compensation to daughter from parents for detaining her in mental hospital

The conclusions and directions of the Court in this judgment are
summarised as under:
(i) Protection against an attack on the right of life, liberty, privacy and
dignity can be sought not only against the State but also against non-State
actors. Article 21 places an obligation both on state and non-state actors not
to deprive a person of life, liberty, privacy and dignity except in accordance
with the procedure established by law. In other words Articles 15 (2), 17, 19,
21 and 23 acknowledge the horizontal nature of those fundamental rights. 
They can be enforced against not just the State but non-state actors as well.
(ii) In a habeas corpus petition when the plea before the Court is that a
person should be protected against coercive retributive action of her parents,
for making personal life choices, the Court shall not hesitate to exercise its
jurisdiction to grant relief. In effect, the Court would be recognizing that the
threat to the right of ‗choice‘ of a person and thereby right to life, liberty,
privacy and dignity can very well come from the person‘s own parents
irrespective of the age and gender of such person.
(iii) The actions of Z‘s parents in removing her forcibly from the Petitioners‘
residence and getting her admitted without her consent to the CIMBS on 11th
June 2017, with the aid of the local police, the staff of Almas, and the staff
of CIMBS, was in clear violation of Z‘s fundamental rights to life, liberty
and the right to dignity enshrined in Article 21 of the Constitution. This
violation of her rights was triggered by her exercising her freedom of choice
as a female adult by choosing to leave her home, and deciding where she
would like to reside. The Court rejects the plea of Z‘s parents that they acted
in the larger interests of their daughter and in consideration of her well-being
since their actions indicate the opposite.
(iv) The procedure for involuntary admission under Section 19 MHA is only
applicable when the person has been found to be mentally ill as required by
law and a satisfaction has been reached to that end. Admitting a person
under Section 19 MHA merely for observation cannot be countenanced as
doing so would be in violation of a person‘s rights to life, liberty, and 
dignity granted under Article 21 of the Constitution of India.
(v) Section 19 (1) read with Section 19 (2) of the MHA mandates that the
medical officer in-charge has to record two kinds of satisfaction – first, in
terms of Section 19 (1) of the MHA, the satisfaction that it is in the interest
of the medically ill person that they necessarily be admitted to a mental
health institution; and second, the satisfaction in terms of the proviso to
Section 19 (2) of the MHA that it is proper to cause such mentally ill person
to be examined by two medical practitioners working in the hospital itself
instead of requiring the two certificates as provided under Section 19 (2) of
the MHA. The medical officer in-charge cannot delegate this crucial
function of the recording of the satisfaction of two separate kinds to some
other person.
(vi) In the present case, the satisfaction for the purposes of Section 19 (1)
MHA could not have been arrived at by Dr. Sunil Mittal by just listening to
his colleagues on the phone (or by a WhatsApp message). Such satisfaction
could have been arrived at by Dr. Sunil Mittal only after interacting with Z.
Clearly that interaction did not take place in the present case.
(vii) A person cannot be admitted to a mental health institution in order to
determine whether she requires such admission. The determination that she
requires admission should be prior to her admission and not later. The
involuntary admission of Z to the CIMBS at 7.55 pm on 11th June 2017 was,
therefore, in clear violation of the requirement of Section 19 (1) MHA read
with Section 19 (2) MHA.
(viii) A professional psychiatrist requires personal interaction with a person
before making a diagnosis of such person‘s mental condition. A psychiatrist
cannot determine a mental state of a person by merely discussing the
symptoms and conditions with another fellow psychiatrist over the
telephone. To do so is illegal and unconstitutional.
(x) The MCI should formulate a separate code of ethics for psychiatrists to
follow, which will reinforce the law.
(xi) The practice adopted in the present case by Dr. Sunil Mittal, Dr. Raj
Mishra, and Dr. Sameer Kalani was in breach of the law, professional
medical ethics and norms. The question as to what action is to be taken
against them is left to the MCI to decide. MCI will take note of this being
the second known instance in twenty years of violation of the law and ethics
by Dr. Sunil Mittal and the Delhi Psychiatry Centre.
(xii) Z is permitted to file a formal complaint with the MCI relying upon the
affidavits and records submitted by CIMBS in this matter. If such complaint
is filed, it is expected that the MCI will deal with it promptly and render a
decision not later than six months from the date of receiving such complaint.
(xiii) The Almas ambulance staff grossly neglected the duty of care owed to
Z. They proceeded to abet the abduction of Z and administered drugs to her
by injection in the absence of any medical records and on the mere say so of
Z‘s family. This is a fit case for revocation of the registration of Almas as an 
ambulance company if it is so registered and stopping their further
functions.
(xiv) Almas and its team have been party to depriving Z of her liberty and
virtually rendering her into the custody of the hospital without her consent.
Almas has to be restrained from offering any type of ambulance services. A
peremptory direction is issued to the Government of NCT of Delhi to take
action in regard to Almas and other ambulances, on being checked, which
have been registered in states outside the NCT of Delhi but are operating in
Delhi with impunity and in violation of the applicable guidelines.
(xv) The police has abetted the flagrant violation of Z‘s fundamental rights
to life, liberty, privacy and dignity under Article 21 of the Constitution. A
full-fledged inquiry be conducted by the police into the roles of SI Yogesh
Kumar and HC Praveen in this entire matter.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (CRL.) 1804/2017 & CM No. 9963/2017

Decided on: 18th April, 2018

DR. SANGAMITRA ACHARYA STATE (NCT OF DELHI) & ORS 

CORAM: JUSTICE S. MURALIDHAR
   JUSTICE C. HARI SHANKAR


Introduction
1. Important questions of law arise for determination in this petition under
Article 226 of the Constitution of India filed by a teacher of classical music,
and his wife (Petitioners 2 and 1 respectively), seeking a writ of habeas
corpus. These questions involve interpretation of the relevant provisions of
the Mental Health Act, 1987 (‗MHA‘) in light of the right to life, liberty,
dignity and in light of the right to privacy and autonomy of an adult female,
as guaranteed in the Constitution of India.
2. The chief protagonist in this petition is a 23 year old woman, Z (name
withheld for reasons of privacy). Around 5 pm on 11th June 2017, Z was
forcibly taken away from the residence of her music teacher in Khirki
Extension, Delhi with whom she had been residing since she turned 18. This
was done at the behest of Z‘s parents and brother, with the help of the local
police of Police Station (PS) Malviya Nagar, and an ambulance service. She
was taken away to a privately run mental hospital and kept there without her
consent till the morning of 13th June 2017. Pursuant to the orders passed on
12th June 2017 in this petition, Z was produced before this Court on 13th
June 2017. Z returned to the Petitioners' residence that day on the orders of
this Court. But that obviously was not the end of the matter.
3. In the hearings that ensued over the next few months, this Court heard the
submissions of the Petitioners and Z, her parents and brother, the police, the
private mental hospital and the ambulance service. The records of the police,
the private mental hospital and the ambulance service and the documents W.P. (Crl) 1804 of 2017 Page 3 of 73
produced by the parents and brother of Z were examined. The Court was
assisted by Mr. Raj Shekhar Rao, Advocate, appointed as Amicus Curiae.
4. In the judgment that follows the Court has concluded that the forcible
taking away of Z from the residence of the Petitioners on 11th June 2017 and
her consequent detention at the private mental hospital till the morning hours
of 13th June 2017 was illegal and unconstitutional and violative of her
fundamental rights to life, liberty, dignity and privacy under Article 21 of
the Constitution of India and Section 19 of the MHA. The Court has passed
consequential orders fastening liability on each of the actors responsible for
the above illegal acts and awarded Z token compensation even while leaving
it open to her to seek other appropriate legal remedies for further reliefs.
The Respondents
5. The State of the National Capital Territory of the Delhi represented by the
Station House Officer (SHO) of PS Malviya Nagar is Respondent No.1. Z‘s
mother, father and brother are Respondents 2 to 4 respectively. The Cosmos
Institute of Mental Health and Behavioural Sciences (‗CIMBS‘), Delhi
Psychiatry Centre, the private mental health facility at 35, Defence Enclave
in Preet Vihar, Delhi, its Director Dr. Sunil Mittal, and the other mental
health professionals associated with CIMBS - Dr. Sameer Kalani and Dr.
Raj Mishra – participated in the hearings by filing their respective affidavits
and producing the relevant record. The Almas Ambulance Service (‗Almas‘)
through its Director Dr. Israul Haque Shaikh, and its employees viz., Mr.
Abdul Gaffar, Mr. Virender Kumar Mishra, and Ms. Anamika Tiwari have
also participated in the hearings by filing their respective affidavits and
producing the record. These parties have been represented by counsel. They W.P. (Crl) 1804 of 2017 Page 4 of 73
have also filed their respective written submissions.
6. The Court, therefore, considers it appropriate to formally implead
CIMBS, Dr. Mittal, Dr. Mishra, and Dr. Kalani as Respondents 5 to 8
respectively. Almas, Dr. Shaikh, Mr. Gaffar, Mr. Mishra and Ms. Tiwari are
impleaded as Respondents 9 to 13 respectively.
The background
7. During the summer vacation of this Court in 2017, this petition was first
mentioned for listing on 12th June 2017. The Petitioners rushed to this Court
concerned about the safety and security of Z. The Petitioners stated that Z
had been residing with them since she was 18 years and had been learning
Hindustani classical music from both of them since she was 11 years old. Z
is stated to be deeply interested in pursuing a career in classical music. The
Petitioners stated that Z was unable to get along with her parents and her
brother. Once she turned 18, Z voluntarily moved in with the Petitioners at
their residence. Since then, the Petitioners had been taking care of her.
The first round before the MM
8. Unhappy that Z had left them, her parents instituted Criminal Complaint
No.255/1A/2014 under Section 25 of the MHA in the Court of the learned
Metropolitan Magistrate 10 (‗MM‘) (South-East), Saket Courts, Delhi in
2014. In the said complaint Z‘s parents averred that there was a history of
mental illness running in the family and that their daughter‘s behaviour had
undergone a drastic change since 2011. They alleged that their daughter had
been enticed away by the Petitioners who had undue influence over Z from
the time when she was a minor. They alleged that their daughter was W.P. (Crl) 1804 of 2017 Page 5 of 73
suffering from a serious mental disorder which required medical care and
treatment. They prayed for a direction that Z should remain under the care
and control of her parents.
9. The said complaint came to be dismissed by the MM on 29th April 2015.
In the said order, the learned MM noted that a chamber hearing was held
with the parties. One Dr. Sidharth Chellani, a psychiatrist who claimed to
have treated Z, appeared before the MM and explained his report dated 25th
May 2014. The learned MM noted that Z spoke about being harassed by her
parents previously and how she had approached National Commission for
Women (‗NCW‘) for redress. Z informed the MM that she was a major; had
never suffered from any mental ailment; had no intention of joining her
parents and wanted to live separately.
10. In para 4 of her order dated 29th April 2015, the learned MM noted as
under:
―I have heard the arguments advanced by both the parties, and
have gone through the material available on record and after
considering the medical records furnished by the complainant
regarding mental ailment suffered by the family members and
also the medical record of the alleged victim (Z) and after
giving a chamber hearing to both the parties, I am of the
considered view that victim (Z) is not suffering from any
mental ailment which can incapacitate her to take decision or
function to a normal day to day life. Further all the medical
records furnished by the complainant pertained to the period
when (Z) has allegedly left the house of the
complainant/applicant after attaining majority. Further the
report furnished by Dr. Sidharth Chellani does not disclose any
severe mental illness of the victim, therefore, the application is
not maintainable and the same is dismissed.W.P. (Crl) 1804 of 2017 Page 6 of 73
Application is consigned to record room.‖
11. Z‘s parents allowed the above order of the learned MM to attain finality
as they did not challenge it further. However, the above failed attempt at
bringing Z back under their control did not deter them from initiating a
second round of litigation. In 2016, they approached this Court with W.P.
(Crl.) 1293 of 2016. In that writ petition, Z‘s parents asked that they should
be appointed as guardians of Z.
Second round before this Court
12. The writ petition was heard by a learned Single Judge of this Court on
four occasions. It transpires that during the pendency of the writ petition, Z,
on the orders of the Court, underwent an evaluation at the All India Institute
of Medical Sciences (‗AIIMS‘). She interacted with about 3-4 different
doctors over the course of 6-7 sessions which involved history taking,
psychological tests, and conversations. Among the tests administered were
the Draw a Person Test (‗DAPT‘), Sack‘s Sentence Completion Test
(‗SCT‘), and the Rorschach Inkblot Test (RIBT). The final report dated
5
th July 2016 of AIIMS stated that there was ―no indication towards
psychosis (schizophrenia) or any other psychopathology‖. Overall test
findings indicated that the patient suffered from a great deal of stress as well
as anxiety owing to the ―family conflict she is having‖. In the light of this
report, the said writ petition was dismissed as withdrawn. Therefore, the
second attempt by Z‘s parents to get her declared to be mentally unsound
failed. W.P. (Crl) 1804 of 2017 Page 7 of 73
Z gets ‘picked up’ by her parents
13. Less than a year thereafter, on 11th June 2017, a letter was addressed by
Z‘s parents to the SHO of PS Malviya Nagar, the relevant portions of which
read as under:
―Our daughter is suffering from probable Psychological
disorder case and has left her residence from ...New Delhi and
is staying with her musical teacher ...at Khirki Extn, Malviya
Nagar. Our daughter is not in a position to take her own
decision and is totally under the control of guru couple. Doctor
has advised for immediate medical attention and psychiatric
treatment of our daughter. We, therefore, picking up our
daughter physically from your locality by Ambulance for her
appropriate medical treatment so that she can live her life freely
with the mainstream. This is for your kind information and for
submission to the Ambulance authority as the area is under
your jurisdiction.
2. It is also intimated that it is our presumption that our
daughter is being exploited by the guru couple....under the
pretext of teaching classical music. It is, therefore, requested
that the matter may be enquired properly and necessary inputs
in this matter will be provided to you by us.‖
14. The above intimation did not mention that Z was above 18 years of age.
It also suppressed the fact that two earlier attempts by Z‘s parents to have
her returned to their control, by using the MHA, once before the learned
MM in 2015 and another before this Court in 2016, had failed. A bald
assertion was made to the effect that: ―Doctor has advised for immediate
medical attention and psychiatric treatment of our daughter‖. There was no
medical certificate issued by any doctor at this stage giving such advice.
Clearly Z‘s parents had already by this time arranged for an ambulance for
the purpose of ―picking up‖ their daughter physically from the residence of W.P. (Crl) 1804 of 2017 Page 8 of 73
the Petitioners for ―appropriate medical treatment so that she can live her
life freely with mainstream society‖. The letter revealed that Z‘s parents
were only presuming that Z was being exploited by the Petitioners.
Therefore, they asked that the ―matter may be enquired properly‖ with the
assurance that they would provide inputs to the police.
15. Z‘s parents state that they consulted Dr. Sunil Mittal, the Director of
CIMBS on 22nd May 2017 at around 1 pm in his chamber and discussed
with him, in detail, the past medical condition of Z and the ongoing legal
disputes. They claim to have shown Dr. Mittal the Court orders, doctors‘
certificates, and assessment reports and that the meeting went on for more
than an hour. Z‘s parents claim that they decided on the aforementioned
course of action on 11th June 2017 on the advice of Dr. Mittal. In an affidavit
dated 23rd August 2017, Z‘s father asserts:
―I say that it was Dr. Mittal who had suggested to me that in
case I inform the Police that I will pick up my daughter for
medical examination from the Petitioner‘s place, the hospital
authorities will be able to arrange an ambulance and supporting
medical staff for bringing (Z) to their Hospital for necessary
medical assessment and medical treatment. Accordingly, I was
provided with the contract details of ‗Almas Ambulance
Services‘ and subsequently I had acted as per the advice of the
doctor.‖
16. Z‘s father goes on to state in his affidavit that CIMBS maintains an
operational connection with an ambulance service provider, i.e. Almas
whose contact details were provided to him by CIMBS authorities.
17. It transpires, from the affidavit dated 6th July 2017 filed by Dr. Israul
Haque Shaikh, the Director of Almas, that they were approached by Z‘sW.P. (Crl) 1804 of 2017 Page 9 of 73
father for shifting Z from the Petitioners‘ house in Khirki Extension. Dr.
Shaikh led the Almas team which comprised Mr. Abdul Gaffar
(coordinator), Mr. Virender Kumar Mishra (male nurse), and Ms. Anamika
(attendant). In the affidavits filed by Dr. Shaikh and the others of the Almas
team, it is claimed that at around 4.40 pm, Mr. Abdul Gaffar got a call from
Z‘s father stating that a police officer had also arrived and asked the
ambulance to reach the address of the Petitioners. According to Dr. Shaikh,
thereafter the consent form was got filled by Z‘s father. A copy of the
intimation given by Z‘s parents to the SHO, Malviya Nagar was also given
to Dr. Shaikh. He found this to be stamped with the seal of PS Malviya
Nagar as DD No.19B at 10.05 am on 11th June 2017.
18. Among the documents given to the ambulance was ―an old prescription‖
which was the handwritten observation dated 26th May 2014 of Dr. Sidharth
Chellani. This was the same document that had been produced before the
learned MM and which was referred to in the order dated 29th April 2015
dismissing the complaint of Z‘s parents under Section 25 MHA. In other
words, despite the above opinion being more than three years old, and not
found acceptable by the MM, Z‘s parents persisted in using the same
opinion to forcibly take Z away against her wishes.
19. According to the State, on 11th June 2017, Z‘s father called Head
Constable (‗HC‘) Praveen attached to PS Malviya Nagar, from his mobile
number on the latter‘s mobile number at 5.33 pm. It is claimed that HC
Praveen was at PS Malviya Nagar at that point in time. This call was
returned at 5.45 pm by HC Praveen. The CDRs of the mobile phones of Z‘s W.P. (Crl) 1804 of 2017 Page 10 of 73
father and HC Praveen which were examined by the police, and produced
before this Court, show that HC Praveen reached the Petitioners‘ house at
around 5.45 pm on 11th June 2017.
The Petitioners’ complaint to the police
20. Petitioner No.1 gave a complaint (DD No.54A) to the SHO of PS
Malviya Nagar, on 11th June 2017 stating that at around 5 pm Respondent
Nos. 2 to 4, along with 15 others, forcibly barged into the Petitioners‘ house.
It was stated that Petitioner No.2 who was 69 years old was beaten and
bound. It was also stated in the said complaint that Z was forced onto a bed
by 2-3 men (unidentified) and forcibly injected with a substance that caused
her to faint. The Petitioners‘ home was ransacked and Z‘s possessions and
documents were taken by her parents and brother. It was also stated in the
complaint that the Petitioners were forced to sign a document. Petitioner
No.1 states that she approached the plain-clothes policeman who was
present during the incident and informed him about the dismissal of previous
litigation by this Court. However, he took no notice of this information.
21. Petitioner No.1 called the police at No. 100 and when they failed to take
action, she approached PS Malviya Nagar. In the status report first filed by
the SHO of PS Malviya Nagar on 13th June 2017, it was acknowledged that
after Z was taken away in the Almas Ambulance, a PCR call was received at
PS Malviya Nagar (DD No.42A) at 6.15 pm. It was noted that the caller had
stated that a girl was being forcefully taken away in an ambulance from a
house at Khirki Extension towards C.R. Park. This was marked to Assistant
Sub-Inspector (ASI) Samsul Waris. W.P. (Crl) 1804 of 2017 Page 11 of 73
22. DD No.45A of the same date recorded at 6.40 pm wherein the caller
stated that the girl‘s parents had beaten her up and given her an injection and
taken her away. The caller also gave a mobile number. It is not in dispute
that the earlier call at 6.15 pm was by an impartial bystander and the
subsequent call at 6.40 pm was made by Petitioner No.1.
The response of the police
23. The affidavit filed by the DCP (South District), acknowledges the
presence of HC Praveen at the spot when Z was taken away. It is, however,
sought to be explained that HC Praveen could not determine whether Z was
being taken away forcibly by her parents. The report of enquiry states that
by the time HC Praveen realized the gravity of the situation, Z had already
been taken away by her parents. Strangely, HC Praveen did not inform the
senior officials of PS Malviya Nagar of the incident. He filed a report only
on the following day.
24. Meanwhile, the Petitioners, along with their lawyers, went to PS
Malviya Nagar and spoke to the SHO. According to the Petitioners, HC
Praveen was present at that time. However, the SHO did not question him
about his involvement. The SHO purportedly refused to admit that a police
officer was present during the incident. The Petitioners point out that though
HC Praveen was present in his official capacity, he was dressed in plain
clothes. Such behaviour, it is contended, is not consistent with the claim
made by the Deputy Commissioner of Police (DCP) (South District) in his
affidavit that HC Praveen and the SHO acted in a bona fide manner. W.P. (Crl) 1804 of 2017 Page 12 of 73
25. The complaint given by the Petitioners at PS Malviya Nagar was kept
pending. The reason given is that Z was unavailable to make a statement.
She was declared by the treating doctor at CIMBS to be unfit to make a
statement. The Petitioners point out that this is inexplicable given that it is
highly unreasonable to expect an abducted individual to be made available
for statement.
26. The affidavits of the Almas staff reveal that HC Praveen was informed at
around 7 pm that Z was shifted to CIMBS. Why HC Praveen did not pass on
this information immediately to his senior police officers is not clear. The
CDRs show that at 4.45 pm, the ambulance had left the premises of the
Petitioners at Khirki Extension.
Events at CIMBS
27. The Indoor File of CIMBS indicates the time of admission of Z as
7.55 pm on 11th June 2017. Z‘s age is noted as 23 years. Her date of birth is
mentioned as 21st January 1994. The name of her father and mother are
given. Under ‗Admission Diagnosis‘, it is stated: ―Deferred (to assess for
psychiatric illness, substance use disorder)‖. The signature of the
attendant/patient at the bottom of the page is that of Z‘s father. The Indoor
File itself appears to be a bunch of thirteen documents and on each page, Z‘s
father appears to have signed. The consent is not given by Z. On page two of
the Indoor File, also, the signature is of Z‘s father with Z‘s mother signing
as a witness. Even pages which are not applicable like ‗Admission of
Voluntary Patient‘ and ‗Admission of Minor‘ have been signed by Z‘s
father.W.P. (Crl) 1804 of 2017 Page 13 of 73
28. There are two medical certificates dated 11th June 2017 on pages seven
and eight of the Indoor File. The first is signed by Dr. Sameer Kalani. The
time of examination is shown as 7.45 pm. The form reads as under:
―This is to certify that I have examined Ms. Z d/o (Z’s father)
R/o [New Delhi]
and find that she is suffering from Deferred (to assess for
psychotic disorder, substance use disorder)
with features of
suspected substance use, harassment (sexual), staying with her
guru, suspected to be suffering from psychotic disorder,
suspicious against family members, refusing to go back home,
family has brought her today after allegedly fighting with her
guru and brought her to hospital for detailed evaluation and
treatment of psychiatric illness
due to which she is unmanageable at home, is dangerous to self
and others and it is my considered opinion that she should be
hospitalized in a specialized psychiatry unit for further
observation/evaluation and appropriate treatment.
He/she may be admitted at CIMBSs-Delhi Psychiatry Centre,
35 Defence Enclave, Vikas Marg, Delhi – 110 092. Under
provision of Section 19 (2) of the Mental Health Act, 1987 for
the above purpose.‖
29. In the above form the portion in italics is written by hand and the rest of
the form is pre-printed. In other words while the symptoms described to the
doctor is noted by hand, the diagnosis portion viz., that the patient is
―unmanageable at home, is dangerous to self and others and it is my
considered opinion that she should be hospitalized in a specialized W.P. (Crl) 1804 of 2017 Page 14 of 73
psychiatry unit for further observation/evaluation and appropriate treatment‖
is pre-printed. In other words, the diagnosis is in a standard template which
is the same for each patient, seemingly to satisfy the requirement of Section
19 (2) MHA.
30. Another identical form appears at page eight of the Indoor File which
has been signed by Dr. Raj Mishra, where what has been mentioned in the
earlier certificate is reproduced verbatim with the time of examination
shown as 10.10 pm. There is a third medical certificate, in the same form, on
the following date at 7 pm signed by Dr. Shobana Mittal. In other words,
three doctors, two on 11th June 2017 and the third on 12th June 2017 used the
same pre-printed form to give identical certificates for the purposes of
Section 19 (2) MHA.
31. The conclusions in the pre-printed part of the above certificates viz., that
Z was dangerous to herself and others and, therefore, should be hospitalized
could not have possibly been arrived at in the short time that the two doctors
had to assess her after she brought to CIMBS. The notes on the file
maintained by CIMBS in fact point to the contrary.
32. Under Section 19 (1) of the MHA, where a person is bought in as
mentally ill person and sought to be admitted under special circumstances,
an application would have to be made in that behalf by a relative or friend of
such person if the medical officer in charge is satisfied that it is in the
interest of such person to do so.
33. In the present case admittedly, there was no application made by a W.P. (Crl) 1804 of 2017 Page 15 of 73
relative or friend as required under Section 19 (1) of the MHA. The medical
officer in charge of CIMBS was Dr. Sunil Mittal. He was first required to
satisfy himself that Z was not capable of giving consent to observation and
treatment. Secondly, he had to be satisfied that it would be proper for Z to be
examined by two medical practitioners working in the hospital. As it
transpired, Dr. Sunil Mittal was unavailable at the time owing to the fact that
11th June 2017 was a Sunday. According to Dr. Kalani, Dr. Mittal‘s
permission for admitting Z was taken over the phone.
34. Under Section 19 (2) of the MHA, the application under Section 19 (1)
has to be accompanied by medical certificates from two medical
practitioners. One of these has to be a medical practitioner in government
service. The certificate is to the effect that the condition of a mentally ill
person is such that he should be kept under observation and treatment as an
in-patient in a psychiatric hospital. The proviso to Section 19 (2) of the
MHA states that if the medical officer in charge is satisfied that it is proper
to do so, he can cause a mentally ill person to be examined by two medical
practitioners working in the hospital itself instead of requiring any
certificate.
35. The time of admission as per the Indoor File was 7.55 pm. By this time,
only one medical certificate had been issued by Dr. Kalani. Therefore, the
procedure under Section 19 of the MHA was clearly not followed. With Dr.
Sunil Mittal not being present at the time, the question of his being satisfied
about the need for Z‘s hospitalisation in terms of the proviso to Section 19
(2) of the MHA did not arise.W.P. (Crl) 1804 of 2017 Page 16 of 73
36. The two medical certificates issued on 11th June 2017 were in a preprinted
proforma. This cannot be accepted as a valid compliance with the
requirement of Section 19 (2) MHA given the serious nature of the
consequences that would ensue taking away the liberty of the person
forcibly hospitalised in a mental health institution.
37. A patient cannot be admitted merely for observation under Section 19
(2) of the MHA. A patient has to be admitted for both observation and
treatment. In fact, the admission diagnosis had purportedly been deferred as
recorded on the first page of the Indoor File. It appears that she was
examined by Dr. Kalani at 7.45 pm and then by Dr. Raj Mishra at 10.10 pm.
From the notes maintained at CIMBS, which have been produced before this
Court, it appears that at 9.30 pm on 12th June 2017, Dr. Kalani wrote in the
Indoor File that ―(Z) has been met and informed that she would be leaving
tomorrow and she is quite relaxed and comfortable. Discharge process to be
initiated‖. This is after stating that ―assessments need to be completed for
conclusive diagnosis‖ and ―considering the absence of current active
psychotic psychopathology, continued admission under Section 19 of
Mental Health Act 1987 does not seem to be necessary‖.
38. If this was the situation on 12th June 2017 at 9.30 pm, there was no
occasion for Dr. Kalani to inform Sub-Inspector (SI) Yogesh of PS Malviya
Nagar that Z was not fit for making a statement. Dr. Kalani‘s note on the file
at 10 pm on 12th June 2017 reads as under:
―Patient‘s IO Mr. Yogesh called now and has sent a police
officer from Malviya Nagar PS. He has directed that this police W.P. (Crl) 1804 of 2017 Page 17 of 73
officer will stay tonight in hospital campus to ensure that
patient‘s family does not take her away tonight. Further, IO Mr.
Yogesh has conveyed that he will personally come tomorrow
morning around 10-10.30 am to take patient with him, which
should be conveyed to patient only. He has been told that (Z)
has been already informed about her leaving tomorrow.‖
39. The Court viewed the CCTV footage which shows SI Yogesh
accompanied by another police man walking into CIMBS and then entering
a separate room. However, it was maintained in the inquiry conducted by the
DCP, pursuant to the orders of the Court, that SI Yogesh was not permitted
to speak to Z and, therefore, could not record her statement that night. The
affidavit of the Petitioners and Z reveal that she was, by this time, under a
great deal of stress and was repeatedly asking to be released.
40. What is strange is a handwritten letter was given to SI Yogesh Kumar by
Dr. Sameer Kalani on 12th June 2017 where he states as under:
―(Z), D/o (Respondent No.3) is currently admitted in our
hospital Delhi Psychiatry Centre-CIMBS, for purpose of
detailed evaluation and assessment (Psychological tests) to
elicit any psychiatric illness.
Currently as evaluation is ongoing, kindly she be taken
statement once assessments are completed. She will be fit to
give statement once her assessments are completed
(approximately within 3 days).‖
41. On one hand, Dr. Kalani had made a noting at 10 pm that SI Yogesh had
been told that Z had already been informed about her leaving the following
day whereas, on the other hand, in the handwritten letter to the SI, he was
seeking 3 days‘ time.W.P. (Crl) 1804 of 2017 Page 18 of 73
Order dated 12th June 2017
42. All this was happening on the same day when this Court had passed an
order, in the forenoon, directing the police to meet Z. The said order reads as
under:
― 1. The matter is taken on board.
2. Issue notice. Ms. Kamna Vohra, the learned ASC accepts
notice.
3. The SHO of the concerned Police Station will
immediately visit the residence of Respondents No.2 and
3 to meet the daughter of Respondents No.2 and 3, i.e., Z.
The SHO will be accompanied by a lady police officer. It
will be responsibility of the SHO to ensure the presence
of Z in Court tomorrow, i.e., 13th June, 2017.
4. Dasti under the signature of the Court Master.‖
43. The Court is informed by the counsel for the State that the above order
was collected before 2 pm and handed over to the SHO of PS Malviya
Nagar. However, it appears that this order was not in fact shown to the
doctors at CIMBS by SI Yogesh on the same day. This was a serious lapse.
44. The case of the police is that SI Yogesh reached CIMBS at 5.30 pm on
12th June 2017 itself and submitted a request to Dr. Kalani for recording the
statement of Z and also apprised him of the writ petition filed in this regard.
The aforementioned handwritten letter of Dr. Kalani is claimed to have been
given to SI Yogesh at 6 pm. However, all of this does not fit with the other
evidence that has come on record.
Order dated 13th June 2017
45. On 13th June 2017, Z was produced before this Court and a detailed W.P. (Crl) 1804 of 2017 Page 19 of 73
order was passed on that date. Inter alia, the Court observed that the SHO of
PS Malviya Nagar made no preliminary inquiry with regard to the intimation
given by the parents of Z but had merely made an endorsement on the
complaint assigning the task to HC Praveen for inquiry and necessary
action.
46. The Court observed as under in para 21 and 22 of the order passed on
13th June 2017:
―21. The status report strangely on the one hand acknowledges
that the police facilitated the forcible taking away of Z at the
insistence of respondents 2 and 3 and on the other hand they
were also taking action on a complaint by the Petitioners about
Z having been forcibly taken away in an ambulance.
22. It is incomprehensible that the police acted to facilitate the
illegal taking away of an adult person against her wishes from
where she was staying without even making a basic inquiry.
What is even more strange is that a team of a doctor, a
coordinator and two nurses also accompanied Respondents 2 to
4 and facilitated the forcible taking away of Z. If what Z states
is right that they have forcibly injected some substance before
her forcibly taking away, it is a very serious matter.‖
47. This Court in the above order also commented on the conduct of the
doctors of CIMBS and the prima facie violations of the MHA. The Court
met Z, and also separately met her parents in the chambers. Since Z had
expressed her desire to go back to the Petitioners, the Court directed that she
should be allowed to do so right away without any hindrance from any
quarter whatsoever. She was also afforded police protection. The Court
further directed that Z‘s medical examination regarding external injuries
suffered by her would be conducted on that day itself by the SHO W.P. (Crl) 1804 of 2017 Page 20 of 73
accompanied by a lady Constable from any Government Hospital.
48. The Court ordered an exhaustive inquiry to be conducted under the
direct supervision of the Commissioner of Police. Notices were directed to
be issued to the staff of Almas as well as Dr. Raj Mishra and Dr. Sameer
Kalani of CIMBS. The parents of Z were asked to file their individual
affidavits stating that they would not in any manner interfere with the
peaceful life of Z and subject her to any sort of harassment. The case was
then directed to be listed for further hearing on 7th July 2017.
Orders thereafter
49. On 7th July 2017, the Court noted that affidavits had been filed by the
father and brother of Z, in compliance with the earlier directions. Affidavits
were also filed by Dr. Raj Mishra and Dr. Sameer Kalani of CIMBS and
Dr. Israul Haque Shaikh, Abdul Gaffar, Virender Kumar Mishra, and
Anamika Tiwari of Almas. Mr. Raj Shekhar Rao, Advocate was appointed
as amicus curiae to assist the Court on the legal issues that arose in the
matter.
50. On 25th August 2017, the Court directed that the report of the DCP on
the enquiry that was ordered to be held by the Court be provided to learned
counsel for the parties. Mr. Mukul Talwar, learned Senior Counsel
appearing for CIMBS, undertook to provide to the DCP all the relevant
records available with them.
51. On the next date of hearing, i.e. 13th October 2017, on an application by
the Petitioners, the Court directed that the investigation of FIR No.231/2017 W.P. (Crl) 1804 of 2017 Page 21 of 73
be entrusted to the District Investigation Unit (DIU) of the South District
under the supervision of the same DCP who had earlier filed a report. The
Court clarified that this was not meant to delay the completion of
investigation but to ensure that it proceeds in an impartial manner in
accordance with law.
52. On 15th December 2017, the Court was informed that a charge-sheet had
been filed by the DIU in FIR No.231/2017. Copies thereof were made
available to all the counsel. The Court noted that an affidavit dated
7
th December 2017 had been filed by Dr. Sunil Mittal. The Court fixed the
schedule of arguments.
53. On 19th January 2018, Dr. Sunil Mittal was directed to produce on an
affidavit the original record of treatment of Z at CIMBS and all connected
documents, both paper and electronic (including CCTV footage), within the
next three days and when deposited, it was asked to be kept in a sealed
cover.
Final arguments
54. On 17th February 2018, the arguments were finally heard. On that date,
the Petitioners tendered their affidavits in rejoinder to the affidavit of the
Respondent No. 3 and an additional affidavit of Z enclosing a copy of the
Outpatient Treatment note dated 5th July 2016 issued at the time of her
examination at AIIMS pursuant to the order of this Court in W.P. (Crl.)
1293/2016. Both the affidavits were taken on record.
55. Mr. Talwar‘s request that CIMBS should be permitted to file another W.P. (Crl) 1804 of 2017 Page 22 of 73
affidavit to place on record the exchange of messages between Dr. Sunil
Mittal and his colleagues over WhatsApp was declined particularly since the
arguments were concluded on that date.
56. The Court has heard the oral submissions of counsel for the various
parties: Mr. Trideep Pais learned counsel for the Petitioners, Mr. Rahul
Mehra, Standing counsel for the State, Mr. Mukul Talwar, Senior counsel
for CIMBS and its doctors, Mr. Joydeep Mazumdar, learned counsel for Z‘s
parents and brother, Mr. Kamlesh Kumar Mishra, learned counsel for Almas
and its staff and Mr. Rajshekhar Rao, Amicus Curiae. Their elaborate
written submissions have also been considered. The Amicus Curiae has also
submitted two detailed notes of submissions on various aspects.
The broad issues involved
57. At the outset, it stands clarified that this judgment pertains to the
violation of the provisions of the MHA and the Constitution of India and the
resultant directions that are required to be passed by the Court. The Court is
conscious that a charge-sheet has been filed in the criminal case arising from
FIR No. 231/2017 registered at PS Malviya Nagar against the parents,
brother and other relatives of Z, CIMBS and its doctors and Almas and its
team. It is clarified that the said criminal case will be decided and orders
passed by the concerned Courts in accordance with law uninfluenced by
anything that might be said in this order.
58. Another caveat is that the Court is not discussing the provisions of the
Mental Healthcare Act 2017 which has been enacted by Parliament. This is W.P. (Crl) 1804 of 2017 Page 23 of 73
because at the time of the episode in the present case, it is the MHA that was
applicable. The 2017 legislation has been notified by the central government
to come into operation only with effect from 8th July 2018.
59. The issues that arise are discussed hereafter under the following broad
heads:
(i) The Constitutional dimensions of the right of choice in the context of
the rights of an adult female to exercise her full right to life and
liberty under the Constitution of India.
(ii) The scheme of the MHA and the procedure required to be followed
thereunder for involuntary admission to a mental health facility.
(iii) The role and liability of the police, CIMBS, Almas and Z's parents.
(iv) Consequential reliefs.
The Constitutional dimension of the right of choice
60. It is an admitted position that on the date of the incident, i.e.
11th June 2017, Z was more than 23 years old. Admittedly, her date of birth
is 21st January 1994. Section 41 (1) of the Guardians and Wards Act, 1890
(‗GWA‘) provides that the powers of the guardian automatically cease upon
the minor ceasing to be as such. In Mt. Naima Khatun v. Basant Singh AIR
1934 All 406, it was observed as under:
―Under the provisions of Section 41, the powers of the guardian
automatically cease on the ward ceasing to be a minor. No order
by the Court declaring him to have attained majority is required
by Section 41.‖
61. Section 3 of the Indian Majority Act, 1875 defines 18 years to be the age
of majority. Section 4 of the Hindu Minority and Guardianship Act, 1956 W.P. (Crl) 1804 of 2017 Page 24 of 73
(‗HMGA‘) defines a minor as ―a person who has not completed the age of
eighteen years‖. A collective reading of these provisions makes it clear that
Z completed 18 years of age on 21st January 2012 and from that day
onwards, was an adult entitled to make her own life choices. She could
decide whom she wanted to live with and where. Her parents could not have
dictated to her where, with whom and how she should live.
62. The Constitution of India implicitly recognizes the right to full
personhood. The Preamble expressly recognized the right to dignity of an
individual. Article 21 guarantees to all persons the right to life and personal
liberty and protects every person from deprivation thereof ―except according
to procedure established by law‖. Article 21 of the Constitution has been
interpreted by the Supreme Court of India, over the years, to include many
facets of a full and meaningful life.
63. In Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1,
a nine-Judge Constitution Bench of the Supreme Court unanimously
concluded that ―the right to privacy is protected as an intrinsic part of the
right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part-III of the Constitution‖. The separate opinions
of several of the judges elaborated on the different facets of privacy. The
opinion of Dr. D.Y. Chandrachud, J., with which four other learned judges
concurred, focused inter alia on the elements of privacy arising in varying
contexts from the other facets of freedom and dignity recognized and
guaranteed by the fundamental rights contained in Part III of the
Constitution. ‗Privacy‘ was discussed in the context of ‗choice‘ and it was W.P. (Crl) 1804 of 2017 Page 25 of 73
explained:
―The freedoms under Article 19 can be fulfilled where the
individual is entitled to decide upon his or her preferences.
Read in conjunction with Article 21, liberty enables the
individual to have a choice of preferences on various facets of
life including what and how one will eat, the way one will
dress, the faith one will espouse and a myriad other matters on
which autonomy and self-determination require a choice to be
made within the privacy of the mind. The constitutional right to
the freedom of religion under Article 25 has implicit within it
the ability to choose a faith and the freedom to express or not
express those choices to the world. These are some illustrations
of the manner in which privacy facilitates freedom and is
intrinsic to the exercise of liberty. The Constitution does not
contain a separate article telling us that privacy has been
declared to be a fundamental right. Nor have we tagged the
provisions of Part III with an alpha suffixed right of privacy:
this is not an act of judicial redrafting. Dignity cannot exist
without privacy. Both reside within the inalienable values of
life, liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the
individual. It is a constitutional value which straddles across the
spectrum of fundamental rights and protects for the individual a
zone of choice and self-determination.‖
64. Among the nine primary types of privacy that were elucidated, one
concerned ‗decisional privacy‘ reflected by an ability to make ―decisions in
respect of intimate relations‖. This would include the right to specify whom
to include and whom to exclude from one's circle. In his concurring opinion,
S.A. Bobde, J. explained as under:
―To exercise one‘s right to privacy is to choose and specify on
two levels. It is to choose which of the various activities that are
taken in by the general residue of liberty available to her she
would like to perform, and to specify whom to include in one‘s
circle when performing them. It is also autonomy in the 
negative, and takes in the choice and specification of which
activities not to perform and which persons to exclude from
one‘s circle. Exercising privacy is the signalling of one‘s intent
to these specified others – whether they are one‘s coparticipants
or simply one‘s audience – as well as to society at
large, to claim and exercise the right. To check for the existence
of an actionable claim to privacy, all that needs to be considered
is if such an intent to choose and specify exists, whether
directly in its manifestation in the rights bearer‘s actions, or
otherwise.‖
65. R.F. Nariman, J. pointed out that in the Indian context, a fundamental
right to privacy would cover at least three aspects: firstly, the privacy
relatable to the physical body such as the right to move freely; secondly,
informational privacy which deals with a person‘s mind and recognized his
control over the dissemination of material that is personal to him; and
thirdly, ―the privacy of choice which protects an individual‘s autonomy over
fundamental personal choice‖. In a separate concurring opinion, Sanjay
Kishan Kaul, J. acknowledged that there could be invasion of privacy both
by State and non-State actors and the right can be legitimately exercised
against both.
66. Violation of one‘s rights could be by state or non-state actors. The
obligation to respect one‘s rights is placed both on state and non-state actors.
In Justice K.S. Puttaswamy (Retd.) v. Union of India (supra), the
concurring opinion of S.A. Bobde, J., noted that ―common law rights are
horizontal in their operation when they are violated by one‘s fellow man‖
and ―he can be named and proceeded against in an ordinary Court of law‖.
The position is no different under the Constitution of India. While some of
its provisions recognise the obligation of the State, some others recognise 
the obligation of non-state actors as well. For e.g., Articles 14 and 15 (1)
speak of the state obligation of not denying equal protection of laws and of
non-discrimination on grounds of religion, place of birth etc. However,
Article 15 (2) talks of not subjecting a citizen to any disability, liability,
restriction or condition with regard to access to sops, public restaurants, use
of wells, tanks, bathing ghats and roads etc. and thus, places that obligation
on both state and non-state actors. Likewise, Article 17 which abolishes
untouchability and declares it to be an offence and Article 23 (1) that
prohibits trafficking in human beings and begar recognises the obligation
flowing therefrom of both state and non-state actors.
67. An impingement of the freedom of speech and expression could be
perpetrated by both the State and a non-State actor and an aggrieved person
could come to the Court seeking protection against such invasion whether by
the State or a non-State actor. Protection against an attack on the right of
life, liberty, privacy and dignity can be exercised not only against the State
but also against non-State actors. Article 21 places an obligation both on
state and non-state actors not to deprive a person of life, liberty, privacy and
dignity except in accordance with the procedure established by law.
68. In other words Articles 15 (2), 17, 19, 21 and 23 acknowledge the
horizontal nature of those fundamental rights. They can be enforced against
not just the State but non-state actors as well. The mere fact that the
enforcement of such rights might depend on State action or enforcement of
judicial orders by the State will not detract from their horizontal nature. The
horizontal dimension of these rights enables an aggrieved person to invoke 
constitutional remedies to seek the protection and enforcement of such rights
against invasion by a non-state actor.
Scope of a habeas corpus petition
69. The writ jurisdiction of a High Court under Article 226 of the
Constitution is, therefore, invoked not only for assertion of the rights to life,
liberty and a variety of fundamental rights against invasive State action but
also against invasive action by non-State actors, including individuals.
Increasingly, in the habeas corpus jurisdiction, this Court is approached by a
large number of individuals and married couples praying for protection
against invasion of their rights to life and liberty and ‗choice‘ by close
relatives and other non-State actors. Much of the exercise in the habeas
corpus jurisdiction by a writ Court is to forge remedies and shape reliefs for
which persons whose rights of choice and, therefore, of life, liberty, and
dignity are under constant threat from their own family members.
70. Therefore, in a habeas corpus petition, like in the present case, when the
plea before the Court is that a person should be protected against coercive
retributive action of her parents, for making personal life choices, the Court
shall not hesitate to exercise its jurisdiction to grant relief. In effect, the
Court would be recognizing that the threat to the right of ‗choice‘ of a
person and thereby right to life, liberty, and dignity can very well come from
the person‘s own parents irrespective of the age and gender of such person.
71. In Gian Devi v Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234
the Supreme Court held that once a woman was 18 years of age, no fetters
could be placed on an individual‘s choice on where and with whom she W.P. (Crl) 1804 of 2017 Page 29 of 73
wished to reside. It was observed:
―…Whatever may be the date of birth of the petitioner, the fact
remains that she is at present more than 18 years of age. As the
petitioner is sui juris no fetters can be placed upon her choice of the
person with whom she is to stay, nor can any restriction be imposed
regarding the place where she should stay. The court or the relatives
of the petitioner can also not substitute their opinion or preference for
that of the petitioner in such a matter.‖
72. The Supreme Court in a recent decision in Shafin Jahan v. Asokan
K.M. (decision dated 9th April 2018 I Crl. A. No. 366 of 2018) (hereafter the
Hadiya case), after referring to the decisions in Kanu Sanyal v.
District Magistrate, Darjeeling (1973) 2 SCC 674 and Ummu Sabeena v.
State of Kerala (2011) 10 SCC 781 explained the scope of the High Court‘s
habeas corpus jurisdiction as under:
―27 Thus, the pivotal purpose of the said writ is to see that no one is
deprived of his/her liberty without sanction of law. It is the primary
duty of the State to see that the said right is not sullied in any manner
whatsoever and its sanctity is not affected by any kind of subterfuge.
The role of the Court is to see that the detenue is produced before it,
find out about his/her independent choice and see to it that the person
is released from illegal restraint. The issue will be a different one
when the detention is not illegal. What is seminal is to remember that
the song of liberty is sung with sincerity and the choice of an
individual is appositely respected and conferred its esteemed status as
the Constitution guarantees. It is so as the expression of choice is a
fundamental right under Articles 19 and 21 of the Constitution, if the
said choice does not transgress any valid legal framework. Once that
aspect is clear, the enquiry and determination have to come to an
end.‖
73. In Soni Gerry v. Gerry Douglas 2018 (1) KHC 142 the Supreme Court
was examining the plea of a mother questioning the choice of her adult W.P. (Crl) 1804 of 2017 Page 30 of 73
daughter to live with her father. In upholding the daughter‘s choice, the
Court observed:
―10….Suffice it to state that we had directed the daughter of the
Petitioner to remain personally present in Court and gave the
responsibility to the father to see that she is present. She has appeared.
She has, without any hesitation, clearly stated that she intends to go
back to Kuwait to pursue her career. In such a situation, we are of the
considered opinion that as a major, she is entitled to exercise her
choice and freedom and the Court cannot get into the aspect whether
she has been forced by the father or not. There may be ample reasons
on her behalf to go back to her father in Kuwait, but we are not
concerned with her reasons. What she has stated before the Court, that
alone matters and that is the heart of the reasoning for this Court,
which keeps all controversies at bay.
11. It needs no special emphasis to state that attaining the age of
majority in an individual's life has its own significance. She/he is
entitled to make her/his choice. The Courts cannot, as long as the
choice remains, assume the role of parens patriae. The daughter is
entitled to enjoy her freedom as the law permits and the Court should
not assume the role of a super guardian being moved by any kind of
sentiment of the mother or the egotism of the father. We say so
without any reservation.‖
74. In Common Cause (A Regd. Society) v. Union of India 2018 (4)
SCALE 1 a Constitution Bench of the Supreme Court recognised an
individual's right to die with dignity and held:
―Our autonomy as persons is founded on the ability to decide: on what
to wear and how to dress, on what to eat and on the food that we
share, on when to speak and what we speak, on the right to believe or
not to believe, on whom to love and whom to partner, and to freely
decide on innumerable matters of consequence and detail to our daily
lives.‖
75. In the Hadiya case (supra), the Supreme Court was considering an W.P. (Crl) 1804 of 2017 Page 31 of 73
appeal against the judgment of the High Court of Kerala annulling a
marriage between an adult woman to a Muslim man after she converted to
Islam. In doing so the High Court exercised its jurisdiction in the habeas
corpus jurisdiction having been approached by the woman‘s father, who
found her choice of conversion to Islam and subsequent marriage to be
unacceptable.
76. While reversing the judgment of the Kerala High Court, a three judge
Bench of the Supreme Court in the Hadiya case unanimously ruled that the
High Court had been ―erroneously guided by some kind of social
phenomenon.‖ The leading opinion of Dipak Misra, CJI observed:
―53. It is obligatory to state here that expression of choice in accord
with law is acceptance of individual identity. Curtailment of that
expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance of the societal will destroy the
individualistic entity of a person. The social values and morals have
their space but they are not above the constitutionally guaranteed
freedom. The said freedom is both a constitutional and a human
right. Deprivation of that freedom which is ingrained in choice on the
plea of faith is impermissible. Faith of a person is intrinsic to his /her
meaningful existence. To have the freedom of faith is essential to
his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and
sans it, the right of choice becomes a shadow. It has to be
remembered that the realization of a right is more important than the
conferment of the right. Such actualization indeed ostracises any kind
of societal notoriety and keeps it bay the patriarchal supremacy. It is
so because the individualistic faith and expression of choice are
fundamental for the fructification of the right. Thus, we would like to
call it indispensable preliminary condition.
54. Non-acceptance of her choice would simply mean creating
discomfort to the constitutional right by a Constitutional Court which W.P. (Crl) 1804 of 2017 Page 32 of 73
is meant to be the protector of fundamental rights. Such a situation
cannot remotely be conceived. The duty of the Court is to
uphold the right and not to abridge the sphere of the right unless there
is a valid authority of law. Sans lawful sanction, the centripodal value
of liberty should allow an individual to write his/her script. The
individual signature is the insignia of the concept.‖
77. In his concurring opinion in the Hadiya case (supra) Dr. D. Y.
Chandrachud, J. observed:
―19….Neither the state nor the law can dictate a choice of partners or
limit the free ability of every person to decide on these matters. They
form the essence of personal liberty under the Constitution. In
deciding whether Shafin Jahan is a fit person for Hadiya to marry, the
High Court has entered into prohibited terrain. Our choices are
respected because they are ours. Social approval for intimate personal
decisions is not the basis for recognising them. Indeed, the
Constitution protects personal liberty from disapproving audiences.
23. The High Court, in the present case, has treaded on an area which
must be out of bounds for a constitutional court. The views of the
High Court have encroached into a private space reserved for women
and men in which neither law nor the judges can intrude. The High
Court was of the view that at twenty four, Hadiya ―is weak and
vulnerable, capable of being exploited in many ways‖. The High
Court has lost sight of the fact that she is a major, capable of
taking her own decisions and is entitled to the right recognised by
the Constitution to lead her life exactly as she pleases. The
concern of this Court in intervening in this matter is as much
about the miscarriage of justice that has resulted in the High
Court as much as about the paternalism which underlies the
approach to constitutional interpretation reflected in the
judgment in appeal. The superior courts, when they exercise their
jurisdiction parens patriae do so in the case of persons who are
incapable of asserting a free will such as minors or persons of
unsound mind. The exercise of that jurisdiction should not transgress
into the area of determining the suitability of partners to a marital tie.
That decision rests exclusively with the individuals themselves. W.P. (Crl) 1804 of 2017 Page 33 of 73
Neither the state nor society can intrude into that domain. The strength
of our Constitution lies in its acceptance of the plurality and diversity
of our culture.‖ (emphasis supplied)
Role of Z’s parents
78. In the present case, the trouble started for Z when she began to exercise
her personal choice as regards her career and consequently her place of
residence. She chose to pursue a career in music and, therefore, spent more
time with her music teacher and his wife in order to fully involve herself in
music. Notwithstanding that Z was an adult, her choices were evidently
unacceptable to her parents. As is apparent from the written submissions
filed by them, Z‘s parents are under a mistaken assumption that ―in case of a
daughter she remains a dependent on her parents till she gets married,
irrespective of the fact that whether she has attained majority or not‖. This
mistaken notion forms the basis upon which they have taken it upon
themselves to make Z‘s choices for her notwithstanding that Z, having
attained the age of majority, can exercise her free will uninfluenced by what
her parents might feel or think.
79. Another troubling aspect of this case is that Z‘s parents, proclaiming that
they were acting for the welfare of their daughter, have repeatedly attempted
to have her declared to as be mentally ill simply because they do not agree
with the choice she has made. They even went to the extent of getting her
evaluated by a psychiatrist, Dr. Chellani, way back in May 2014. Despite
that report of Dr. Chellani not being accepted by the learned MM who
dismissed their complaint under Section 25 of the MHA, the parents of Z, in
utter violation of her right to informational privacy, have given a copy of the W.P. (Crl) 1804 of 2017 Page 34 of 73
said psychiatric evaluation to not only the doctors at CIMBS but even to the
ambulance provider, Almas.
80. Having evaluated the circumstances under which Z was forcibly
removed from the house of the Petitioners (where she was living of her own
free will) by her parents who acted in collusion with the local police of PS
Malviya Nagar and the staff of Almas, the Court is unable to reach any other
conclusion than to hold that Z‘s fundamental rights to life, liberty, privacy,
and dignity under Article 21 of the Constitution of India have been
flagrantly violated.
81. Furthermore, Z was admitted to CIMBS at the instance of her parents.
Her father signed the admission forms while falsely stating that she was
unable to give consent to being admitted. From the circumstances that
emerge from the record it appears apparent to this Court that here again, Z‘s
parents have violated her fundamental rights to life, liberty, privacy, and
dignity in collusion with the police, the ambulance service and abetted by
CIMBS.
82. Even more troubling is the fact that Z‘s parents suppressed material facts
regarding their two failed previous attempts to get her to be declared to be
mentally unsound. This resulted in the local police, the ambulance staff and
the doctors at CIMBS to proceed as though Z was indeed mentally unsound
or suffered from some kind of mental illness which required urgent
treatment.
83. In the Court‘s view, therefore, the actions of Z‘s parents which were W.P. (Crl) 1804 of 2017 Page 35 of 73
carried out with the aid of the local police, the staff of Almas, and the staff
of CIMBS were in clear violation of Z‘s fundamental rights to life, liberty
and the right to dignity enshrined in Article 21 of the Constitution. This
violation of her rights was triggered by her exercising her freedom of choice
as a female adult by choosing whom she wanted to stay with. The Court,
therefore, rejects the plea of Z‘s parents that they acted in the larger interests
of the daughter and in consideration of her well-being since their actions
indicate the opposite.
The scheme of the MHA
84. Before proceeding to examine the role of CIMBS in the episode, the
Court proposes to analyse the relevant provisions of the MHA. The MHA is
a statute that has provisions that might result in the deprivation of a person‘s
liberty. The scheme of the MHA is such that it contemplates both voluntary
and involuntary admission of a mentally ill person in a psychiatric hospital
or psychiatric nursing home as defined under Section 2(q) MHA. One such
provision which is relevant in the context of the present case is Section 19
MHA which occurs in Part II, Chapter IV titled ‗Admission under special
circumstances‘.
85. In this context, it requires to be noticed that the MHA replaced the
earlier Indian Lunacy Act, 1912 (‗ILA‘) which had become outdated.
Parliament acknowledged that mental illness was a curable conidtion and
that the attitude of society towards persons suffering mental illness had
changed considerably. It was realized that, ―No stigma should be attached to
such illness‖. The Statement of Objects and Reasons of the MHA envisaged W.P. (Crl) 1804 of 2017 Page 36 of 73
that mentally ill persons ―are to be treated like any other sick persons and
the environment around them should be made as normal as possible‖. It is
with this object in view that it was thought necessary to have ―fresh
legislation with provisions for treatment of mentally ill persons in
accordance with the new approach‖. The broad scheme of the MHA is to
regulate the establishment and maintenance of psychiatric hospitals or
psychiatric nursing homes only upon obtaining a license. The Licensing
Authority (‗LA‘) under Section 2 (g) means such officer or authority as may
be specified by the State Government to be the LA for the purposes of the
MHA. As far as the National Capital Territory of Delhi is concerned, the
State Mental Health Authority (‗SMHA‘) constituted under Section 4 of the
MHA has been authorized by the Government of NCT of Delhi to be the LA
under the MHA.
86. The license thus granted to run a psychiatric hospital or psychiatric
nursing home as defined under Section 2(q) MHA includes the power to
revoke the license. This has to be read with the State Mental Health
Rules 1990 (‗SMHR‘) which prescribes the minimum facilities for treatment
of all patients, the procedure for admission and/or detention in psychiatric
hospitals and psychiatric nursing homes, etc. As far as Delhi is concerned,
Rule 25 (1) envisages an application for reception order by the medical
officer in charge or the husband, wife or any relative making an application
in Form-7 or Form-8 respectively. Where the application is by a husband,
wife or relative of a person who is alleged to be mentally ill, it has to be
accompanied by ―necessary medical certificates‖ and such an application is
required to be signed by such husband, wife or relative or friend and verified W.P. (Crl) 1804 of 2017 Page 37 of 73
by two independent witnesses.
87. This requirement flows from Section 19 MHA itself which reads thus:
―19. Admission of mentally ill persons under certain special
circumstances.—
(1) Any mentally ill person who does not, or is unable to,
express his willingness for admission as a voluntary patient,
may be admitted and kept as an in-patient in a psychiatric
hospital or psychiatric nursing home on an application made in
that behalf by a relative or a friend of the mentally ill person if
the medical officer in charge is satisfied that in the interest of
the mentally ill person it is necessary so to do:
Provided that no person so admitted as an in-patient shall be
kept in the psychiatric hospital or psychiatric nursing home as
an in-patient for a period exceeding ninety days except in
accordance with the other provisions of this Act.
(2) Every application under sub-section (1) shall be in the
prescribed form and be accompanied by two medical
certificates, from two medical practitioners of whom one shall
be a medical practitioner in the service of Government, to the
effect that the condition of such mentally ill person is such that
he should be kept under observation and treatment as an inpatient
in a psychiatric hospital or psychiatric nursing home:
Provided that the medical officer, in charge of the psychiatric
hospital or psychiatric nursing home concerned may, if satisfied
that it is proper so to do, cause a mentally ill person to be
examined by two medical practitioners working in the hospital
or in the nursing home instead of requiring such certificates.
(3) Any mentally ill person admitted under sub-section (1) or
his relative or friend may apply to the Magistrate for his
discharge and the Magistrate may, after giving notice to the
person at whose instance he was admitted to the psychiatric W.P. (Crl) 1804 of 2017 Page 38 of 73
hospital or psychiatric nursing home and after making such
inquiry as he may deem fit either allow or dismiss the
application.
(4) The provisions of the foregoing sub-section shall be without
prejudice to the power exercisable by a Magistrate before
whom the case of a mentally ill person is brought, whether
under this section or under any other provision of this Act, to
pass a reception order, if he is satisfied that it is necessary so to
do in accordance with the relevant provisions of this Act.‖
88. Section 19 (1) MHA first of all envisages that the mentally ill person is
unable to ―express his willingness for admission as a voluntary patient‖. In
other words, where a person is in a position to express willingness, then
Section 19 will not apply at all. Section 15 MHA would apply when a
person, as in the present case, is not a minor and is capable of expressing his
or her willingness to be admitted as a voluntary patient in a psychiatric
hospital or nursing home. Where it is a minor, the request for voluntary
admission is made by a guardian under Section 16 MHA.
89. Section 19 MHA contemplates a situation where an involuntary
admission of a mentally ill person to a mental health facility can take place
without the intervention of the Court. It is, in that sense, a standalone
provision. While there is a certain degree of supervision and control when a
Magistrate is brought into the picture when an application for a reception
order is made under Section 25 MHA, there is none in the procedure
envisaged under Section 19 MHA. However, in the Court‘s view, the
standard to be adopted by a Magistrate when passing a reception order under
Section 25 MHA shall also apply to the procedure adopted under Section 19
MHA, i.e. an objective satisfaction that the person requires admission to a W.P. (Crl) 1804 of 2017 Page 39 of 73
psychiatrist hospital for observation and treatment.
90. The determination of mental illness for the purposes of Section 19 MHA
has to be based on objective criteria. In the context of the ILA, and the
procedure for involuntary commitment to a mental hospital thereunder, the
Madras High Court, in Sesha Ammal v. Venkatanarasimha Bhattachariar
AIR 1935 Mad 91 held that ―the Court must hold that both unsoundness of
mind and incapacity to manage his affairs are present and that the latter is
due to the former‖. Dealing with the expression ―unsoundness of mind‖, the
Allahabad High Court in Joshi Ram Krishnan v. Rukmini Bai AIR 1949
All 449 observed as under:
―Unsoundness of mind implies some unusual feature of the
mind as has tended to make it different from the normal and
has, in effect, impaired the man's capacity to look after his
affairs in a manner in which another person without such
mental irregularity would be able to do in a matter of his own.
The idea suggests some derangement of the mind, whatever be
its degree and it is not to be confused with, or taken as
analogous to, a mere mental weakness or lack of intelligence. A
man may find it difficult to answer questions of a particular
class, but if he intelligently answers questions of various other
sorts concerning himself, his family and property, he cannot be
classed with men of unsound mind being unable to manage
their affairs. If a man is able to understand and answer
questions on various matters except those relating to
arithmetical calculations, he cannot be regarded as mentally
unsound, although he would be held as having a weak or
undeveloped mind.‖
91. Further in R. Lingaraj v. Parvathi @ Kundhi Ammal AIR 1975 Mad
285, it was observed by the Madras High Court as under:
―unsoundness of mind has reference to a mental condition W.P. (Crl) 1804 of 2017 Page 40 of 73
which falls outside the range of the wide spectrum of mental
calibre .....However low the intelligence quotient of a simpleton
may be, his mental capacity is preferable to an integrated and
sound mind, while the mental factor of a person of unsound
mind can have reference only to a mind affected by severe
congenital subnormality or to a disintegrated or deranged or
dishevelled mind. It is in this perspective, the ability of a person
with unsound mind to take care of himself and manage his
affairs has to be assessed.‖
92. Therefore, the satisfaction that has to be arrived at by the medical
officer-in-charge of a private mental health facility for the purposes of
Section 19 MHA i.e. involuntary admission under special circumstances, has
necessarily to meet this standard. As rightly pointed out, the procedure for
involuntary admission under Section 19 MHA is only applicable when the
patient is in fact mentally ill and a satisfaction has been reached to that end.
Admitting a patient under Section 19 MHA merely for observation cannot
be countenanced as doing so would be in violation of a person‘s rights to
life, liberty, and dignity granted under Article 21 of the Constitution of
India.
93. In the present case, Z was, to begin with, treated as a person who was
not able to express her willingness as a voluntary patient. The question then
arises as to who should decide whether a person is or is not able to express
willingness to be admitted as a voluntary patient. Obviously that
determination can and should only be made by a qualified mental health
professional. It is only such a person who satisfies the requirement spelt out
in Section 19 (1) MHA who may declare someone to be admitted as an
involuntary patient in a psychiatric hospital or psychiatric nursing home. W.P. (Crl) 1804 of 2017 Page 41 of 73
94. For the purposes of the said admission, the following conditions are
required to be fulfilled in terms of Section 19 (1) MHA:
(i) An application is to be made on behalf of such person who is sought
to be admitted, by a relative or friend of such person.
(ii) The medical officer in-charge has to be satisfied that it is in the
interest of the mentally ill person that it is necessary so to do.
95. Therefore, even if an application is made by a person claiming to be a
relative of the mentally ill person seeking admission of such person into the
mental health institution on a voluntary basis, the medical officer in charge
(who in this case is admittedly Dr. Sunil Mittal) must be satisfied that it is
necessarily in the interest of the mentally ill person that they be admitted to
the mental health institution. The proviso to Section 19 (1) MHA specifies
an outer time limit for which such a person can be kept as an in-patient, i.e.
no such patient can be kept in the institution for more than 90 days and that
is also subject to what is required to be fulfilled in terms of other provisions
of the MHA.
96. Section 19 (2) MHA states that the application shall be in the prescribed
form. Rule 25 (1) specifies the form. It states that the application by relatives
and others will be in Form-8. The said form reads as under:
FORM VIII
(See rule 25)
APPLICATION FOR RECEPTION ORDER
(By relative or other)
To
………………
Sir,W.P. (Crl) 1804 of 2017 Page 42 of 73
Subject: Admission of ___ son/daughter of ___ into psychiatry
hospital/nursing home as in-patient.
I __ son/daughter of __ residing at ___ request you kindly
arrange for admission in respect of Sh/Smt. ___Aged __ Years,
___son/daughter of ___ as an in-patient to (name of the
hospital) or any other hospital/nursing home. He/She has the
following suggestive of mental illness.
1. ………………
2. ………………
I, who is (relationship) of Sh/Smt. ___ have an income of Rs __
and agree to pay the charges of treatment, if any, according to
the rules and also assure that I shall abide by the rules and
regulation of the institution. I state that I have/have not made
any such previous application with regard to the mental
condition of ___ As required, I herewith enclose the two
Medical Certificates needed for the purpose.
Yours faithfully,
Signature………………
Name in Capital………………
Witnesses:
97. The form of the two medical certificates has not been set out. However,
Section 19 (2) of the MHA spells out what should accompany the
application as under:
(i) The application in a prescribed form has to be accompanied by two
medical certificates.
(ii) One of the certificates should be from a practitioner in the service of
the government and the other certificate by another mental health
practitioner.
(iii) Both certificates will be to the effect that the condition of a mentally
ill person is such that he should be kept under observation and
treatment as an in-patient in a psychiatric hospital or psychiatric W.P. (Crl) 1804 of 2017 Page 43 of 73
nursing home.
98. The proviso to Section 19(2) is to the effect that if the medical officer in
charge is satisfied that it is proper so do to, he can cause the mentally ill
person to be examined by ―two medical practitioners working in the hospital
or in a nursing home, instead of requiring such certificates.
99. Section 19 (1) read with Section 19 (2) of the MHA mandates that the
medical officer in-charge has to record two kinds of satisfaction – first, in
terms of Section 19 (1) of the MHA, the satisfaction that it is in the interest
of the medically ill person that they necessarily be admitted to a mental
health institution; and second, the satisfaction in terms of the proviso to
Section 19 (2) of the MHA that it is proper to cause such mentally ill person
to be examined by two medical practitioners working in the hospital itself
instead of requiring the two certificates as provided under Section 19(2) of
the MHA.
100. For the purposes of Sections 19 (1) and 19 (2) of the MHA, the medical
officer in-charge cannot delegate this crucial function of the recording of the
satisfaction of two separate kinds to some other person.
The role of CIMBS
101. It was submitted on behalf of CIMBS that since 11th June 2017 was a
Sunday, the medical officer in charge, Dr. Sunil Mittal, was not available. In
order to satisfy the requirement of Section 19 (1) MHA, he was contacted on
the telephone by Dr. Sameer Kalani and, after being explained the diagnosis,
conveyed his oral satisfaction that Z should be admitted as an in-patient atW.P. (Crl) 1804 of 2017 Page 44 of 73
the hospital.
102. The Court is unable to accept the above explanation offered by Dr.
Sunil Mittal. Incidentally, it may be mentioned that in order to buttress this
submission, Mr. Mukul Talwar, learned Senior Counsel appearing for
CIMBS, sought to place on record the text messages exchanged between Dr.
Sunil Mittal and the two doctors on the premises, i.e. Dr. Raj Mishra and Dr.
Sameer Kalani. The Court has not permitted the said text messages to be
brought on record because there was sufficient time for Cosmos to have
done so without waiting for the last day when the petition was being heard
finally. Nevertheless, it is not as though such text messages would have
helped the matter seeing as Dr. Mittal was obviously not even on the
premises of the hospital.
103. Since the responsibility of arriving at a satisfaction as to a patient‘s
mental health under Section 19 (1) MHA is not meant to be delegated to
anyone else, the satisfaction that had to be recorded had to be of Dr. Sunil
Mittal himself and no one else. In the present case, the satisfaction for the
purposes of Section 19(1) MHA was two-fold: that Z, being a mentally ill
person, was unable to express her willingness to be admitted in the
psychiatric hospital and further that her admission in the hospital would be
in her best interest. This satisfaction could not have been arrived at by Dr.
Sunil Mittal by just listening on the phone (or by a WhatsApp message) to
the diagnosis of some other doctor, even though such doctor was a qualified
mental health practitioner. Such an opinion could only be formed by Dr.
Mittal himself after interacting with the patient. Clearly that interaction did W.P. (Crl) 1804 of 2017 Page 45 of 73
not take place in the present case.
104. Would it be impractical and unreasonable to interpret Section 19 (1) of
the MHA in a manner that makes it compulsory for the medical officer in
charge of the mental health institution to himself record his satisfaction
about the need for a mentally ill person to be admitted as an in-patient? The
Court thinks not. The Parliament has intended, as a safeguard, that when a
person is brought in by someone else, who could be a relative or a friend
claiming that such person is mentally ill and not in a position to express their
willingness to be admitted as an in-patient, the medical officer in charge of
the facility should himself be personally satisfied that such person is in fact
mentally ill and therefore, unable to convey their willingness to be admitted
in a mental health institution. If it is a holiday or for some reason the
medical officer in charge is not available for recording such a satisfaction,
then such a person will not be admitted on that day in the facility. That
person has to wait for some other day on which the medical officer in charge
is available or, if it is an emergency, go to some other mental health
institution for that purpose. These are matters that have consequences not
just for the treatment but the liberty of the person. The least restrictive
alternative has to be the guiding factor.
105. There are no two ways of looking at it. Since this is a special procedure
and talks of special circumstances, the safeguard against an arbitrary and
involuntary admission is that a qualified mental health practitioner who is in
charge of the facility would himself or herself be personally satisfied as
required by Section 19 (1) MHA. There was a clear infraction of this W.P. (Crl) 1804 of 2017 Page 46 of 73
requirement as far as the present case is concerned. Dr. Sunil Mittal had
never personally examined Z on 11th June 2017 prior to her being admitted
as an in-patient in the CIMBS.
106. Again, it was Dr. Mittal who had to record his satisfaction about
dispensing with the two medical certificates from mental health
practitioners, one of whom had to be in the service of the government in
terms of the proviso to Section 19 (2) MHA. Here again, the file notings did
not show the recording of any such satisfaction by Dr. Mittal prior to Z‘s
admission in the hospital that instead of the two medical certificates
accompanying the application, two of the doctors in the hospital could
examine her. Therefore, there is a second violation of the statutory
requirement under the proviso to Section 19 (2) of the MHA.
107. On the contrary, CIMBS appears to be using a standard pre-printed
form consisting of thirteen pages without bothering to find out whether Z
was in a position to express her willingness. It was presumed that she was
not in a position to give her consent and signatures were taken of her father
on all thirteen pages. In fact, the application submitted by Z‘s father was not
in accordance with Form-8 under Rule 25 of the SMH Rules. It was also not
witnessed by two persons, as required by the Rule.
108. Apart from dispensing with the requirement of the certificates, the
CIMBS appears to have ignored the requirement of Section 19 (2) MHA
whereby two certificates were required for having a patient admitted as an
in-patient. In the present case, the certificates are all by the in-house doctors
of CIMBS, not one of them was a practitioner in government service. There W.P. (Crl) 1804 of 2017 Page 47 of 73
are three medical certificates – two dated 11th June 2017 and another dated
12th June 2017 by Dr. Shobana Mittal. That certificate is anyway superfluous
in the context of Section 19 (2) of the MHA and, therefore, need not be
referred to at this stage.
109. The two medical certificates dated 11th June 2017 are of Dr. Raj Mishra
and Dr. Sameer Kalani. Both are psychiatrists attached to CIMBS – neither
is in government service. The certificates given by them are almost identical.
The crucial portion of the certificates is in a printed form, as already noticed.
In fact, they had not come to a definitive opinion on the need for Z to be
admitted as an in-patient. That opinion has been deferred by both of them.
110. The doctors at the CIMBS overlooked what Section 19 (1) MHA read
with Section 19 (2) MHA required them to do. Unless the medical officer incharge
was satisfied that Z was unable to express her willingness and that it
was in her interest to get admitted as an in-patient, Z simply could not have
been admitted in the hospital. The justification offered by the doctors at
CIMBS is that in order to determine whether she required hospitalization,
she was required to be kept in observation in the hospital after being
admitted as an in-patient. This is contrary to the scheme of Section 19 (1)
MHA read with Section 19 (2) MHA.
111. In other words, it is not as if a person can be admitted to a mental
health institution in order to determine whether they require such an
admission. The determination that she requires admission should be made
prior to her actual admission and not later. In the present case, this basic
requirement has been violated. Z was admitted into CIMBS as an in-patient W.P. (Crl) 1804 of 2017 Page 48 of 73
without any clear determination as to whether she was required to be so
admitted. On the contrary, even by the end of the day on 11th June 2017, Dr.
Kalani came to the conclusion that Z did not require to be admitted as an inpatient.
It had already been decided by then that she was going to be
released on the following day.
112. Here, the Court would like to clarify that what Section 19 MHA
envisages is that till such time the medical officer in charge records in
writing his satisfaction that the person is unable to express willingness to be
admitted and is mentally ill and requires hospitalization, such a person can
only be examined in the out-patient department. From those assessments the
medical officer in-charge will have to be convinced that such a person
requires to be admitted. In other words, the medical officer in-charge cannot
direct the admission of a person into the hospital as an in-patient without
recording such a satisfaction in the first place. Involuntary admission cannot
be recommended for the purposes of recording such a satisfaction.
113. There is no explanation offered for the failure of Dr. Sunil Mittal, as the
medical officer in charge of CIMBS, to himself examine Z and come to the
conclusion that she requires treatment as an in-patient. The proviso to
Section 19 (2) MHA which provides for dispensing with the certificate
procedure was in fact not satisfied in the present matter. One certificate was
prepared at 7:35 pm and the other at 10pm and, therefore, both these doctors
obviously did not examine Z at the same time. In the notes, it is sought to be
justified by saying that Dr. Sunil Mittal was ‗consulted‘. The notes do not
themselves say that he was spoken to over the phone. Clearly, he was not W.P. (Crl) 1804 of 2017 Page 49 of 73
physically present in the hospital. Consultation over the phone will never
satisfy the requirement under Section 19 MHA. This is not a function that
could have been delegated by Dr. Sunil Mittal to anyone else. In the present
case, there is no justification shown by Dr. Mittal for a departure from the
above procedure.
114. In order to justify the action, it is sought to be contended by CIMBS,
that no advice was given by them to Z‘s parents to get her admitted to the
hospital for treatment. This Court finds this hard to believe. The out-patient
records of CIMBS too reveal that Z‘s father did consult Dr. Kalani. In any
event, it would not have been possible for Z‘s parents to simply get Z
admitted to the mental hospital without first talking to the doctors there. It
would have also not been possible for them to know which ambulance to
choose without the advice of CIMBS. The affidavits filed on behalf of
CIMBS in this regard did not satisfactorily address this aspect of the matter.
115. A vague statement is made that at the hospital, Z ―had not expressed
her willingness to be admitted as a voluntary patient‖. Reading the affidavits
of the parents, doctors of CIMBS and Z herself carefully and the fact that it
is Z‘s father who had signed all the documents, it is evident that from the
moment she was brought into the hospital, it was presumed by the doctors
there that Z was not in a position to express her willingness for treatment. It
is just presumed that she was incapable of giving consent and that it was to
be her father who was to give consent.
116. This is a serious flaw in the entire procedure followed by the hospital
under the MHA. Notes made by the doctors who examined Z speak to the W.P. (Crl) 1804 of 2017 Page 50 of 73
contrary. By 10 pm that day, Dr. Kalani had already come to the conclusion
that Z did not require any treatment as in-patient. Therefore, bypassing the
procedure under the MHA, i.e. the medical officer in charge having to
satisfy himself that the patient brought to the hospital had to be admitted as
an involuntary patient under special circumstances, Z was without
justification detained in the CIMBS on the night of 11th and 12th June 2017.
From this moment onward, everything that was done by the hospital was in
violation of the MHA.
117. The fact that the term ‗mental disorder‘ has not been defined under the
MHA does not mean that there is no responsibility on the doctors to first
find out if the patient is indeed suffering from any such mental disorder prior
to getting her admitted to a mental health facility. The reference has been
made to the International Classification of Diseases and the WHO
Guidelines, ICD-10 on ‗classification of mental and behavioural disorders‘.
It is claimed that drug abuse is a mental disorder which requires medical
treatment.
118. It is claimed by CIMBS that the parents of Z gave her background as a
person who had a history of drug abuse and was suffering from mental
disorder and that they simply believed what the parents of Z said in this
regard. The fact of the matter is that the CIMBS doctors never bothered to
ascertain whether Z was in a position to give her consent to the treatment
that they were proposing. Again, a vague statement is made that both
examining doctors ―were of the opinion that the patient possibly suffered
from one or more mental disorders requiring treatment/admission‖. The W.P. (Crl) 1804 of 2017 Page 51 of 73
notes referred to are pages 59 to 62 of the patient medical records and pages
22 to 24 of the loose paper compilation.
119. The Court here first would like to refer to the certificates themselves
issued by Dr. Raj Mishra and Dr. Kalani. In the relevant column, both
certificates have deferred giving any medical opinion that Z was suffering
from any mental disorder. It is plain that the doctors at CIMBS are trying to
obfuscate the obvious error in not first ascertaining whether Z was suffering
from any mental disorder at all.

120. Repeated references have been made to the certificate issued by
Dr. Chellani way back in May 2014. This same certificate was used by Z‘s
parents to first transport her in the ambulance and then to get her admitted
into CIMBS. This was a three year old certificate. This certificate had
already been seen by the learned MM who first dealt with the complaint
made by Z‘s parents way back in 2015 and was rejected along with the
parent‘s complaint that Z required involuntary admission into a mental
health institution.
121. While it does appear that Z‘s parents suppressed this fact, it was
incumbent upon the doctors at CIMBS, when faced with such a certificate
which is three years out of date, to first satisfy themselves that Z needed
treatment and admission as an involuntary in-patient at the hospital instead
of blindly acting on the basis of such certificate.
122. There was no basis whatsoever for either Dr. Raj Mishra or Dr. Kalani
to announce a ‗Code White‘ and ‗Code Violet‘ alert. Code White refers to a W.P. (Crl) 1804 of 2017 Page 52 of 73
suicidal patient and Code Violet refers to a violent patient. Z was neither.
There was nothing which occurred during the evening hours of
11
th June 2017 that could have persuaded either of these doctors to come to
such a conclusion.
123. A person brought to a mental health institution without her consent, and
sought to be admitted faces a serious infraction of her life and liberty. This
dictates the mandatory nature of the safeguards under the MHA having to be
scrupulously followed. Unless a patient is actually found to be suffering
from a mental illness which cannot be treated except by way of admission
into the hospital, such patient should not be admitted either as a voluntary or
involuntary patient into a mental health institution. This is the scheme of the
MHA itself and, therefore, a violation of the statutory procedure results in
not only incalculable harm to the person but also a serious violation of her
constitutional rights.
124. A reading of the notes preserved at CIMBS shows that apart from Dr.
Mishra and Dr. Kalani, there was also a clinical psychologist who was
examining Z. She too came to the conclusion that Z did not actually require
treatment as an in-patient. It is remarkable that overlooking all these notes,
Dr. Kalani simply decided to detain Z for one more night on the pretext that
it would not be safe for her to return that night itself. This kind of conclusion
is most inexplicable.
125. Z was an adult woman and was entitled to take her own decisions. The
fact that she was never consulted and never spoken to as an adult who could W.P. (Crl) 1804 of 2017 Page 53 of 73
take decisions of her own accord is a serious failing on the part of the
doctors at CIMBS.
126. It is sought to be contended that this was a case ―involving physical
abuse, alleged sexual abuse, drug abuse, history of mental illness and self
harm‖. This submission is unfounded. The fact of the matter is neither of the
doctors who attended or talked to Z bothered to actually find out if she had
suffered any of the above abuses. They simply presumed that what Z‘s
parents were saying was true.
127. The Court is also not convinced about the explanation given by the
hospital for not allowing SI Yogesh to record her statement in connection
with the complaint of abduction made by the Petitioners. Even on the part of
SI Yogesh, he had the order of the Court with him and could easily have
shown it to the doctors to ask them to comply with it immediately. This was
not done. There was a specific direction by this Court that the police should
meet Z and such a direction was binding on the hospital.
128. The notes kept by the doctors do not show that they were shown the
order of the Court. This part of the narrative of both CIMBS and the police
is not convincing. Not only was this Court‘s order violated but Z was
unnecessarily detained by CIMBS for a whole day and night which is totally
unjustified and in clear violation of Section 19 MHA read with Article 21 of
the Constitution of India.
129. The doctors admit that the essential aspect of Section 19 MHA is the
‗special circumstances‘ viz., that a person sought to be admitted as an W.P. (Crl) 1804 of 2017 Page 54 of 73
involuntary patient does not or is unable to express willingness for
admission as an in-patient. However, nothing in any of the affidavits states
that any of the doctors asked Z whether she was willing to be admitted as an
in-patient. Z could not be expected to, of her own accord, express
willingness to be admitted as an in-patient. It would be unreasonable to
expect that a patient who was brought to the hospital in circumstances such
as those in the present case would know the requirements under Section 19
of the MHA. Therefore, this stand of the hospital cannot be accepted at all.
130. The submission of CIMBS on the question of the possibility of
evaluating Z‘s mental health as an out-patient is that there may be instances
where a patient may not come back to the OPD for evaluation and therefore,
it becomes necessary in such circumstances for the patient to be
hospitalised. This submission is totally unacceptable to the Court. The Court
can only reiterate that the MHA is very clear that it is only a mentally ill
person who can be admitted to a mental health facility. Further, the
determination as to the person‘s mental health has to precede the admission
of the person. It goes without saying that that there cannot be a presumption
that a person is mentally ill or incapable of giving consent. The Court
concludes, in light of the above discussion that the involuntary admission of
Z to the CIMBS at 7.55 pm on 11th June 2017 was in clear violation of the
requirement of Section 19 (1) MHA read with Section 19 (2) MHA.
Repeated violation by the Delhi Psychiatry Centre?
131.1 Two decades ago, in a judgment dated 1st May 1997 in Anamika
Chawla v. Metropolitan Magistrate (1997) 5 SCC 346 the Supreme Court W.P. (Crl) 1804 of 2017 Page 55 of 73
was considering the legality of a commitment order passed by an MM in
Delhi requiring the Petitioner there to be admitted to the Delhi Psychiatry
Centre at 35, Defence Enclave, Vikas Marg Delhi (which incidentally is the
very same CIMBS to which Z was admitted) on the basis of certificates
issued by two psychiatrists, one of whom was Dr. Sunil Mittal. The opening
paragraph of the judgment reads thus:
―This case arises of alleged ill-treatment of Mrs. Anamika Chawla by
her husband and her father. The case is going on since 29th July 1995.
Smt. Anamika Chawla came up against the order passed by the
Metropolitan Magistrate on 29th July, 1995 ordering to be admitted to
Delhi Psychiatry Centre, 35, Defence Enclave, Vikas Marg, New
Delhi, for observation and treatment. This Order was passed with
undue haste even without seeing the alleged patient. Medical
certificates were produced from Dr. Sunil Mittal and Dr. S. C.
Malik. The case of the petitioner, Mrs. Chawla, is that neither of
the two doctors had ever met her or examined her. The allegation
appears to be true.‖ (emphasis supplied)
131.2 The Supreme Court further observed in its judgment as under:
―The case has now gone on a number of days. We heard the Doctors
and examined the reports heard all the parties. Mrs. Chawla has
appeared before us personally on a number of days. We have spoken
to her on all these days. We have not noticed the slightest abnormality
in her behaviour.
………….
We hold that there was no basis for passing the impugned order dated
20th July, 1995 by the Metropolitan Magistrate. The Order is
quashed. The Writ Petition filed in this Court by Anamika Chawla is
disposed of finally as above. There will be no order as to costs.‖
131.3 If, for the second time around, Dr. Sunil Mittal has, without seeing a
patient, agreed to her being admitted to the same Delhi Psychiatry Centre of W.P. (Crl) 1804 of 2017 Page 56 of 73
which he is Director, then it is indeed a serious matter. It is shocking that Dr.
Sunil Mittal has repeated the violation that was first noticed by the Supreme
Court two decades ago. No action appears to have been taken against him in
all these years and the pattern of his professional misconduct does not
appear to have changed. The consequences for the victims of his misconduct
are evident in both instances. The impunity with which this misconduct is
imbued calls for immediate action by the Medical Council of India (MCI).
Code of professional ethics
132. The Court has asked both the amicus curiae and Mr. Talwar to address
it on the ethical code of psychiatrists. It appears that under the extant scheme
of the MCI there is no separate code of ethics for psychiatrists. There are
Forensic Psychiatrist Clinical guidelines published by the Indian Psychiatric
Society. While there is a lot of literature available on the treatment of
patients and the protocol to be followed, there is very little on the code of
ethics for psychiatrists. For instance, the question of whether it is
appropriate for a psychiatrist to issue diagnoses of mentally ill patients on
pre-printed templates is unaddressed. To this Court, such a practice reflects a
non-application of mind by a psychiatrist.
133. In the present case, the pre-printed portion of the form manifests a
presumption that the patient is dangerous and unable to take care of himself
or herself. How can this be a standard diagnosis for all in-patients? The fact
that identical certificates have been issued by the two doctors, without
striking off the inapplicable portions, further points to the danger of using
such pre-printed forms. One can understand the use of the pre-printed forms W.P. (Crl) 1804 of 2017 Page 57 of 73
in the out-patient department of a government hospital for routine illnesses
such as common cold, fever, cough, etc. where there is not adequate time to
write out in hand the actual diagnosis. However, for a patient coming in for
admission on an involuntary basis or even, for that matter, on a voluntary
basis as mentally ill as envisaged by the MHA, it is inconceivable that such
a pre-printed form could be issued as a diagnosis.
134. If there is no code of ethics for psychiatrists in this country, it would be
indeed a serious lacuna which ought to be remedied. An aspect of this matter
which is disturbing is psychiatrists being able to talk to each other on the
telephone or through WhatsApp messages to decide whether a patient
requires treatment as envisaged. This again is totally unacceptable. It is
illegal and has implications of unconstitutionality. A professional
psychiatrist requires personal interaction with a person before making a
diagnosis of such person‘s mental condition. It is inconceivable that a
psychiatrist can determine the mental state of a person by merely discussing
the symptoms and conditions with another fellow psychiatrist over the
telephone. If this practice is being followed then it has to be stopped. A code
of ethics must be formulated in this regard.
135. The MCI appears to be the common body dealing with all complaints
against psychiatrists as well as other medical practitioners. The Court leaves
it to the MCI to formulate a separate code of ethics for psychiatrists to
follow. Such a code will reinforce the law.
136. The Court concludes this part of the discussion by holding that theW.P. (Crl) 1804 of 2017 Page 58 of 73
practice adopted in the present case by Dr. Sunil Mittal, Dr. Raj Mishra, and
Dr. Sameer Kalani was in violation of the law, the professional medical
ethics and norms. They failed to satisfy themselves about the capacity of Z
to give consent to treatment. Z was forcibly kept by them at the CIMBS
without her consent in violation of the MHA and the Constitution of India.
137. In view of such a serious breach of the law and professional ethics,
action ought to be taken against the above doctors by the MCI. However, the
question as to what action is to be taken against each of them is left to the
MCI to decide. MCI will take note of this being the second known instance
in twenty years of violation of the law and ethics by Dr. Sunil Mittal and the
Delhi Psychiatry Centre.
138. On her part, Z is permitted to file a formal complaint with the MCI
relying upon the affidavits and records submitted by CIMBS in this matter.
If such complaint is filed, it is expected that the MCI will deal with it
promptly and render a decision no later than six months from the date of
receiving such complaints.
Role of the ambulance Almas
139. The Court now turns to the role of the ambulance staff that
accompanied Z. In the first place, it must be noticed that Dr. Israul Haque is
in fact not an allopath at all. He holds a degree in Ayurvedic medicine. It is
therefore pertinent to ask whether a person holding a degree in Ayurvedic
medicine can be permitted to operate an ambulance which might have to
cater to patients who require specialised treatment and care?W.P. (Crl) 1804 of 2017 Page 59 of 73
140. It is disturbing to note that this ambulance run by Almas is registered in
Haryana but does not satisfy the requirements of the guidelines for running
such ambulance in Haryana. The anomaly is that since it does not operate in
Haryana but in Delhi then there is no action against such ambulance possible
in Haryana. As far as Delhi is concerned, the ambulance does not satisfy the
requirements for running such an ambulance in Delhi either. However, since
the vehicle is registered in Haryana, Almas is able to get away by taking a
stand that they are not required to satisfy the requirements of running an
ambulance in Delhi. This is how an ambulance which does not satisfy the
guidelines in both for Haryana and Delhi is able to operate an ambulance in
Delhi and that too by a doctor who is not an allopathic doctor but a holder of
a degree in Ayurvedic medicine. Clearly the ambulance does not satisfy the
requirements of Central Guidelines for running an ambulance. This is again
a serious lacuna in law which requires to be addressed.
141. It appears that Almas simply made the services available without taking
any basic precaution of satisfying themselves that this was a genuine
complaint of a person suffering from mental illness. They appeared to have
followed no protocol whatsoever and had simply gone by the application
submitted by Z‘s father which was enclosed with the three year old notes of
Dr. Chellani. It should not have been so naive as to act on the basis of a
three year old certificate to determine that the patient that they were carrying
in the ambulance was incapable of taking her own decisions.
142. The manner in which the ambulance staff has been used to forcibly take
Z away from the home of the Petitioners is illegal and unconstitutional. They W.P. (Crl) 1804 of 2017 Page 60 of 73
have all been party to depriving Z of her liberty and virtually rendering her
into the custody of the hospital without her consent. Almas has to be
restrained from offering this type of ambulance services.
143. It has been pointed out by the learned amicus curiae that Almas which
is registered in Delhi as an Ambulance Service Provider company was
incorporated on 4th October 2012 and, therefore, the revised Guidelines for
Registration of Ambulances in Delhi would apply. In terms thereof, ―An
ambulance vehicle can be registered by the Transport Department in Delhi
only after it has the approval of Committee for Registration of Ambulances
(CRA)‖. It is unclear from the records whether the ambulance in the present
case has been registered as per the guidelines.
144. The learned amicus curiae has also pointed out that the guidelines
required the presence of a medical control physician who would be required
to give an undertaking that he shall be responsible for maintaining the
quality of the service provided in the ambulance. It is pointed out that there
is a lacuna inasmuch as neither the guidelines nor the National Ambulance
Code AIS:125 approved by the Ministry of Road Transport and Highways
prescribe for or regulate the provision of service by the staff of the
ambulance and this is a lacuna that requires to be addressed and remedied.
145. A copy of the intimation letter from Z‘s parents to the police was
handed over to Almas. The letter noted that Z was suffering from a
―probable psychological disorder‖. The consent form for Almas for shifting
psychiatric patients clearly stipulates ―Authorization of shifting of W.P. (Crl) 1804 of 2017 Page 61 of 73
psychiatry patient to hospital/rehabilitation centre for diagnostic/therapeutic
procedure‖. Therefore, there is a presumption that the medical control
physician present in the ambulance would conduct a preliminary
examination or perform a diagnosis in order to determine whether the person
to be transported is in fact a psychiatric patient or not. Such preliminary
examination was even more necessary in the present case considering the
intimation letter only mentioned a ―probably psychological disorder‖.
146. From the complaint of the Petitioner No.1 to the SHO of PS Malviya
Nagar given on 11th July 2017 itself and the statement of the Petitioner No.1
and Z‘s own statement under Section 164 Cr PC, it is plain that some form
of drug/anaesthetic substance was administered to Z without ascertaining
whether she in fact was a psychiatric patient. The Court agrees with the
submission of learned amicus curiae that the ambulance staff grossly
neglected the duty of care owed to Z. They proceeded to abet the abduction
of Z and administered drugs to her by injection in the absence of any
medical records and on the mere say so of Z‘s family. This indeed appears to
be a fit case for revocation of the registration of the ambulance company if,
indeed, it is so registered. A peremptory direction is issued to the
Government of NCT of Delhi to take action in regard to Almas and such
ambulances which have been registered outside the NCT of Delhi but are
operating in Delhi with impunity and in violation of the applicable
guidelines.
Role of the police
147. Turning now to the police, the report of inquiry submitted to this Court W.P. (Crl) 1804 of 2017 Page 62 of 73
by the DCP seeks to give a clean chit to HC Praveen who is attached to PS
Malviya Nagar. HC Praveen went to the house of the Petitioners in plain
clothes. He actually oversaw the forcible taking away of Z from the house of
the Petitioners. The DCP‘s report puts out a weak defence for HC Praveen
and seeks to project that he was acting in a bona fide manner.
148. When a group of persons barges into a house, pins down a person
forcibly, injects her with a sedative, and tries to take her away in an
ambulance, a policeman cannot possibly be under the bona fide belief that
all this was done in her best interest. Clearly, HC Praveen failed in his duty
of protecting the life and liberty of a citizen. He should not have allowed Z
to be taken away forcibly by her parents in the above violent manner. He
also did not inform the Petitioners about where Z was taken. The report of
inquiry of the DCP clearly shows that HC Praveen was present at the
Petitioners‘ residence at around 5 pm. HC Praveen cannot possibly take the
defence that he did not know where Z has been taken in the ambulance. It is
disconcerting that despite these lapses no disciplinary action has been taken
against HC Praveen.
149. The role of SI Yogesh was also hugely problematic. Instead of acting
promptly on the complaint given by the Petitioners, he walked into the
hospital in the late hours. When the doctors in CIMBS told him that Z was
not fit to speak to him, he does not appear to have shown them the order of
this Court dated 12th June 2017 directing that he should meet Z and record
her statement. The report of the DCP does not address this part at all.W.P. (Crl) 1804 of 2017 Page 63 of 73
150. The delay in the registration of the FIR on the complaint of the
Petitioners in the present case is unacceptable considering that the complaint
clearly named the persons responsible for the abduction. The role of SI
Yogesh Kumar needs to be probed further to ascertain whether he was
acting in a bona fide manner and whether in fact he communicated the order
of this Court to the staff at CIMBS. If he did not do so, he has much to
answer for.
151. The Court would, therefore, direct that a full-fledged inquiry be
conducted by the police into the roles of SI Yogesh Kumar and HC Praveen
in this entire matter. Further, on the aspect of violations of the MHA, the
Delhi Police appears to have left it to the Secretary (Health) GNCTD who is
apparently enquiring into the matter. The Court directs the Secretary
(Health) GNCTD to share with the Delhi Police within four weeks the report
of such enquiry and for the Delhi Police to take further action in accordance
with law in terms of such report.
152. The Court considers it appropriate to direct that the Delhi Police shall
prepare a manual detailing how to deal with cases under the MHA and, after
7
th July 2018, the Mental Healthcare Act 2017. It must prepare a protocol in
consultation with legal experts as well as experts in mental healthcare and
spread awareness on the issue of mental health. The Central and State
Mental Health Authorities must, in collaboration with the State Judicial
Academies, hold programmes on periodic basis with civil society groups,
Resident‘s Welfare Associations, Police Officers, lawyers and Judges to
sensitize them about the various compliances under the MHA and its W.P. (Crl) 1804 of 2017 Page 64 of 73
successor, the Mental Healthcare Act 2017, and how to treat persons who
are sought to be governed by the said legislation.
Consequential directions for compensation
153. The Court is conscious that a charge sheet has been filed and a criminal
case has been registered and, therefore, the Court would not like to say
anything more on the criminal culpability of these persons being conscious
of the fact that the degree of proof of criminal culpability is higher.
However, the Court would be failing in its constitutional duty if it did not
pronounce on the serious violations of the right to life and personal liberty
experienced by Z which more than adequately stands established in the
present case.
154. The task of the Court in exercising its habeas corpus writ jurisdiction
does not necessarily stop with ending unlawful detention of a person. In the
constitutional jurisdiction, the power of the Courts to grant further
consequential relief has been explicitly recognised.
155. In a similar context as the present, i.e. one where there was an
involuntary admission of a person to mental health facility against her
wishes, the Madras High Court in Meera Nireshwalia v. State of Tamil
Nadu 1990 SCC Online Mad 558 granted her monetary relief after referring
to the decisions of the Supreme Court in Rudul Sah v. State of Bihar (1983)
4 SCC 141, Sebastian M. Hongray v. Union of India AIR 1984 SC 1026
and Bhim Singh v. State of Jammu & Kashmir (1985) 4 SCC 677. W.P. (Crl) 1804 of 2017 Page 65 of 73
156. Likewise, in Arvinder Singh Bagga v. State of U.P. (1994) 6 SCC 565,
the Supreme Court did not stop with granting relief of termination of illegal
detention. It continued the writ petition as one for qualified habeas corpus
for examining the legality of the detention and for determining whether the
Petitioner is entitled to be compensated for the illegal detention as a public
law remedy for violation of her fundamental rights under Article 21 of the
Constitution, quite apart from criminal or civil liability which may be
pursued in the ordinary course. Ultimately, the Court did order, after inquiry,
as under:
―On a perusal of all the above, we are really pained to note that
such things should happen in a country which is still governed
by the rule of law. We cannot but express our strong
displeasure and disapproval of the conduct of the police officers
concerned. Therefore, we issue the following directions:
1. The State of Uttar Pradesh will take immediate steps to
launch prosecution against all the police officers involved
in this sordid affair.
2. The State shall pay a compensation of Rs 10,000 to
Nidhi, Rs 10,000 to Charanjit Singh Bagga and Rs 5000
to each of the other persons who were illegally detained
and humiliated for no fault of theirs. Time for making
payment will be three months from the date of this
judgment. Upon such payment it will be open to the State
to recover personally the amount of compensation from
the police officers concerned.‖
157. In Burhanuddin Tahevali Bilaspurwala v. Union of India & Ors.,
1993 SCC Online Del 580, this Court followed the decision in Nilabati
Behera v. State of Orissa (1993) 2 SCC 746 and Bhim Singh v. State of
Jammu & Kashmir (supra) and observed as under:
―15. The question then arises, if the petitioner is entitled to any W.P. (Crl) 1804 of 2017 Page 66 of 73
compensation for infraction or invasion of his rights granted
under article 21 of the constitution, and if so, to what amount.
The law is now well settled that relief of monetary
compensation as exemplary damages in proceedings under
article 226 of the constitution for ―established infringement of
the indefeasible right granted under Article 21 is a remedy
available in public law and is based on the strict liability for
contravention of the guaranteed basic and indefeasible rights of
the citizen‖. ...... In the present case the petitioner was in illegal
custody for 15 days. Law is not settled as to what amount of
compensation is to be awarded in such cases. We do not think
any difference can be made if a citizen is poor or rich for the
purpose of award of compensation in a case like the present
one. Whether a person is rich or poor personal liberty has the
same meaning. It may perhaps be more in the case of poor and a
downtrodden who has to earn for his livelihood each day.‖
158. In Tirath Ram Saini v. State of Punjab (1997) 11 SCC 623, a habeas
corpus petition was being decided by the Supreme Court regarding the
wrongful confinement of two persons by police authorities for a period of
two months. Compensation was awarded to each of them for such unlawful
detention. In Union of India v. Luithukla (1999) 9 SCC 273, the Court
allowed the compensation in a habeas corpus petition by observing as under:
―9. As to the plea on behalf of the appellants that the affidavits
on their behalf should not have been rejected by the High Court
without a factual enquiry, we would comment that the High
Court ought to have added that it was open to the first
respondent to file a suit against the appellants to claim
damages, if so advised. In that event a trial on facts would have
been necessary and would have taken place. As it is, Budha
Singh was last seen in the company of security forces, now 16
years ago. The security forces must, therefore, be held to be
liable to make payment of the aforestated nominal amount of
rupees one lakh to the 1st respondent.‖W.P. (Crl) 1804 of 2017 Page 67 of 73
159. This Court in ABC v. Commissioner of Police 2013 SCC Online Del
449 was dealing with a case where a young girl‘s identity as a victim of
sexual abuse was disclosed by a television channel in gross violation of her
fundamental rights to life, liberty and privacy. Compensation was granted
against the television channel as ―a palliative measure leaving it to the
victim to seek further damages in appropriate civil proceedings‖.
160. Keeping in view the above exposition of law, the Court directs that
within a period of four weeks from today, Z will be paid compensation as
follows: Rs. 3 lakhs by CIMBS; Rs. 1 lakh each by Almas and the State and
Rs. 3 lakhs by her parents. The compensation amounts will be paid by
demand draft in Z‘s name, within four weeks from today, and will be
deposited by Z in her own account. Z will be free to utilize the amount in
whichever way she deems fit. This will not preclude Z from seeking other
appropriate remedies in any other proceedings.
Summary of conclusions and directions
161. The conclusions and directions of the Court in this judgment are
summarised as under:
(i) Protection against an attack on the right of life, liberty, privacy and
dignity can be sought not only against the State but also against non-State
actors. Article 21 places an obligation both on state and non-state actors not
to deprive a person of life, liberty, privacy and dignity except in accordance
with the procedure established by law. In other words Articles 15 (2), 17, 19,
21 and 23 acknowledge the horizontal nature of those fundamental rights. 
They can be enforced against not just the State but non-state actors as well.
(ii) In a habeas corpus petition when the plea before the Court is that a
person should be protected against coercive retributive action of her parents,
for making personal life choices, the Court shall not hesitate to exercise its
jurisdiction to grant relief. In effect, the Court would be recognizing that the
threat to the right of ‗choice‘ of a person and thereby right to life, liberty,
privacy and dignity can very well come from the person‘s own parents
irrespective of the age and gender of such person.
(iii) The actions of Z‘s parents in removing her forcibly from the Petitioners‘
residence and getting her admitted without her consent to the CIMBS on 11th
June 2017, with the aid of the local police, the staff of Almas, and the staff
of CIMBS, was in clear violation of Z‘s fundamental rights to life, liberty
and the right to dignity enshrined in Article 21 of the Constitution. This
violation of her rights was triggered by her exercising her freedom of choice
as a female adult by choosing to leave her home, and deciding where she
would like to reside. The Court rejects the plea of Z‘s parents that they acted
in the larger interests of their daughter and in consideration of her well-being
since their actions indicate the opposite.
(iv) The procedure for involuntary admission under Section 19 MHA is only
applicable when the person has been found to be mentally ill as required by
law and a satisfaction has been reached to that end. Admitting a person
under Section 19 MHA merely for observation cannot be countenanced as
doing so would be in violation of a person‘s rights to life, liberty, and 
dignity granted under Article 21 of the Constitution of India.
(v) Section 19 (1) read with Section 19 (2) of the MHA mandates that the
medical officer in-charge has to record two kinds of satisfaction – first, in
terms of Section 19 (1) of the MHA, the satisfaction that it is in the interest
of the medically ill person that they necessarily be admitted to a mental
health institution; and second, the satisfaction in terms of the proviso to
Section 19 (2) of the MHA that it is proper to cause such mentally ill person
to be examined by two medical practitioners working in the hospital itself
instead of requiring the two certificates as provided under Section 19 (2) of
the MHA. The medical officer in-charge cannot delegate this crucial
function of the recording of the satisfaction of two separate kinds to some
other person.
(vi) In the present case, the satisfaction for the purposes of Section 19 (1)
MHA could not have been arrived at by Dr. Sunil Mittal by just listening to
his colleagues on the phone (or by a WhatsApp message). Such satisfaction
could have been arrived at by Dr. Sunil Mittal only after interacting with Z.
Clearly that interaction did not take place in the present case.
(vii) A person cannot be admitted to a mental health institution in order to
determine whether she requires such admission. The determination that she
requires admission should be prior to her admission and not later. The
involuntary admission of Z to the CIMBS at 7.55 pm on 11th June 2017 was,
therefore, in clear violation of the requirement of Section 19 (1) MHA read
with Section 19 (2) MHA.
(viii) A professional psychiatrist requires personal interaction with a person
before making a diagnosis of such person‘s mental condition. A psychiatrist
cannot determine a mental state of a person by merely discussing the
symptoms and conditions with another fellow psychiatrist over the
telephone. To do so is illegal and unconstitutional.
(x) The MCI should formulate a separate code of ethics for psychiatrists to
follow, which will reinforce the law.
(xi) The practice adopted in the present case by Dr. Sunil Mittal, Dr. Raj
Mishra, and Dr. Sameer Kalani was in breach of the law, professional
medical ethics and norms. The question as to what action is to be taken
against them is left to the MCI to decide. MCI will take note of this being
the second known instance in twenty years of violation of the law and ethics
by Dr. Sunil Mittal and the Delhi Psychiatry Centre.
(xii) Z is permitted to file a formal complaint with the MCI relying upon the
affidavits and records submitted by CIMBS in this matter. If such complaint
is filed, it is expected that the MCI will deal with it promptly and render a
decision not later than six months from the date of receiving such complaint.
(xiii) The Almas ambulance staff grossly neglected the duty of care owed to
Z. They proceeded to abet the abduction of Z and administered drugs to her
by injection in the absence of any medical records and on the mere say so of
Z‘s family. This is a fit case for revocation of the registration of Almas as an 
ambulance company if it is so registered and stopping their further
functions.
(xiv) Almas and its team have been party to depriving Z of her liberty and
virtually rendering her into the custody of the hospital without her consent.
Almas has to be restrained from offering any type of ambulance services. A
peremptory direction is issued to the Government of NCT of Delhi to take
action in regard to Almas and other ambulances, on being checked, which
have been registered in states outside the NCT of Delhi but are operating in
Delhi with impunity and in violation of the applicable guidelines.
(xv) The police has abetted the flagrant violation of Z‘s fundamental rights
to life, liberty, privacy and dignity under Article 21 of the Constitution. A
full-fledged inquiry be conducted by the police into the roles of SI Yogesh
Kumar and HC Praveen in this entire matter.
(xvi) Further, on the aspect of violations of the MHA, the Delhi Police
appears to have left it to the Secretary (Health) GNCTD who is apparently
enquiring into the matter. The Court directs the Secretary (Health) GNCTD
to share with the Delhi Police within four weeks the report of such enquiry
and for the Delhi Police to take further action in accordance with law in
terms of such report.
(xvii) The Delhi Police shall prepare a manual detailing how to deal with
cases under the MHA and, after 8th July 2018, the Mental Healthcare Act
2017. It must prepare a protocol in consultation with legal experts as well as 
experts in mental healthcare and spread awareness on the issue of mental
health.
(xviii) The Central and State Mental Health Authorities must, in
collaboration with the Delhi Judicial Academy, hold programmes on
periodic basis with civil society groups, Resident‘s Welfare Associations,
Police Officers, lawyers and Judges to sensitize them about the various
compliances under the MHA and its successor the Mental Healthcare Act
2017 and how to treat persons who are sought to be governed by the said
legislation.
(xix) Z will be paid compensation as follows: Rs. 3 lakhs by CIMBS; Rs. 1
lakh each by Almas and the State and Rs. 3 lakhs by her parents. The
compensation amounts will be paid by demand draft in Z‘s name (which has
been withheld in this judgment for reasons of privacy) within four weeks
from today and will be deposited by Z in her own account. Z will be free to
utilize the amount in whichever way she deems fit. This will not preclude Z
from seeking appropriate remedies in other proceedings in accordance with
law.
(xx) Z‘s parents and brother will be continued to be bound down by their
affidavits of undertaking to this Court that they will not come in the way of
Z‘s peaceful existence and choices.
(xxi) The criminal case arising out of FIR No. 231/2017 registered at PS
Malviya Nagar will be decided by the concerned Courts in accordance with 
law uninfluenced by anything said in this order.
162. The writ petition and the application are disposed of in the above terms.
The records of CIMBS of the treatment of Z shall continue to remain in a
sealed cover with this Court. Given the sensitive nature of this case, the
record (other than the judgment) shall not be made available for inspection
or for issuance of certified copies thereof unless specifically ordered by the
Court.
163. The Court records its appreciation of the excellent assistance provided
by counsel for the parties and in particular Mr. Rajshekhar Rao, learned
Amicus Curiae.
164. Certified copies of this judgment be delivered through a Special
Messenger forthwith to the Chief Secretary, Govt. of NCT of Delhi, the
Secretary, Medical Council of India, the Commissioner of Police, the Delhi
Judicial Academy, the Central Mental Health Authority and the Delhi State
Mental Health Authority for compliance with the above directions.
S. MURALIDHAR, J.
C. HARI SHANKAR, J.
APRIL18, 2018

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