Gender and Inclusive Justice Case: Advocate Sundarshan Subedi vs. Office of the Prime Minister & Others, NKP, Writ No. 129, Date of Decision 2066, DN: 8053
Case: Voidance of Law inconsistent with constitution
Plaintiff: Advocate Sundarshan Subedi
Defendant: Office of the Prime Minister & Others
Decision Number: 8053
The case is relating to the rights of persons with mental disabilities and the use of prison for their detention and treatment.
Facts of the Case:
The Public Interest Protection Forum and the Nepal Disabled Human Rights Centre filed a constitutional petition before the Supreme Court. The petition was brought by advocates Raju Prasad Chapagain and Sudarshan Subedi on behalf of persons with mental disabilities.
The petition challenged several laws that allowed people described in the old legal language as “insane” or mentally ill to be placed in a jail or prison. The main provision was Section 6 of the Treatment Chapter of the Muluki Ain. It allowed a mentally ill person to be put in fetters and kept in a cage or prison until recovery, unless a relative agreed to take responsibility for the person.
Section 9(7) of the Local Administration Act also allowed the Chief District Officer to use this procedure if a mentally ill person was considered a danger to the person or to society. Section 16(2) of the Disabled Protection and Welfare Act allowed a person with mental illness to be kept in prison for treatment or security. The Prison Act allowed mentally ill prisoners to be kept separately and provided general medical treatment for prisoners.
The petitioners argued that these provisions treated mental illness as a crime. They allowed people who had committed no offence to be detained in prison, sometimes for an uncertain period. They also failed to provide proper psychiatric hospitals, treatment centres, rehabilitation, care homes, or qualified medical care.
The petitioners referred to the constitutional rights to equality, personal liberty, dignity, health, and social protection. They also relied on international human-rights instruments, including the International Covenant on Economic, Social and Cultural Rights and the United Nations principles on the protection of persons with mental illness.
A letter from the Kavrepalanchok prison showed that 27 people with mental illness were being held there at the relevant time. This evidence supported the petitioners’ concern that the legal provisions were being used in practice.
Plaintiff’s Claims:
The petitioners argued that mental illness is a health condition, not a crime. They said that keeping mentally ill persons in prisons, fetters, or cages was inhuman and violated their rights to equality, dignity, personal liberty, health, and social protection. They asked the Court to invalidate the discriminatory provisions and direct the Government to provide proper mental-health treatment, rehabilitation, and care facilities.
Defendants’ Arguments:
The Government argued that the laws were intended to protect mentally ill persons and society. It stated that mentally ill prisoners could be separated from other prisoners and treated by government doctors according to available resources. It also argued that making or amending laws was mainly the responsibility of the legislature.
Legal Questions:
- Whether a person with mental illness could be detained in prison without having committed a crime?
- Whether keeping mentally ill persons in fetters, cages, or prisons violated their fundamental rights?
- Whether prison could be used as a place for psychiatric treatment?
- Whether the Government had a duty to provide proper mental-health treatment and rehabilitation?
Different Court Decisions:
Supreme Court Decision:
The Supreme Court held that mental illness is not a crime and that a person does not lose fundamental rights merely because of mental illness. It found that the disputed provisions could allow mentally ill persons to be detained in prison without a criminal conviction and without adequate medical safeguards.
The Court held that prison was not an appropriate place for psychiatric treatment. Keeping a person in prison instead of providing proper medical care was inconsistent with the person’s dignity and constitutional rights.
The Court declared the words “put in fetters and kept in a cage or prison” in Section 6 of the Treatment Chapter of the Muluki Ain invalid. It also invalidated the part of Section 16(2) of the Disabled Protection and Welfare Act that allowed mentally ill persons to be kept in prison for treatment or security.
However, the Court did not invalidate provisions of the Prison Act dealing with the separation and medical treatment of prisoners who were otherwise lawfully detained for criminal matters.
The Court directed the Government to prepare appropriate laws and policies for the treatment, protection, rehabilitation, and rights of persons with mental illness. It also ordered the Government to study the existing mental-health facilities, including hospitals, doctors, health workers, and available beds, and submit a report to the Court.
The Court further directed that mentally ill persons already in prison should be transferred to treatment centres where available. Where such facilities were unavailable, they were to receive treatment from specialist mental-health doctors.
Principles Established:
- Mental illness is a health condition, not a crime.
- Mental illness alone cannot justify imprisonment.
- A person does not lose fundamental rights because of mental illness or disability.
- Prison cannot be used as a substitute for psychiatric treatment.
- Persons with mental disabilities are entitled to dignity, equality, personal liberty, and health.
- The State has a positive duty to provide mental-health treatment and rehabilitation.
- Detention for treatment or security must comply with constitutional rights and medical safeguards.
- Indefinite detention without proper legal and medical safeguards can violate fundamental rights.
