Rights and sufferings of an unsound mind under “Lunacy Act 1912”

One fine morning I opened my inbox and there was an urge for help by Amin’s (Pseudonym) wife, according to her, her husband is mentally ill, he cannot take care of himself and his family, he also mismanages the family property which made her deeply concerned about their future. At first, I thought ok It’s not that tough, as he is not competent his custody should be transferable by the competent court, then the legal limbo started popping up in my mind, which court? based on which law?

I was not so worried about this issues, all through the law life we studied about lunacy, incompetency of being the party of contract etc; I went back to my desk and opened “The Lunacy Act of 1912” for the first time but as I continue reading the act my jaw was dropping due to the mind-set of the framers of the law.

First of all the Term “Lunacy” seems very turbulent to me; the Act is a procedural one,  basically, it laid down some rules, to lawfully confined and detain persons who are considered lunatic or incapable or unsound mind or/and harmful for the society. Upon the application of a reliable person for a lunatic person and under the supervision medical officer.

If we summarise the procedure for easy understanding the system is set up as follows:

An application must be presented before the magistrate with local jurisdiction by the Husband or wife or in case if they are not available, then by the nearest relative for the treatment/ asylum of the lunatic person. (sec. 6) The lunatic person must be in a condition that he is suffering from a mental illness but unable or unwilling to take necessary treatment for his cure.

The application must be attached with two medical certificates by the government-approved medical practitioner after throw examination by them, one the medical practitioner must not be the usual medical attendant of the person to whom the application relates. (sec. 4)

Upon the petition, the magistrate shall consider the evidence of medical certificate (as previously mentioned), he may also examine the alleged lunatic, then the magistrate may make an order or forward further order as necessary. (sec. 7, 8,9) After that, the magistrate may provide reception order (for asylum or detention)  or dismiss the petition or adjourn. (sec. 10)

These are the general procedure of the Act. It is well debated that the Act is based on outdated British law where the treated the ‘Mentally Retarded’ person like criminals and tried to confine them to some asylum which considered as treatment facilities and legalized the detention process safeguarding some other people by law. Though the otherwise was also shown by the lawmakers.

But there are some sweet spots too though not without some Flinch. For example, police can arrest and present a lunatic before the magistrate and that may ensure some treatment by the government which may help them but here the problem is they are treated as criminal under this law, which is very much discriminatory. Police shall proceed by arresting the person if think the person is lunatic and is dangerous to the society! (sec. 13) Here the relation to the intention and motive of any criminal law, being the basic principle of law fails but the act is still active without any problem!

Section 15 is more appropriate one in this whole act, according to this section if a magistrate with the proper territorial jurisdiction come to know about any lunatic person via the report of a police officer or by any other means that the lunatic person is not under proper care and control or is cruelly treated or neglected by any relative or other person having the charge of him, the magistrate may order to present the lunatic person before the court and summon the relative or another person as has or ought to have the charge of him. The magistrate if found the person under whom the lunatic is to be maintained legally, may pass any order or he may proceed under section 14 of the Act.

unsound min law bangladesh

At this point, half of my queries got their answer though not in the manner I expected, my journey started to find out how I can provide a remedy to that poor woman (wife) who is worried about his husband’s condition as well as the financial condition of her family. Luckily this Lunacy Act did not miss to foresee these problems, therefore, they carefully put some finely drafted section to the act.

In section 67, The act brought the issue of custody of the lunatic and management of their estate. The court may order about the custody issue of a lunatic so found by the equation and the management of their estate. The court may make any order best for the situation including provisions to maintain the lunatic and any other person who depended on the person. (sec. 67) The Court of Wards may also take charge where subjects the proprietor, if disqualified, to the jurisdiction of the Court of Wards, The Court of Wards shall be authorised to take charge of the same. (sec. 68)

District Judge shall appoint a manager of the estate of lunatic and also may appoint a guardian for the lunatic. (sec. 71) This act also guided that a legal heir of the concerned lunatic cannot be a guardian unless permitted by the court for the sole benefit of the lunatic. (sec. 72) This Law also provides the manager and guardian with some remuneration as the incentive of their work. (sec. 73)

I found this Act backdated and in many places very offensive to the present context of law and human rights, it also in a direct conflict with our constitution; to mention specifically namely Article 27, 28 and 29 where equality before the law is the fundamental concern. Considering the old school thought of that time, though the words and the way it presented is offensive, however, we cannot ignore the little legal remedy we have now is the fruit of this law. There is no doubt that the law should be carefully drafted with some core feature in mind.

In the modern day, the law should be reformed with the help of professionals and researchers to correctly categorise the legal and psychological terms to filter out the loopholes and reduce legal proceedings. The new Act should be drafted with care considering our constitution and international Human Rights instrument.

In end it must be mentioned government has taken initiative repeal this act and enact a new one, following both India and Pakistan. The new initiative has been taken with the help of WHO and the formation of the draft started in 1982! But surprisingly the job is yet to be completed and passed as a law.

Meanwhile the offensive treatment of mentally sick people putting them in very vulnerable situation with apex discrimination form the state. We may only hope that the government shall pass the law and take the responsibility of those who are sick with full dignity restored.

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Rayhanul Islam

Advocate Rayhanul Islam is the founder and Editor in Chief of Law Help BD. He is also a researcher. Critical thinking is his main focus. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human rights concept to the root level. e-mail: [email protected]

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