INDIA: A schizophrenic man is detained in solitary confinement without medical treatment

Dear friends,

The Asian Human Rights Commission (AHRC) has been informed through its local contacts in Rajasthan that a man, Roy Varghese, has been detained in solitary confinement in prison for the last five years. He is a schizophrenic and is not receiving medical treatment. The prison officials at the Central Jail, Jaipur, Rajasthan, have made no moves to transfer him to a suitable medical facility despite a rehabilitation centre in Bangalore being willing to accept him.  He has been waiting for his trial since 2001.

CASE DETAILS:

Roy Varghese, son of Mohammad Khan, from Kerala state is 51 years old.

On 22 September 1992, the accused was convicted of drug trafficking and sentenced to 10 years imprisonment by the Sessions Judge, Udaipur under Section 8 and 20 of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985.

While undergoing the sentence, Roy had to undergo psychiatric treatment. On 16 October 2001, Roy was admitted to the District Psychiatric Hospital in Jaipur, by Reception Order No. F-7 (52/Home-12/Jail-2001). He was diagnosed as schizophrenic at the hospital.  By the time Roy completed his sentence, he could not be discharged from the hospital due to the requirement to continue his treatment.

While continuing at the hospital, on the 2 July 2003 Roy is alleged to have set on fire two mentally-ill patients causing their deaths. The police arrested Roy on the basis of a First Information Report (FIR) [No. 150/03]. In the FIR Roy was accused of crimes under Sections 302 (murder) and 301 (culpable homicide) of the Indian Penal Code (IPC) 1860. At this time Roy informed the police that his name was Baba Khan and that he was a Muslim.

It was known later that Roy was communicating with his relatives in Kerala state. It is also reported that Roy’s relatives were not aware of his whereabouts for a long time. Later, Roy’s relatives who visited Roy in Rajasthan confirmed that his real name is Roy Varghese and when they last knew him he was a Christian.

Roy was presented before a court on the 3 July 2003. An application filed for bail on his behalf was dismissed and he was sent remand custody.  Roy was subjected a medical examination by a medical board comprising Dr. Shiv Gautam, Dr. I. D. Gupta, and Dr. B. M. Gupta. The medical board concluded that Roy continues to be schizophrenic and that he is not in a mental condition to understand a court proceeding. On this basis the court concluded that Roy is not fit to stand trial.

Roy’s mother died on the 17 April 2005 and his father died on the 17 May 2008.  It is reported that Roy’s brothers refuse to take any responsibility for Roy, while his sister has visited him twice. Roy has already spent five years in solitary confinement in Cell No. 54, Ward No. 10 at Central Jail, Jaipur, Rajasthan.

ADDITIONAL INFORMATION:

Prison authorities often find it difficult to deal with Roy’s condition. He has been denied from being taken to the District Psychiatric Hospital because the authorities suspect that Roy would be a serious threat to the safety of the staff and patients at the hospital. Instead, Roy is detained in solitary confinement at the Jaipur Central Jail with no access to medical treatment or the possibility of rehabilitation.

Roy was not released on bail on the ground that his severe medical condition makes him a threat to society. A rehabilitation centre in Bangalore is willing to accept Roy but the prison authorities have not released him. Roy has not faced trial because he is ‘unfit’ to understand the proceedings in court. Section 329 of the Criminal Procedure Code, 1974 (Cr. P.C) mandates: 329. Procedure in case of person of unsound mind tried before court – (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

There are a huge number of undertrials, or untried prisoners languishing in Indian jails, often for many years. The National Human Rights Commission (NHRC) has estimated that 58.19 percent of all persons in prison are undertrials (31 December 2005). In one instance, a mentally disabled prisoner named Jai Singh died in custody in Ambala Central Jail, Punjab after having been an undertrial for 27 years.

The majority of undertrials are poor and underprivileged. This demonstrates that the criminal justice administration system in India does not benefit the poor.

The NHRC has made the following recommendations on mentally disabled prisoners (accepted by Punjab and Haryana High Court): 
1. Central and district jails should have facilities for preliminary treatment of mental disorders. 
2. When a prisoner is admitted to a mental hospital for psychiatric care when they have completed their sentence they should receive treatment as a free person
3. Undertrials who have had their trials suspended due to mental illness: reports should be sent to the District and Session Judges, as well as the Magistrate every three months 
4. When it comes to the notice of a trial court that the accused is diagnosed as mentally ill, then the trial court must ask for periodic reports of progress under trial
5. When the trial of a mentally ill person is suspended for a period longer than half of the possible sentence (subject to maximum of three years) then this should be reported to the High Court
6. State government should strengthen and improve legal aid services, with an emphasis on preventive legal aid to reduce the numbers of mentally ill persons left in prisons

The Commission also presented before the Delhi High Court guidelines to deal with undertrials who have exceeded their maximum period of sentence while in judicial custody.  In instances where a grave offence has been committed, such as murder, they should be released on bail if they had stayed in a mental hospital for more than five years.

ADDITIONAL COMMENTS:

Under the Section 330 of the Cr. P.C when an accused is not released on bail due to the accused being mentally ill ‘… (1) Whenever a person is found, under section 328 or section 329, to be of unsound mind and incapable of making his defence, the Magistrate or court, as the case may be, whether the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or court or such officer as the Magistrate or court appoints in this behalf.

(2) If the case is one which, in the opinion of the Magistrate or court, bail should not be taken, or if sufficient security is not given, the Magistrate or court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit, and shall report the action taken to the State Government:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912).” [Currently the Mental Health Act, 1987]

It is suspected that in Roy’s case neither the court nor the prosecution has made any attempt to abide by the above mandatory provisions of law. Being away from his family, it appears that there is no one prepared to secure Roy’s release from custody. All that the court is expected to do is ‘to inform the government, after ordering the detention of the person in safe custody’. Safe custody in India means in a prison.

There are no separate institutions in India for convicts and remand prisoners. Often a portion of the prison is used to hold remand prisoners. In practice remand prisoners and convicts are often kept in common areas. In case if a remand prisoner is mentally ill, the person is isolated and ends up in a solitary confinement.

None of the state governments in India have in practice any mechanisms that would take care of a remand prisoner who is mentally ill. In some states such prisoners are transferred to a mental asylum where they are detained as if in the prison with the other inmates who are brought to the hospital in similar circumstances in a separate block (often named as ‘criminal block/ward’).

In one such hospital in Thrissur district of Kerala state at least 25 persons are currently detained, of which 10 persons no more require medical treatment. Their discharge from the hospital, as their admission was, require the state government to approach the court, which seldom happen, unless the person or someone interested in the person takes an interest.

The hospital not being in a position to release the person and also not able to allow the person to mix with other ordinary patients, continue detaining the person in the ‘criminal ward’ along with those who are undergoing treatment. In such conditions a person who has recovered from his mental illness, soon returns to the same mental state when the person was brought to the hospital. Social taboos associated with mental illness make matters worse for a person who in addition to being mentally ill also is accused of a crime.

It is common in India for the accused’s relatives to give up the person in these circumstances for his/her destiny. In short if a person becomes mentally ill while in custody, such person in the absence of any relatives to take care of him, will never completely recover or face a trial, but will be forced to leave a life in solitary confinement either at a hospital or at the prison.

Detention in this manner without access to medical assistance for a debilitating medical condition must prompt the government, under Article 2 of the International Covenant on Civil and Political Rights (ICCPR), to act to ensure that none of its citizens are subjected to cruel, inhuman or degrading treatment, or punishment. Also, the government must move forward in its accession to recognise Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.

India is a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and should abide by Article 11 that advises state parties to review its arrangements for the custody and treatment of persons subject to detention and imprisonment, in order to prevent their ill-treatment. 

In absence of stronger instructions or legislation, the Standard Minimum Rules for the Treatment of Prisoners provides guidance.  With such a huge number of undertrials, or untried prisoners, India should seek to formalise into its laws the rules contained under Sections B (Insane and mentally abnormal prisoners) and C (Prisoners under arrest or awaiting trial) of the Standard Minimum Rules for the Treatment of Prisoners. This will enable India to reduce this endemic crisis and ensure the rights of those undertrials that may suffer from mental illness.

SUGGESTED ACTION:
Please write to the authorities listed below concerning the case of Roy Varghese, urging the government to ensure that he receives appropriate medical treatment and is moved out of solitary confinement and into a rehabilitation centre. Please also highlight the plight of undertrials throughout India who often spend years in prison awaiting trial.

The AHRC is writing a separate letter to the UN Special Rapporteur on the Right to Health and Question of Torture calling for an intervention in this case.

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