HYDERABAD: The Supreme Court’s order directing the constitution of a medical board to examine Justice C S Karnan of the Kolkata High Court has raised a variety of questions from legal and mental health experts.
On the one hand is the question under which section of which law the apex court could allow medical examination of an individual. Amita Dhanda, professor of law at the National Academy of Legal Studies and Research (NALSAR) in Hyderabad points out that while ordering such an examination is possible under the Mental Health Act of 2017, the court is not acting under the Act.
“So from where are they deriving their power?” she asks. The court’s orders issued on Monday do not refer to any section or law in ordering the medical examination.
“There is case law which says they cannot do so unless authorised by law. Such an examination is only permitted by legislation, not by executive fiat and not even by judicial fiat,” Dhanda argues. Dr Soumitra Pathare, a Pune-based psychiatrist and Coordinator, Center for Mental Health Law and Policy at the Indian Law Society who helped draft the 2017 Act asks the same question.
Others, on social media, have raised the issue of how such an order is an infringement on the rights of the individual. The Mental Health Act of 2017, that former additional solicitor general Indira Jaising, for one, referred to has not been notified yet. However, Jaising stated on Twitter that the Mental Health Care Act 2017 requires informed consent to testing and treatment Justice Karna (sic) cannot be compulsory (sic) tested by order of SC.
The other question the order raises is that of the apex court’s understanding of mental illness. Pathare believes that the SC had conflated mental illness and unsoundness of mind, equating both.
It may be noted that while the SC ordered a medical examination, it did not specify a mental health concern though the context of the order indicated as much. Pathare points out that mental illness does not necessarily mean unsoundness of mind (and vice versa).