A recent article in the Times of India questioned the right of people with mental illness to vote by raising doubts about their judgement: “Theirs cannot be treated as a fair vote, as they do not enjoy unhindered sense of judgement to make a choice.”
With the country going to polls in April and May, this issue has important implications that merit urgent attention. There are two issues that need to be answered here. First, what does the Indian law say about the right of persons with mental illness to vote? Second, should they be denied their right to vote as they “do not have the capacity” to make a choice?
Answering the first question is easy. Section 16 of the Representation of the People Act, 1950 deals with ‘Disqualification for Registration in electoral roll’. Under Section 16 (b) a person may be disqualified as a voter if the person, ‘is of unsound mind and stands so declared by a competent court’.
From the above, it is clear that two conditions have to be satisfied for a person to be disqualified from being enrolled as a voter. First, the person should be of ‘unsound mind’ and second, a competent court must arrive at this finding.
But the term ‘unsound mind’ has not been defined anywhere in any Indian law or in the constitution.
Defining an “unsound mind”
Indian Contract Act, 1872 is the only law which defines a ‘sound mind’. Section 12 of the Indian Contract Act says a person is of sound mind…’if at the time when he makes it (contract), he is capable of understanding it and of forming a rational judgement as to its effects upon his interests’.
Most importantly, the Act further says ‘a person who is usually of unsound mind, may make a contract when he is of sound mind’. Unusually for an Indian law, it actually provides us with a connotation which is extremely relevant to this discussion.
The illustration under Section 12 says ‘(a) A patient in a lunatic asylum (sic), who is at intervals of sound mind, may contract during those intervals’. Thus, Indian Contracts Act, 1872 recognises both the task-specific nature of capacity (that is, a person may have the capacity to make judgements about certain things and not about other things) and also that capacity to make decisions fluctuates over time.
Pollock & Mulla (14th Edition) is an authoritative book on the interpretation of the Indian Contract Act. This book has the following to say about ‘sound mind’:
‘Previous or subsequent mental disorder is not material to the fact, presumption is in favour of sanity, the onus of providing unsound mind is on the person who alleges it and past treatment of mental illness is only prima facie evidence of mental disorder.’
‘Unsound mind’ is not the same as having a mental illness
It is therefore clear from the above, that being of unsound mind is not equal to having a mental illness and that it is not a permanent state but a legal, not a medical, finding. This has also been reiterated by the recently enacted Mental Health Care Act, 2017 which says in Section 3 (5) that,
‘Determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind, unless he has been so declared as such by a competent court’.
An electoral officer cannot refuse to enter a person’s name in the electoral register solely on the grounds that they have a mental illness. The electoral officer would have to prove that the person is of ‘unsound mind’ and get a declaration to that effect from a court. The onus of proving that a person is of unsound mind is on the electoral officer and not on the person concerned. Thus, a person with a mental illness does not have to go to court and prove that he or she is of sound mind.
Similarly, a booth officer cannot stop a person with mental illness from exercising their franchise, once the person’s name is on the electoral register.
Can people with mental illness make an ‘informed choice’?
The main argument made for disallowing persons with mental health from voting is the need to maintain the integrity of the electoral process which requires a certain level of informed choice by individuals who have the capacity to make such choices. It is presumed that persons with mental health problems lack the capacity and, hence, should not be allowed to participate in the electoral process. However, research does not corroborate this claim.
In 1965, during the election of New York City mayor, researchers conducted mock voting for 325 patients in a large psychiatric hospital. They found that the votes cast in the mental hospital for the two main candidates resembled the result in the district surrounding the hospital. In 1970, researchers found that voting patterns in three large psychiatric hospitals in Maryland for the US Presidential election closely resembled the voting patterns in urban areas of the state of Maryland.
Other research has shown that persons with chronic mental illness are able to understand the task of voting and are able to exercise their choice. Based on their own research and a review of existing studies on this issue, Prof Appelbaum and his colleagues concluded in 2009 that the presumption should be that even persons with serious mental illness are capable of voting.
Thus, scientific research supports the position incorporated in Indian law. People with mental illness have the right to vote and should be encouraged to exercise their franchise. The arguments against allowing people with mental illnesses the right to vote are based on stigma and institutionalised discrimination rather than any scientific proof. The right to vote for persons with mental illness has been described as the ‘last suffrage movement’.
Voting is important for all, including people with mental illness
Why is the right to vote so important for persons with mental illness? Lack of voting by persons with mental illness means they are not seen as a ‘constituency’. If persons with mental illness were to vote and organize themselves, politicians will be interested in addressing their concerns such as lack of affordable community-based services and the denial of job opportunities.
The National Mental Health Survey 2016 says that 150 million Indians have a mental illness that requires treatment. Politicians need to understand this is potentially huge constituency neglected by most political parties. A recent initiative by an alliance of organisations working in the field of mental health, called Bridge the Care Gap is asking individuals to sign a petition demanding that political parties include mental health in their manifestos.
Last week, the Communist Party of India (Marxist) did precisely this by making a commitment to fund the implementation of the Mental Health Care Act in their manifesto. Let’s hope other political parties also rise up to this opportunity and include mental health in their manifesto.
Soumitra Pathare is a psychiatrist and the director of Centre for Mental Health Law and Policy, Indian Law Society, Pune.