“I feel we need to stop seeing mental and physical health as either/or and more as a both/and situation. There is no difference. We are mental. We are physical. We are not split up into unrelated sections. We are not an existential department store. We are everything at once.”
―Matt Haig, Notes on a Nervous Planet Footnote 1Mental health, though commonly mischaracterized as a medical concern, is a matter of human rights. The international human rights framework (“rights-framework”), through norms and standards gradually embedded in international treaties, global commitments, and authoritative guidance issued by human rights bodies, has made this interconnection between mental health and human rights abundantly clear. Not only has it explicitly recognized the interdependence between mental health and physical health as well as the dependence of mental health on an array of supports enshrined in other human rights, it has also consciously attempted to ensure that due attention is paid to serious as well as common mental disorders. The endeavour of the rights-framework has been to prevent hierarchization from being used to justify non-realization of the right to mental health but, rather, promote the “whole person” approach. Beyond establishing foundational standards at the international level, the rights-framework has also imposed obligations on States to create, implement, and monitor legislative as well as other measures, initiate processes, and establish mechanisms to guarantee the right to mental health in a non-discriminatory manner at the domestic level.
While greater clarity has been achieved about the contours of the right to mental health, and its progressive interpretation in nexus with other human rights, which form part of the extensive and constantly evolving rights-framework, there have been massive challenges in bringing practice into conformity at the domestic level. The failure of States to recognize and prioritize mental health as a human right has resulted in the negation of equal protection for persons grappling with mental health conditions, negligence in attending to the underlying determinants causative of poor mental health, continued investment (if any) in a reductionist biomedical model, and insufficient focus on training and removal of attitudinal barriers to integration. Against this backdrop, and with its near-exclusive focus on physical health and objectives of public safety, the COVID-19 pandemic (“the pandemic”) has exposed the fault lines in the implementation of the framework guaranteeing the right to mental health more than ever before. By mapping India's response to guaranteeing the right to mental health during the pandemic, this article seeks to showcase the ways in which the pandemic has exposed and deepened these deficiencies in the regulatory frameworks and mental healthcare systems, particularly for the vulnerable and marginalized. It argues that, instead of being reflective of an irredeemable disaster, the deficiencies laid bare by the pandemic are a call to action for operationalizing the rights-framework towards improved efforts for the realization of the right to mental health.
This article has been divided into five parts. Part I traces the growing prominence of the right to mental health in the international fora as a result of the progressive interpretation of the right to health, and the emergence of disability-specific human rights instruments. Part II analyses the facets of the right to mental health that are non-derogable, endeavouring to establish States’ obligations to realize the right as being continuous, regardless of the pandemic. Part III draws on the Indian experience to showcase the manner in which the pandemic has laid bare the shortcomings in guaranteeing the right to mental health. By delving into the conditions of healthcare/frontline workers and migrant workers as case-studies, this segment illustrates how pre-existing concerns about the fulfilment of the right have amplified during the pandemic, particularly for the vulnerable and marginalized sections of Indian society. The authors conclude this segment by proposing certain recommendations, which India is urged to implement in order to harmonize its regulatory framework with the international human rights framework. Part IV treats the Indian experience as a core global reference for the pivotal role human rights can and should play in policy making at the domestic level. It proceeds to outline certain recommendations for States to consider effectuating in order to guarantee the right to mental health amidst, as well as in, the aftermath of the COVID-19 pandemic. Part V concludes the article, urging the realization rather than the dismissal of the promise of human rights.
I. International Recognition for the Right to Mental Health
The prominence of mental health as a human rights concern has been growing steadily in international fora. The transition from being viewed as a medical concern requiring a cure to its reclassification as a human rights concern can be attributed to the evolutive capacity for normative expansion and practical applicationFootnote 2 at the heart of the global human rights framework, as well as to the growing interest among the international community to guarantee individuals “good mental health”.Footnote 3 The gradual acknowledgement of mental health as a human rights concern has led to the formal recognition of the applicability of the “respect-protect-fulfil” framework to persons with mental health conditions. While, in theory, human rights are universal in their coverage and are not dependent on government benevolence, such explicit recognition has inaugurated the space for the “discussions and related actions [to be] rights-based, holistic and rooted in the lived experience of those left furthest behind by harmful sociopolitical systems, institutions and practices”.Footnote 4 In this part, the authors trace the expanded standard-setting with respect to persons with mental health conditions, situating this process along a continuum of several pivotal developments in the international rights-framework. Broadly, these developments have been classified into two: the progressive interpretation of the right to health, and the emergence of disability-specific human rights instruments.
A. The Progressive Interpretation of the Right to Health
The international human rights framework was inaugurated by the Universal Declaration of Human Rights (UDHR), which was adopted by the United Nations General Assembly (UNGA) on the 10th of December 1948 as a non-binding “common standard of achievement for all peoples and all nations”.Footnote 5 While the UDHR makes no express reference to mental health, the general language of Article 25, which recognizes “the right to a standard of living adequate for health and well-being”,Footnote 6 allows us to draw a relevant connection between mental health and human rights.Footnote 7 Furthermore, the social model of health embodied by the UDHR has influenced the subsequent normative expansion of the right to health as inclusive of the right to mental health.Footnote 8 Notable among these is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which guarantees under Article 12 “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”,Footnote 9 and outlines the steps to be taken by States for the realization of that right.
The authoritative guidance contained within General Comments 5 (1994) and 14 (2000), adopted by the Committee on Economic, Social and Cultural Rights (CESCR), has played a key role in clarifying and operationalizing this provision. As early as 1994, Article 12 was interpreted as being applicable to persons with mental disabilities,Footnote 10 wherein the term “disability” was understood to mean “a great number of different functional limitations occurring in any population … People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature”.Footnote 11 In 2000, Article 12 was also interpreted as encompassing the underlying determinants of health, alongside the right to timely and appropriate healthcare,Footnote 12 thereby drawing key interlinkages between the right to mental health and other rights guaranteed by the International Covenant on Civil and Political RightsFootnote 13 and the ICESCR.Footnote 14
Article 12 of the ICESCR has further been interpreted progressively in favour of a non-derogable right to mental health in the recent report of the United Nations High Commissioner for Human Rights on Mental Health and Human Rights (2017), requested pursuant to Resolution 32/18,Footnote 15 as adopted by the Human Rights Council (HRC). The Report criticized the hierarchical prioritization accorded by States to physical health over mental health,Footnote 16 leading to inadequate resources being allocated to mental health, as well as to inefficient decisions about the use of the resources.Footnote 17 The Report added that not only do such actions “undermine the availability, acceptability, accessibility and quality of mental health services”,Footnote 18 they also contravene the requirementsFootnote 19 of Article 2(1) of the ICESCR to fulfil the minimum essential levels of the right to mental health,Footnote 20 and to employ maximum available resources for the progressive realization of the right to health.Footnote 21 In its recommendations, it urged States to create an enabling legal and policy environment, to allocate resources optimally, to ensure participation of affected communities, to establish a mechanism for accountability, and to collect disaggregated data.Footnote 22
While the progressive interpretation of the ICESCR's legally binding framework for the highest attainable standard of health has been crucial to the applicability of the “respect-protect-fulfil” framework of human rights to mental health, the conjunctive establishment of complementary standards in other international and regional treaties, global commitments to human rights, and guidance issued by the Special Rapporteurs on Health has also played a pivotal role. Other than in the Convention on the Rights of Persons with Disabilities (UNCRPD), which is discussed in Part I, B of this article, the right to mental health is covered, explicitly or implicitly, in the Convention on the Rights of the Child (arts. 17, 19, 23, 24, 25, 27, 29, and 32), in the Convention on the Elimination of All Forms of Discrimination Against Women (arts. 10(h), 11(1)(f), 11(2), 12, and 14(2)(b)), and in the Declaration on the Rights of Indigenous People (art. 24).
The regional human rights treaties, much like the global human rights framework, treat the right to health as a long-term programmatic goalFootnote 23 and tend to include the right to mental health within their provisions guaranteeing the right to health. This is exemplified by the provisions guaranteeing the right to health in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (art. 10), the African Charter on Human and Peoples’ Rights (art. 16), the African Charter on the Rights and Welfare of the Child (art. 14), and the Arab Charter on Human Rights (art. 39). Regional human rights courts have also displayed the inclination to address cases pertaining to mental health,Footnote 24 showcasing its integral relationship with human rights. The formal legal framework outlined thus far has also been complemented by a recognition of the challenge posed by mental illnesses to sustainable development in the 2030 Agenda for Sustainable Development Goals (SDGs), which reflects a commitment to the prevention and treatment of non-communicable diseases, including behavioural, developmental, and neurological disorders.Footnote 25 Goal 3 of the SDGs expresses a commitment to “ensure healthy lives and promote the well-being for all at all ages”,Footnote 26 with Target 3.4 specifically referencing the promotion of mental health and well-being, and Target 3.8 emphasizing issues of clear relevance to mental health within universal health coverage.Footnote 27 Pivotally, beyond such explicit recognition in Goal 3, mental health is a cross-cutting issue that shares strong interdependencies with several other global goals, thereby necessitating an emphasis on it in efforts exerted towards achieving these goals.Footnote 28
Such interdependence of human rights and mental health,Footnote 29 as well as the vulnerability and marginalization of persons with mental disabilities,Footnote 30 has further been emphasized by the Special Rapporteurs on the Right to Health, from the very first year of their mandate (2003). In 2017, Dainius Pūras, the then Special Rapporteur on the Right to Health, amplified this call for a human rights-based approach to mental health.Footnote 31 In the seminal 2017 Report, he rejected the “reductionist biomedical paradigm”Footnote 32 perpetuated by the dominance of the biomedical model, power asymmetries, and the biased use of evidence in mental health research.Footnote 33 He also attempted to tether the understanding of the right to mental health in the obligations emanating from the core human rights treaties: non-discrimination, participation, international cooperation and assistance, accountability and remedial measures, informed consent and non-coercion, and addressing of underlying social determinants, towards a framework of care and support.Footnote 34 A key impact of the Report has been Resolution 36/13, adopted by the HRC on 28 September 2017, in which States have been urged to integrate human rights and mental healthcare.Footnote 35 In his final report to the HRC in 2020, Pūras reaffirmed the importance of “rights-based mental health praxis”.Footnote 36 While dwelling on the increasing prominence of mental health as a global goal, he urged the international community to endeavour to understand mental health better, and to engage in further conversations about ways to respond to challenges posed by it at the global, regional, and domestic levels.Footnote 37
The process of charting the progressive interpretation of the right to health would be incomplete without tracking the contribution of the World Health Organization (WHO). Influenced by the same social model of health as undergirding and pervading the UDHR,Footnote 38 the WHO attempted to expand the notion of health “from mere absence of disease to well-being rooted in the person's social ecology”Footnote 39 from as early as 1946 onwards. This is exemplified by the Preamble of the WHO Constitution, which defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”,Footnote 40 while affirming the nature of the “enjoyment of the highest attainable standard of health”Footnote 41 as a fundamental right for all without discrimination. It is the holistic nature of this approach to health that has enabled the WHO to embed a human rights-based approach to mental health, as well as draw out the inextricable linkages between the rights in a person's ecology across its body of work. In its report titled Mental Health: New Understanding, New Hope (2001),Footnote 42 for instance, the WHO reinforced its efforts towards a public health framework cognizant and capable of mainstreaming human rights in medical care.
The Mental Health Action Plan 2013–2020, adopted by the Sixty-fifth World Health Assembly in 2012, and the QualityRights Tool Kit developed by the WHO, have both been turning points for a human rights-based approach to mental health. The Action Plan defines mental health as a “state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community”,Footnote 43 recognizing the dependence of mental health and well-being on several other human rights, as well as an array of resources and supports.Footnote 44 Further, the Action Plan situates strategies, actions, and interventions in mental health within the international human rights framework by requiring their compliance with the legal standards established by them,Footnote 45 thereby knitting together the expansionary interpretations and interlinkages of the right to health, disability-specific standards, and the Action Plan urging outcomes-based progress in mental health. The QualityRights Tool Kit,Footnote 46 recommended by the Special Rapporteur on Health,Footnote 47 complements these efforts by providing practical guidance to States on the human rights standards to be adhered to in mental health facilities, as well as methods for assessing and improving the quality of care.
The progressively evolving interpretation of the right to the highest attainable standard of health through the increasing involvement of human rights authorities has been significant in enabling States to fully realize the right to mental health for all. In the context of mental health, such developments in the rights-framework are particularly significant as they attach formal and express legal protections to a right hitherto ignored, as well as legitimize international scrutiny of domestic health policies and practices which implicate that right.Footnote 48 Such developments also persistently reiterate the inextricable linkages between mental health and a wide array of other human rights, thereby situating the right to mental health within a network of interconnected rights likely to also be implicated by violations of the right to mental health in contravention of the States’ international obligations. However, despite these developments within the rights-framework, a need was felt for the introduction of a human rights instrument that employed language specific to persons with mental disabilities,Footnote 49 and which explicitly recognized persons with disabilities as a separate protected category within its equality clauses.Footnote 50 The adoption of the UNCRPD in 2006, endeavoured to occupy this space, and to embed the distinction between impairment and the experience of being disabled due to systems that discriminated between the two. As Mills notes, “[t]his difference is more than semantic: it is a distinction in causal attribution which has material effects in directing focus to where transformation is most needed”,Footnote 51 and in the context of mental health, this distinction reinforces the idea that “mental distress may operate as an impairment in that a person feels, and/or is made to feel, unable to live a life of value to them”.Footnote 52
B. The Emergence of Disability-Specific Human Rights Instruments
The insufficiency of the “generic recognition of human rights for all”Footnote 53 to address the rights violations, or to dismantle the attitudinal barriers experienced by persons with disabilities, led to advocacy for the express codification of the rights of persons with disabilities in a core human rights instrument. The UNCRPD, adopted by the UNGA on 13 December 2006, and entering into force in 2008, was seen to be “the culmination of two and a half decades of development in international human rights law aimed at addressing human rights violations experienced by people with disabilities”.Footnote 54 The UNCRPD defines “people with disabilities” as inclusive of “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.Footnote 55 Of particular significance is the observation that:Footnote 56
[t]he use of the word ‘include’ … allows for a non-exhaustive description of ‘disability’ that is not settled; neither are the meanings of terms such as ‘long-term’ and ‘impairments’. It is accepted by the Committee on the Rights of Persons with Disabilities that people with a ‘mental illness’ (referred to as having a ‘psychosocial disability’) fall under the Convention … ‘Disability’ is not formally defined in the [UNCRPD], allowing individual State Parties considerable latitude in how they define disability in their domestic law.
It has been suggested that the hesitancy to postulate precise definitions, particularly of mental illness, stems from the desire of norm-creators to accommodate an understanding of “disability”, which is constantly evolving and limits the exclusion of persons whose conditions do not align with the rigid definitions.Footnote 57
It is pertinent also to note that, while the UNCRPD was preceded by several international standards of good practiceFootnote 58 pertaining to mental health, these standards were not legally binding. In fact, these standards can now be considered to add normative contentFootnote 59 to the legally binding provisions of the UNCRPD, and can be deployed as interpretative guides to treaty obligations.Footnote 60 The UNCRPD, which enshrines the social modelFootnote 61 of disability, shifts the view of persons with disability as “objects of charity, medical treatment and social protection”Footnote 62 to “subjects of rights, able to claim those rights as active members of society”Footnote 63 by recognizing them, explicitly, as a protected class in a formal legal framework, as well as by enabling the evolution of perceptions pertaining to and the terminology employed while addressing them.Footnote 64 This model is further mainstreamed by the Committee on the Rights of Persons with Disabilities, while producing authoritative guidance on the provisions of the Convention in the form of General Comments.Footnote 65 The objective of the UNCRPD, in embedding such a model, is to guide domestic policy making towards an inclusive society compliant with international standards.
As per the Report on Mental Health and Human Rights (2017), the UNCRPD is key to these efforts in relation to the rights of persons with mental disabilities, as it “reflects the most advanced international human rights standards on the rights of persons with psychosocial disabilities”,Footnote 66 depicting as well as demonstrating the cross-cutting nature of these rights, across the international human rights framework. This is exemplified by the provisions of the UNCRPD, as interpreted by the United Nations High Commissioner for Human Rights, which mandates non-discrimination in the fulfilment of human rights without impairing qualifiers (arts. 3 and 4);Footnote 67 equal recognition before the law as inclusive of enjoying and exercising legal capacity on an equal basis (art. 12);Footnote 68 the absolute ban on the deprivation of liberty on the basis of impairments and prohibition on forced treatment or harmful practices during deprivation of liberty (arts. 14–17);Footnote 69 accountability inclusive of remedial measures (art. 13) and monitoring (art. 16), as well as review and corrective actions in the context of facilities or services for persons with disabilities;Footnote 70 meaningful participation of persons with psychosocial disabilities at all stages of planning and implementation (art. 4(3));Footnote 71 and technical support and capacity building in the realm of mental health (art. 32 read alongside art. 2(1) of the ICESCR).Footnote 72 As shall be evidenced by the regulatory framework guaranteeing the right to mental health in India in Part III of this article, the UNCRPD has provided the impetus for the promulgation of mental healthcare legislation in most of the countries that have ratified it.Footnote 73
Despite the greater clarity about the normative framework applicable to the right to mental health, progress in bringing practice in conformity with this rights-framework remains slow.Footnote 74 While the interdependence of physical health and mental health, as well as the intrinsic linkages between the right to the highest attainable standard of health and other human rights, calls for States to adopt an approach according equal value to physical and mental health, such parity is not enjoyed by mental health in national policies, practices, norms, education, or budgets anywhere in the world.Footnote 75 The failure of States to equally prioritize mental health has resulted in the negation of equal protection for persons grappling with mental health concerns, the amplification of vulnerabilities among groups of persons susceptible to developing such concerns, negligence in attending to underlying determinants causative of poor mental health, marginalization of effective and appropriate treatment alternatives, stalled deinstitutionalization, and continued investment in the reductionist biomedical modelFootnote 76 – with repercussions for the future. These cracks are beginning to deepen more than ever in the COVID-19 pandemic, with mental health being situated at the “bottom of the list of health priorities”.Footnote 77 In the forthcoming segment of the article, the authors shall establish the non-derogability of the right to mental health as well as analyse the contours of its non-derogability, with the endeavour of urging the realization that States are obligated to continue ensuring that the right is respected, protected, and fulfilled even during the pandemic.
II. Non-derogability of the Right to Mental Health
While “there can be no health without mental health”Footnote 78 has become a widely used catchphrase in the discourse surrounding mental health, the near-insignificant value and non-rights status attached to it in the law and policy framework of most countries convey a different message. Prior to the COVID-19 pandemic, statistics pertaining to mental health were already alarming, with depression affecting 264 million people in the world and the ratio of mental health professionals to persons being 1:10,000 globally. The intrinsic connection between the early onset of mental health conditions and suicide as a cause of death among young people, massive economic losses, the non-alignment of domestic laws and policies with the international rights-framework, severe human rights violations against persons grappling with poor mental health,Footnote 79 and the COVID-19 pandemic all threaten to lead to an even more worrisome situation.Footnote 80 Despite the grave impact of mental health conditions on individuals as well as their families and communities, mental health continues to be characterized by decision-making which impedes the realization of the right.Footnote 81 Furthermore, such actions fall foul of the obligations imposed on States by the rights-framework which, even for economic, social, and cultural rights, is comprised of obligations of results alongside obligations of conductFootnote 82 in order to guarantee a “social protection baseline”Footnote 83 in the absence of which the raison d'etre of the framework would be under question. In this segment of the article, the authors enumerate and analyse the facets of the right to mental health which are non-derogable, in pursuance of which the need to urge and monitor States’ realization of the right as continuous arises,Footnote 84 regardless of the prevailing COVID-19 pandemic.
A. States’ Core Obligation to Fulfil Minimum Essential Levels of the Right to Mental Health
While economic, social, and cultural rights guaranteed by the international rights-framework are subject to “the maximum of [a State Party's] available resources”Footnote 85 and progressive realization,Footnote 86 the CESCR has recognized that States Parties have a core obligation to fulfil the minimum essential levels of each rightFootnote 87 which are obligations of results.Footnote 88 As per the CESCR, in the absence of a requirement to fulfil such minimum obligations, the raison d'etre of the Covenant would be under question.Footnote 89 The core obligation to fulfil minimum essential levels of a right extends to the right to the highest attainable standard of health,Footnote 90 and as much to mental health as to physical health.Footnote 91 These minimum core obligations attached to the right to the highest attainable standard of physical and mental health have been explicitly recognized by the CESCR as non-derogable.Footnote 92 In respect of mental health, States have thus been called upon to ensure availability, accessibility, and affordability of mental health facilities, goods, and services on a non-discriminatory basis, respect for autonomy and agency of persons with mental disabilities, meaningful participation of stakeholders including through effective community action, and accountability and effective remedial measures.Footnote 93 Moreover, as per the CESCR, while “measures to prevent, treat and control epidemic and endemic diseases”Footnote 94 are obligations which are comparable in priority to the States’ core obligations, “it should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations … which are non-derogable.”Footnote 95 States thus have no grounds to claim that the right to mental health is not a core obligation with minimum essential levels to be fulfilled, nor can they justify any persistent and continued non-compliance with these minimums by asserting any number of reasons – including the COVID-19 pandemic.
Furthermore, while the resources of the State as well as its economic condition must be considered while reviewing whether a State has discharged its core obligation with respect to the minimums, the parameters of the review include assessing whether the State has employed the resources at its disposition optimally with the objective of full realization of the minimums as well as whether it has devised comprehensive strategies and programs for it.Footnote 96 Despite the absence of a bifurcation or hierarchy between physical and mental health within the rights-framework, however, in most countries, an arbitrary division is made between physical health and mental health with the former being prioritized.Footnote 97 Resultantly, the resources allocated to mental health facilities, goods, and services as well as for an assessment of the impact of policy measures pertaining to mental health are fewer than those allocated to physical health, and the minimal investment being made in mental health centres around the biomedical model.Footnote 98 Thus, despite the recognition of the non-derogability of the core obligations on States in respect of mental health, neither are resources allocated to it at parity with physical health nor are the scant resources allocated utilized in an optimal manner for the realization of the minimum essential levels of the right. To address these contraventions, States should accord priority to a human rights-based approach to mental health informed by the international rights-framework, as well as adopt a “do no harm” criteria for the evaluation of their efforts.Footnote 99
B. The Illimitable Character of the ‘Freedoms’ Component of the Right to Mental Health
The right to health is constituted of freedoms and entitlements, the former being inclusive of control over one's own health, as well as freedom from coercion in medical treatment, and the latter referencing the right to a non-discriminatory system of health protection.Footnote 100 While the right to the highest attainable standard of health is subject to resource constraints and progressive realization, much like core obligations, the “freedoms” component of the right to health is not limited by these constraints.Footnote 101 In pursuance, it has been recognized by the Special Rapporteur that:Footnote 102
[t]he evolving normative context around mental health involves the intimate connection between the right to health, with the entitlement to underlying determinants, and the freedom to control one's own health and body. That is also linked to the right to liberty, freedom from non-consensual interference and respect for legal capacity. While informed consent is needed to receive treatment that is compliant with the right to health, legal capacity is needed to provide consent and must be distinguished from mental capacity … The denial of legal capacity frequently leads to deprivation of liberty and forced medical interventions, which raises questions not only about the prohibition of arbitrary detention and cruel, inhuman or degrading treatment, but also the right to health.
Despite such formal recognition however, several national legal frameworks continue to deny persons with mental health conditions the right to make their own decisions and/or access information required to freely exercise consent.Footnote 103 These practices are often also accompanied by the use of coercion, justified on the basis of “medical necessity” and the “danger” of the person with the condition.Footnote 104 Not only do such practices contravene States’ obligations, they also further embed stigma against persons with mental disabilities, erode trust, and perpetuate power asymmetries, with the cumulative effect being aversion to and fear of the mental health services.Footnote 105 Given that the “freedoms” component of the right to mental health cannot be subjected to limitations, States should repeal contravening legal provisions and implement non-coercive alternatives, accord priority to the will of the individual, and even where such determination is difficult, mainstream “the best interpretation of will and preferences of the individual”.Footnote 106
C. The Duty to Take Steps through International Assistance and Cooperation
The right to the highest attainable standard of health, much like other economic, social, and cultural rights guaranteed by the international rights-framework, is to be realized through targeted, deliberate, and concrete stepsFootnote 107 taken by a State individually, as well as through international assistance and cooperation.Footnote 108 The maximum resources available to a State are thus inclusive of resources available to it from within the State as well as outside of it,Footnote 109 and its duty to take steps towards the progressive realization of the right to mental health includes steps taken through international assistance and cooperation.Footnote 110 In the context of mental health, international assistance, when available, has been used primarily to upgrade or renovate large psychiatric institutions or hospitals, which has resulted in efforts towards deinstitutionalization being undermined.Footnote 111 Investment in, and advancement of such measures which impede progress, not only defeat the purpose of seeking international assistance and cooperation, but also likely contravene the prohibition on unjustifiable retrogressive measures.Footnote 112 Furthermore, given the frequent occurrences of human rights violations in such institutions, States are bound by an obligation of results to “refrain from providing development cooperation supporting mental healthcare systems that are discriminatory or where violence, torture and other human rights violations occur”.Footnote 113 The need of the hour is cooperation over rights-based development in mental healthcare, which is focused on delivery in the community,Footnote 114 and which adheres to the principles enshrined within global standards and as culled out by supranational norm-creators.
D. The Impermissibility of Unjustifiable Non-Retrogressive Measures
A strong presumption of impermissibility is attached to retrogressive measures taken in relation to economic, social, and cultural rights, including to the right to health.Footnote 115 Any deliberately retrogressive measures taken will require the State to discharge the burden of proving that the introduction of the measures is justified on the basis of a careful consideration of all available alternatives, as well as by reference to the totality of the rights provided for in the Covenant, subject to the State's maximum available resources.Footnote 116 Further, retrogressive measures incompatible with the core obligations of a right constitute a violation.Footnote 117 Thus, non-retrogression can be understood to be one of the cross-cutting obligations constituting the “social protection baseline”Footnote 118 in the ICESCR, alongside core minimums and non-discrimination which, in the absence of a derogation clause, cannot be subject to derogations by States. Moreover, even in situations of severe resource constraints, not only is the impermissibility on unjustifiable non-retrogression not qualified, States are actually obligated to pro-actively protect vulnerable members of the society through targeted cost-effective programs.Footnote 119 Therefore, States’ progress towards the realization of the right to mental health in a non-discriminatory manner and on a non-retrogressive basis must be monitored continuously, regardless of the existence or nature of an ongoing crisis.
E. The Key Interlinkages between the Right to Mental Health and other Human Rights
The right to mental health as a human right is one of the components of the right to an adequate standard of living for the health and well-being of individual.Footnote 120 By virtue of this, there are key interlinkages between the right to mental health and other human rights,Footnote 121 inclusive of but not limited to the rights to housing, work, education, food and water, equality, non-discrimination, life, liberty, human dignity, prohibition against torture, privacy, and access to justice. Furthermore, the UNCRPD specifically codifies several rights guaranteed by the International Bill of Rights, alongside the right to health, articulated in the UNCRPD in a manner so as to have particular relevance for persons with disabilities,Footnote 122 including persons with mental disabilities. The strong interlinkages between the right to mental health and other human rights operate in such a manner that any advancement in the realization of either one synergistically implicates the other. However, by extension, violations of or regression in the realization of either one also detrimentally impacts the other.
While the COVID-19 pandemic “vividly illustrates the importance of the indivisibility and interdependence of all human rights”,Footnote 123 it also demonstrates the prolonged neglect meted out to the issue of mental health. The low priority accorded to economic, social, and cultural rights,Footnote 124 and in particular to mental health due to the visible implications of the pandemic for physical health, render Bennoune's reminder of great significance at this juncture. In the context of COVID-19, and human rights more generally, she notes:Footnote 125
In constructing holistic human rights responses going forward, we must remember that what is particular about the COVID-19 pandemic is the totality of the potential threat to most human rights around the world in a relatively compressed timeframe …. A pandemic requires nothing less than a pan-normative approach. This means actually taking into consideration the range of rights: civil, cultural, economic, political, and social …. Indeed, the connections between all categories of rights are critical to consider in this crisis. COVID-19 reminds us that the bifurcation of the covenants on civil and political rights and on economic, social, and cultural rights, was a political and legal choice, not a reflection of the lived reality of the exercise of rights.
Therefore, a legal and policy environment which displays cognizance for the interdependencies between mental health and the vast array of human rights, which emphasizes on the centrality of a human rights-based approach to mental health, amidst and in the aftermath of the pandemic.
The low prioritization accorded to mental health by almost all countries,Footnote 126 the continued dominance of the biomedical model as opposed to the human rights-based approach to mental health,Footnote 127 and the “tendency to undermine the importance of economic, social and cultural rights”Footnote 128 have, cumulatively, yielded grave implications for the right to an adequate standard of living for persons grappling with mental health concerns. They have also led to the perpetuation of inequality and the disempowerment of large sections of States’ populations, as well as the continued threat of widespread human rights violations. With the onset and prolonged persistence of the COVID-19 pandemic, the years of neglect and reluctance to take measures to progressively realize mental health as a human right have led to the revelation and amplification of the shortcomings in guaranteeing the right at the domestic level. In the forthcoming part, the authors illustrate this argument by training a lens on India's efforts to guarantee the right to mental health. In particular, the focus of this part shall be on the implications of India's response to the pandemic for the right to mental health, and on proposing recommendations that can potentially bridge the chasm between the international and domestic regulatory frameworks.
III. India's Response to the Pandemic and Its Implications for the Right to Mental Health
Since ancient times, it has been recognized that mental health is an intrinsically important component of the lived reality of every individual, and that the integrity of the human mind is as inviolable as that of the human body's.Footnote 129 However, for far too long, persons impaired by poor mental health have been treated as objects of charity rather than as subjects in relation to the law.Footnote 130 Moreover, while the Indian legislative framework guaranteeing the right to mental health is seemingly extensive, the shift to a rights-based approach has been slow, its implementation has been ineffective, and it has scarcely been accompanied by periodical monitoring and measures aimed at sensitization.Footnote 131 These insufficiencies, which are telling about the priority accorded to understand and ensure the mental health needs of individuals in India, have heightened during the pandemic.
In this part of the article, the authors shall outline the legislative and policy framework governing the right to mental health, attempting to showcase its shortcomings. By drawing on the conditions of healthcare/frontline workers and migrant workers as case-studies, the authors shall illustrate how concerns pertaining to mental health have amplified during the pandemic, particularly for the vulnerable and marginalized sections of the Indian society. In doing so, the authors attempt to highlight the need for policy makers to realize, now more than ever, that creating an enabling environment, which nurtures and promotes mental health and well-being as a human right for all, with a focus on the more vulnerable, is of great importance. This segment shall also discuss the more successful efforts of the government to mitigate the harm to individuals’ mental health and well-being as well as detail a few recommendations in order to provide a glimpse into the possible way forward.
A. The Legislative and Policy Framework Governing the Right to Mental Health in India
Marred by a colonial past, India's legislative and policy framework was significantly influenced by the British. India's law reflected the outcomes of the hybridity between the colonizer and the colonized in the “Postcolony”.Footnote 132 The Indian Lunacy Act 1912,Footnote 133 and 1977,Footnote 134 which was the first legislation to govern “mental health” in India, was illustrative of this. The legislation pertained to the identification, detention, and treatment of “lunatics” in asylums.Footnote 135 Consequently, India's inheritance of the Act entailed the problematic dimensions of the English counterpart, which included, but was not limited to, the protection of the general public from people who were considered a danger to society – in complete disregard of present-day human rights norms.Footnote 136
Realizing the pitfalls of this particular legislation, the National Mental Health Programme was launched in 1982,Footnote 137 which paved the way to a major overhaul and the enactment of the Mental Health Act 1987.Footnote 138 Enacted with the “objective of consolidating the law relating to the treatment and care of mentally ill persons and to make better provisions with respect to their property and affairs”,Footnote 139 the Act seemed to mark a step in the right direction. However, since its enactment, it has been the target of criticism,Footnote 140 especially at the hands of human rights activists.Footnote 141 The primary criticism levelled against it has been its failure to adequately recognize and protect the agency of persons with mental illnesses.Footnote 142 It has also been criticized for lacking a comprehensive definition of mental illness,Footnote 143 a term which is defined by the Act solely for the purposes of the admission into and treatment of persons in mental hospitals.Footnote 144 The Act was treatment-specific, prescribed a procedure for involuntarily admission and treatment,Footnote 145 and lacked a coherent appeal and review process accessible to patients with mental illnesses in such custodial care institutions.Footnote 146 Essentially, the Act sought to regulate the admission and treatment of persons with severe mental illness when they were detained against their willFootnote 147 in mental hospitals.Footnote 148 Human rights activists have challenged the validity of the Act under Articles 14Footnote 149 and 21Footnote 150 of the Indian Constitution, contending that it results in the indefinite and wrongful curtailment of personal liberty, since it is not subject to proper judicial review.Footnote 151 Beyond the incongruence of the Act with the promise of human rights, the Act was impenetrable due to complex procedures,Footnote 152 and was inadequately supplemented by investments in the development of mental health infrastructure in the country.Footnote 153
The surge in the international movement towards the recognition of the right to mental health in the post-1990s era, alongside the deficiencies in the implementation of the Mental Health Act 1987, rendered the Act increasingly obsolete. Concomitantly, the movement opened up the space for new legislative and policy initiatives which aligned with the principles and ethos of the global developments. Notably, a pivotal point was marked by the UNGA Resolution on the Principles for the Protection of the Persons with Mental Illness and for the Improvement of Mental Health Care (1991), which recognized the fundamental freedoms and basic freedomsFootnote 154 of persons with mental illnesses. These included being treated with humanity, and the guarantee of respect for the inherent dignity of the human person.Footnote 155 Another development which created the impetus for India to overhaul its mental health legislative and policy framework was the UNCRPD,Footnote 156 which India ratified in 2007.Footnote 157 Read alongside the non-derogable dimensions of the rights detailed in the ICESCR, another instrument which has been ratified by India,Footnote 158 India's obligation to guarantee the right to mental health and well-being became increasingly robust. It also necessitated that the guarantee be framed as per the terms on which the international developments have been framed – legal capacity, equality, dignity, and recognition of human rights.Footnote 159
In an attempt to harmonize domestic and international frameworks, and to adhere to its international obligations, the Indian government sought to enact new laws which promoted the principles espoused by global norms. With a rights-based approach, the need of the hour is to focus on the rights to treatment, social care, social inclusion, political empowerment, liberty, and a community-centric approach towards the implementation of the mental health laws in India.Footnote 160 The international movement, alongside the gradual change in the outlook of the Indian judiciary towards the promotion of the rights of the mentally ill,Footnote 161 has gradually urged improvements. Decades after its ratification of the international legal instruments, which impose obligations upon India to guarantee the right to mental health, and after many deliberations and several attempts, the Mental Healthcare Act 2017Footnote 162 was enacted. It is considered to be progressive, patient-centric legislation, which is stated as having a rights-based approach as opposed to a biomedical one. The preamble of the Act seeks to provide “for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare”,Footnote 163 thereby seeking to adhere to the “respect-protect-fulfil” framework of human rights.
However, the Mental Healthcare Act 2017, is not without shortcomings. Apart from issues that plague other low and middle-income countries pertaining to healthcare, and more specifically to mental health – that of lack of resources,Footnote 164 political will, and implementationFootnote 165 – it also fails to provide a holistic approach towards the rights of persons with mental illnesses. It focuses on treatment in hospitals and other institutions rather than providing a community-based approach.Footnote 166 It fails to guarantee rights between episodes of care when there is a higher risk of violation of such rights through neglect, homelessness, imprisonment, and social exclusion.Footnote 167 While defining “mental illness”,Footnote 168 the Act does not account for all persons with mental illnesses. By defining “mental illness” as:Footnote 169
a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence … the Act accounts solely for persons with severe mental disorders who require medical/institutional intervention.Footnote 170 It has been argued that neither does the Act showcase cognizance of the realities of resources and requirements contextually specific to India,Footnote 171 nor does it sufficiently encourage a “whole person” approach for motivated implementation of the rights-based approach at the centralized levels, thereby necessitating amendments in order for it to be effective.
Moreover, while the Mental Healthcare Act 2017, emphasizes community-based approaches, marks a movement towards deinstitutionalization, and mandates the appropriate government to “provide for or support the establishment of less restrictive community based establishments including half-way homes, group homes, and the like for persons who no longer require treatment in more restrictive mental health establishments such as long stay mental hospitals”,Footnote 172 such facilities have not been established, nor has the supportive infrastructure been invested in.Footnote 173 Similarly, the constitution of nodal, quasi-judicial bodies termed “Mental Health Review Boards”, with a range of functions including powers to adjudicate deficiencies in care and services, inspect establishments, and impose penalties for contravention of orders pursuant to Section 73 of the Act, have not been established by several States; neither have State Mental Healthcare Authorities been constituted by several of them, as required under Section 45 of the Act.Footnote 174 As of 2020, three years from the date of the initial direction, States had only outlined a roadmap towards the implementation of the Act.Footnote 175 With the onset of the COVID-19 pandemic, as of July 2021, the Supreme Court of India has remarked that:Footnote 176
… as a result of the outbreak of the Covid-19 pandemic, no progress could effectively be made ….We are of the view that the progress in implementing the judgment of this Court and the Mental Healthcare Act 2017 has been tardy and it is time that the matter is taken up with utmost alacrity by the Union Government.
The endeavour to channel global norms into the domestic framework is also evidenced by the Rights of Persons with Disabilities Act 2016,Footnote 177 which replaced the Persons with Disability Act 1995. The Act of 2016, read alongside the Rights of Persons with Disabilities Rules, 2017,Footnote 178 is applicable to persons with “long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”Footnote 179 Much like the Mental Healthcare Act 2017, the Act emphasizes the rights of individuals with mental illnesses, including but not limited to: the rights to dignity, non-discrimination, inclusion and participation in society, individual autonomy, and accessibility – and in this sense it complements the 2017 Act.Footnote 180 It also, much like the 2017 Act, marks a shift from a charity-model to a rights-based model, as well as from a medical model to a biopsychosocial model.Footnote 181 However, apart from difficulties in implementation, the Rights of Persons with Disabilities Act 2016, specifically poses the following problems in the context of concerns about mental health: the suitability of its general provisions in addressing the particularities of the challenges faced by persons with mental illnesses; impediments to caregiving by families; the notions of (in)capacity inherent in the formulation of certain provisions as opposed to an emphasis on social welfare; and, pivotally, the lack of effective synchronization between the Acts of 2016 and 2017.Footnote 182
B. Impact of India's Response to the COVID-19 Pandemic on the Right to Mental Health
Against this backdrop, the COVID-19 pandemic has proven to be a tinderbox in the Indian context. Apart from the impact the virus has had on physical health, it has also been found to have short- as well as long-term psychological impacts.Footnote 183 Such psychological impacts have been evidenced as being compounded further by the ripple effects of quarantine and nationwide lockdowns, which can induce panic, anxiety, obsessive behaviours, paranoia, and depression, and can also lead to post-traumatic stress disorder (PTSD).Footnote 184 In India, the first nationwide lockdown was announced for an initial period of 21 days in March 2020,Footnote 185 which was extended to a period of almost two months, with an ease of restrictions only after June 2020.Footnote 186 Moreover, the lengthy duration of the COVID-19 pandemic is also a lingering stressor in-and-of-itself, which may have prolonged consequences.Footnote 187
Various studies, conducted after the onset of the COVID-19 pandemic, have concluded that the pandemic has had a significant effect on the mental health of individuals in India,Footnote 188 with some data suggesting that as many as 18–28% of the population are experiencing anxiety and depression,Footnote 189 and more than 80% are perceived as needing mental health care.Footnote 190 With the overstretched healthcare infrastructure, the fault-lines have been brought to the surface, especially in tertiary healthcare.Footnote 191 Apart from the pre-existing issues with the mental health legislative and policy framework, as discussed above, the lack of infrastructure, facilities, resources, and political will have deepened the furrows in the guarantee of this right during the COVID-19 pandemic.
In this part of the article, the authors analyse India's response to, and the efforts invested by it in guaranteeing the right to mental health during the COVID-19 pandemic. To illustrate the arguments, the authors map the impact of India's response to the pandemic on the mental health of two particular groups: healthcare/frontline workers and migrant workers. That the government has implemented policies haphazardlyFootnote 192 and taken actions/measures neglecting the mental health of all persons in a way that cuts across economic, social, and cultural lines,Footnote 193 and particularly so of the vulnerable and marginalized in society, is evidenced by the two case-studies.
1. Healthcare/frontline workers in India
The COVID-19 pandemic has affected the health – physical as well as mental – of healthcare/frontline workers all across the world,Footnote 194 and India is no exception. While dealing with the COVID-19 pandemic, healthcare/frontline workers have been at the forefront of an extremely stressful environment, triggered by the novelty of the disease, increased patient loads, unprecedented disruptions to normal life, high risk of exposure,Footnote 195 inadequate resources including protective gear, lack of support,Footnote 196 and concerns about the well-being of their families and friends.Footnote 197 While no member of society has been immune to the impact of COVID-19, healthcare/frontline workers have been particularly exposed to various psychological stressors, while their mental health has been overlooked.Footnote 198 Controlled studies conducted across the world,Footnote 199 as well as those specific to the Indian landscape,Footnote 200 seem to suggest there is an extremely high prevalence of mental health concerns, such as depression, PTSD, burnout, anxiety, and insomnia among healthcare/frontline workers.Footnote 201 Studies have also been indicative of different factors, ranging from biological, psychological, as well as socio-environmental as mediators of such concerns. Apart from the above-mentioned factors, lack of effective communication from the government, lack of resources, misinformation, unavailability of Personal Protective Equipment (PPE), and the stigma around the disease have also been identified as reasons for the development of mental health problems among healthcare/frontline workers in India.Footnote 202
Another aspect that haunts healthcare/frontline workers, especially in India, is violence, harassment, and ill-treatment, and as many as 75% of the doctors practicing in India have reported that they have faced such abuse,Footnote 203 and this has increased substantially during the COVID-19 pandemic.Footnote 204 The reasons for the surge in the occurrence of such incidents against healthcare/frontline workers include anxiety, ignorance, and fear about the SARS CoV-2 virus – and the stigma of contracting it,Footnote 205 as well as the augmentation of these worries due to misinformation and misplaced quotes proliferating over social media.Footnote 206 The increase in the number and gravity of such incidents, which have ranged across the spectrum of aggressive emotional responses by the relatives of patients, verbal attacks, physical violence, and even serious manhandling and murder of healthcare/frontline workers,Footnote 207 may also be attributed to the inaccessibility of medical aid due to the over-inundation of the public health machinery and the restriction on non-emergency admissions to private hospitals, transport suspension during the lockdown, and the boiling-over of people's frustration with the quarantine and containment zone restrictions.Footnote 208 Being cast into the role of the “newer untouachables”Footnote 209 — together with the potent combination of exposure to trauma and violence, impediments to the fulfilment of their duties by the inadequate infrastructure and administrative restrictions, and neglect for their well-being — have detrimentally impacted the mental health of healthcare/frontline workers.Footnote 210
The attainment of the highest standards of mental health and well-being, particularly for healthcare/frontline workers, is an important factor in a State's successful effort towards preparedness, response, and recovery during demanding situations or crises, such as the pandemic.Footnote 211 It is pivotal for States to realize that being cognizant of and investing in mental healthcare services is key to the ability of healthcare/frontline workers to perform effectively in a sustained manner in the long term, and to assist them in dealing with the pressures of their jobs in particularly demanding times. While the WHO has emphasized the role of governments, the international community, and civil society in protecting healthcare professionals by addressing attacks on health systems,Footnote 212 as well as made available a risk communication and community engagement (RCCE) guidance, the obligation lies with States to accord these issues priority, and to mainstream mental health as a human right within these action plans.
Notably, the government of India has attempted to address the harassment and violence against healthcare professionals by introducing an OrdinanceFootnote 213 titled the Epidemic Diseases (Amendment) Ordinance 2020, which penalizes such attacks.Footnote 214 This is a proactive and positive step on the part of the Indian government to address one of the contributors to the deterioration of mental health for healthcare professionals, and is a step in pursuance of the international standards outlined in the earlier parts of this article. It also reinforces the good practices identified by the WHO as pivotal for States to uphold and implement in the context of attacks on healthcare workers during the pandemic.Footnote 215 Since the Ordinance has come into force, fewer acts of violence have been reported – proving the use of stringent legislation in the protection of healthcare workers.Footnote 216
However, the present legislative and policy framework is inadequate to address the vast range of concerns pertaining to mental health, or the long-term impact of these concerns, especially when they go unaddressed or are excessively pathologized when addressed. The recent recognition by the Supreme Court of India in Re: Essential Supplies Matter Footnote 217 that:Footnote 218
[i]t is absolutely necessary to take urgent steps for their (healthcare professionals, as inclusive of doctors, nurses, healthcare workers, laboratory technicians, ward staff, ambulance drivers, crematorium workers etc.) well-being to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric … should ideally urge the government to frame holistic policies, which reflect the “whole person” approach in guaranteeing the well-being of healthcare/frontline workers.
Moreover, as important as it is for legislative measures to be enacted, policies to be framed, and impactful decisions to be adjudicated, it is equally important for the government and policymakers to generate awareness of the psychological problems faced by healthcare/frontline workers, urge these workers to avail themselves of help during such times, and to make available the adequate infrastructure for it. For instance, tele-counselling for psychological distress should be made available to healthcare/frontline workers in India – controlled trials have indicated their effectiveness.Footnote 219 Similarly, the government should urge hospitals, and particularly public hospitals, wherein healthcare/frontline workers are reported as suffering from “acute helplessness” and “mental turmoil”,Footnote 220 to draft and implement action plans, strategies, and policies for the workplace to address the impact of psychological problems faced by these workers.
2. Migrant workers in India
It has been remarked that “[t]he treatment given to migrants by the State conveys the nation's value”.Footnote 221 In India, migration is often induced by factors such as unemployment, family movement, impoverishment, regional disparities, and calamities,Footnote 222 which varies with the degree of diversity in different areas, people, intervening obstacles, and fluctuations and checks in the economy.Footnote 223 As of 2020, it is estimated that there are 600 million internal migrantsFootnote 224 of which one-third are inter-state and inter-district migrants. Within this 200 million, two-thirds are estimated to be migrant workers (approximately 140 million).Footnote 225 While a specific law has been promulgated to protect and safeguard the interests and rights of Indian migrant workers,Footnote 226 there are also laws which protect the interests and rights of workers generally.Footnote 227 However, because the majority of migrant workers work in the “informal” sector, wherein the implementation of these laws is lacking, they are often exploited, and are completely dependent on the mercy of their employers and contractors.Footnote 228 These impediments to accessing the protective legal framework are compounded by social marginalization, the strenuous nature of their work, and instances of verbal and/or physical abuse, which result in “low-life conditions”.Footnote 229
Studies have evinced that a combination of these factors, alongside the separation of these workers from their families, have implications for the workers’ mental health, as these factors precipitate an increase in serious anxiety disorders, psychotic breakdowns, and post-traumatic disorders.Footnote 230 Migrant workers represent a group of persons in Indian society who are particularly vulnerable. When their interests and rights have been the subject of legislation, the perspective trained on these instruments has been one that divorces economic rights from civil rights, such as the right to a life of dignity and liberty. The right to health, postured primarily as an economic right, has been treated no differently. Consequently, migrant workers have been among the worst victims of the pandemic in India,Footnote 231 and the government's neglect for their concerns has been illustrative of the mirage of the nation's values and the importance accorded to human rights.Footnote 232
Internal migrants had to travel thousands of kilometres on foot during the hastily implemented nationwide lockdown in 2020,Footnote 233 after being given only a four-hour notice. Their journey was one in which they were stigmatized at both end-points,Footnote 234 and were excluded from accessing healthcare, legal remedies, and the fulfilment of their rights.Footnote 235 They were surveilled while charting their journey, several lost family members,Footnote 236 and the failure of the government machinery to ensure for these workers food, shelter, means of transport,Footnote 237 and other basic amenities further widened the trust deficit.Footnote 238 The absence of a coherent policy concerning their movement, or the accommodations required by virtue of it, and the exacerbation of pre-existing vulnerabilities due to the absence of an emphasis on family and care groups,Footnote 239 alongside the toll of the journey, fear of discrimination, and uncertainty about income have had a grave impact on the mental health of migrant workers.Footnote 240 Furthermore, the widespread prevalence of pre-existing physical health conditions, such as occupational pneumoconiosis, tuberculosis, human immunodeficiency virus, and pollution-related diseases among migrant workers in India,Footnote 241 amidst conditions of inaccessibility to healthcare services and worries about infecting loved ones, has converted the risks of contracting the virus into a choice between life and livelihood for many of these workers, thereby leading to further immiseration. The reinforcement of inequalities and vulnerabilities plaguing the lives of migrant workers during the pandemic, without sufficient attention paid to the implications for their mental health and well-being, reflects the low priority accorded to the psychosocial needs of the vulnerable in India.Footnote 242
Though, belatedly, it is worth noting that the Ministry of Home Affairs has urged State governments to provide food, shelter, and medical and psychological assistance to migrant workers.Footnote 243 In pursuance of this objective, various state governments have undertaken programs with the endeavour of addressing the issues of depression, anxiety, apprehension, and sleeplessness caused by the lockdown among migrant workers.Footnote 244 However, critics of such programs advocate for a more ecologically valid intervention, i.e., one which seeks to address the systemic failures rather than one which acts as a stop-gap or regresses to reliance on pharmaceuticals. Further, an overhaul of the public health response to disaster management by way of an amendment to the Epidemic Diseases Act 1897, in a way which integrates psycho-social equality, mental health interventions, and the identification of “at-risk populations”Footnote 245 as being inclusive of migrant workers has also been advocated in furtherance of the goal of addressing the manifold concerns systemically. In recognition of the interlinkages between an array of rights, there is also a need to increase access to social protection in light of the exclusion of informal workers so as to reduce their inherent vulnerabilities.Footnote 246
A holistic intervention is the need of the hour, for failure to do so threatens the development of “severe, acute and chronic, adverse mental health consequences due to [the] COVID 19 pandemic [], many [of which are] acting concurrently to cause physical, mental, and socio-economical adversities”Footnote 247 among migrant workers. In order for the intervention to be effective, it is essential the government recognize that all human beings, particularly the vulnerable such as the migrant workers, are entitled to have certain innate and inalienable rights upheld. Resorting to the tool of human rights and harmonizing the domestic framework with the international legal framework can thus be a powerful means of preventing a further deterioration in the living conditions of migrant workers or an amplification of their vulnerabilities, and can also offer them a protective and remedial framework. By channelling the rights-based approach, applying it to mental health, and demanding that India abide by its international obligations it is hoped that the resultant placement shall be that of the “political at the heart of the psychological and the psychological at the heart of the political”.
C. A Possible Way Forward
The discussion mapped in the foregoing part of this article showcases how “[t]he Covid-19 crisis did not create new shortcomings, [but rather] laid bare the existing shortcomings that have plagued the mental health system for years.”Footnote 248 These shortcomings span a wide range of issues, such as: the limited applicability of general laws pertaining to mental health to impairments which are not substantial or long term; the meagre attention devoted to mental health in regulatory frameworks specific to vulnerable groups in society; the lacklustre implementation of promulgated laws; excessive pathologization of the issue; the absence of an integrated mental healthcare system and appropriate infrastructure; insufficient attentiveness to sensitization measures; and the inadequate emphasis on programs and policies suited to the country context. Each of these shortcomings is also reflective of the placement of mental health in the bottom tier of the hierarchy of priorities ascertained by States, given the incongruence between the resources required and the availability of scarce resources from within the total healthcare budget allocated to mental health.Footnote 249 The dismal harmonization of domestic legal and policy perspectives on mental health with the non-derogable nature of the right and the obligations to progressively realize it as per the international framework is the overarching shortcoming, which has been laid bare by the COVID-19 pandemic.
The groups identified in the foregoing part thus act as instantiations of the manner in which the pandemic has implicated and compounded pre-existing vulnerabilities and inequalities, particularly among the marginalized,Footnote 250 and adversely affected the right to mental health as well as a wide array of rights intrinsically connected to mental health and well-being. More generally, as evidenced by a study published in the Indian Journal of Psychiatry, an increasing number of persons in India have been susceptible to the development of and/or deterioration of pre-existing mental illnesses.Footnote 251 This is due to the “stress multiplier”Footnote 252 effect of the pandemic in India, attributable to the stringency of the lockdowns imposed by the government, the accompanying suspension of movement and economic activity, and the negative emotions associated with the resultant isolationism, alongside a failure to ensure avenues for support or redress for those most affected or in need.Footnote 253 Pertinently, stop-gap measures to address certain concerns magnified by the COVID-19 pandemic, as introduced by the Indian government, are insufficient responses to the short- and long-term implications of the pandemic on the mental health of individuals, or to the structural inequalities characterizing the Indian society. In the forthcoming paragraphs, the authors attempt to outline a possible way forward.
In the short term, there is a need for the government to mainstream considerations of mental health and well-being into its plans for relief, response, and protection during the pandemic, and to make available support structures and facilities specifically for the vulnerable and the marginalized. It is also pivotal for the government to analyse the feasibility and benefits of a community-based model of implementing plans, to avail the assistance of stakeholders, such as civil society organizations engaged with mental health policy, in the processes of introducing and implementing decisions during the pandemic, as well as ensure a thorough periodic review of any pandemic-specific policies by including among its considerations the right to mental health as well as its interlinkages with other human rights. Further, given the constraints of movement during the pandemic, the efforts towards disseminating information about the need to care for one's mental well-being should also be accompanied by information about online counselling services at hospitals and community healthcare centres,Footnote 254 as well as at psychology departments of several universities,Footnote 255 so that individuals do not have to choose between physical and mental well-being, and to know they can avail options which help them prioritize both. Additionally, the thirty-one-point guidance issued by the WHO for preventing, as well as mitigating, anxiety, depression, and stigmaFootnote 256 should also be adapted to, and operationalized in, the Indian context.
The success of these measures, even if taken by India during the COVID-19 pandemic, shall be limited unless they are preceded by the recognition that mental health is a human rights concern as opposed to solely a medical concern.Footnote 257 There is also a need for the regulatory framework to be rethought in a manner that accounts for the oft-episodic, dynamic, and fluctuating natureFootnote 258 of mental health concerns, the applicability of which is extended to ensure support for persons whose concerns are neither substantial nor long term. Given that facets of the right to mental health impose a non-derogable obligation on States, and the interdependency of mental health with physical health as well as other human rights, legislative as well as other measures need to be introduced/amended and effectively implemented by India in order for it to “respect-protect-fulfil” the negative and positive obligations attached to the right, and to facilitate access in a non-discriminatory manner to the array of resources and supports pivotal to mental health and well-being.Footnote 259 It is equally pertinent for India to expend efforts towards the elimination of stigma attached to persons suffering from mental illnesses,Footnote 260 to invest in the training of personnel and care-workers in institutions, and to establish a multi-stakeholder participatory model for the implementation of the measures taken by it. In particular, there is also a need for States to allocate resources to community-based approachesFootnote 261 instead of tertiary psychiatric hospitals, as the benefits of such approaches are more cost-effective, are strongly supported by empirical research, and are also recognized as good practices by the United Nations,Footnote 262 and the task force which authored the National Mental Health Report, 2019.Footnote 263 Movement towards the rights-based model of mental health,Footnote 264 which accords due importance to the role of the community in letter, spirit, and practice is likely to address the concerns of individuals with mental health concerns in a more meaningful manner.
IV. An Urgent Call for Global Action
India is not alone as an example of the shortcomings of mental healthcare systems laid bare by the COVID-19 pandemic. As much is encapsulated in Ingrid Daniels’ words, as quoted in the briefing titled “The Impact of COVID-19 on Global Mental Health”, authored by the WHO and UN agencies:Footnote 265
The extraordinary increase in mental health needs is taking its toll on already burdened mental health services which are under-funded and under-resourced in many countries on every continent affected by the COVID-19 pandemic. COVID-19 has exposed the serious gaps in mental health care, and now more than ever world leaders need to prioritise and ensure that quality mental health support is accessible to everyone, everywhere.
As much in the global context as in the Indian context, then, the COVID-19 pandemic has made it amply clear that the mere existence of international human rights standards, norms, and laws in international treaties, global commitments, and authoritative guidance does not necessarily result in the effective fulfilment of human needs and wants,Footnote 266 particularly for the enforcement of economic, social, and cultural rights.Footnote 267 The claim put forth by States is that the international obligations in respect of economic, social, and cultural rights do not guarantee immediate realization at the domestic level, but are rather to be “progressively realized”.Footnote 268 Justifications for the gradual pace of fulfilment of such rights include factors such as the differential stages of States’ development, their distinctive contexts, and prioritization of resources as per nation-specific policies.
The issue becomes even more profound with respect to the right to mental health as the scarce resources available in most States are predominantly allocated to physical health, resulting in an artificial bifurcation and hierarchization between physical and mental health. The ramifications of such a bifurcation have intensified globally during this pandemic. Much like in India, the pandemic has revealed the lacunae in guaranteeing the right to mental health globally due to the lack of cohesive policies which mainstream the right to mental health, the lacklustre implementation of promulgated laws and policies, and the discrepancies in the practice associated with the “respect-protect-fulfil” obligations attached to the right and imposed on States. It has also amplified these concerns due to the continued neglect meted out to mental health, amidst practices detrimental for mental health and well-being, thereby necessitating a collective and urgent call for action.
While these outcomes of the pandemic seem to spell irredeemable disaster,Footnote 269 they are instead excruciating reminders of the need for States to recognize the non-derogable facets of the right to mental health, as well as the overdue need for reform in the manner in which mental health is addressed by them.Footnote 270 Understood through this lens, the promise of international human rights law helps in setting the tone by highlighting the urgent need to prioritize mental health as a human right, given its possibly disastrous short and long-term implications for individuals as well as societies.Footnote 271 By treating the Indian experience detailed in the foregoing part as a core global reference for the pivotal role human rights can and should play in policy-making at the domestic level, this segment outlines recommendations for States to consider effectuating amid, as well as in the aftermath of, the pandemic.
Firstly, it bears recognition that legislation has an important role to play in the articulation and protection of the rights of individuals, especially the right to mental health.Footnote 272 However, as is evident from the Indian regulatory framework, it is imperative for legislators to emphasize the harmonization between the international and domestic frameworks, as well as the synchronization between various domestic instruments pertaining to the right to mental health. In particular, while harmonizing the international and domestic frameworks, it is imperative for States to ensure the integration of the progressive interpretations of the right to health, notably through the jurisprudence developed by the CESCR and the standards enumerated within the UNCRPD. Moreover, given that black letter of law must be accompanied by effective implementation, an outcome which requires the cooperation of various actors and stakeholders,Footnote 273 as well as the recognition of interlinkages between mental health and other rights, it is imperative for the judicial authorities of States to adopt a proactive stance towards issues pertaining to mental health and well-being. Measures which facilitate a “paradigm shift”Footnote 274 in the societal attitudes towards persons grappling with mental health concerns, and which destigmatize availing help for such concerns, must also be undertaken by a range of actors and stakeholders – the executive, civil society organizations, academics, the media, and others. Putting these recommendations into action is likely to have a positive impact on the robustness with which the right to mental health is guaranteed across global and local landscapes, as well as on the future preparedness for other global crises.
Secondly, much like in India, it is worth recognizing that the global impact of the pandemic has not been uniform,Footnote 275 and that certain vulnerable groups of persons in society have been rather disproportionately affected by it. Moving forward, it is imperative for States to recognize the pre-existing vulnerabilities of certain groups of persons, to attend to the amplification of these vulnerabilities during the pandemic, and to be cognizant of the intersections of such vulnerabilities with the deterioration of individuals’ mental health, especially as the likelihood of the lingering and long-term effects of the pandemic looms large on the horizon.
For instance, healthcare/frontline workers represent a group of persons whose mental health has been adversely affected by the pandemic globally.Footnote 276 Studies indicate the prevalence of mental health concerns such as anxiety, depression, and PTSD among these workers due to their increased workload, exposure to grief and loss, fear of infection, inadequate rest, lack of PPE, informational overload, growing isolationism due to separation from their families, and lack of safety measures.Footnote 277 In the short term, it is imperative for States to encourage the establishments at which these workers are engaged to provide regular support, care, and training for deteriorating mental health,Footnote 278 to mandate and enforce work-rotation schedules and the availability of PPE,Footnote 279 and to commence a temporally definite process of collecting disaggregated data to identify the particular needs of workers performing different roles within this group.Footnote 280 In the long term, through legislative measures, judicial proactivity, and targeted interventions, States should ensure the continued provision of adequate support for the mental healthcare of these workers, the destigmatization of the risks associated with the roles of these workers, the participation of these workers in the framing of new policies and programs, the allocation of funds for future preparedness, and attempts towards harnessing new technologies to attain these ends.Footnote 281
Migrant workers, in whom the incidence of psychotic, anxiety, and post-traumatic disorders has been reported to be on the rise,Footnote 282 are another group of persons whose mental health is at risk, which States need to ensure by means of short- as well as long-term interventions. Due to the drastic implications of the COVID-19 pandemic for persons whose livelihoods entail unsafe work conditions, and/or for financially insecure households, migrant workers are particularly at risk because they fall into both of those groups.Footnote 283 Some of the recommendations States may be urged to consider in pursuance of their international obligations include ensuring that: migrant workers have access to information in language(s) comprehendible to them; mental healthcare services are made available to them on a non-discriminatory basis, are affordable for them, and are adapted to the skills used by them to overcome adversity in the past; they are consulted and encouraged to participate in the formulation of policies, programs, and plans pertaining to their health and well-being; and that swift action is undertaken in pursuance of the interdependence between the right to mental health and a wide array of other rights.Footnote 284
While healthcare/frontline workers and migrant workers were discussed as instantiations in the case-study pertaining to India, there may be several more such groups in most societies across the world. For instance, persons institutionalized in State-run facilities, such as prisons and correctional homes, are yet another illustration. While some of the individuals admitted to such institutions may have pre-existing mental illnesses that may be exacerbated due to imprisonment, others may develop them over the period of their imprisonment due to enforced solitude and inadequate social interaction; the absence of meaningful activity or relationships; threats of violence; poor access to physical as well as mental healthcare services; and the perpetual threat of human rights violations, particularly torture and ill-treatment.Footnote 285 During the COVID-19 pandemic, several of these causes have mutated to result in even more debilitating implications for the mental health of inmates, due to halted recreational and/or occupational activities, increased time spent on remand due to suspended trials, relatively scarce external social support, etc.Footnote 286 States must recognize that they have a responsibility to “respect-protect-fulfil” the human rights of such individuals, more so during global crises when they are more vulnerable.Footnote 287 Accordingly, States should ensure that they maintain a balance between the safeguarding measures taken by them to prevent the transmission of the virus and the implications of those measures on the mental health of the inmates in the short term, while investing in and ensuring access to mental healthcare services to the inmates in the long term.Footnote 288 It is equally essential for treaty bodies monitoring States’ compliance with a range of other human rights obligations, such as the prohibition against torture, to invest in developing jurisprudence that is cognizant of the intersectionality between the right to mental health and other rights.
Another such group meriting attention in this article is persons with severe pre-existing mental illnesses. Studies have evinced that such persons have been disproportionately disadvantaged during the pandemic due to the heightened effect of stressors; i.e., the duration of quarantines, fear of infection, disrupted access to healthcare, stigmatization, inadequate information, smaller social networks, and residential instability.Footnote 289 In order to address these concerns, it is imperative for States to ensure that the healthcare system is resilient enough to withstand the burden of a global crisis and can continue to yield the necessary mental healthcare support. Moreover, alternatives such as telemedicine or consultations via video conferencing should be made available, and should be integrated into mental health policies and the organizational culture in order to mitigate concerns about privacy, safety, regulation, licensure, education etc.Footnote 290 Further, States should ensure that the interlinkages between the right to information and the right to mental health are recognized. These individuals should be provided with accurate information about the virus, practices to be followed, available treatments, etc. in a manner that is tailored to their needs.Footnote 291 Access to such information is often determinative of whether these persons are accorded the right to make their own decisions and/or to freely exercise consent. This is of particular significance to persons with pre-existing mental illnesses who are residents of establishments, such as halfway homes or psychiatric facilities, due to their exposure to greater risk of ill-treatment due to limited contact with their loved ones during the pandemic. States should, therefore, ensure respect for their agency and criminalize practices which contravene the “freedoms” component of the right to mental health. It bears recognition that the groups of persons discussed by the authors in this part are by no means representative of an exhaustive set of such vulnerable groups globally, but are rather instantiations of such groups. It is also worth noting that the uniqueness of each national context lends itself to the definition of vulnerability and the emergence of marginalized groups in that particular context.
Thirdly, while the COVID-19 pandemic has disproportionately impacted certain groups of persons, the severe lockdowns, stringent quarantine policies, and travel bans imposed by States act as a threat to the mental health and well-being of all persons forced into self-isolation. While such measures may be necessitated by the nature of the pandemic, it is essential for States to balance the curtailments imposed on individuals’ rights in pursuance of public health objectives with the content of the rights. Consequently, national lockdowns and quarantine policies applicable to symptomatic persons should be lawful and pursue a legitimate objective. They should also meet the thresholds of necessity and proportionality, be implemented for a limited duration of time, applied in a non-discriminatory manner, be accompanied by a public notification, be reflective of respect for human dignity and integrity, and be subject to review.Footnote 292 Similarly, travel bans should also be imposed in a lawful manner, for a legitimate purpose, and in a proportionate manner, particularly as such bans have historically had limited efficacy in preventing transmission.Footnote 293 Moreover, alongside imposing mandatory restrictions as opposed to sweeping ones, States must ensure that any disruption still caused in accessing mental healthcare services must be mitigated through the provision of alternative services of comparable quality.
In order for the urgent call for global action to reap some of these desired results, international and domestic frameworks, stakeholders, and processes must work in tandem. Recognizing this, each of the recommendations proposed by the authors in this part, as well as in the foregoing part of this article, align with the international human rights framework guaranteeing the right to mental health. However, in order for these measures to be implemented effectively and yield results, it is imperative for the global authorities and norm-developers, identified in the first part of the article, to argue the non-derogable nature of this right, as well as monitor, report, and urge compliance by States. Equally essential is the role of these global bodies in directing advocacy efforts at government officials in those States constituting the international community, providing expertise and guidance for the introduction of measures which promote the human rights-based approach, and utilizing multilateral fora to draw attention to the issue and to urge international cooperation/assistance in a manner which is compliant with the rights-based approach.
V. Conclusion
As of August 2020, global estimates reflected that close to 1 billion people are living with mental disorders, and that one person dies by suicide every 40 s.Footnote 294 The COVID-19 pandemic, which has caused the fault-lines in the fulfilment of the right to mental health to be exposed and deepened, has showcased that mental health is one of the most neglected areas of public health.Footnote 295 The incongruence between global norms and conformity in practice, prior to as well as amidst the pandemic, has compelled an urgent call for global action and magnified the need for engaged discourse on the importance of mental health as a human right. In pursuance, the authors have outlined the international rights-framework applicable to mental health in this article, endeavouring to highlight the non-derogable nature of the right and the continued obligations imposed on States. In particular, by drawing on India's experience, the authors have attempted to showcase that, while the implementation of the rights-framework at the domestic level has been deficient, such deficiencies are not reason enough for the promise and allure of human rights to be dismissed.
The COVID-19 pandemic has not only revealed and intensified these lacunae, but also provided the international community with new opportunities and reasons to ensure that the right is respected, protected, and fulfilled. It has, therefore, offered stakeholders the chance to pursue (much needed) radical shifts in recognizing and guaranteeing the right to mental health for all with renewed vigour. In pursuance, and by treating India as a core global reference, the authors have outlined recommendations for States to consider effectuating amidst, as well as in the aftermath of, the pandemic. It is hoped that the pandemic will mobilize the international community as well as individual stakeholders into action, and urge them towards the realization that there can be no health without mental health because human beings cannot be split into unrelated sections.
Acknowledgements
The authors are thankful to the anonymous peer reviewers for their insightful comments and to the editorial team at Asian Journal of International Law for their guidance. They are also grateful for the intellectual nourishment and support received from Oishik Sircar and Max Steuer.
Conflict of interest
The authors declare none.
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