Rejecting the position of the Delhi government that the State Authority for Mental Health Services constituted under the Mental Health Act 1987 can continue to function as it is under the Mental Health Act 2017, the High Court of Delhi has said that Section 45 of the new enactment requires respective state governments to constitute a new body: the State Mental Health Authority. [SMHA]within nine months.
Justice Yashwant Varma the 23 September order said that the Delhi government had not yet constituted the SMHA in accordance with the 2017 enactment. The court’s remark came after the state government in its additional affidavit “frankly acknowledged” that the authority constituted under the repealed enactment of 1987 continued under Section 126(2)(b) of the 2017 Act.
However, the court said, “the statutory mandate contained in Section 45 of the 2017 Act required the respective state governments to constitute the SMHA in accordance with its provisions within a period of nine months.”
It added that Section 126(2)(b) prima facie cannot be “read or construed” as sanctioning the continuation of an authority constituted under the repealed law, as it would violate the mandate of Section 45.
Article 45: Every State Government must, within a period of nine months from the date on which this Law receives the sanction of the President, through notification, establish, for the purposes of this Law, an Authority that will be called the State Department of Mental health. Authority
Meanwhile, the court in the order also requested the Delhi government to file an affidavit disclosing details about the constitution of Mental Health Review Boards under Section 73 of the 2017 enactment, as well as the number of complaints examined by them. The court has also requested details on the frequency of the meetings that may have been held.
A petitioner had appeared in the High Court last year seeking directions for the reconstitution of the State Mental Health Authority and also for the creation of Mental Health Review Boards as provided for in the new law.
While ordering the Delhi government to file its response before the next hearing date, the court listed the guilty plea with a similar pending PIL raising identical issues. That PIL was filed by attorney Amit Sahni in 2019 seeking implementation of the Mental Health Act of 2017.
“Accordingly, allow this petition to be tagged with the above matter to be called before the appropriate Court subject to the orders of the Hon’ble Chief Justice,” the court ordered.
Title: ABC v. NCT GOVERNMENT OF DELHI AND ORS
Citation: 2022 LiveLaw (Del) 930
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