Rights investigation
Lunatic prisoners: A judicial reply
Hussain M Fazlul Bari
It was found that forty mentally handicapped persons are detained in Sylhet jail as per Ain O Salish Kendro(ASK). Out of them, at least twelve are languishing in prison for a continuous period of more than a decade. The number of mentally handicapped persons in Sylhet prison indicates that number of such persons detained in various prisons all over the country will amount to hundreds.
ASK investigation reveals the tragic story of one Fazlu Mia that on 11-07-1993 traffic sergeant Zakir Hussain brought mentally handicapped persons Fazlu Mia to Kotwali Police Station stating that said Fazlu Mia was moving frequently and disturbing general people. He was then arrested under section 54 of the code of criminal procedure, 1898. Following the police report, he was sent to custody. The medical officer of jail informed the court that Fazlu Mia was suffering from mental disease of schizophrenia. Since 11-07-93, Fazlu Mia is in jail and police could not find out his relatives to hand him over. Considering his ill mental condition and detention in jail, the court directed the Department of Social Welfare to take necessary steps for rehabilitation of Fazlu Mia, but department took no step in this regard. Again, directed by the court, the Sylhet jail super sent him to Pabna Mental Hospital where he received letter medical treatment. He was again returned to Sylhet jail. Since then no action has yet been taken for his treatment and rehabilitation and he is still detained in Sylhet central jail.
The scheme and spirit of the constitution of Bangladesh mandates that the mentally handicapped people are treated with dignity. The Lunacy Act, 1912 (Act IV of 1912), in particular deals with treatment of mentally handicapped persons. Section 3(5) of the Act defines a lunatic as an idiot or a person of unsound mind. A duty is also cost upon the government to provide proper care and treatment to the lunatics. Section 14 provides that the Magistrate, upon determining that a person is a lunatic may make an order for admission of such lunatic into an asylum. Section 16 provides that the Magistrate may order detention of a person for the purpose of determining whether or not he is a lunatic, but the maximum period of such detention can not be more than thirty days. Section 23 states that when an order has been made by the Magistrate to send a lunatic to an asylum, pending his removal to an asylum, he may be detained in a suitable custody in such place as the Magistrate thinks fit. In 2001, Bangladesh Retarded Persons Welfare Act (Act XII of 2001) has been promulgated to safeguard their rights and dignity, to ensure their participation in the national and social activities and to ensure their overall welfare. The Act provides for formation various committees the performance of committees to alleviate the horrific condition of retard person is abysmally unsatisfactory.
Experts on mental health opine that mentally handicapped persons will be cured if they are provided with proper care and treatment. And a prison is no place for mentally handicapped persons where they are not receiving proper care. Our over-crowded prison itself, encumbered with multifarious problems, is neither conducive enough to initiate a heating process nor allows assistance of relatives, socially conscious citizens. According to experts, a significant number of mentally retarded persons could be rehabilitated in the mainstream of the society if they were provided with proper care and treatment. This would not only alleviate the personal suffering of the detained but also reduce pressure of the existing paralysed prison system and ultimately reduce expenditure of the government. Modern medical field treats such lunatic while keeping them within the normal and conducive environment instead of isolating them from society altogether. Furthermore, persons held in various prisons remain unproductive, whereas if recovered, through proper care and treatment, they could join the workforce and contribute the national economy.
Following silence or denial from the Ministry of Home Affairs and the Ministry of Social Welfare in reply to 'notice demanding justice,' ASK filed the petition pro lono publico in the Supreme Court. The petition is numbered as 4263 of 2005. The Division Bench comprising Justice Nazrul Islam Chowdhury & Justice Farah Mahbub issued rule nisi calling upon the respondents to show cause as to why the continuous detention of said Fazlu Mia who is languishing in jail for 12 years and continued detention of other lunatic persons in various prisons of Bangladesh should not be declared illegal. Pending hearing the rule, the respondents are directed to send said Fazlu Mia to mental hospital for his proper medical treatment and to submit a list within four weeks detailing the names and particulars of mentally handicapped persons detained in various jails in Bangladesh.
The author is an Advocate of the Supreme Court.
