Challenges in Bridging the Gap Between Punishment and Treatment in India

Addressing the gap between punishment and treatment in the Indian criminal justice system requires overcoming a series of significant challenges. These challenges are both structural and systemic, making reform efforts difficult to implement.

1. Stigma Surrounding Mental Illness: In India, there is a strong stigma associated with mental illness in both society and the criminal justice system.

People may become less sympathetic and understanding of mentally ill criminals as a result of this stigma.

Judges, prosecutors, and police officers could be reluctant to accept mental illness as a mitigating factor, which could result in more severe punishment and treatment.


Lack of Awareness and Training Judges and law enforcement personnel are frequently untrained to recognize mental health problems in criminals. Without the right training, police personnel might not be able to identify when someone is going through a mental health crisis, which could result in inappropriate reactions like arrests and the use of force.


Inadequate Mental Health Infrastructure: The infrastructure for public mental health in India is inadequate and insufficient to serve the demands of the populace.

There is less than one psychiatrist in the nation for every 100,000 people, and because mental health treatments are primarily provided in cities, rural communities have limited access to care.

In the criminal justice system, where mentally ill offenders frequently go untreated, this lack of infrastructure is also present.


Fragmentation of Services: The criminal justice system and mental health care system in India operate in silos, making it difficult to coordinate care for mentally ill offenders.

Once an individual is incarcerated, they often lose access to whatever community-based mental health services they had, and there is little to no coordination between prison officials and mental health professionals upon release.

Inconsistent Application of the Law: While Indian law provides mechanisms for addressing mentally ill offenders, these provisions are often applied inconsistently.

The use of the insanity defense, for example, is rare, and when it is used, it can be difficult to prove due to the high burden of proof.

Similarly, courts are often hesitant to delay trials due to questions of competency, leading to the prosecution of individuals who are not mentally fit to stand trial.

Mental Health Legislation in India: The Mental Healthcare Act, 2017

India’s Mental Health Laws: The Mental Healthcare Act of 2017

The passage of the Mental Healthcare Act, of 2017 marked a major shift in India’s mental health policy.

In terms of acknowledging the rights of people with mental diseases and guaranteeing their access to mental health care, this Act is a significant advancement.

Among the Mental Healthcare Act of 2017’s main provisions are:

Right to Mental Healthcare: Every person is guaranteed the ability to obtain mental healthcare services under the Act. It requires the government to make mental health services accessible and reasonably priced for all citizens, including inmates.

Decriminalization of Suicide: The Act recognizes that people who attempt suicide frequently have mental illnesses and should be treated rather than punished, hence it decriminalizes suicide attempts.

Advance Directives: Under the Act, people can draft advance directives outlining their preferences for care in the case of a mental health emergency. This gives people with mental illness the ability to influence how they are treated.

Creation of Mental Health Review Boards: To supervise the care of people with mental illness, including those incarcerated, the Act creates Mental Health Review Boards.

Despite being a major advancement, the Mental Healthcare Act of 2017 has not been implemented quickly, especially in the criminal justice system.

Due to the lack of infrastructure and resources needed to effectively implement the law, many of the Act’s requirements are still only aspirational.

Reform Initiatives: Mental Health Courts and Diversion Programs in India
The creation of mental health courts and diversionary programs is one possible way to bridge the gap between punishment and treatment.

These specialized courts aim to divert mentally ill offenders from jail and into treatment by addressing the underlying mental health conditions that underlie criminal behavior.

Mental Health Courts: Mental health courts function on the tenet that the best approach to lower recidivism among mentally ill offenders is treatment, not punishment.

Judges in these courts collaborate closely with mental health specialists to create customized treatment programs for criminals. Participants may have their charges lowered or dropped in exchange for their compliance with therapy.

In other nations, mental health courts have been effective in improving outcomes and lowering recidivism rates for mentally ill offenders; similar initiatives may be possible in India.

Diversion Programs: Before formal charges are brought, diversion programs seek to remove mentally ill people from the criminal justice system.

These initiatives could include crisis intervention teams, community-based mental health services, or pretrial diversion.

Some diversion programs have been tested in India, especially for young people and those with substance use issues. These programs are still not generally accessible and have a restricted reach.

“written by Abhishek Kumar, students of LL.M at National Forensic Sciences University”


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