be implemented unfailingly in every state. Whilst the judiciary cannot be faulted for such a directive, it has nevertheless led to a prescription of a pedantic adherence to the letter and not the spirit of the act. For instance, the Chattisgarh Government has recently insisted that practicing psychiatrists must obtain a license for running outpatient clinics, failing which they faced the threat of closure (Trivedi 2002). Such legal attention amongst other reasons, has highlighted the multiple shortfalls and lacunae within the MHA ’87 and the practice of psychiatry in India leading to increasing calls from within the psychiatric fraternity, represented by the IPS, for its root and branch reform rather than minor amendments to the existing Act (Kala 2004). Basic Principles of Mental Health Legislation Promoting liberty, protecting individuals from harm caused by those at liberty, and those not at liberty from abuse by those who are, alleviating suffering, and restoring to health those whose health has declined are all legitimate objectives of a state as they reflect the values embraced by virtually all members of a society (Eldergill 1997). That such values will be reflected in statutes created by parliamentary democracies is laudable, although doing so equally provides the state with opportunities to intervene in people’s private lives. Allowing the state to use its powers in this manner may have a negative impact if it produces erroneous laws (albeit with good intentions) that are more likely to affect the lay citizen than legislators who make them, and who are thus less inclined to repeal them. It is also the case that mistakes made by individuals are relatively easier to rectify than mistakes made by the law (judiciary) and it is well known that politicians are more inclined than citizens to make decisions based upon political gain and prejudice, rather than principle (Constant 1988). Mental health legislation tends to give power to one (or more) person(s) over another which can be used, often in a paternalistic manner, to abuse. This risk of abuse is multiplied if an individual is not free to escape, is incapacitated or otherwise vulnerable, and/or their word is not given the same weight as that of others. For these reasons, children and adults with mental health problems are particularly at risk, and the law has usually afforded them special protection in democratic western societies. When enacting mental health legislation, parliaments in liberal democracies have generally sought to create a balanced legal structure that harmonises three key issues: individual liberty (of the patient), providing treatment where it is necessary and can prove beneficial, and protection of the public. 105 A New Mental Act for India This balance is pragmatically achieved by imposing legal duties on those with power, conferring legal rights on those within their power, and independent scrutiny of how these powers and duties are exercised. The effectiveness of such schemes depends on whether, and to what extent, they are observed. This is a matter of constitutional importance, for the observance of legal rights and the rule of law are the cornerstones of liberal democracies. The rule of law implies the subordination of all authorities, legislative, executive and judicial to fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual (Walker 1980). It further implies that even beyond a government enforcing and maintaining law and order, the government is itself subject to rules of law and cannot disregard the law or remake it to suit itself (ibid). Involuntary Care of Mentally Disordered people The foremost function of an MHA is to provide a framework for the involuntary detention of mentally disordered people in places of safety where appropriate treatment can be provided to them. There are many ways of doing so but the most effective, practically and principally, must be one that is rooted in ethical and legal principles, based upon appropriate ethical tests that are clear, precise and subject to legal scrutiny. Any new law should impose the most minimum powers as possible, specify duties and rights, provide mechanisms for enforcing duties and remedies for abuse of powers, be unambiguous, just in plain language, and as short as possible. In the following paragraphs, a range of ethical and legal points are raised and discussed with examples about modes of involuntary detention, treatment against consent by patient, and discharge procedures. The focus is on the more practical aspects of providing mental health care and ease of accessibility and use of the act by all concerned. 1a) Capacity based test One of the most significant of human rights is that of autonomy. Autonomy represents the inalienable power of a person to make decisions that he believes are in his best interest of his life. Within a health context, an autonomous person suffering from a disorder can choose either to accept (provide consent to the doctor) or refuse treatment even if the decision eventually leads to his death, e.g. a cancer patient refusing treatment due to his unwillingness or inability to tolerate troublesome side effects of treatment. One cannot forcibly treat that person against his will, although professionals may concur that it is an