DIAL SINGH Vs. INSPECTOR GENERAL OF PRISONS CHANDIGARH

JUDGEMENT

(1.) In this petition for a writ of habeas corpus, I vide my short order dt. Aug. 12, 1987, had directed that Kashmir Singh who had been confined to the mental asylum at Amritsar, in the purported exercise of powers under the Indian Lunacy Act, 1912 (for short, the Act), be set at liberty forthwith as I was of the opinion that his detention there was "totally illegal and unwarranted". Here are the reasons for the said order.

(2.) The fundamentals that (i) no person can be deprived of his life or personal liberty except according to the procedure established by law (Art. 21 of the Constitution) and (ii) in case this Court is satisfied that the custody or detention of a person in a mental asylum is illegal or is in any way violative of the procedure established by law. i.e., the Act, then it is entitled to direct his release, are not in dispute. Equally not in dispute is the fact that though as per S. 3(5) of the Act, a lunatic has been defined as an idiot or a person of unsound mind, yet the said words remain undefined. Both these terms, however, undoubtedly indicate an abnormal state of mind as distinguished from a weakness of mind or senility following old age. Indisputably a man of weak mental strength cannot be called an idiot or a man of unsound mind. Further it appears beyond dispute that no person can have direct experience of the mind of another and the proper test of insanity is his conduct. A person might conceivably have all kinds of mental unsoundness and all kinds of delusion, but if his conduct remains normal, there does not appear to be any power to deal with him under the Act. It to my mind deals with the conduct of the person concerned and the proper test for conduct is not the belief that another person may entertain. What appears material for purposes of the Act is the conduct exhibited by the alleged lunatic. It is this test which, to my mind, is to be kept in view by the Court while assuming jurisdiction under the Act. The Court is duty-bound to determine judicially keeping in view the distinction between mere weakness of intellect and lunacy as defined in S. 3(5) of the Act as to whether the person alleged to be lunatic deserves to be confined within the four walls of an asylum.

(3.) The undisputed factual matrix is as follows :- Kashmir Singh, the detenu, is brother of the petitioner. Besides others, they had another brother by the name of Jagir Singh who studied upto matriculation. He, however, became a Sadhu in the latter part of his life and has not been seen or heard of for the last many years. Though he was married four times, yet all his wives died issueless. Respondents to the petition, besides the official authorities, are Rajinder Singh and Manjit Singh, sons of Kashmir Singh. The family permanently resides in village Mohkamgarh, Tehsil Dasuya, District Hoshiarpur. Kashmir Singh also left the village about a decade ago and as per the stand of the petitioner, turned a Sadhu or a Nihang.