JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA VOL. 21, 2022 consent to the treatment plans20 and emergency treatment21 and research interventions22 on the person with mental illness. After putting in place this elaborate surrogate arrangement for a person with mental illness, Section 21 (1) of the MHCA states that “every person with mental illness shall be treated equal to persons with physical illness in the provision of all health care”, which includes emergency facilities23 and ambulance services.24 That a person with mental illness may be provided care and treatment against their will and preference is a matter, which brooks no concern. The statute allows for compulsory institutionalisation and treatment and addresses the matter of liberty deprivation by opting for the least restrictive alternative25 and allowing for quasijudicial26 and judicial review.27 Since this article is focussing on legal capacity, I am not examining the provisions of MHCA providing for compulsory care and treatment for the deprivation of the right to liberty and integrity. Those provisions have been mentioned only to emphasise how the statute has been premised on persons with mental illness not possessing legal capacity.28 And absence of legal capacity is deduced from the alleged absence or deficiency of mental capacity. The mandate of the CRPD was to recognise the legal capacity of all persons with disabilities on an equal basis with others. The duty of support as also the assertion of all other rights has been inextricably woven with this recognition of persons with disabilities as persons before the law. The above narrative shows that the MHCA has made some notional assertions on the legal capacity of persons with mental illness, but in the main, it has continued with the jurisprudence of the MI Principles to create a surrogate regime for persons with mental illness and to allow for deprivation of liberty whenever absolutely necessary after the observance of fair process safeguards. 20 21 22 23 24 25 26 27 28 42 Section 89 (7) MHCA Id Section 94. Id Section 99(5) Id Section 21(1) (b) Id Section 21(1) (c) Id Section 90 (5) (b) Id Section 11(2) Id Section 83 For an analysis of these other dimensions of the statute, see Amita Dhanda, “Legislating on Mental Health in India to achieve SDG3” in Laura Davidson (ed) The Routledge Handbook of International Development, Mental Health and Well-being (Routledge Oxon, 2019).