Picture a remand hearing. A magistrate looks at a case diary. The police say the accused should stay in custody. A defence lawyer, if there is one, pushes back. The magistrate weighs flight risk, gravity of offence, stage of investigation, then signs the order. Custody extended. Nobody asks what is happening to the undertrial's mind.

Nobody is legally required to ask. Not yet. But since July 2025 when the Supreme Court decided Sukdeb Saha v. State of Andhra Pradesh (2025 INSC 893) the constitutional case for asking has become unanswerable. And since May 2018, when the Mental Healthcare Act, 2017 came into force, the State has carried an unmet statutory obligation at every prison where the question goes unasked.

The argument here is narrow: Section 103 of the Mental Healthcare Act, 2017, read with Sukdeb Saha, creates an obligation on the State not any individual magistrate to ensure that prisons receiving remanded undertrials meet the mental-health standards set out in the Act. This obligation is enforceable through the Supreme Court's suo motu writ In Re: Inhuman Conditions in 1382 Prisons.

WHAT SUKDEB SAHA HELD AND WHY PARAGRAPH 31 IS NOT CONFINED TO STUDENTS

The facts concerned a student. A seventeen-year-old NEET aspirant died in mysterious circumstances at a Visakhapatnam hostel in July 2023. Her father sought a CBI enquiry, which the Andhra Pradesh High Court refused. The Supreme Court, comprising Justices Vikram Nath and Sandeep Mehta, allowed it.

In doing so, the Court went further than the facts required. Paragraph 31 states that mental health is an integral component of the right to life under Article 21, and that the right to life means not mere animal existence but a life of dignity, autonomy, and well-being, of which mental health is central.

The Court cited Shatrughan Chauhan v. Union of India and Navtej Singh Johar v. Union of India for the proposition that mental integrity, psychological autonomy, and freedom from degrading treatment are essential facets of dignity under Article 21.

The Article 141 guidelines ran to coaching centres and school hostels; the Court said nothing about prisons. A reader might conclude the mental-health holding was confined to educational settings. That reading does not survive the text. Paragraph 31 does not say students have a right to mental health, it says mental health is integral to Article 21 itself. When the Court used Article 21 in Hussainara Khatoon to recognise the right to speedy trial, that right was not confined to the accused in those proceedings. The declaration in paragraph 31 is of the same character: general, prospective, and available to anyone whose Article 21 right to mental health is engaged.

THE STATUTORY OBLIGATION THAT HAS BEEN IGNORED SINCE 2018

Section 103 of the Mental Healthcare Act, 2017 is a provision most lawyers have never read. It contains two obligations directly relevant here.

Section 103(2): "The appropriate Government shall, at the minimum, train all medical officers in public healthcare establishments and all medical officers in the prisons or jails to provide basic and emergency mental healthcare." (Source: indiacode.nic.in)

Section 103(6): "The appropriate Government shall setup mental health establishment in the medical wing of at least one prison in each State and Union territory." (Source: indiacode.nic.in)

Both obligations have been in force since 29 May 2018. Both have been systematically ignored.

The India Justice Report 2025 (Tata Trusts, indiajusticereport.org) documented only 25 psychologists and psychiatrists employed across all 1,330 prisons in India in 2022 one mental health professional for every 22,929 inmates, against the Model Prison Manual 2016 benchmark of one per 500. Twenty-five States and Union Territories had not sanctioned a single mental health post, including Uttar Pradesh, Bihar, and Madhya Pradesh, which together hold over 40 per cent of the national undertrial population.

The Kerala High Court flagged this gap in 2021. In Suo Motu v. State of Kerala (OP(CRL.) No. 487 of 2019, 13 August 2021), Justice V.G. Arun ordered the State to urgently establish a mental health institution in at least one jail under Section 103(6), constitute Mental Health Review Boards, and share information on remand prisoners with mental illness with KELSA. That order applies to one state; no comparable order exists elsewhere in the country.

THE CONSTITUTIONAL ARGUMENT, STATED PRECISELY

The constitutional obligation belongs to the State, not the individual magistrate. A remand magistrate has the power to remand a person into custody, but does not run the prison and cannot ensure that the Section 103 duty is fulfilled. That duty rests with the State, which acts through the prison authority once custody is authorised.

The process followed by the State itself should be “just and fair”, as per Maneka Gandhi v. Union of India, (AIR 1978 SC 597). The State violates its constitutional obligation when it authorizes the continued detention of a person by denying him his fundamental right to access mental health care.

The situation is even more serious where the undertrial is concerned since he has not yet been found guilty by a Court of law. Thus, every day the State keeps an undertrial in jail, it keeps an innocuous person behind bars, as held in Hussainara Khatoon, (1980) 1 SCC 98, and further emphasized in Satender Kumar Antil, (2022) 10 SCC 51. As per the NCRB Prison Statistics India, 2022, there were 4,34,302 undertrial prisoners as on 31 December 2022, which accounted for 75.8 per cent of the total prisoner population in 1,330 prisons (ncrb.gov.in).

NCRB's Prison Statistics India 2024, which has been referred to in the Haryana Human Rights Commission's suo motu order of May 2026, mentions the increase in both custodial suicides and unnatural deaths, indicating that the failure of having any mental health infrastructure indeed has human costs, according to government records.

It would not be possible for the State to claim to be acting in "right, just, and fair" manner when the State detains the innocent, fails to provide him/her with mental healthcare that the State's statute requires, and documents the same in its own records. The Article 21 breach, after Sukdeb Saha, is ready to be remedied by the open writ in Re: Inhuman Conditions.

TWO INTERVENTIONS THAT FOLLOW

This would be a matter of structure. The writ Re: Inhuman Conditions (W.P.(C) No. 406 of 2013) requires the States to submit compliance affidavits about prison conditions at intervals. The amicus curiae and NALSA ought to urge the Court to include two more questions in its inquiries: what percentage of the State's prisons have an appointed medical officer under Section 103(2), and what percentage of those have an operational mental health facility under Section 103(6)? The writ is there; the States are on record; and the Court has supervisory powers.

This is the other one that comes into play in the remand hearing. NALSA must frame a protocol to compel the panel advocates appearing before the magistrate in each remand hearing – who have been appointed in the magistrate court of almost every district under the Legal Services Authorities Act, 1987 to certify in the record that, in case of an undertrial who has been in custody for more than 90 days, the custodial place has satisfied the requirements of Section 103. There is nothing about the legality of the remand order here. All that is being asked for is the fact on record. And once this fact is there on the record, the constitutionality of the State will no longer go unnoticed.

Awareness was never meant to be a favour. After Sukdeb Saha, awareness is now a constitutional necessity. The State which detains the innocent detainee owes her sanity in custody. It has been owing her this since 2018. Now it is mandatory. All that remains to ask is how the State will be made accountable.