Who needs a guardian?
Certainly not persons with disability,if they can be given support
Certainly not persons with disability,if they can be given support
The Rights of Persons with Disabilities Bill 2012,the latest version of which has been made public by the ministry of social justice and empowerment,is another step by the Indian government to bring domestic legislation in line with standards prescribed by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). One of the key issues dealt with under the UNCRPD and which the bill tries to tackle is “legal capacity”,an issue that sharply divides the disabled community. While some argue that all persons should be given legal capacity,regardless of disability -— which is the UNCRPD position — others argue that some persons with disabilities should never be allowed to exercise independent legal capacity as they are incapable of understanding the consequences of their actions.
“Legal capacity” is one of the fundamentals of law and legal process. All persons above the age of consent are deemed to exercise legal capacity to do many things — vote,get married,enter into contracts,drive,be tried for crimes,have consensual sexual intercourse. Once a person has crossed this age threshold,she is automatically deemed to have “legal capacity” and there’s no further proof needed to demonstrate her ability to do any of these or other acts,or face the consequences of the same.
Two legislations deal with the issue of appointment of guardians for persons with disabilities — the Mental Health Act,1987 (for persons with mental illness),and the National Trust Act,1999 (for the welfare of persons with autism,cerebral palsy,mental retardation and multiple disabilities). These laws assume that some persons with disabilities cannot exercise legal capacity on a permanent basis and therefore call for guardians in order to facilitate the exercise of legal capacity in relation to contractual obligations. Once a guardian is appointed,he or she can make all relevant decisions on behalf of the person with disability without having any obligation to consult the disabled person. These provisions that permit the appointment of guardians have long been used in practice,including by unscrupulous relatives,to deprive countless persons with disabilities of their rights.
The UNCRPD requires that Indian law be modified to recognise the legal capacity of all persons with disabilities and the concept of guardianship is abolished. The UNCRPD also mandates that India must take appropriate measures to provide access for persons with disabilities to the support they may require in exercising their legal capacity. However,neither the Mental Health Act nor the National Trust Act recognises the concept of full legal capacity nor mandates the provision of support for decision-making. The Rights of Persons with Disabilities Bill seeks to supersede the Mental Health Act and the National Trust Act and mandates two important changes from the existing regime. First,the bill recognises the concept of full legal capacity and states that any law or regulation that has the effect of depriving any person with disability of legal capacity shall not be legally enforceable. Secondly,it introduces the concept of “limited guardianship”,under which the guardian is required to act in close consultation with the person with disability to arrive at legally binding decisions. In a sense,therefore,the new bill is attempting to carve out a middle path between the present regime and the UNCRPD requirements.
The formulation under the bill is confusing and fraught with danger. On one hand,it recognises full legal capacity while on the other it states that all decisions must be made jointly between the person with disability and the limited guardian. It appears that unless the limited guardian also agrees with a decision,no decision can be made by the person with disability. This surely is not recognising full legal capacity. The bill also does not put in place the necessary safeguards to prevent abuse by the person providing support since there is no requirement that the arrangement be subject to regular review by a competent,independent and impartial authority or judicial body,as mandated by the UNCRPD.
Perhaps the correct formulation of a solution on the question of “legal capacity” can come by tweaking the relevant provision in the Indian Contract Act,1872. Under this act,a contract is void if a party to the contract is,at the time when she enters the contract,incapable of understanding it and of forming a rational judgment about its effect on her interests. This bar is not in any way related to persons with disabilities,since it applies even to a sane man,who is delirious from fever,or who is very drunk. Yes,some people with disabilities may require some support to make decisions,and provided this support is given,albeit with the proper checks and balances as prescribed by the UNCRPD,is there really a requirement for a guardian,limited or not?
The writer is an advocate,and fellow,Inclusive Planet Centre for Disability Law and Policy,Chennai
express@expressindia.com
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