Appointment of Guardian for Persons Suffering from Disability or Illness: Inadequacy of Law – Shame to Law Making Institutions

Jojy George Koduvath.

The Legislations Governing Appointment of Guardian

In India, the legislations governing the appointment of guardian for minors and persons suffering from illness or disability are the following:

  • 1. The Guardian and Wards Act, 1890.
  • 2. The Mental Health Act, 1987 (repealed as per Section 126 of the Mental Health Care Act, 2017).
  • 3. Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 (repealed by Section 102 of the Rights of Persons with Disabilities Act, 2016).
  • 4. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.
  • 5.  The Rights of persons with Disabilities Act, 2016.
  • 6. The Mental Health Care Act, 2017.

No Legislation to deal with a Person in Comatose State

It remains a fact that there is no legislation in India to provide for appointment of Guardian for a person in comatose state, though there were legislations for appointment of persons with other disabilities like mental retardation etc. besides ‘Guardians for minors’.

Shobha Gopalakrishnan v. State of Kerala – A Trailblazing Decision

After analysing law on this subject it is held by the Kerala High Court in Shobha Gopalakrishnan v. State of Kerala (P.R. Ramachandra Menon, N. Anil Kumar, JJ.), ILR 2019-1 Ker 669; 2019-2 KHC 488; 2019-1 KLT 801, pointed out –

  • there is no legislation in India provide for appointment of Guardian for a person in comatose state, though there were legislations for appointment of persons with other disabilities like mental retardation etc. besides ‘Guardians for minors’.

Article 226 of the Constitution of India can be Invoked

And it was held in Shobha Gopalakrishnan v. State of Kerala –

  • the power under Article 226 of the Constitution of India can be invoked to grant the relief (following the decision of the Madras High Court in Sairabanu Muhammd Rafi v. State of Tamil Nadu (in W.P.No.28435 of 2015) and of the Bombay High Court in Philomena Leo Lobo v. Union of India (W.P.(L) No.28269 of 2017).

‘Legal Hurdles’ Faced by the Family of Persons in ‘Coma’ Stage.

The Kerala High Court considered the ‘legal hurdles’ faced by the family of two persons who were lying as “prisoners in their own body” in a ‘permanent vegetative state’ and ‘coma’. Those persons had properties including Bank Accounts. They could not have been handled by the petitioners/wives. The family members exhausted all ways to raise funds for the treatment of the ill-fated ones. Hence they approached the High Court for appointing them as ‘Guardian’.

Statutes Govern the Field

The Division Bench apprised that the following enactments govern the field, as shown under–

  • Guardian and Wards Act,1890. It is for appointment of guardian for minors.
  • Persons with Disabilities (Equal Opportunities, protection of rights and full participation)Act, 1995 (repealed).
  • National Trust for the Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. ‘Multiple disabilities’ viewed there meant “a combination of two or more disabilities as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation)Act, 1995 (1 of 1996)”. Section 2(i) of the Persons With Disabilities (Equal Opportunities, protection of Rights and Full Participation Act, 1995 (PWD Act, 1995) classified the disabilities as under:
  • ” Disability” means
    • blindness
    • Low vision
    • leprosy cured
    • hearing impairment
    • Loco motor disability
    • mental retardation
    • Mental illness.
  • Mental Health Act, 1987 (repealed), for appointment of guardian for ‘mentally ill’ persons (“mentally ill person” is defined as “a person who is in need of treatment by reason of any mental disorder other than mental retardation”.  It is repealed by subsequent Mental Healthcare Act, 2017.
  • Rights of Persons with Disabilities Act, 2016.  It was enacted pursuant to the Convention on Rights of Persons with Disabilities and its optional Protocol adopted on 13th December, 2006 at the United Nations Headquarters in New York. It was signed and ratified by the India on 01.10.2007. With an intent to align and harmonise the existing law with the said Convention the new statute was enacted to provide for Mental Health Care and Services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto. Accordingly, the Persons with Disabilities  Act, 1995 was repealed and the new Act of 2016 (RPWD Act) was enacted.
  • Mental Healthcare Act, 2017. It was simultaneous to the enactment of the RPWD Act, 2016, that the old Mental Health Act, 1987 came to be repealed giving rise to the Mental Health Care Act, 2017 in tune with the norms of the U.N. Convention, whereby a “rights-based protection” was brought about for mentally ill persons. This Act defined ” ‘mental illness’ means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.”  Sub-section (5) of Section 3 says that determination of a person’s mental illness shall alone not imply or be taken to mean that the person “is of unsound mind”, unless he has been declared as such by a competent court.

No Enactment to deal with the affairs of a ‘Coma’ Patient

The Kerala High Court, after a detailed analysis of various provisions of all these Acts, came to the conclusion that there was no enactment to deal with the affairs of a ‘coma’ patient. And, held as under:

  • Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in ‘comatose state’. It is something like ‘parens patriae’ jurisdiction. A reference to the verdict in Nothman vs. Barnet London Borough Council [1978 (1)WLR 220] (at 228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla vs. Union of India and another [1991(2) SCC 87 explaining the principle of ’causes omissus’ is also brought to the notice of this Court; to the effect that if it is an accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to “re-write” the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Healthcare Act 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N.Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N. Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in ‘comatose state’ is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly.”

“Since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in ‘comatose state’”, the High Court, found it “necessary to stipulate some ‘Guidelines’, based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard.” This Court fixed “the norms/guidelines as a temporary measure”.

Norms/Guidelines Fixed by the Kerala High Court

In Shobha Gopalakrishnan v. State of Kerala, ILR 2019-1 Ker 669; 2019-2 KHC 488; 2019-1 KLT 801, it became necessary to stipulate ‘Guidelines’. The court held as under:

  • “35. Coming to the incidental aspects; since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in ‘comatose state’, it is necessary to stipulate some ‘Guidelines’, based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure:
  • i) petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state.
  • ii) The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist.
  • iii) A simultaneous visit of the person lying in comatose state, at his residence, shall be caused to be made through the Revenue authorities, not below the rank of a Tahsildar and a report shall be procured as to all the relevant facts and figures, including the particulars of the close relatives, their financial conditions and such other aspects.
  • iv) The person seeking appointment as Guardian of a person lying in comatose state shall be a close relative (spouse or children) and all the persons to be classified as legal heirs in the due course shall be in the party array. In the absence of the suitable close relative, a public official such as ‘Social Welfare officer’ can be sought to be appointed as a Guardian to the person lying in ‘comatose state’.
  • v) The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian
  • vi) The appointment of a Guardian as above shall only be in respect of the specific properties and bank accounts/such other properties of the person lying in comatose state; to be indicated in the order appointing the Guardian and the Guardian so appointed shall act always in the best interest of the person lying in ‘comatose state’.
  • vii) The person appointed as Guardian shall file periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions taken by the Guardian in respect of the person and property of the patient in comatose state; besides showing the utilization of the funds received and spent by him/her.
  • viii) The Registrar General shall cause to maintain a separate Register with regard to appointment of Guardian to persons lying in ‘comatose state’ and adequate provision to keep the Reports filed by the Guardian appointed by this Court.
  • ix) It is open for this Court to appoint a person as Guardian to the person lying in comatose state, either temporarily or for a specified period or permanently, as found to be appropriate.
  • x) If there is any misuse of power or misappropriation of funds or non-extension of
  • requisite care and protection or support with regard to the treatment and other requirements of the person lying in comatose state, it is open to bring up the matter for further consideration of this Court to re-open and revoke the power, to take appropriate action against the person concerned, who was appointed as the Guardian and also to appoint another person/public authority/Social Welfare Officer (whose official status is equal to the post of District Probation Officer) as the Guardian.
  • xi) It shall be for the Guardian appointed by the Court to meet the obligations/duties similar to those as described under Section 15 of the National Trust Act and to maintain and submit the accounts similar to those contained in Section 16.
  • xii) The Guardian so appointed shall bring the appointment to the notice of the Social Welfare Officer having jurisdiction in the place of residence, along with a copy of the verdict appointing him as Guardian, enabling the Social Welfare Officer of the area to visit the person lying in ‘comatose state’ at random and to submit a report, if so necessitated, calling for further action/ interference of this Court .
  • xiii) The transactions in respect of the property of the person lying in ‘comatose state’, by the Guardian, shall be strictly in accordance with the relevant provisions of law.
  • If the Guardian appointed is found to be abusing the power or neglects or acts contrary to the best interest of the person lying in ‘comatose state’, any relative or next friend may apply to this Court for removal of such Guardian.
  • xiv) The Guardian appointed shall seek and obtain specific permission from this Court, if he/she intends to transfer the person lying in comatose state from the jurisdiction of this Court to another State or Country, whether it be for availing better treatment or otherwise.

Shobha Gopalakrishnan v. State of Kerala Followed/Referred to in Following Decisions

  • Kamakshee Bisht v. State of Uttarakhand & Ors., Writ Petition Misc. Single No. 2553 of 2024
  • G. Babu v. District Collector, Madurai, 2023 SCC OnLine Mad 568.
  • Anjuben Karansinh Dodiya v. State Of Gujarat , 22 Jul 2024
  • Pooja Sharma v. State of U. P., 06 Oct 2023
  • Maya (alias) Maya Vijayamma v. State of Tamil Nadu, 28 Aug 2023
  • Lalithambika v. Grievance Redressal Committee, 14 Feb 2023
  • S. D. v. Govt Of NCT of Delhi , 29 Oct 2021
  • Dipaben v. State of Gujarat, 20 Oct 2021
  • Samina Akbar Shaikh v. State of Gujarat , 20 Oct 2021
  • Bhim Singh v. AGM State Bank of India , 08 Apr 2021
  • Uma Mittal v. Union of India , 15 Jun 2020
  • Vandana Tyagi v. Government of National Capital Territory of Delhi, 07 Jan 2020
  • Suresh Gupta v. Union of India , 30 May 2019.

Conclusion

Urgent attention of Legislators are needed –

  • either to enact a new law
  • or to make necessary amendments to incorporate all persons under disability in the existing Statues – by including them in the inclusive definitions of persons covered under those enactments.

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