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Synopsis

The Chief Justice of Delhi High Court Satish Chandra Sharma and Justice Yashwant Varma recently upheld the validity of Indian laws that allows only Indian citizens to be appointed as the Guardian of a person with a disability.

The observations were made while hearing the case of an Overseas Citizens of India (OCI) cardholder man whose adopted son had severe mental retardation.

The bench was hearing a plea filed by the man asking for help because his adopted son had severe mental retardation. The father had questioned the legality of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Rules, 2001, and the Board of the Trust Regulations, 2012, which say that only an Indian citizen can be appointed as a guardian.

It was alleged by the petitioner that Rule 17(1)(iii)(a) and Regulation 12(1)(i) of the abovesaid statutes are "ultra vires" of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1993 (the Act).

The challenge to the two provisions proceeded on the premise that in the absence of the parent Act disabling a non-citizen from applying to be appointed as a guardian of a person with disabilities, such a prescription could not have been introduced by virtue of delegated legislation and in this case the Rules read with the Regulations.

The petitioner and his ex-wife had adopted the child together, but their marriage got strained, and the petitioner was given legal custody. Thereafter, both the father and the son, who are citizens of the United States of America (USA) moved to India in 2009 and held OCI cards. The petitioner wanted to be appointed as his son's guardian under the Act, but according to Rule 17 and Regulation 12 of the abovesaid statutes, citizenship is an essential requirement for the same.

The main question before the court was whether or not Rule 17 read with Regulation 12 gives a foreigner the right to be appointed as a guardian.

"The purpose of the Act is to set up a broad and basic structure for the help that should be given to people with disabilities, such as appointing a guardian. As far as other details go, it leaves it up to Rules and Regulations that may be made," the court said.

Section 14 says in a general way who can apply to be a guardian, but it doesn't go on to say what qualifications an applicant needs to have or how they must meet those qualifications. Section 14(4) of the act makes it clear that this is up to the Regulations to decide, and the fact that Section 14 uses words like 'parent, relative, or any person' does not mean that a non-citizen could also ask to be a guardian for a disabled person, the court further added.

The court opined that the phrase "any person" in Section 14 of the Act meant that people other than a parent or a relative could be considered a guardian. However, rule 17 and regulation 12 say that a non-citizen cannot apply to be a guardian, so the phrase "any person" would not allow a foreigner to apply, held the court.

The court further said, "Guardianship has always been and will always be a subject governed by the law. It cannot be seen as a right that can be claimed without referring to the law”.

The Act itself is an example of the State's parens patriae duty ( parent of the nation) to look out for the interests and welfare of all of its citizens, even those who are challenged or have disabilities that make them unable to work. As a sovereign, one of the State's most important duties is to protect and care for the rights and privileges of disabled citizens, court added. 

Furthermore, while referring to the case of Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of M.B., (1960), in which it was held that a man who had moved to West Pakistan could not be made the guardian of his two minor children from his first marriage, the court said,

"Since the petitioner is an American citizen, he can't be given the rights and protection of Part III of the Constitution to be appointed as a guardian for a disabled person."

The court also directed the Local Level Committee to look at and evaluate the son's environment and suggest more steps that could be taken to protect the son's health and well-being as a whole

Cause Title – Sunil Poddar vs. The National Trust for Welfare of Person with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and anr.

Statutes - National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Rules, 2001 and the Board of the Trust Regulations, 2012.