A Madras High Court Bench of Justice GR Swaminathan has allowed a writ petition and thereby allowed that the brother of a schizophrenic patient be appointed as her legal guardian.

In that context, the Court has observed that a “person suffering from multiple disability” in Section 2 (j) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 must be understood to mean “a person with benchmark disability” as defined in Section 2(r) of the 2016 Act.

Counsel S Muniyandi appeared for the petitioner side, while Special Government Pleader K Balasubramanian appeared for the Respondents.

In this case, the question before the Court was whether under Section 14 of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Central Act 44 of 1999), the petitioner could be appointed as the legal guardian for his schizophrenic sister.

The petitioner's sister suffered from "chronic schizophrenia", and her disability had been assessed at 60% on the IDEAS Scale. It was certified that she cannot earn a livelihood on her own and that she is dependent upon her family members to look after her day-to-day activities. Subsequently, the petitioner approached the respondents to appoint him as her legal guardian. However, the petitioner's request was rejected on the sole ground that under the Central Act 44 of 1999, there is no provision for appointing legal guardian for a person with mental illness.

This rejection was challenged before the Court as a writ petition.

The Court noted that "the institutional framework laid down in Central Act 44 of 1999 is not confined only to persons with autism, cerebral palsy and mental retardation. The aforesaid disabilities are congenital in nature. The authorities appear to be under the impression that the 1999 Act is not meant to deal with acquired disabilities. This understanding is incorrect. This is because the second part of the definitional clause in Section 2(j) of the 1999 Act encompasses persons suffering from multiple disabilities. As already noted, this definition will take us to the definition set out in 2(i) of the 1995 Act. The first five categories catalogued in the said definition can be either congenital or acquired later. None of the said categories either by themselves or even in combination would necessarily warrant appointment of guardian. Mental illness has been mentioned as the seventh category in the definition. I am therefore of the view that mental illness ought not to be kept out of the scope of the 1999 Act."

The Court also observed that while dealing with beneficial legislations, the approach must be to adopt the one that would empower the targeted categories. In that context, it was noted that while in the 1999 Act, the expression “severe disability” means disability with eighty percent or more of one or more of multiple disabilities, the Rights of Persons with Disabilities Act, 2016 talks of “benchmark disability” which refers to a person with not less than forty percent of a specified disability where it has not been defined in measurable terms. It was further noted that the 2016 Act does not employ the expression “severe disability”. In furtherance of the same, the Court placed reliance on the landmark decision in Vikash Kumar v. UPSC and observed that "The 2016 Act has been described as paradigm shift from a stigmatizing medical model of disability under the 1995 Act to a social model of disability. The 2016 RPwD Act now recognizes 21 specified disabilities and enables the Central Government to add further categories of disability. I therefore construe the statutory scheme set out in Central Act 44 of 1999 with reference to and in the light of Central Act 49 of 2016."

On an analysis of the definition set out in Section 2(j) of the 1999 Act, the Court said that "While Section 2(h) of the said Act defines “multiple disabilities”, Section 2(j) employs the expression “severe multiple disability”. It is not known if this is a grammatical error. But I shall take advantage of the same."

Subsequently, the Court held that "Though Section 2(h) talks of combination of two or more disabilities as defined in Section 2(i) of the 1995 Act, it has already been noted that the first five categories set out therein do not really necessitate appointment of guardian. The sixth category, namely, mental retardation is dealt with in the 1999 Act. That leaves us only with the category of mental illness. Looked at from that angle, it is superfluous to insist that the condition of mental illness should be combined with one or more of the first five categories. This is because guardianship is required only because of the condition of mental illness."

In light of the same, the Court directed that the first respondent must appoint the petitioner as the guardian for his sister, while observing that "The petitioner's sister is suffering from 60% disability. As per the definition in the 1999 Act, only if the person is suffering with more than 80% disability, it will come under the severe category. It has already been noted that the concept of severe disability has been given up in the 2016 Act. The materials on record clearly indicate that the petitioner's sister is suffering from benchmark disability. A case for appointing guardian has been clearly made out."

Cause Title: G Babu v. The District Collector & Ors.

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