Rights Of Persons With Disability Act Not An Embargo On Exercise Of Parens Patriae Jurisdiction By HC Under Article 226: Delhi High Court

The Delhi High Court has held that the Rights of Persons With Disability Act, 2016 Act or the Rules framed thereunder do not create any embargo on the exercise of parens patriae jurisdiction by it under Article 226 of the Constitution.

"So long as the "wills and preferences" of the mentally ill person and the other factors set out in the rules are borne in mind by the Court exercising parens patriae jurisdiction, it cannot be held that the High Court exercising power under Article 226 is denuded of power in view of the provisions of the RPWD-2016 Act or the Rules thereunder," observed Justice Pratibha M Singh.

The Bench was dealing with a petition filed by 76 year-old lady and wife of a mentally ill individual (Mr. DMP) diagnosed with Fronto-temporal Dementia in 2019. He was a 7th term Member of Parliament from Bihar and owned moveable and immoveable assets running into more than Rs.3,000 crores or more. The man had been living in his official residence along with a lady claiming to be his wife and his daughter- in-law from his deceased son.

While one group consisted of Mr. DMP's companion, his brother, his daughter-in- law from his deceased son and her children, the second group consisted of his wife, his two sons and their wives as well as his four grandsons.

The Court therefore dealt with the questions as to who would be the guardian for Mr. DMP, who should take decisions relating to his medical treatment and who should be given control of his movable and immovable assets and other financial affairs.

While the Court deliberated on the issue of medical condition of Mr. DMP, it also touched upon the legal aspects concerning the legislative framework for Mentally Ill Persons and Guardianship, interplay between the Mental Healthcare Act 2017 and the Rights of Persons with Disability Act 2016 and also the analysis on Guardianship.

While going through the Indian laws as well as the international convention on the subject, the Court highlighted certain concerns with regards to Rights of Persons With Disabilities Act 2016 and Mental Healthcare Act 2017. The said concerns were also expressed by legislators, when the bills of the two statutes were being debated and discussed in the Parliament.

"That the details regarding the guardianship of mentally ill persons and management of their property were provided for only in the MHA-1987, which would be repealed by the enactment of the Mental Healthcare Bill, 2013 (hereinafter, 'MHA Bill 2013'). Such guardianship provisions were absent in the MHA Bill 2013 and were only provided for in the Rights of Persons with Disabilities Bill, 2014 (hereinafter, 'RPWD Bill') which was still being debated in the Parliament," the Court said.

The Court also added that the statutes were recent and various institutions contemplated under them were yet to be completely established.

In this backdrop, the Court was of the view that the Mental Healthcare Act 2017 has to be interpreted as having been enacted only to deal with the delivery of mental healthcare, and services and for connected matters.

"The deletion of provisions with respect to property and affairs and the absence of any provisions in respect of moveable or immovable assets, financial affairs, legal capacity, legal aid, etc. in the said statute is clearly a conscious departure from the earlier regime. Such issues are dealt with under the RPWD-2016," the Court added.

On the aspect of guardianship, the Court opined that credence has to be given to the views of the person with mental illness to the extent that the person understands the nature of the decisions. It was therefore observed that the treatment and healthcare to be given to the mentally ill person has to be in the particular context of that person's life history

"Thus, it is clear that under the MHA-2017, while appointing a nominated representative, a relative by blood or marriage or adoption under Section 14(4)(b), is given precedence over a care-giver under Section 14(4)(c). The measures taken qua the mentally ill person ought to be acceptable to the family members, who cannot be ignored," the Court said.

The Court also held that the intention of the RPWD Act 2016, is to first examine if the PwD is capable of expressing his or her will or preferences, and second, under exceptional circumstances, where consultation is not possible, enable the provision of total support.

"The MHA-2017 has no provision in respect of management of financial affairs, appointment of guardians or the manner in which the moveable/immovable property of the mentally ill person is to be taken care of. Thus, there is a clear statutory vacuum," it added further.

On the exercise of parens patriae jurisdiction, the Court observed that if the Court is satisfied that the person concerned is either being abused or neglected, such a jurisdiction can be exercised. It also added that the "wills and preferences" of the mentally ill person have to be considered by the Court in deciding the manner in which care is to be given.

"Even vulnerable adults can be protected under this jurisdiction if there are any factors that point towards undue influence, coercion, constraint etc," the Court said.

Applying the aforesaid observations to the facts of the case, the Court observed that the role of the wife is of prime importance and that merely because she is illiterate does not mean that she cannot take care of her husband.

"Her visits to meet Mr. DMP have been very amicable and congenial. She speaks to Mr. DMP in her own native language and enjoys the confidence of both her sons, daughters-in-law, and grandchildren. She is also involved in the preparations for the marriage of one of the grandsons. These facts show that the position of Mrs. SD, as the wife of Mr. DMP and the primary caregiver deserves to be recognised," the Court said.

"Thus, this Court is of the opinion that there is a clear need to change the status quo as it exists today. Mr. DMP ought to be permitted to live in a happy and congenial atmosphere with his wife, children and grandchildren. He should also be allowed to enjoy the company of his siblings and extended family, without pressure from any quarter. Ms. UD can continue to live in the residence of Mr. DMP, however, she cannot be given exclusive control of Mr. DMP, as is the position currently," it added.

The Court also appointed a Guardianship Committee for the purpose of taking care of Mr. DMP and his financial affairs. A medical board was also constituted to examine him at least once a month, which shall be facilitated by the Committee.

Case Title: SD v. GOVT. OF NCT OF DELHI AND ORS.

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