Calcutta HC Invokes Writ Jurisdiction To Appoint Son As Guardian Of Comatose Father, Points Lacuna In Law But Protects Patient's Right To Life

The Calcutta High Court has appointed Vishal Osatwal as the guardian and legal representative of his father, Rajesh Kr Osatwal who had been in a prolonged comatose state, being incapable to participating in his day-to-day activities or communicating with other people.

The petitioner had submitted that he had been taking care of his father for a prolonged period, and prayed to be recognised as his guardian such that he was able to administer his father’s estate and utilise the same to treatment for his father.

At the outset, a single-bench of Justice Sabyasachi Bhattacharya pointed the legislative lacunae on the subject. "There is no statute in India which provides for appointment of guardian to take care of comatose persons or persons in a vegetative state...The statutes relating to mental health do not apply...The Guardians and Wards Act and similar statutes, on the other hand, deals with minors and dependents."

However, the Judge added that this cannot be a reason to deny such patients their constitutional rights. It held,

The fundamental rights guaranteed under the Constitution of India, in particular Article 21, which recognizes the right to life, includes the right to live with dignity. In order to confer such right on the patient, it is required that his resources are appropriately channelized for his own treatment and well-being. Thus, the appropriate recourse for the petitioner is the one which has been adopted, that is, invocation of the jurisdiction of this court under Article 226 of the Constitution of India to ensure the right to live with dignity of the patient, for the protection of which the petitioner seeks to be appointed a guardian of the person and property of his father.

Petitioner’s father had suffered from heavy chest congestion in 2015 while visiting Secunderabad, and further severe medical complications were discovered due to which the patient had to be flown to various specialised medical establishments. In 2016, the patient was flown back to Kolkata and kept in the family residence, a part of which had been converted to an ICU and was all along in a comatose state.

Petitioner submitted that the treatment required massive expenses and that he and his mother were funding the treatment using the family savings, which had become increasingly difficult. It was submitted that unless access was given of his father’s bank accounts was given to the petitioner, it would become impossible to meet the mounting costs of treatment.

Petitioner relied on the case of Shobha Gopalakrishnan Vs. State of Kerala Represented by the Secretary, Health and Family welfare Department, Government Secretariat and Others, reported (2019) to point out guidelines which were laid down by the Kerala High Court pertaining to guardianship of victims lying in a comatose state, in absence of any law enacted by the legislature on the subject.

Counsel for the Union submitted that the present plea would be barred under Order 32A of the CPC, which required such an application to be filed before the civil court.

Upon hearing the arguments of the parties, the Court considered whether the guidelines as laid down in the aforesaid case, as well as others which relied on it, could be adopted in the present case.

It was noted that all the legal heirs of Rajesh had offered their consent to the petitioner’s plea, and that a medical board report had unanimously held that the patient’s present physical, mental and neurological condition make him incapable of taking care of himself and perform day-to-day activities at present. He is currently bedridden, unable to comprehend and communicate, and not in a state of taking any decision.

Court held that Order 32A of the CPC would not apply to the present case, since the present writ was filed by the petitioner to protect his comatose father’s right to life under Article 21 of the Constitution.

Court further ruled out the applicability of various statutes as they did not concern themselves with guardianship of someone who was in a comatose state, and noted that in such as case, the guidelines laid down in Shobha’s case (supra) would be adopted.

There is no question of relegating the petitioner to a civil suit, keeping in view the urgent need of operating the movable properties and dealing with the immovable properties of the petitioner’s father, the comatose patient, primarily to fund the huge expenses of regular upkeep of the medical facilities and expert care for the patient himself, it was held.

Accordingly, in upholding the guidelines issued by the Kerala High Court, and while propounding the concept of parens patriae, the Court allowed the appointment of the petitioner as the legal guardian of his comatose father, subject to compliance with detailed guidelines laid down in the judgement.

I part with the expectation that the Legislatures – both the Union and/or the States -shall immediately look into the issue of legislative vacuum in the field, repeatedly being pointed out by several High Courts, and enact an appropriate statute and/or pass proper guidelines for the purpose of looking after the person and property of comatose persons and the modalities regarding the same, the Bench concluded.

Citation: 2023 LiveLaw (Cal) 307

Case: Vishal Osatwal Vs. State of West Bengal and others

Case No: WPA 17528 of 2023

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