14 Feb 2023 9:39 AM GMT
The Delhi High Court has observed that a foreign national cannot claim a vested or constitutional right to be appointed as guardian of a person with disabilities. A division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma was hearing a plea moved by a father whose adopted son has "severe mental retardation" with disability certified to be 90% disability. He...
The Delhi High Court has observed that a foreign national cannot claim a vested or constitutional right to be appointed as guardian of a person with disabilities.
A division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma was hearing a plea moved by a father whose adopted son has "severe mental retardation" with disability certified to be 90% disability.
He challenged the validity of Rule 17(1)(iii)(a) of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2001 and Regulation 12(1)(i) of Board of Trust Regulations, 2012. The provisions allow only Indian citizens to be guardian of a person. The petitioner and his son are citizens of the USA but hold Overseas Citizenship of India cards.
While the petitioner and his wife were looking after the needs of the child, he is now being taken care of by petitioner only due to breakdown of marital relations with his wife. The petitioner told court that he has been granted legal custody of his son and has been acting as his primary caregiver since the time of adoption.
It was the petitioner’s case that since Section 14 of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act does not restrict a non-citizen from applying to be appointed as guardian of a person with disabilities, a prescription could not have been introduced by virtue of a delegated legislation i.e. Rules read with the Regulations.
The court said the Act purports to lay down a broad and basic structure relating to the assistive measures liable to be adopted for differently-abled persons, including the appointment of a guardian.
"Insofar as other details are concerned, it clearly and in express terms leaves it open to be determined by Rules and Regulations that may be framed," it added.
It further said that the Act does not even attempt to specify the essential qualifications that a guardian must possess. Neither the Rules nor the Regulations can be said to have travelled beyond the scope of the authority conferred under the Act and that the Union Government as well as the Board were duly empowered to prescribe the qualifications of a guardian, it added.
It reiterated that section 14 in “clear and unambiguous terms” leaves it to the regulation and rule-making authority to prescribe and lay down standards of evaluation as well as the qualifications which must be possessed by a person seeking to be appointed as a guardian.
Perusing the provisions of the parent Act, the court observed that mere usage of the words “parent”, “relative” or “any person” in section 14 does not mean that a non-citizen could also claim a right to be appointed as a guardian of a person with disability.
“Neither of those three expressions can be possibly understood as constituting a legislative intent to recognise foreign nationals as being entitled to be appointed as guardians,” it said.
The court observed that the petitioner cannot claim or assert a vested right to be appointed as his guardian “in light of being an American citizen.”
“Such a right if at all would have to flow from a provision that may be in existence and which permits a foreigner to claim a right to be appointed as a guardian unfettered by any valid statutory restrictions that may stand placed,” it said.
The bench further said that guardianship and a right that may be asserted in connection with it, “essentially owes its genesis to statutory provisions.”
It said that guardianship cannot be recognised as a right that may flow from any of the provisions enshrined in Part III of the Constitution of India and those under which protection may be claimed even by a foreign national.
“It, in any case, finds itself unable to countenance Articles 14 or 21 as being the source or the repository of a claim that may be raised in that regard. Undisputedly, the petitioner, by virtue of being an American citizen, cannot claim the protection of Part III rights to the same extent as may stand conferred on a citizen. This in light of the limited rights that he can possibly claim under Part III of the Constitution,” the bench said.
Reliance was placed on observations of the Supreme Court in Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of M.B wherein a man, who had migrated to West Pakistan in 1948 and taken up residence in Rawalpindi, was denied to be appointed as guardian of two minor children borne from his first marriage.
Finding no merit in the challenge raised to the validity of Rules and Regulations, the bench said it finds itself unable to countenance a right inhering in the petitioner to be appointed as guardian of his son.
However, the court observed that the same will not however lead to a closure of the proceedings since it would “clearly be failing in its duty if it were to leave the person with disabilities with an uncertain future and without framing measures and putting in place steps to safeguard and ensure his future.”
The court thus directed a Local Level Committee to examine and evaluate the circumstances and surroundings of the petitioner’s son. It added that the Committee may also advise adoption of further measures, while keeping in mind the welfare, overall health and well-being of PwD.
“The Court leaves it open to the petitioner to nominate an Indian citizen who may be appointed as the statutory guardian of the son with special needs. Any nomination that may be made in this respect shall be duly examined and considered by the Local Level Committee. The statutory guardian, when appointed, shall together with the petitioner be obliged to attend to the welfare and upbringing of the person concerned,” it said.
The court also clarified that the directions shall not be understood as authorising the removal of petitioner’s son from his custody unless the Local Level Committee finds that the circumstances warrant otherwise.
“The statutory guardian as well as the petitioner shall be jointly responsible to care for and look after the welfare of the person with disabilities,” it said.
The court observed that the Act as well as Rules and Regulations clearly put in place an evaluation criteria for guiding the competent authority in deciding applications for appointment of guardians that may be received.
“No parent, relative or any person nominated by them can, thus, claim an indefeasible right to be appointed as a guardian or be freed of the obligation of being otherwise qualified in terms of the statutory regime which prevails,” the court said.
Title: SUNIL PODAR v. THE NATIONAL TRUST FOR WELFARE OF PERSON WITH AUTISM, CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE DISABILITIES AND ANR.
Citation: 2023 LiveLaw (Del) 145
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