By Abhineet Maurya
Introduction
The year 2022 marks the 15th anniversary of the signing of the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”). Of the many promises of human dignity, autonomy, participation in policy, and access to opportunities of the Convention, one was a particular highlight, representing a break from the past: the recognition of Universal Legal Capacity for Persons with Disability (“PWD”). Article 12 of the Convention provides for the right to recognition everywhere as a person the before law. India has both signed and ratified the treaty without any reservations and declarations.[1] This means that India has an obligation to ensure that its domestic laws are in compliance with the standard prescribed by the UNCRPD. But has our domestic law caught up to the promise of Universal Legal Capacity? Despite the enactment of the Rights of Persons with Disabilities Act, 2016 (“RPWDA”) and the Mental Healthcare Act, 2017 (“MHA”), which were supposed to bring the domestic law in consonance with the Convention, these legislations have arguably failed to do so. It is imperative at this juncture to reflect on our position vis-à-vis the UNCRPD.
Elements of Legal Capacity: Legal Standing and Legal Agency
As per General Comment No. 1 of the UNCRPD released in 2014, “Legal capacity is the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). It is the key to accessing meaningful participation in society.”[2] This includes the capacity to be both a holder of rights and an actor under the law. Legal capacity to be a holder of rights entitles a person to full protection of his or her rights by the legal system.[3] This may include, for example, having a birth certificate, seeking medical assistance, registering to be on the electoral roll or applying for a passport.[4] Legal agency, on the other hand, is the capacity to act on those rights and to have those actions recognized by the law. It is this component that is frequently denied or diminished for PWDs.[5] For example, laws may allow persons with disabilities to own property, but may not always respect the actions taken by them in terms of buying and selling property.[6]
Attribution of Incapacity
A study of disability laws across jurisdictions reveals that attribution of incapacity happens in three ways:[7]
First is Status Attribution, where the law declares a PWD incompetent on the mere presence of the disability. For example, the law may disallow a person with a psychosocial disability from adopting a child, or a blind person from operating a bank account unassisted.[8] Judicial intervention, in such cases, is only aimed to ensure that disability label or diagnosis is not affixed without due process.
Second is the Functional Test, where a PWD is considered incapable if, by reason of the disability, they are unable to perform a specified function. For example, the law may deny legal capacity to a person who, due to cognitive deficits, cannot understand the nature of the contract,[9] or is unable to understand whether something is wrong or contrary to law.[10]
Third is the Outcome Test, where the attribution of incompetence is made on the basis of a decision arrived at by the said person. For example, a person with psychosocial disability who voluntarily seeks psychiatric treatment. When they decide to discontinue such treatment, their competency to discontinue is questioned.[11]
All these tests are problematic because the very existence of these tests is based on the assumption that the disabled lack legal capacity and puts into question the legal capacity of all PWDs. The burden is often placed on them to prove otherwise. This is discriminatory because it forgets, as General Comment No. 1 also notes, “All people risk being subject to undue influence.”[12] This singling out of PWDs places undue legal burdens on them. The right to equal human dignity is the right to be equally human. It is human to take risks and make mistakes, and the right to same should not be denied to PWDs.[13]
We should also not forget that in many cases, as legal scholar and disability rights activist Amita Dhanda states, labels of incompetence can be a self-fulfilling prophecy.[14] The PWDs are not given any opportunity to engage in or learn the tasks in question. This has a strong impact on a person’s sense of self and the basic human need to be self-determining and self-actualising, which impacts subsequent behaviour.[15] The abilities of this excluded group is hence dictated by how the dominant group (often stereotypically) perceives them, resulting in a form of cultural imperialism which renders the aspiration of the excluded group invisible.[16]
UNCRPD and Universal Legal Capacity
Article 12 of the UNCRPD was meant to pursue the goal of Universal Legal Capacity. This is opposed to a regime that gives a particular definition or a test of legal capacity, bringing into question the capacity of all PWDs. The Universal Legal Capacity model strives to give unconditional legal capacity to all PWDs, and states that in cases where assistance is required to exercise capacity, the law must provide such assistance instead of taking away the legal capacity.[17]
This model has many consequences, two of which are most relevant to us here. Firstly, the right of legal capacity cannot be made contingent on the possession of ‘mental capacity’. As per General Comment No. 1, “Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors.”[18] Article 12 of the Convention as well as the General Comment make it clear that “unsoundness of mind” and other discriminatory labels are not legitimate reasons for the denial of legal capacity.[19]
Secondly, the law must replace substitute decision making with supported decision making.[20] “Support” is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity, depending on the need of the PWD.[21] It differs from substitute regimes like guardianship, where the will and preferences of the PWDs take a backseat and decisions are taken according to what seems to be in the ‘best interest’ of the PWD.
Evidence from the Field
The issue of Legal Capacity is not one of mere abstract principles; it has material impact on the lives of persons with disabilities. In a field study conducted by European Union Agency For Fundamental Rights (FRA) which covered 115 people with mental health problems and 105 people with intellectual disabilities across nine European countries,[22] researchers tried to evaluate the effects of guardianship on PWDs.[23] The FRA recorded incidents of decisions being made directly in contrast to the wishes of the persons by the guardians,[24] and guardians themselves being inept to take decisions on behalf of such persons for reasons like alcoholism.[25] A few persons were satisfied with the assistance, but many others reluctant and concerned about the impact it would have on their autonomy. Look at the following testimonies for instance:[26]
“My dad influences me in many things, he supports me financially, and due to that […] he does not let me […] be independent, […] be myself. I am under his influence. If I do not obey, he threatens me with taking back the support from my children. This is a terrible situation; I simply cannot assert myself.” (Woman with mental health problems, 36, Hungary)
It is difficult for PWDs under guardianship to perform simple day-to-day activities of their own volition:[27]
“My mum is my guardian and I can’t say ‘no’ to her. If she wants me she can phone up the house. And the house phones her. Everything is controlled by her. And I can’t breathe. Because she’s there – in my face. In this. In that. And you know she’s everywhere. […] I know she’s my mum but I’ve tried to move away from her slowly but it’s not working.” (Woman with intellectual disabilities, 27, United Kingdom)
Apart from the formal restrictions on legal capacity, the PWDs also suffered from informal restrictions on decision-making due to lack of knowledge concerning the powers and scope of responsibilities of the guardians.[28] These include lack of control over their personal finances,[29] marriage and relationships,[30] daily activities and choice of where to live,[31] healthcare and psychiatric treatment,[32] etc.
Comparatively, the experience of supported decision making have been far more positive.[33] Contact Agents in these cases are limited to the role of offering advice. The final decision always rests with the person in question. Look at the following testimonies for instance:[34]
“Sometimes I ask [the group home’s head] for advice on something, but it is not like she makes the final decision. Or I ask the support person if it is a matter I do not want others to know about. […] Everyone has a support person. You could even choose which person you trusted the most.” (A woman with intellectual disabilities, 29, Sweden)
When asked whether the interviewee would prefer a professional (like a social worker) or a family member, the interviewee responded:[35]
“A professional, because unfortunately with relatives […] in my experience, they do what is best for themselves […] and he [a relative] did me wrong, I can say that.” (Respondent with mental health problems, Latvia)
Therefore, we have empirical evidence to strongly support a shift to support model of agency over the guardianship model. This move is one of the most important pillars of Article 12 of UNCRPD.
Current Legal Framework of India vis-à-vis the UNCRPD
While the preambles of both the RPWDA and the MHA suggest that the legislations are supposed to bring the municipal law in conformity with international law, they fail to do this at several critical points.
Firstly, Section 4(1) of the MHA makes legal capacity contingent on mental capacity. For a person to have legal capacity, they must have the ability to: a) understand information relevant to their treatment, b) appreciate any reasonably foreseeable consequence of the decision taken, and c) communicate such decision.[36] These are extremely subjective criteria and can be used to unjustly deprive PWD of their legal capacity.[37] This is because such notions of mental capacity rest on a defunct ideas of ‘rational and reasonable’ person that have guided legal understanding since the enlightenment.[38] It is now well recognised by scholars that decision-making is a complex process and the choices hence made are seldom purely rational.[39] It is rarely possible or desirable for us to consider all the choices available to us to make truly ‘rational’ choices. Our emotions also play a huge role in the process.[40] Therefore, persons of all categories have different ways of making decisions and hardly any of them can be termed truly ‘rational’. It would then be unjust for us to pick specifically on persons with disabilities and questionable their mental capacity and rest their legal capacity on it. The idea of personhood defined in Article 12 of the CRPD is much wider than this narrow conception of ‘rational person’ and recognises the reality of decision-making.[41] Therefore, the question we must ask is not “whether the person has the mental capacity to exercise their legal capacity” but “what sort of support would the person require to exercise their legal capacity.”[42]
Secondly, provision for compulsory treatment still exists. Section 97 of MHA provides that physical restraint can be authorised in two cases: a) if there is a possibility of imminent and immediate harm, and b) it is authorised by the psychiatrist in charge of a person’s treatment.[43] While the section provides that the restraint must be exercised only when ‘absolutely necessary’ and that the nature and duration of the restraint are to be immediately recorded,[44] the possibility of misuse still remains. Further, the law is in violation of the principle of informed consent and the choice to refuse treatment.
Thirdly, guardianship provisions still exist on statute books. As a legal artefact, it is beneficial only to PWDs who have property and resources. In these cases, the guardian caretaker could ensure that such resources and property are not frittered away. To the PWDs who don’t have property or resources, guardianship means nothing.[45] The provision of guardianship is against the vision of UNCRPD, which asks for guardianship to be fazed out in favour of a support-based approach. Despite this, Section 14 of both the National Trust Act, 1999 and the RPWDA continue to make provisions for guardianship. However, the latter does better in this respect with the notion of ‘limited guardianship’ being introduced, which limits guardianship to “a specific period and for specific decision and situation” and directs guardians to operate in accordance to the will of the PWD.[46] To what extent such limitations are adhered to is a separate question.
Lastly, and most glaringly, while the RPWDA provides for Legal Capacity (Section 13), there is no provision that allows for judicial redress on being denied legal capacity. The original 2011 Bill, which was formulated by the high-level committee appointed by the Ministry of Social Justice and Empowerment after a nationwide consultation, had this provision.[47] The Bill also had the provision which rendered unenforceable any legislation, rule, notification, order, bye-law, regulation, custom or practice which denied legal capacity to a PWD.[48] The subsequent drafts deleted both these provisions.[49] This effectively has made the provision of legal capacity a duty of the government in power rather than a right which the citizens can actively claim. Further, how legal capacity can be ensured in absence of a provision invalidating laws which diminish legal capacity is not explained
The way forward lies in understanding that for complete political justice to exist vis-à-vis the manner in which the state and the social institutions deal with PWDs, there needs to be a systemic overhaul. Altering the parameters of the functioning of old institutions will very likely lead to an inertia that prevents the materialisation of the rights of the PWDs. This task may seem administratively daunting, but is far from impossible. This was shown very effectively by Costa Rica in 2016 when it adopted the Law No. 9379. As a consequence of this law, all forms of guardianships were abolished and a novel legal figure called “guarantor for the equality before the law of persons with disabilities” came into being.[50] This figure is tasked entirely to ensure the full enjoyment of legal capacity by all persons with disabilities. Similarly, Peru not only passed the Act incorporating Universal Legal Capacity in the law concerning persons with disabilities, but also followed it up by a parliamentary committee to review the Civil Code so that it comes in line with the declaration of the law.[51] None of these things have happened adequately in India. It would, therefore, benefit us to learn from these success stories and incorporate similar mechanisms which may suit India in the quest towards Universal Legal Capacity for Persons with Disabilities.
Conclusion
The disability rights regime in India presents us with an odd case of rights evolution. While the socio-economic rights of the citizens were provided as early as 1995 with the old RPWDA providing for benefits like reservation, the fight for civil and political rights is still going on. The way that both the RPWDA and the MHA have dealt with the question of legal capacity cannot be said to amount to anything more than a lip-service to the UNCRPD. As Amita Dhanda says, “[B]oth legislations have flirted with the terminology used by the CRPD. Both have made claims of universal capacity but these claims have not been translated into change of approach.”[52] She continues, “By retaining the institution of guardianship and compulsory care, the law in the name of ‘best interest’ of vulnerable populations enhanced the authority of the State, the professional and the family.”[53] The vision of UNCRPD cannot be realised unless these institutions which have traditionally controlled the lives of PWDs back down in favour of recognising their autonomy, will, informed choice, and human dignity. We must not invalidate the decades of struggle that went into bringing this Convention and these laws into existence. They lose their raison d’être if they fail to serve the very people for whom they were created.
The author, Abhineet Maurya, is an undergraduate law students at the National Law University (NLUD), Delhi.
[1] See, United Nations, Treaty Series, vol. 2515, 3, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en last seen on 13/01/2022.
[2] General Comment No. 1 (Article 12) to UNCRPD, para 13, available at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/1&Lang=en last seen on 13/01/2022
[3] Ibid, para 12.
[4] Ibid, para 14.
[5] Ibid.
[6] Ibid.
[7] Ibid, para 15; see also, Amita Dhanda, Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future, 34 Syracuse J Int’l L & Com 429, 431 (2007).
[8] Ibid.
[9] S. 12, Indian Contracts Act, 1872.
[10] S. 84, Indian Penal Code, 1860.
[11] Legal Capacity in Disability Rights Convention (n 7), 431-432.
[12] General Comment No. 1 (n 2), para 22.
[13] Ibid.
[14] Legal Capacity in Disability Rights Convention (n 7), pp. 436
[15] Ibid, at 436-437.
[16] Ibid at 438.
[17] Article 12(3), United Nations Convention on the Rights of Persons with Disabilities.
[18] General Comment No. 1 (n 2), para 13.
[19] Ibid.
[20] Ibid, para 7.
[21] Ibid, para 17.
[22] Bulgaria, France, Germany, Greece, Hungary, Latvia, Romania, Sweden and the United Kingdom.
[23] European Union Agency For Fundamental Rights, Legal capacity of persons with intellectual disabilities and persons with mental health problems, 41-54, available at https://fra.europa.eu/sites/default/files/legal-capacity-intellectual-disabilities-mental-health-problems.pdf last seen on 21/01/2022.
[24] Ibid, at 42.
[25] Ibid.
[26] Ibid, at 50.
[27] Ibid, at 44.
[28] Ibid, at 49.
[29] Ibid, at 46.
[30] Ibid, at 51.
[31] Ibid, 50.
[32] Ibid, at 51.
[33] Ibid, at 51-54.
[34] Ibid, at 53
[35] Ibid.
[36] S. 4(1), Mental Healthcare Act, 2017.
[37] Amita Dhanda, Making up the Indian Legal Mind on the Legal Capacity of Persons with Disabilities’ Journal of the National Human Rights Commission, India, 60 (Volume 14, 2015).
[38] Council of Europe Commissioner for Human Rights, Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities, 31 available at https://rm.coe.int/who-gets-to-decide-right-to-legal-capacity-for-persons-with-intellectu/16807bb0f9 last seen on 21/01/2022; see also, Gerard Quinn, Article 12 of the UN Convention on the Rights of Persons with Disabilities: Is there a Third Way? presentation delivered at a research conference in Reykjavik, Iceland, 28 May 2011.
[39]Council of Europe Commissioner for Human Rights, Who gets to decide?, 31 (n 24)
[40] Ibid.
[41] Ibid.
[42] Ibid; see also, Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity available at https://www.lco-cdo.org/wp-content/uploads/2010/11/disabilities-commissioned-paper-bach-kerzner.pdf last seen on 21/01/2022
[43] S. 97(1), Mental Healthcare Act, 2017.
[44] Ibid, Ss. 97(2) and 97(3).
[45] See the section titled “NTA 2000”, Amita Dhanda, A Disability Studies Reading of the Law for Persons with Disabilities in India, in Disability in South Asia: Knowledge and Experience (Anita Ghai, 2018).
[46] Section 14(1), Rights of Persons with Disabilities Act, 2016.
[47] Clause 21, Rights of Persons with Disabilities Bill, 2011; see also, Making up the Indian Legal Mind on the Legal Capacity (n 23), at 64.
[48] Clause 18(2), Rights of Persons with Disabilities Bill, 2011; see also, Making up the Indian Legal Mind on the Legal Capacity (n 23), at 64.
[49] Making up the Indian Legal Mind on the Legal Capacity (n 23), at 64.
[50] Human Rights Council Report A/HRC/37/56, para 39, available at https://undocs.org/en/A/HRC/37/56 last seen on 21/01/2022.
[51] Ibid, para 40.
[52] Making up the Indian Legal Mind on the Legal Capacity (n 23), at 65.
[53] Ibid, at 70.
The Journal of Indian Law and Society 