- Anchal Bhatheja*
As per the Mental Healthcare Act, 2017 (‘MHA 2017’), ‘mental illness’ is defined as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, and capacity to recognize reality or ability to meet the ordinary demands of life.”[1] However, mental illness is not just a medical phenomenon. It has social, political, legal, and cultural connotations attached to it. Mental illness and poverty are inextricably interlinked to one another.[2] There is empirical evidence to suggest that the majority of Persons With Disabilities (‘PWDs’) and Persons with Mental Illnesses (‘PMIs’) are emaciated.[3] They face problems of inaccessibility and attitudinal barriers, thereby impairing their access to education and skill development programs.[4] This further decreases their job prospects, leaving them with little to no source of income.
In this backdrop, being able to inherit and hold property can go a long way in enhancing their economic status because property and prosperity are also inextricably linked to one another. Well-defined and strongly protected property rights enable individuals to take control of their resources and utilize them to the fullest, thereby improving their living standards.[5] Rights-based legislation, such as the Rights of Persons with Disabilities Act, 2016 (‘RPWD Act’) and the Mental Healthcare Act, 1987 (‘MHA 1987’) have been passed. However, the rights of PMIs have not materialized due to the vague nature of these laws and their lacklustre implementation.
In this piece, the author argues that the right to property of PMIs is a mere paper tiger as of now. It can be translated into reality only when first, the law is made clearer and more precise, instead of being vague; second, the law is implemented in a more accessible manner; and third, it accounts for the lived realities of PMIs by removing ableist biases.[6] In the first section, the author will briefly discuss the historical evolution of the property rights of PMIs and how the shift in the discourse around disability and mental illness led to the passage of rights-based legislations. In the second section, the author will discuss the shortcomings of these ‘rights-based’ laws and propose suggestions to bring a discernible change in the status quo.
I. Historical Evolution
Earlier, mental illness was conceptualized in terms of the ‘sacred model’. As per this model, a mental illness befell someone as a punishment for sins committed in their previous life. It was also believed that PMIs could not perform rituals, which were necessary to hold or inherit ancestral property, as they were sinners.[7] The law also reflected a similar conception. PMIs were not seen as competent coparceners or heirs. Under Mitakshara law, they could not hold property, but they were entitled to maintenance out of the property that they would have inherited, if they were non-disabled. Furthermore, a part of the estate was to be reserved for the maintenance of PMIs during partition as well.[8]
With the advancement in science and technology, the discourse gradually shifted towards a ‘medical model’. According to this model, medical interventions could cure mental illnesses.[9] The British enacted the Hindu Inheritance (Removal of Disabilities) Act, 1928, which granted property rights to PMIs.[10] However, any tangible benefit from it was hampered by the enactment of laws, such as the Indian Contract Act, 1872 (‘ICA’). The ICA prevents persons of unsound mind from entering into a contract,[11] a provision that continues to have a legislative force to date. The Indian Succession Act, 1925 was also enacted,[12] which provides that persons of unsound mind do not have testamentary capacity.[13] Such a restriction rendered PMIs’ right to property, granted under the Hindu Inheritance (Removal of Disabilities) Act, 1928, redundant. Even though they could inherit and hold property,[14] they could not enter into contracts of sale, lease, and mortgage or will away their property. The right to alienate and the right to will away property were exercised by their guardians, even when PMIs had ownership rights over the property.
A ‘charity-based model’ became prominent after the Second World War because a majority of those wounded and injured during the war developed various kinds of disabilities and mental illnesses. These heroes of war inspired respect and began to be perceived as inspirational individuals.[15] However, even under this model, the law treated PMIs as objects of pity, who needed care and sympathy, instead of treating them as subjects with rights. A manifestation of this paternalism was seen in the Indian Trusts Act, 1999. It provided for the appointment of a guardian by a local committee, headed by the district collector, pursuant to an application by the person who intended to be their guardian.[16] This guardian was empowered to look after the property of the PMI.[17] The guardian was supposed to submit the details of the property,[18] along with the transactions associated with it, to the district administration.[19] This was done to monitor the activities of the guardian to ensure transparency and avoid foul play by unscrupulous guardians. However, this statute did not give any agency to the PMIs in terms of managing their property, and vested the State and the guardian with all power regarding management of the property.
It was finally after the passage of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) in 2006, and its ratification by India in 2007,[20] that laws were framed along the lines of the social model. The proponents of this model advocate for a departure from the medical and charity-based models. They argue that mental illness is not a mere impairment in the brain of the PMI, which can be rectified using medical intervention. It is rather a disadvantage stemming from external factors, such as inaccessible surroundings and ableist attitudes.[21] As per this model, the mental illness of a person is compounded due to the inaccessible external infrastructure, and thus the only way to rectify their illness is to make their surroundings more accessible. The CRPD obligates the State to treat PMIs as equal rights holders with equal legal capacity.[22] It also grants them the right to inherit and own property.[23] Pursuant to this, the recent RPWD Act provides that PMIs have the right to manage their financial affairs and the right to own and inherit property.[24] The MHA 2017, which primarily deals with the process of treatment of PMIs, has also been purportedly passed to give practical effect to the CRPD.[25] However, these laws are still miles away from realizing their goals.
II. Unclear and Paternalistic Laws
An Inconsistent Conflation
The first and foremost problem with laws pertaining to PMIs is their vagueness. These laws conflate medical and legal capacity. This conflation is extremely inconsistent and detrimentally impacts the rights of PMIs. The ‘medical capacity’ of an individual is a medical test of the degree and nature of their mental illness.[26] It can include a diagnosis of the mental disorder, the degree of its recurrence, and other related characteristics. It is determined by a mental health professional.[27] Based on this medical capacity, the scope and limitation of the rights of PMIs are decided during their treatment.[28]
The ‘legal capacity’ of a PMI pertains to their capacity to take legally enforceable decisions,[29] such as managing their property, entering into a contract, etc. ‘Legal capacity’, which is often used synonymously with ‘mental soundness’, has been used nearly in 450 statutes,[30] but has never been defined. The only definition of ‘mental soundness’ has been given under Section 12 of the ICA.[31] A person is said to be of a sound mind if they can understand a contract or form a rational judgement as to its effect on their interest while entering into it. Thus, it can be seen that medical capacity is a broad and subjective concept, while legal capacity is a narrow and objective one. Conflating the two can lead to a lot of confusion.
First, medical incapacity has a very broad meaning.[32] If all mental disorders are deemed to cause legal incapacity, then even people with depression could be brought within the scope of the RPWD Act and the MHA 2017, thereby stripping them off of their legal capacity.[33]Second, medical incapacity might not always disable a PMI from taking legally binding decisions with regard to managing their property or entering into contracts. The experiences of PMIs are extremely diverse, subjective, and sometimes even episodic. The degree of mental illness differs, inhibiting their decision-making capacity in different ways and to a different extent. Furthermore, the illness often inhibits their decision-making capacity only at certain times and not at all times, due to its episodic nature. As a result, they might need less support in certain activities or negligible support in some others.[34]
However, the RPWD Act uses a test of medical capacity to assess the legal capacity of the PMI. It defines mental illness as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, and capacity to recognize reality or ability to meet the ordinary demands of life.”[35] This definition lays down a criterion that can only be determined by a mental health professional. It can be said that the test contemplated in this section is that of medical capacity. The statute wrongly conflates medical and legal capacity by providing that if a District Court or a designated authority finds that a person with mental illness (medical incapacity) is unable to manage their property, the court can appoint a guardian to provide them with limited support in taking legally binding decisions. In other words, the RPWD Act uses a medical test to decide the legal competence of a PMI. The Supreme Court also conflated medical and legal capacity when it held that mental unsoundness is the same as mental disorders,[36] even when the former pertains to legal incapacity,[37] and the latter pertains to medical incapacity.[38]
In this backdrop, it is submitted that the threshold for legal incapacity should be much higher than medical incapacity. That is, all persons who are medically incapacitated should not be inevitably considered to be legally incapacitated as well. Apart from assessing medical incapacity, it should be seen if the person can take legally binding decisions independently. Even if a PMI is unable to take a legally binding decision on their own, the State should still make all possible efforts to enable them to take decisions on their own. The State should provide them assistance to navigate complex legal procedures and should make courtroom procedures more inclusive. It is only after these support mechanisms prove to be ineffective, should a court label someone as legally incapacitated.
Courtroom Unfriendliness
Once a person is legally incapacitated, the next step is to appoint a guardian to make decisions on their behalf, but laws concerning this aspect are premised on paternalistic principles. The decision of the Supreme Court in the case of Eera v State becomes relevant here.[39] In this case, the court was determining if a case of sexual offence against a PMI could be prosecuted under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and if “age” within the meaning of section 2(d) could mean to include ‘mental age’ as well.[40] The court answered this question in the negative and held that PMIs were not children. As per Section 15 of the RPWD Act, a court should consider the best interests of the PMI while appointing a guardian.
As per Section 15 of the RPWD Act, a court should consider the best interests of the PMI while appointing a guardian. The principle of best interest has been propounded and expounded upon in the context of child custody and guardianship battles.[41] Applying this concept in cases concerning the guardianship of PMIs is a misapplication of law because PMIs are not children, but equal rights holders placed at an equal footing with other adults, who do not have mental illnesses.[42] Therefore, as has also been recommended by the British Law Commission, there is a need to consider the desires and wishes of PMIs instead of their best interest while appointing their guardians.[43]
In order to ascertain the desires and wishes of PMIs, it is imperative to engage in effective dialogue regarding the appointment of the guardian. Section 15 of the RPWD Act calls upon the judge to “consult” the PMIs, but the unfriendly courtroom procedures impede an effective consultation. In this respect, there is a need to take practical steps to effectuate the consultation as provided under this Section. This can include-
Conducting sensitization sessions for judges and court officers to enable them to treat PMIs with sensitivity
Making the courtroom atmosphere more accessible by directing officials to attend the proceedings in civilian clothing, making the judge sit close to the PMI, listening to them with patience, and appointing special mental health judges.[44]
Building robust support systems outside the courts by developing a system of personal ombuds when a person is reluctant to engage with a psychiatrist, setting up circles of support, developing joint crisis management with regard to mental health, providing intentional peer support, etc.[45]
III. Conclusion
There has been a paradigm shift in the understanding of mental illness over the years. The law has undergone radical changes, from the point when it absolutely disqualified PMIs from holding property, to a point where it recognizes the agency of PMIs in holding and managing their property. However, there are still some gaps in substantive and procedural law pertaining to the property rights of PMIs.
There is a lack of clarity regarding the definition of legal and medical capacity, and more often than not, both these concepts have been muddled up with one another. This conflation detrimentally impacts the rights of PMIs because a PMI, despite being medically incapacitated, might not be legally incapacitated.
Further, the approach adopted by courts in determining guardianship matters of legally incapacitated PMIs has been extremely paternalistic. This paternalism is compounded by the unfriendly atmosphere in courtrooms. There is a need to recognize the agency of PMIs and to make procedures more accessible so that they can effectively exercise their agency. Rights-based laws can truly serve the cause of PMIs only when they account for the realities of PMIs and do not reflect any ableist biases. Until then, the property rights of PMIs will remain an example of ‘rights sans realization’.
*Anchal Bhatheja is a third-year student at National Law School of India University, Bangalore. Her areas of interest are Jurisprudence, Sociology and Disability law.
[1] Mental Healthcare Act 2017, s 2(s). [2] Rights of Persons with Disabilities Act 2016, schedule 1. This Act mentions mental illness as one of the disabilities covered under the Act. As a result, disability and mental illness have been used interchangeably in this piece. [3] Vani Gaiha and Raghav Gaiha, ‘Disabled and extremely poor’ (The Hindu, 6 March 2020) <https://www.thehindu.com/opinion/op-ed/disabled-and-extremely-poor/article30993219.ece> accessed 6 March 2020. [4] Chellamuthu Ramasubramanian, Anusa Arunachalam Mohandoss and Rajesh Kannan Namasivayam, ‘Employability of Mentally Ill Persons in India: A Self-report-based Population Study’ (2016) 25(2) Ind Psychiatry J 1 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5479090> accessed 15 November 2020. [5] Gerald P. O’Driscoll Jr. and Lee Hoskins, ‘Hoskins and O’Driscoll explore the role of property rights in economic development’ (Libertianism, 7 August 2003) <https://www.libertarianism.org/publications/essays/property-rights-key-economic-development> accessed 15 November 2020. [6] This refers to biases of the non-disabled that stem from the lack of lived experiences with disability. [7] V. Sudesh, ‘National and International Approaches to Defining Disability’ (2008) 50(2) JILI 220.8 [8] Radhe Sham and ors. v Meera Devi and anr. [1991] 0 (MPLJ) 102 (Madhya Pradesh High Court). [9] Martand Jha, ‘The History of India’s Disability Rights Movement’, (The Diplomat, 21 December 2016) <https://thediplomat.com/2016/12/the-history-of-indias-disability-rights-movement/> accessed 15 November 2020. [10] Hindu Inheritance Removal of Disabilities Act 1928, s 2. [11] Indian Contract Act 1872, s 12. [12] Indian Succession Act 1925, s 59. [13] They are not competent to write wills. [14] Hindu Inheritance Removal of Disabilities Act 1928, s 2. [15] Martand Jha, ‘Disability rights over time’ (The Hindu, 3 December 2017) <https://www.thehindu.com/opinion/op-ed/disability-rights-over-time/article21254946.ece> accessed 15 November 2020. [16] Indian Trusts Act 1999, s 14. [17] Indian Trusts Act 1999, s 14. [18] Indian Trusts Act 1999, s 16(1). [19] Indian Trusts Act 1999, s 16(2). [20] DNIS News Network India, ‘India ratifies U.N.C.R.P.D. and then forgets!’ (2009) 6(8) DNIS <https://www.dnis.org/news.php?issue_id=8&volume_id=6&news_id=914&i=0> accessed 15 November 2020. [21] Adam M. Samaha, ‘What Good is the Social Model of Disability’ (2007) 74 U. Chi. L. Rev. 1265. [22] Convention on the Rights of Persons with Disabilities 2006, art 12. [23] Convention on the Rights of Persons with Disabilities 2006, art 12(5). [24] Rights of Persons with Disabilities Act, 2016, s 13. [25] Mental Health Care Act 2017, Statement of Objects. [26] Mental Healthcare Act 2017, s 2(s). [27] Mental Healthcare Act 2017, s 2(r). [28] Mental Healthcare Act 2017, Statement of Objects. [29] Rights of Persons with Disabilities Act 2016, s 14. [30] Soumitra Pathare, ‘Widely cited, but still undefined’ (The Hindu, 23 April 2017) <https://www.thehindu.com/sci-tech/health/widely-cited-but-still-undefined/article18191442.ece> accessed 15 November 2020. [31] Indian Contract Act 1872, s 12. [32] Mental Health Care Act, 2017 s 2(s). [33] The consequences can be detrimental because a mentally unsound person cannot vote, cannot stand for elections, can have a guardian imposed, and cannot enter into contracts. [34] Lucy Series and Anna Nilsson, ‘Article 12 CRPD: Equal Recognition before the Law’ in I. Bantekas, MA Stein, D. Anastasiou eds., The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press, 2018). [35] Rights of Persons with Disabilities Act 2016, schedule I(3). [36] Hari Singh Gond v State of MP, 2008 (4) Cri. 236 (Supreme Court of India). [37] Indian Contract Act 1872, s 12. [38] Mental Health Care Act, 2017 s 2(s). [39] Eera v State, 2017 SCC 496 (Supreme Court of India). [40] Protection of Children from Sexual Offences Act 2012, s 2(d). [41] ABC v The State NCT of Delhi, 2015 SCC Online SC 609 (Supreme Court of India). [42] Rights of Persons with Disabilities Act 2016, s 13 (1); Convention on the Rights of Persons with Disabilities 2006, art 12. [43] Law Commission, Mental Capacity and Deprivation of Liberty(Law Com No 372, 2017). [44] Sir David Latham, ‘Mental Health and Fair Trial Report’ (Justice, 2017) <https://justice.org.uk/wp-content/uploads/2017/11/JUSTICE-Mental-Health-and-Fair-Trial-Report-2.pdf> accessed 15 November 2020. [45] Lucy Series and Anna Nilsson, ‘Article 12 CRPD: Equal Recognition before the Law’ in I. Bantekas, MA Stein, D. Anastasiou eds. The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press, 2018).