Can a foreigner claim right to be appointed as a guardian under National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2000? Delhi High Court answers

Delhi High Court

Delhi High Court: In a petition filed by the petitioner, who is the father of a person suffering from severe mental retardation and certified to be suffering from a 90% disability, assails the validity of Rule 17(1)(iii)(a) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2000 (2000 Rules) as well as Regulation 12(1)(i) of the Board of the Trust Regulations, 2001 (2001 Regulations) which restrict the appointment of a guardian to a person who is an Indian citizen, a Division Bench of Satish Chandra Sharma, CJ., and Yashwant Varma, J., held that it is unable to countenance a right inhering in the petitioner to be appointed as a guardian as he is an Overseas Citizen of India holder (OCI holder ) having citizenship of the USA.

The petitioner along with his estranged wife adopted the son but due to strain in marital relations, the legal custody was handed over to the petitioner. Both the father and the son are stated to have relocated to India in 2009 and hold Overseas Citizenship of India cards. The petitioner seeks to be appointed as the guardian of his son in terms of the Act, however, presently faces the barrier of Rule 17 and Regulation 12 which prescribe citizenship to be an essential qualification.

The challenge is essentially mounted on the assertion that Rule 17, as well as Regulation 12, are ultra vires the parent provisions contained in the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999 (1999 Act). It is based on the premise that in the absence of the parent Act disabling a non-citizen from applying to be appointed as a guardian of a person with disabilities, such a prescription could not have been introduced by virtue of delegated legislation and in this case, the Rules read with the Regulations.

On perusal of the principal provisions and the statutory framework of the 1999 Act, the Court noted that Section 14 apart from broadly indicating the category of persons who may apply to be appointed as a guardian, does not proceed further to either specify or delineate the qualifications that must be possessed by an applicant. In fact, Section 14(4) clearly leaves that subject open to be determined by Regulations.

The Court further noted that Section 10(f) leaves it to the Trust to evolve the procedure for the appointment of guardians and trustees and empowered it to frame appropriate provisions in accordance with the regulation-making power that stands conferred upon it by virtue of Section 35. The prescription of qualifications that must be possessed by guardians, thus, clearly appears to be a subject that is left for the rule and regulation-making authority to evolve and formulate.

The Court remarked that both Sections 34(2) as well as Section 35(2) while specifying some of the matters in respect of which rules or regulations may be framed employs the oft-repeated phrase “without prejudice to the generality of the foregoing power” which drafters of statutes use in order to delineate the plenitude of the measures that may be adopted by the subordinate agency in order to give effect to the principal legislation.

Thus, the Court held that 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.

Further the question that arose for consideration is whether a foreigner can claim the right to be appointed as a guardian of such a person under the Act and whether the disqualification as embodied in Rule 17 read with Regulation 12 is valid in law.

The Court observed that the Act as well as the Rules and Regulations clearly put in place an evaluation criterion that is meant to guide the competent authority while deciding applications for the 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 stated that the Act itself is an embodiment of the parens patriae obligation which stands placed upon the State to look after the interest and welfare of all its citizens including those who are challenged or suffering from debilitating disabilities. That doctrine pertains to the obligation of the State to protect and take under its care the rights and privileges of disabled citizens in the discharge of its essential obligations as a sovereign.

In India too, the subject of guardianship is regulated by the provisions contained in the Hindu Minority and Guardianship Act, 1956, The Guardians and Wards Act, 1890 and to a certain extent by the provisions enshrined in the Hindu Adoptions and Maintenance Act, 1956.

Placing reliance on Smriti Madan Kansagra v. Perry Kansagra, (2021) 12 SCC 289 the Court concludes that the petitioner while being the father of his son with disabilities, being an American citizen cannot claim or assert a vested right to be appointed as his guardian. 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.

Reliance was placed on Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of M.B., (1960) 3 SCR 138, wherein the Supreme Court pertinently observed that the asserted claim to be appointed as a guardian of two minor children borne from the first marriage of the petitioner who had in 1948 migrated to West Pakistan and had taken up residence in Rawalpindi, could not be recognised as a manifestation of a fundamental right so as to justify the institution of a petition under Article 32 of the Constitution. Thus, the Court noted that the petitioner cannot even claim a constitutional right to be appointed as a guardian of a person with disabilities.

Therefore, the Court finds no merit in the challenge raised to the validity of the Rules and Regulations. However, the Court directed the Local Level Committee to examine and evaluate the circumstances and surroundings of the person with disabilities and advise the adoption of such further measures as may be warranted bearing in mind the welfare, overall health and well-being of the person concerned.

[Sunil Podar v. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, 2023 SCC OnLine Del 832, decided on 13-02-2023]

Judgment by: Chief Justice Satish Chandra SharmaAdvocates before Court.

Advocates who appeared in this case:

Mr. Dinesh Kumar, Advocate for the Petitioner;

Mr. Chetan Sharma, ASG with Mr. Rakesh Kumar, CGSC and Mr. Kirtiman Singh, CGSC with Mr. Sunil, Adv. and Mr. Amit Gupta and Ms. Vidhi Jain, Advs. for UOI.

*Arunima Bose, Editorial Assistant has reported this brief.

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