While ruling clearly on a very significant legal point with far reaching legal consequences, the Delhi High Court has in a pertinent, persuasive, powerful, progressive and path breaking judgment titled Sunil Podar vs The National Trust For Welfare Of Person With Autism, Cerebral Palsy, Mental Retardation And Multiple Disabilities And Anr. in W.P.(C) 8359/2022 & C.M. Appl. 25173/2022 and cited in 2023 LiveLaw (Del) 145 that was reserved on January 13, 2023 and then finally pronounced on February 13, 2023 has forthrightly held that a foreign national cannot claim a vested or constitutional right to be appointed as guardian of a person with disabilities. It must be mentioned here that a Division Bench of Hon’ble Mr Chief Justice Satish Chandra Sharma and Hon’ble Mr Justice Yashwant Varma of Delhi High Court who authored this notable judgment were hearing a plea that was moved by a father whose adopted son has severe mental retardation with disability certified to be 90% disability. He had 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 only allow for Indian citizens to be the guardian of a person.

At the very outset, this brief, brilliant and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that:
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 (Rules) as well as Regulation 12(1)(i) of the Board of the Trust Regulations, 2001 which restrict the appointment of a guardian to a person who is an Indian citizen. 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 (the Act). The submission proceeds 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.

To put things in perspective, the Division Bench then envisages in para 2 that, The son of the petitioner who is a major is one who is described to suffer from severe mental retardation. He is also stated to have been duly examined and assessed by the National Institute of Mental Health as well as the Medical Superintendent of Safdarjung Hospital who proceeded to issue a disability certificate in that regard. The petitioner and his son are stated to be citizens of the United States of America. The son was adopted by the petitioner and his now estranged wife. Both are stated to have relocated to the country on account of the breakdown of marital relations and the consequential legal separation of the parents. The erstwhile wife is said to be residing in the United States of America. The petitioner asserts that he has been granted legal custody of his son and has been acting as his primary caregiver since the time of adoption. Both the father and the son are stated to have relocated to India in 2009 and hold Overseas Citizenship of India (OCI) cards. The petitioner sought to be appointed as the guardian of his son in terms of the Act. The said application, however, presently faces the barrier of Rule 17 and Regulation 12 which prescribe citizenship to be an essential qualification.

As it turned out, the Division Bench points out in para 23 that:
The Court also finds itself unable to sustain the contention addressed on behalf of the petitioner that the Rules and the Regulations conflict with Section 14 for the following additional reasons. It becomes pertinent to observe that the mere usage of the word‘s parent, relative or any person in Section 14 does not convince this Court to come to the conclusion 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. While a parent, relative or any other person can ordinarily apply for being appointed as a guardian, the same would not detract from those persons otherwise being compliant with the qualifications that may be validly prescribed. The Act as well as the Rules and Regulations clearly put in place an evaluation criterion which is meant to guide the competent authority while 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.

Most forthrightly, the Division Bench then lays down in para 24 that:
The Court also finds itself unable to sustain the contention addressed on behalf of the petitioner that the Rules and the Regulations conflict with Section 14 for the following additional reasons. It becomes pertinent to observe that the mere usage of the word‘s parent, relative or any person in Section 14 does not convince this Court to come to the conclusion 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. While a parent, relative or any other person can ordinarily apply for being appointed as a guardian, the same would not detract from those persons otherwise being compliant with the qualifications that may be validly prescribed. The Act as well as the Rules and Regulations clearly put in place an evaluation criterion which is meant to guide the competent authority while 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.

Most significantly, the Division Bench then minces just no words to hold in para 26 that:
The Court also finds merit in the submissions addressed by the learned ASG and Mr. Kumar when they contended that the requirement of a guardian being a citizen of India is designed to subserve a larger societal and public purpose. As is manifest from a conjoint reading of Sections 15, 16 and 17 of the Act, the affairs and the well-being of a person with disability is subject to periodical monitoring by the Local Level Committee and other authorities charged with discharging that obligation. In terms of Section 16(1), a person appointed as a guardian is to deliver an inventory of all immovable property belonging to a person with disability within six months from the date of his appointment. The guardian, additionally and in terms of Section 16(2), is further obliged to furnish returns in respect of the property and assets in his charge every three months on the closure of a financial year. A guardian may also come to be removed, if he be found to be abusing or neglecting a person with disability or even in a case where he has misconducted himself and mismanaged while dealing with the property and assets of such a person. In terms of Rule 17(1)(vi) various misdemeanours stand chronicled and which are recognised under the Rules to constitute abuse and neglect. Those too would lend credence to the statute obliging the competent authorities under the Act to continually monitor and oversee the welfare and the condition of persons with disabilities. Not only would the appointment of a person who is neither a citizen of the country nor ordinarily residing herein give rise to serious apprehensions and leave the authorities grappling with various imponderables and a state of continued uncertainty, it would also impede the discharge of the monitoring obligation placed upon the statutory authorities.

Most remarkably, the Division Bench minces no words to mandate in para 32 that, As would be evident from the aforesaid extracts, the State is concerned deeply with the subject of guardianship and its obligation to take under its care those who are either rendered physically unable to care and fend for themselves or are otherwise vulnerable. The doctrine of parens patriae evolved over centuries in recognition of the obligation of the State to take such persons under its care and to not leave them abandoned in a state of destitution, left to eke out their existence as a result of the cruel hand that destiny chose to deal.

Most pragmatically, the Division Bench observes in para 43 that:
Let the Local Level Committee examine and evaluate the circumstances and surroundings of the person with disabilities in question forthwith. The Committee may also 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. 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. The statutory guardian acting together with the petitioner shall be responsible for the discharge of all statutory obligations that stand placed under the Act.

For sake of clarity, the Division Bench then clarifies in para 44 holding that, The aforesaid directions, however, shall not be understood as authorising the removal of the son from the custody of his natural guardian, the father and the petitioner here, unless the Local Level Committee finds that 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.

What’s more, the Division Bench then directs in para 45 that:
The writ petition along with the pending application shall consequently stand disposed of in terms of the directions set out in paragraphs 43 and 44. The Local Level Committee shall cause an inspection to be made with due expedition and upon the appointment of a statutory guardian place a comprehensive report on the record of these proceedings within a period of two months from today.

Finally, the Division Bench then concludes by holding in para 46 that:
The Court additionally grants liberty to the Local Level Committee to apply for such further directions as may be considered necessary and in case circumstances so warrant.

All told, we thus see that the Delhi High Court has made it indubitably clear that a foreign national cannot claim vested or constitutional right to be appointed as guardian of person with disabilities. It thus merits no reiteration that all the Courts must pay heed to what the Delhi High Court has laid down in this leading case! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh