Feature

Volume 9 Issue 2 - April 01, 2012

Incapacity laws: A preliminary analysis shows how laws discriminate against various kinds of disabilities and not just people of ‘unsound mind’!

The common notion among people in the disability sector is that ‘capacity’ or ‘legal capacity’ is something that only people of ‘unsound mind’ need to worry about. When the Legal Review team of National Disability Network and Disabled Rights Group, which is drafting the Parallel Report on C.R.P.D. implementation in India, undertook a review of some 2000 odd national laws, the findings were an eye-opener. Bhargavi Davar, Co-Chair of National Alliance on Access to Justice for Persons Living with Mental Illness (N.A.A.J.M.I.), and a member of the Legal Review team writes about the 150 odd laws that discriminate against not only people of ‘unsound mind’ but also those with ‘physical and mental defect’, ‘incapacity’, ‘physical and mental infirmity’, ‘deaf mute’, ‘blind’, ‘contagious leprosy’, ‘leprosy cured’, ‘epilepsy’ and many more.

There are over 2000 national laws in the country relating to a variety of issues, ranging from the Army, Navy, Air Force, Border Security Forces, police to family laws, criminal laws, laws relating to delivery of public services, taxation laws, banking and banking regulation laws, laws relating to the social justice system such as the Safai Karmachari Act, and laws relating to political participation.

Scanning these laws at a preliminary level using ‘search and find’ function for words such as ‘unsound mind’, ‘defect’, ‘infirmity’, ‘incapacity’, etc. proved to be a very useful exercise. It was a quick and simplistic exercise and no doubt, a more profound legal analysis is possible and required.

The Legal Review team of National Disability Network (N.D.N.) and Disabled Rights Group (D.R.G) drafting the Parallel Report on C.R.P.D. implementation in India, was shocked to find the total discrimination against all persons with disabilities on grounds of legal incapacity found in over 150 laws.

When we started the review, our expectation was that we would find many laws that would discredit persons of ‘unsound mind’ from having full legal capacity. While it is true that a larger number of laws (say 60 percent) do apply solely to persons of ‘unsound mind’ or to both ‘lunatics’ and ‘idiots’, a not so small number of laws (say 40 percent) apply not only to such persons, but to a wider range of people with disabilities. For example, the words, ‘physical and mental defect’, ‘incapacity’, ‘physical and mental infirmity’, ‘deaf mute’, ‘blind’, ‘contagious leprosy’, ‘leprosy cured’, ‘epilepsy’ are found pervasively in the laws in the context of legal incapacity. More general categories of ‘incapable due to serious illness’, ‘found unfit to act by a competent court’, etc. are also found.

Many of these laws have their origins in the colonial period, and have gone through ‘serial amendments’ in the post Independence period. The honourable drafters of the Constitution and the legal experts who amended various laws many times over following the independence of the Indian State from the British Empire, forgot to ever revise the provisions relating to people with disabilities. As a result, a hard core of provisions (and legal perversions exist) within nearly every class of laws, which contain highly discriminatory, even inflammatory allegations and assumptions regarding a variety of disabilities. ‘Lunatic’, ‘idiot’ and ‘deaf mute’ are of course most pervasively found. I was curious to know why the banking sector targeted the blind until I found that in the banking laws, the exclusion is very broad based, including ‘physical and mental infirmity’ in general terms. A large part of the family laws are about people of ‘unsound mind’.

The laws relating to the military, security and other enforcement laws (such as the Coast Guard Act) deny a person with disability the capacity to act, to stand trial, to defend oneself, to explain or appeal, to give consent to treatment, to give consent to institutionalisation / treatment, etc. These laws provide for a pathway from the services directly into a mental institution or handing over to relatives on condition that the person is not dangerous to self or others.

References to the Lunacy Act, which was replaced by the Mental Health Act of 1987, are still found. Provisions relating to persons with disabilities are ‘harmonised’ with the Code of Criminal Procedure (Cr.P.C.) or other penal laws, and not with any rights / social justice laws, disability laws or other progressive laws.

Property related matters of a ‘lunatic’ are settled by a separate law in the Army and the Air Force. Person of ‘unsound mind’ is to be treated as ‘dead person’ from the day unsoundness is ascertained. I have found this to be the most degraded and inexplicable representation of people with psychosocial disabilities within law.

Criminal laws deny certain disabilities the capacity to defend, stand trial, be witness, and give consent. Liberal use is made of words like ‘idiot’ and ‘unsound mind’. For the first time in law, in a post- C.R.P.D. amendment of the Cr.P.C., a psychiatrist or clinical psychologist is referred to in determining ‘unsound mind’. The amendment is interesting as evidence of perversion of law through the ages, because it is bringing together anachronistic provisions of laws made at different times (Lunacy Act, Mental Health Act) with different authorities and procedures, resulting in some ludicrous and laughable legal provisions (for example. ‘a person of idiot’, ‘accused to be of idiot’, etc.). Here the psychiatrist and psychologist are called upon ‘to declare a person of idiot is suffering from unsoundness of mind’. The legal determination mandated in the amendment is that a ‘person of idiot’ found to be of ‘unsound mind’ is found to be incapable.

In another provision, the amendment says that trial may resume after ‘a person has ceased to be of idiot’. Mental retardation appears as a separate category distinct from ‘person of idiot’, or ‘of suffering from unsoundness of mind’, again referring to psychologist or psychiatrist for the determination. I cannot over emphasise the shift in this law, of the over arching empowerment of mental health professionals in determination of disability and consequences thereof.

Some laws have not been looked at, such as Police Act, Beggars’ Home Act, Panchayati Raj Act, etc. These are State laws, however, they apply across many, if not most, States with local application through rules.

Family laws deny the capacity to be married, stay married, adopt, inherit, terminate a pregnancy, choose a pregnancy, etc. based on disability. Some of these laws have guardianship provisions. Some laws are applicable only to those of ‘unsound mind’ while others include ‘leprosy’ or ‘contagious leprosy’, and ‘physical and mental defect’, ‘severe handicap’, etc.

Conditions are placed for persons with disabilities on the capacity to make a will. A person who is blind or deaf or dumb can make a will provided they can understand what they are doing. A ‘lunatic’ cannot probate or administer a will. Various amendments particularly to the marriage and divorce laws show the same perversions and paradoxes of amendment as in the last set of criminal laws: old phrases mixed with new.

Termination of pregnancy laws directly contradict various provisions of ‘unsound mind’ by illustratively noting the ‘mental anguish’ caused by bearing a child with disability. Why does the law recognise ‘mental anguish’ in some places, and victimises ‘unsound mind’ in other places? For example, the Medical Termination of Pregnancy Act talks about a person with unsoundness of mind not having capacity in one place; and the same law also talks about continuation of pregnancy that could cause grave risk to physical and ‘mental health’ in another place. Such a mother is not considered to be of unsound mind, rather is seen as being in ‘mental anguish’.

The Hindu Inheritance (‘Removal of Disabilities’) Act of 1928 has a curious subtitle, reminiscent of ‘sterilisation of the fittest’, which was in practice at the time this Act was promulgated in the late colonial period.

Most of Public Services Acts place an incapacity bar on people with disabilities on membership, being a part of a council or committee or advisory, employment opportunities, reasonable accommodation and political participation. Services described are archaic.

The Municipal Acts of nearly all States provide for the setting up of shelters and asylums for the ‘deaf and dumb’, the ‘insane’, etc. Likewise, The Cantonment Acts provide archaic custodial provisions for the ‘disabled’, the poor and the destitute. Capacity for political participation is also in question in the Cantonment Acts for people of ‘unsound mind’. Several Acts have general clauses of exclusion (such as ‘proven to be incapable’), disability linked exclusions (‘physically or mentally incapable’) and mental disabilities (‘idiot’ or ‘of unsound mind’). Exclusions are mainly in performing a professional job in senior position, being elected Board Member, being elected or nominated a member of any other statutory body of the institution, holding any public office or having voting rights.

In summary, when going over these laws, I had the overwhelming experience of sitting in another place in another time, two hundred years back, and watching a line of people walk by, to the ‘nowhere land’ of legal incapacity: the idiots, the lunatics, the deaf mute, the deaf and dumb, the physically and mentally defected, the leprosy cured and those still contagious. As a community of people struggling for our rights, we face the utter perversions in law wrought by colonialism, and carried forward unmindfully into present times. This shows how unglamorous disability law was / is for the legal reformers, and the legal practitioners.

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