Dear Friends,
Ms. Jo Chopra, Latika Roy Foundation, Dehradun is a fond mother and activist for the inherent human rights of those experiencing disabilitiies and particulary intellectual disabilities. This is subsequent to my earlier post reflecting my senior colleague Collin Gonsalves, Advocate, Supreme Court of India presenting the legal views and social implications of the judgement.
Click here to read from source: The Hindu - Contested motherhood
JO CHOPRA
Can the State order an intellectually-disabled person to have an abortion even though she wants to have the baby? A look at some of the issues regarding sexuality and disability…
What kind of sexuality education do children with disability need? Do people with disability even have sex lives? Do they have the right to reproduce and raise their own babies?
Of the issues confronting people with disability, sexuality is the most charged. A recent case brought many of the most compelling strands of this complex tapestry together and it took the Supreme Court to settle it.
A young woman with a mental handicap, living in a government institution as a State ward, had been raped repeatedly by two guards there. At 19, she became pregnant. When her condition was detected, the State determined she should have an abortion. The woman insisted she wanted to keep the child.
The matter went to court and it was decided she should be compelled to have the abortion. An advocate for the woman filed an appeal in the Supreme Court where, given the urgency, a speedy verdict was rendered: no woman, even one with a mental handicap, can be compelled to have an abortion.
Many people weighed in on this case but many important issues were ignored or not analysed:
A disabled woman was raped. People with mental handicaps are statistically more likely to be sexually abused. They are accustomed to being dependent on adults for many of their basic personal needs and submissive in their response to them. Vulnerable People with developmental disabilities may lack the social skills to assess a dangerous situation and the judgment to get out of it or raise an alarm. They are exposed to more “caregivers” than typically developing people. The more people one is intimately involved with, the higher the chance that one will be an exploiter.
The woman became pregnant. People with developmental disability are often assumed to be both asexual and infertile. While some disabilities do have an associated infertility component (only around 50 per cent of women with Down Syndrome, for example, are fertile), most otherwise healthy adults have the same chance of being able to reproduce as anyone and many have the same sex drive as normal people.
Her pregnancy was ordered to be terminated by the High Court, in spite of her insistence that she wanted the baby. Here is the heart of the issue. Can a person with an intellectual disability make a decision? Is intellectual capacity required for parenthood? What about the baby’s right to life? Is the State justified in forcing someone to undergo an invasive procedure?
Many who agreed with the court’s decision nonetheless believed the baby would have to be taken from the mother and reared by the State. It’s important to look carefully at biases and assumptions here.
Are we sure that a woman with a cognitive disability is incapable of taking care of her child? In theory, there is no reason to assume she couldn’t manage, albeit with support. Most able women need support to bring up their babies too. Motherhood is demanding and a high IQ may be one of the least important pre-requisites. As long as the mother is loving and attentive, as many mentally handicapped women are, and, crucially, has support from the community, a baby could prosper in her care.
Granted, that baby might not get the perfect intellectual environment, but is academic success the only goal in life? Does it guarantee happiness? A child brought up by a mother with intellectual impairment might still be deeply loved and cared for and might be satisfied and content — not things to be lightly discarded.
In spite of such logic, arguments were made about the State’s compelling interest in seeing that this child not be born. Because the baby would have to be brought up by the State, better not to allow it to be born in the first place. This reasoning is both specious and dangerous.
Many people who are not wards of the State might still be judged incompetent to bring up children. The socialite more interested in parties than in a baby’s needs, the workaholic whose ambition supersedes her parenting responsibilities, the habitual drinker, the poor woman living hand to mouth, the child bride, the list goes on.
Are we prepared to terminate the pregnancies of such women? The Supreme Court said no. Human rights cannot be granted to some people and denied to others without ensuring that eventually they will be denied to all.
What if the baby were born with a disability, as many opponents of the Supreme Court decision hinted darkly was likely?The real issue
What if it were? And here is the true heart of the matter. Disability is, I believe, “The Last Frontier” in the battle against discrimination and injustice. While people are indeed denied basic human rights for all sorts of reasons all over the world, no civilised person ever tries to justify it. When women are raped, when prisoners are tortured, when children are abused, when war crimes are committed, the civilised world recoils in horror. We speak out against human rights violations wherever we see them and so we should and so we must. Except when it comes to people with disability.
Abortion of girls because they are girls is called what it is: murder, brutality. Abortion of babies with disability is routine, sanctioned and worse, expected. In the U.S., it is estimated that 95 per cent of babies detected with Down Syndrome are aborted. Women who elect to have their babies anyway are made to feel irresponsible, reckless and unfairly burdening society. Chilling decisions
Eminent philosophers (Dr. Peter Singer of Princeton is one example) speak openly of the moral right of parents to abort handicapped babies before they are born and afterwards too. At the moment, it is acceptable only in early infancy, before parents have gotten “attached”. But as ethicists admit, if it’s acceptable to abort a disabled baby before birth, what’s wrong with doing it later? This opens the door to chilling possibilities.
Sexuality offers a prism through which we can better understand ourselves, the people around us and the values we hold most dearly. When we use it to look at disability, we may find, to our dismay, we are not the people we thought we were. Although we speak of tolerance and diversity, many of us are uncomfortable with people with disabilities making choices in their lives, distressed by the idea of them having sexual relationships and appalled by the vision of them bringing more people like themselves into the world.
The Last Frontier. It’s later than we think.
The writer is the Director of the Latika Roy Foundation ( http://www.latikaroy.org/) in Dehradun, a Resource Centre for People with Special Needs.
A platform to share the periodic updates on developments in disability law, policy formulation and related fields across the world with special focus on India. It analysis successes and failures in the struggle of restoring disability rights through Court Intervention and general discourse on Human Rights of People with Disabilities.
Showing posts with label Mental Retardation. Show all posts
Showing posts with label Mental Retardation. Show all posts
Monday, August 31, 2009
Friday, July 24, 2009
Detailed Facts of the Chandigarh Case of Raped Mentally challenged Girl's Pregnancy
Dear Friends,
My senior colleage Shri Collin Gonsalves, Senior Advocate, Supreme Court who represented one of the social activist in the said case, has very kindly put forth the detailed actual facts of the case which reveal how difficult it was to take either of the decision - be it in favour of continuing the pregnancy and aborting the forced pregnancy. He also highlights the lack of support systems to the challenged girl and that despite widely publicised in the media, no social organisation or the Govt. of Chandigarh came forward to help and assist the Girl in any manner and they allowed the featus to grow to reach such a stage when any abortion could pose a danger to her life. Additionally this also highlights that by disallowing the MTP (Medical Termination of Pregnancy) the Supreme Court might have done more harm to the girl than an ideological justice, especially given the medical findings and lack of support and assistance to the girl to take an informed decision about herself!
My senior colleage Shri Collin Gonsalves, Senior Advocate, Supreme Court who represented one of the social activist in the said case, has very kindly put forth the detailed actual facts of the case which reveal how difficult it was to take either of the decision - be it in favour of continuing the pregnancy and aborting the forced pregnancy. He also highlights the lack of support systems to the challenged girl and that despite widely publicised in the media, no social organisation or the Govt. of Chandigarh came forward to help and assist the Girl in any manner and they allowed the featus to grow to reach such a stage when any abortion could pose a danger to her life. Additionally this also highlights that by disallowing the MTP (Medical Termination of Pregnancy) the Supreme Court might have done more harm to the girl than an ideological justice, especially given the medical findings and lack of support and assistance to the girl to take an informed decision about herself!
For those who are keen on accessing the Supreme Court Final judgement, they may access from here: Final Judgement: Shuchita Srivastavs Vs. Chandigarh Administration
Justice Kannan, a sitting Justice of Chandigarh highcourt, who is also a blogger since 2007 has reflected on this case on his blog which might be of interest to the readers. You may access Justice Kannan's perspective here.
The detailed note from Shri Collin Gonsalves also includes both judgements from the High Court of Punjab & Haryana which elucidates the reasoning for the order later reversed by the Hon'ble Supreme Court as informed in my earlier post. To me in either case, the girl has suffered and would suffer. By allowing the girl to retain the pregnancy, it might have been a win for pro-life activists but the track record so far in this case does give a grim picture of society and social organisations coming forward to support leave the Govt. setup aside where such a terrible incident occured.
Here is the note for your information:
The Right to Abort Vs. The Right to Give Birth
Chandigarh Administration Vs. Nemo
Colin Gonsalves
This note is being circulated so that you may have a look at the facts before the High Court in this case so as to make an informed decision on the merits of the case.
Every woman in India has the fundamental right to abort or to continue with the pregnancy. Her decision is paramount. This is no less true in the case of mentally challenged women. To emphasis, her decision is final. No guardian and no court can take a decision on her behalf contrary to her decision.
The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that ultimately she may make an informed decision one way or the other. If the woman’s point of view is not possible to determine then the guardian or the court must take a decision in the best interest of the woman.
In the Nari Niketan case the legal issues became very complex as consent could not be taken as the woman was not given any support or assistance. Therefore the Chandigarh Administration as well as the Punjab and Haryana High Court proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below.
A 19 year old mentally challenged woman kept at Nari Niketan, Chandigarh which is a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards and conceived. In May 2009 the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month the Director of the Government Medical College and Hospital constituted a three member Board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that “she also cries almost daily”. The Board found that her mental age came out to be 9 years and that she fell in the category of mild mental retardation. A few days later, a four doctor Multi Disciplinary Medical Board was constituted which included a psychiatrist and the Board submitted a report recommending medical termination of pregnancy in the following terms:
“2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident.
3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she isnot able to elaborate the details further. The cause of mental retardation in presence of bony abnormalities can have a genetic basis and can be inherited by the baby.
4. Continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies who are premature and low birth weight may have organs that are not fully developed. This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and serious intestinal problems.
5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child but it is a complex relationship which is beyond her capability and comprehension.
6. Child of a rape victim who doesn't have family support can have social and emotional problems which can jeopardize his complete physical, mental and social well being later.
7. There is clear-cut humanitarian ground as per the MTP Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9% of cases, although the incidence of severe complications is very rare. The complications can still be minimized by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child's health, and so recommends medical termination of pregnancy [MTP]”.
Click here for remaining part of the note
Click here for the Part-I of Punjab & Haryana High Court Judgement
Click here for the Part-II of Punjab & Haryana High Court Judgement
regards
SC Vashishth, Advocate
SC Vashishth, Advocate
Tuesday, July 21, 2009
The Raped Mentally challenged Girl can continue her pregnancy- says SC
Dear Friends,
This has reference to my earlier post on the subject. Finally, what I guessed turned out to be right. The Court allowed the girl to continue with her pregnancy. A strong argument that "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state" was successfully used.
Another argument "why should poor women, who are found lacking in bringing up their children should be allowed to have babies? if this girl with mental retardation is to be disallowed the motherhood only on this ground that she can not bring her up" was also used.
The life won and won the motherhood! UNCRPD, right to life, Right to motherhood, and social support were all discussed. The arguments were touching and Supreme Court gave in! Congratulations to life and pro-life and pro-right activists and so to the concerned pro-abortion activists as this much publicised matter would eventually provide some support structures to the girl and her coming baby!
regards
SC Vashishth
To read the news from source click here
Raped mentally challenged girl can continue pregnancy: SC
Dhananjay Mahapatra, TNN 21 July 2009, 03:54pm IST
The Supreme Court on Tuesday allowed a mentally challenged orphan girl who was raped at a Nari Niketan in Chandigarh to continue her pregnancy resulting from the sexual assault. The apex court was initially reluctant to interfere with a Punjab and Haryana High Court order directing medical termination of the pregnancy. But it changed its mind after counsel Tanu Bedi crafted her arguments based both on law and emotional grounds.
When the CJI expressed concern as to who would take care of the baby and what would be the health of the newborn, more so since the girl had no one to look after her, Bedi in her 40-minute long monologue repeatedly put these questions to the court — "Why would a girl, even if mentally retarded, be deprived of motherhood which is her right? If her mental age was a consideration for the judiciary to think that she could not take care of her baby, why should poor women, who are found lacking in bringing up their children, be allowed to become mothers?"
She said medical termination of pregnancy could not be done under law without the consent of the mother. "And here is a case where the girl wants to keep her pregnancy. She has no blood relation in the world. Should we not help her to get her first blood relation in the baby she is carrying now," Bedi asked. The arguments not only touched the Bench but every one present in the court as Bedi went on, "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state."
If the Bench was worried about the future of the baby and whether the girl, with a mental age akin to that of a 9-year-old, could take the strain of motherhood, it was supported by senior advocate Colin Gonsalves, who appearing for a social activist cited medical reports that cast doubt on her ability to handle motherhood.
Further Readings: http://timesofindia.indiatimes.com/NEWS/Sunday-TOI/View-From-Venus/Whose-baby-is-it-anyway/articleshow/4820858.cms
Motherhood is for all? Debate rages in SC- Hindustan Times
Dear friends,
A rather tricky legal entangle from High Court now in the Supreme Court. A tussle between pro-life and pro-choice activists and at stake is the life of a 19 year mentally retarded unwed and orphaned girl stranded in a state run home! Any delay can be a peril to her life. And I am sure the delay would not allow any abortion eventually in this legal entangle and pro-life activists are most likely to win - not because of their arguments for life of child and the rights of the girl to have her baby but because of the inherent threat to the life of the challenged girl that an abortion would pose after 20 weeks!!
Links of the News Items
Hindustan Times: Motherhood is for all? Debate rages in SC- Hindustan Times
Indian Express: http://www.expressindia.com/latest-news/terminate-pregnancy-of-mentally-challenged-rape-victim-orders-hc/490988/
Here is the debate that went on on the Facebook for your information:
Subhash Chandra Vashishth
Would this be a travesty of justice and permanent addition to the miseries of the orphaned girl ? The supreme court has to take a decision on urgency taking a holistic approach and giving due emphasis to social, physical, mental capacity and financial conditions! Can't afford to prolong such matters before various courts!
Jo McGowan Chopra
Not that simple, I'm afraid. Leave aside the issue of the baby's right to life (which doesn't seem to even come into the argument), the young woman in question has expressed a strong desire to keep the baby. Are her wishes to be ignored? She is said to have the intellectual age of a nine year old. Nine year olds are very capable of making good decisions, especially if given support by wise, impartial older friends. Does the court feel that all people of limited intellectual ability should be prevented from having children? Are we prepared to make such decisions for other people, particularly when they have expressed their convictions repeatedly and with force?
Jamie Osborne
If the woman is a ward of the State, then what the State says goes. As far as I know, the UNCRPD doesn't ensure that people with developmental disabilities have more say over their possible futures than their guardians...
Subhash Chandra Vashishth
Thanks Jo for your view and I agree with your argument but where is the support by wise and impartial older friends. She is in a state run home for mentally challenged where two security guards were involved in raping her. God knows how many others have been treated there similar way. I am only worried about the future of the child who would have no support but to remain in the same home and the mother may not be able to look after the interest of the child. The fear is what if the child is a girl .... Thanks Jamie for your opinion, the girl is under the guardianship of the state, however, since it was a criminal case, the matter is subjudice hence any action needs to be okayed by Court.
Rama Chari
If the girl has desired to keep the baby, she should be allowed to do so.. She has equal rights like anybody else.
Jo McGowan Chopra
The wise and impartial friends have to be us, I think. Surely there is some NGO in Chandigarh which can help this young woman? And if we are truly concerned about the baby, is killing it the way to express that concern?
Subhash Chandra Vashishth
Between the two groups of Pro-life & Pro-choice activists the young girl is waiting for answers from the Supreme court. May be it is the right time that some NGO then takes her in to their guardianship and provide crucial support. My dear senior colleage Senior Advocate Collin Gonsalves, who incidently also heads HRLN is pro-abortion for he seem to... Read more believe that all those who are showing support to the girl to have a baby will not be found when she would need some support!
Jo McGowan Chopra
Colin may be right. But there are definitely pro-life people who WILL step forward if the baby needs a home. I think my husband and I are too old to do it ourselves, but I think I could find someone willing.
Kavita Agrawal
Another question that comes to my mind is that whether any one is coming forward to take care of the child should the girl be allowed to have the child. It is Ok to talk about society supporting the girl. I don't see any of the so called society people coming forward to take care of the girl and the child. if we had such responsible society probably the rape wouldn't have taken place at all......people would have been more sensitive....
A rather tricky legal entangle from High Court now in the Supreme Court. A tussle between pro-life and pro-choice activists and at stake is the life of a 19 year mentally retarded unwed and orphaned girl stranded in a state run home! Any delay can be a peril to her life. And I am sure the delay would not allow any abortion eventually in this legal entangle and pro-life activists are most likely to win - not because of their arguments for life of child and the rights of the girl to have her baby but because of the inherent threat to the life of the challenged girl that an abortion would pose after 20 weeks!!
Links of the News Items
Hindustan Times: Motherhood is for all? Debate rages in SC- Hindustan Times
Indian Express: http://www.expressindia.com/latest-news/terminate-pregnancy-of-mentally-challenged-rape-victim-orders-hc/490988/
Here is the debate that went on on the Facebook for your information:
Subhash Chandra Vashishth
Would this be a travesty of justice and permanent addition to the miseries of the orphaned girl ? The supreme court has to take a decision on urgency taking a holistic approach and giving due emphasis to social, physical, mental capacity and financial conditions! Can't afford to prolong such matters before various courts!
Jo McGowan Chopra
Not that simple, I'm afraid. Leave aside the issue of the baby's right to life (which doesn't seem to even come into the argument), the young woman in question has expressed a strong desire to keep the baby. Are her wishes to be ignored? She is said to have the intellectual age of a nine year old. Nine year olds are very capable of making good decisions, especially if given support by wise, impartial older friends. Does the court feel that all people of limited intellectual ability should be prevented from having children? Are we prepared to make such decisions for other people, particularly when they have expressed their convictions repeatedly and with force?
Jamie Osborne
If the woman is a ward of the State, then what the State says goes. As far as I know, the UNCRPD doesn't ensure that people with developmental disabilities have more say over their possible futures than their guardians...
Subhash Chandra Vashishth
Thanks Jo for your view and I agree with your argument but where is the support by wise and impartial older friends. She is in a state run home for mentally challenged where two security guards were involved in raping her. God knows how many others have been treated there similar way. I am only worried about the future of the child who would have no support but to remain in the same home and the mother may not be able to look after the interest of the child. The fear is what if the child is a girl .... Thanks Jamie for your opinion, the girl is under the guardianship of the state, however, since it was a criminal case, the matter is subjudice hence any action needs to be okayed by Court.
Rama Chari
If the girl has desired to keep the baby, she should be allowed to do so.. She has equal rights like anybody else.
Jo McGowan Chopra
The wise and impartial friends have to be us, I think. Surely there is some NGO in Chandigarh which can help this young woman? And if we are truly concerned about the baby, is killing it the way to express that concern?
Subhash Chandra Vashishth
Between the two groups of Pro-life & Pro-choice activists the young girl is waiting for answers from the Supreme court. May be it is the right time that some NGO then takes her in to their guardianship and provide crucial support. My dear senior colleage Senior Advocate Collin Gonsalves, who incidently also heads HRLN is pro-abortion for he seem to... Read more believe that all those who are showing support to the girl to have a baby will not be found when she would need some support!
Jo McGowan Chopra
Colin may be right. But there are definitely pro-life people who WILL step forward if the baby needs a home. I think my husband and I are too old to do it ourselves, but I think I could find someone willing.
Kavita Agrawal
Another question that comes to my mind is that whether any one is coming forward to take care of the child should the girl be allowed to have the child. It is Ok to talk about society supporting the girl. I don't see any of the so called society people coming forward to take care of the girl and the child. if we had such responsible society probably the rape wouldn't have taken place at all......people would have been more sensitive....
Tuesday, March 10, 2009
Need of Sensitive & Aware Judges in the High Courts
Dear Friends,
In the instant case, I am delighted that a senior judge of a High Court had the sensitivity, to use his extra ordinary jurisdiction, to protect the person and properties of a Person with Disability (Intellectual Disability). However, I am also at a loss of words to explain what I feel on the lack of awareness of the National Trust Act 1999 in the judiciary!
I strongly feel that we in the disability sector have to take this responsibility also to spread the message across and yes there is a urgent need to raise the awareness level of the Judicial Officers also especially in various High Courts of India who often use their extra-ordinary jurisdictions and writ jurisdictions to decide matters relating to Fundamental Rights of the marginalised sections of the soceity like the present one.
Appended is the News. To read from Source click on Source: Express Buzz.com regards,
Subhash Chandra Vashishth
Advocate-Disability Rights
09811125521
There is a law to protect the mentally retarded
Scaria Meledam First Published : 09 Mar 2009 01:39:00 AM ISTLast Updated : 09 Mar 2009 01:43:25 PM IST
The ‘Law Watch’ published on January 26, 2009 had reported about the exercise of the extra-ordinary jurisdiction of the High Court by Justice V Giri to appoint a guardian to protect the person and properties of a mentally retarded person since the Mental Health Act did not contain a provision for such appointment and to point out the need to correct the lacuna in the Act by a suitable amendment.
Referring to the action, Dr (Mrs) Rajam P R S Pillay from Thiruvananthapuram has written a letter pointing out that the Court had missed the fact that there was an Act providing the appointment of legal guardians for mentally retarded persons and thus filling the lacuna in the Mental Health Act.
The National Trust for the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999 (for short, The National Trust Act), provides for the constitution of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The head office of the Trust is in New Delhi and it has offices at other places in India. The general superintendence, directive and management of the affairs and business of the Trust is vested with a board consisting of a chairman and 20 members. The board should constitute a local-level committee for a specified area. The committee consists of a civil service officer, a representative of a registered organisation and a person with disability.
Section 14 of the Act provides for guardianship.
A parent of a person with disability or his relative can make an application to the local-level committee for appointment of any person of his choice to act as a guardian of the persons with disability. Any registered organisation also can make an application to the local- level committee for appointment of a guardian for a person with disability. While considering the application for appointment of a guardian, the local-level committee should consider whether the person with disability needs a guardian and the purposes for which the guardianship is required and then make recommendation for the appointment of a guardian. It can also provide for the obligations of the guardian.
Section 15 details the duties of Guardian:
Every person appointed as a guardian of a person with disability should, wherever required, either have the care of such persons of disability and his property or be responsible for the maintenance of the person with disability. Every guardian should, within six months of his appointment, deliver to the authority which appointed him an inventory of immovable properties belonging to the person with disability and all assets and other movable property received on his behalf together with a statement of all claims due to and all debts and liabilities due by the person with disability. Every guardian should also furnish to the appointing authority within three months after the close of every financial year an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him.
There is also a provision for the removal of guardian: Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is abusing or neglecting a person with disability; or misappropriating or neglecting the property, they should apply to the committee for the removal of the guardian. Then the committee should, if it is satisfied that there is a ground for removal, remove the guardian, recording reasons for the same and appoint a new guardian or make other arrangements for the care and protection of person with disability. The removed guardian is bound to deliver the charge of all properties of the person with disability to the new guardian and to account for all moneys received or disbursed by him.
The P R S Pillay Memorial Trust of which Dr Rajam is the managing trustee, is the state nodal agency centre of the National Trust which has constituted the local-level committees in all districts under the chairmanship of District Collectors.
In the instant case, I am delighted that a senior judge of a High Court had the sensitivity, to use his extra ordinary jurisdiction, to protect the person and properties of a Person with Disability (Intellectual Disability). However, I am also at a loss of words to explain what I feel on the lack of awareness of the National Trust Act 1999 in the judiciary!
I strongly feel that we in the disability sector have to take this responsibility also to spread the message across and yes there is a urgent need to raise the awareness level of the Judicial Officers also especially in various High Courts of India who often use their extra-ordinary jurisdictions and writ jurisdictions to decide matters relating to Fundamental Rights of the marginalised sections of the soceity like the present one.
Appended is the News. To read from Source click on Source: Express Buzz.com regards,
Subhash Chandra Vashishth
Advocate-Disability Rights
09811125521
There is a law to protect the mentally retarded
Scaria Meledam First Published : 09 Mar 2009 01:39:00 AM ISTLast Updated : 09 Mar 2009 01:43:25 PM IST
The ‘Law Watch’ published on January 26, 2009 had reported about the exercise of the extra-ordinary jurisdiction of the High Court by Justice V Giri to appoint a guardian to protect the person and properties of a mentally retarded person since the Mental Health Act did not contain a provision for such appointment and to point out the need to correct the lacuna in the Act by a suitable amendment.
Referring to the action, Dr (Mrs) Rajam P R S Pillay from Thiruvananthapuram has written a letter pointing out that the Court had missed the fact that there was an Act providing the appointment of legal guardians for mentally retarded persons and thus filling the lacuna in the Mental Health Act.
The National Trust for the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999 (for short, The National Trust Act), provides for the constitution of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The head office of the Trust is in New Delhi and it has offices at other places in India. The general superintendence, directive and management of the affairs and business of the Trust is vested with a board consisting of a chairman and 20 members. The board should constitute a local-level committee for a specified area. The committee consists of a civil service officer, a representative of a registered organisation and a person with disability.
Section 14 of the Act provides for guardianship.
A parent of a person with disability or his relative can make an application to the local-level committee for appointment of any person of his choice to act as a guardian of the persons with disability. Any registered organisation also can make an application to the local- level committee for appointment of a guardian for a person with disability. While considering the application for appointment of a guardian, the local-level committee should consider whether the person with disability needs a guardian and the purposes for which the guardianship is required and then make recommendation for the appointment of a guardian. It can also provide for the obligations of the guardian.
Section 15 details the duties of Guardian:
Every person appointed as a guardian of a person with disability should, wherever required, either have the care of such persons of disability and his property or be responsible for the maintenance of the person with disability. Every guardian should, within six months of his appointment, deliver to the authority which appointed him an inventory of immovable properties belonging to the person with disability and all assets and other movable property received on his behalf together with a statement of all claims due to and all debts and liabilities due by the person with disability. Every guardian should also furnish to the appointing authority within three months after the close of every financial year an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him.
There is also a provision for the removal of guardian: Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is abusing or neglecting a person with disability; or misappropriating or neglecting the property, they should apply to the committee for the removal of the guardian. Then the committee should, if it is satisfied that there is a ground for removal, remove the guardian, recording reasons for the same and appoint a new guardian or make other arrangements for the care and protection of person with disability. The removed guardian is bound to deliver the charge of all properties of the person with disability to the new guardian and to account for all moneys received or disbursed by him.
The P R S Pillay Memorial Trust of which Dr Rajam is the managing trustee, is the state nodal agency centre of the National Trust which has constituted the local-level committees in all districts under the chairmanship of District Collectors.