Foreigner can’t claim vested right to be guardian for person with disabilities: HC

The observations were made by a division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma on February 13 while hearing a plea of a man whose adopted son suffers from severe mental retardation.

The Delhi High Court recently held that a foreigner cannot claim a vested right to be appointed the legal guardian of a person with disabilities or claim protection guaranteed under Part III of the constitution as are available to Indian citizens.

The observations were made by a division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma on February 13 while hearing the plea of a man whose adopted son suffers from severe mental retardation. The father had challenged the validity of certain rules and regulations prescribed National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 20001 and Board of the Trust Regulations, 2012 which “restrict the appointment of a guardian to a person who is an Indian citizen”.

The father alleged that Rule 17 as well as Regulation 12 are “ultra vires” the provisions of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 19993 (National Trust Act) which is the parent Act. It was argued that if the parent act does not disable a non-citizen from applying to be appointed as a guardian of a person with disabilities, then the rules and regulations cannot do so which are delegation legislation in this case.

The father and his adopted son are US citizens who relocated to India, after the breakdown of marital relations between the man and his wife, pursuant to which they legally separated. The father claimed that he had 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 relocated to India in 2009 and hold Overseas Citizenship of India cards. The father sought to be appointed as the guardian of his son under the National Trust Act and claimed that his application for guardianship is barred by the said provisions of the rules and regulations which prescribe “citizenship to be an essential qualification”.

The HC ruled that the National Trust Act lays down a basic structure with respect to differently abled persons and including the appointment of a guardian. “Insofar as other details are concerned, it clearly and in express terms leaves it open to be determined by Rules and Regulations that may be framed,” the HC said.

The Court underlined that the Act does not even attempt to specify the essential qualifications that a guardian must possess. The HC said that the neither the Rules or Regulations have “travelled beyond the scope of the authority” under the Act and that the Centre and the Board of the National Trust were duly empowered to prescribe the qualifications of a guardian.

The court concluded that the father, being an American citizen, cannot claim or assert a “vested right” to be appointed as his son’s 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,” the HC observed. It was also observed that the father being an American citizen cannot claim the protection of the fundamental rights under Part III of the constitution which are available to Indian citizens.

“Undisputedly, the petitioner, by virtue of being an American citizen, cannot claim the protection of Part III rights to the same extent as may stand conferred on a citizen. This in light of the limited rights that he can possibly claim under Part III of the Constitution,” the HC said.

At the same time, HC directed the Local Level Committee to examine and evaluate the circumstances and surroundings of the man’s son. It added that the Committee may advise on further measures keeping in mind the welfare and well-being of the son. It also said that if father nominates an Indian citizen for appointment as statutory guardian of his son, then the committee with consider and examine it. The HC said that the statutory guardian shall together with the father will attend to the welfare and upbringing of the adopted son.

The HC however clarified that these directions, “shall not be understood as authorising the removal of the son from the custody of his natural guardian, the father, unless the Local Level Committee finds that circumstances warrant otherwise”.The HC thereafter directed the Local Level Committee to carry out an inspection expeditiously and upon the appointment of a statutory guardian place a comprehensive report on record within a period of two months.

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