A perusal of the provisions of the Mental Healthcare Act would again show that a distinction is made between a mentally ill person and a minor. Under Section 14, every person who is not a minor shall have the right to appoint a nominated representative, whereas under Section 15, in case of minors, the legal guardian shall be their nominated representative unless the concerned Board orders otherwise, if grounds are made out under sub-section (2).
160. Similarly, the Rights of Persons with Disabilities Act, 2016 maintains the selfsame distinction. Sections 2(s), 4, 9, 18 and 31 of the said Act read as under:
“2. Definitions. - In this Act, unless the context otherwise requires -
(a) to (r) xxx xxx xxx
(s) “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”
“4. Women and children with disabilities - (1) The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others. (2) The appropriate Government and local authorities shall ensure that all children with disabilities shall have right on an equal basis to freely express their views on all matters affecting them and provide them appropriate support keeping in view their age and disability.”
“9. Home and family - (1) No child with disability shall be separated from his or her parents on the ground of disability except on an order of competent court, if required, in the best interest of the child.
(2) Where the parents are unable to take care of a child with disability, the competent court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the appropriate Government or non-governmental organisation, as may be required.”
“18. Adult education - The appropriate Government and the local authorities shall take measures to promote, protect and ensure participation of persons with disabilities in adult education and continuing education programmes equally with others.”
“31. Free education for children with benchmark disabilities. - (1) Notwithstanding anything contained in the Rights of Children to Free and Compulsory Education Act, 2009, every child with benchmark disability between the age of six to eighteen years shall have the right to free education in a neighbourhood school, or in a special school, of his choice.
(2) The appropriate Government and local authorities shall ensure that every child with benchmark disability has access to free education in an appropriate environment till he attains the age of eighteen years.”
161. A perusal of the aforesaid Sections would show that children with disabilities are dealt with separately and differently from persons with disabilities. Thus, Sections 4, 9 and 31 give certain rights to children with disabilities as opposed to the other provisions, in particular Section 18, which speaks of adult education and participation thereof by persons with disabilities, obviously referring to persons who are physically above 18 years of age.
162. As a contrast to the 2012 Act with which we are concerned, the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 would make it clear that whichever person is affected by mental retardation, in the broader sense, is a “person with disability” under the Act, who gets protection. The Statement of Objects and Reasons of the said Act reads as under:
“STATEMENT OF OBJECTS AND REASONS
The Government of India has become increasingly concerned about the need for affirmative action in favour of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability.
2. In acknowledgement of a wide range of competencies among these individuals, the Central Government seeks to set up a National Trust to be known as a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The said Trust will be promotive, proactive and protectionist in nature. It will seek primarily to uphold the rights, promote the development and safeguard the interests of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability and their families.
3. Towards this goal, the National Trust will support programmes which promote independence, facilitating guardianship where necessary and address the concerns of those special persons who do not have their family support. The Trust will seek to strengthen families and protect the interest of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability after the death of their parents.
4. The Trust will be empowered to receive grants, donations, benefactions, bequests and transfers. The Central Government will make a one-time contribution of rupees one hundred crores to the corpus of the Trust to enable it to discharge its responsibilities.
5. The Bill seeks to achieve the aforesaid objectives.”
163. Relevant provisions of this Act are Sections:
2(g), 2(j), 14(1) and 17(1), and the same are reproduced as under:
“2. Definitions. - In this Act, unless the context otherwise requires -
(a) to (f) xxx xxx xxx
(g) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence;
(h) & (i) xxx xxx xxx
(j) “persons with disability” means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability.”
“14. Appointment for guardianship.-
(1) A parent of a person with disability or his relative may 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.”
“17. Removal of guardian.-(1) Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is-
(a) abusing or neglecting a person with disability; or
(b) misappropriating or neglecting the property,
it may in accordance with the prescribed procedure apply to the committee for the removal of such guardian.”
164. A reading of the Objects and Reasons of the aforesaid Act together with the provisions contained therein would show that whatever is the physical age of the person affected, such person would be a “person with disability” who would be governed by the provisions of the said Act. Conspicuous by its absence is the reference to any age when it comes to protecting persons with disabilities under the said Act.
165. Thus, it is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word “mental” into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal legislation, we as Judges can extend it only as far as Parliament intended and no further. I am in agreement, therefore, with the judgment of my learned brother, including the directions given by him.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(Before Dipak Misra and R.F. Nariman, JJ.)
Ms. Eera v. State (Govt. of NCT of Delhi) & Anr.
Criminal Appeal Nos. 1217-1219 of 2017
Citation: 2017 SCC OnLine SC 787
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Decided on July 21, 2017
Read full judgment here : Click here
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