The principle of right to equality and equal recognition of every person by the procedure established by law is one of the most cherished human rights principles which is reflected in all national and international legal framework; all the countries throughout the globe are emancipating and trying their level best for abridging the gap between the above principle and the legal conundrums related to the rights of the people with intellectual disabilities and mental health problems.

India has also tried its best to stay ahead in providing a just and humane legal framework to the persons suffering from mental health problems and intellectual disabilities. In India the existence of Mental health legislation can be found since the mid- 19th Century, but there has been a gradual and significant transformation in the object, reason and the means to attain the interest of the persons with mental problems, throughout the legislation enacted in India from the mid-19th Century till today.

Brief History of Mental Laws in India
During the British rule in India, the first legislation introduced in the sphere of mental law was for the purpose of transporting the British patients back to England and this Act came to be known as the Lunatic Removal Act, 1851.

From 1858 the British Crown brought upon various legislations such as the Lunacy (Supreme Courts) Act, 1858, Lunacy (District Court) Act, 1858, Indian Lunatic Asylum Act, 1858 (with amendments passed in 1886 and 1889) and the Military Lunatic Act, 1877 for the care and interest of the person with intellectual disabilities, but these acts failed to generate a healthy and humane outcome as the provisions were restrictive rather than reformative to mental patients as the mentally disabled persons were detained under these acts for an indefinite period in poor living conditions with little or no chance of recovery and discharge.

This led to the introduction of a bill in 1911 that consolidated the legislation and led to the formation of the Indian Lunacy Act, 1912[1]. The Indian lunacy Act, 1912 was termed as the first legislation that governed mental health in India as it regulated the management of asylums, but the main criticism of this act of 1912 was the provisions reeked of the protection of the public from those who were considered dangerous to the society; the act did not promote the interest or rights of the mentally ill persons but were mainly and fundamentally focused on custodial sentences and it is due to this serious loophole and lacuna in the Indian Lunacy Act, 1912 that the Indian Psychiatric Society suggested the amendment to the Act and helped to draft the mental health bill, 1950[2].

Mental Health Bill, 1950, took approximately three decades to be formulated as an Act and finally received the President's assent on May, 1987 and was implemented on 1993 as Mental Health Act, 1987.

The provisions of Mental Health Act, 1987 made significant changes from the previous acts and made some commendable changes in the object it sought to achieve by enabling changes in the definition of the mental illness.

Capacity to Contract by Person of Unsound Mind
One of the essential elements of a valid contract, as mentioned in Section 10 of the Indian Contract Act, 1872, is that an agreement is considered to be a contract only when the parties to the contract are competent to make the contract, According to Section 11 Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject[3], therefore as per the Section 11 of the Indian Contract 1872 three categories of persons are not competent to contract:

1. A person who has not attained the age of majority, i.e who is a minor.
2. A person who is of unsound mind.
3. A person who has been disqualified from contracting by some law.

Therefore, if the person is of unsound mind, he is not capable of transferring any property by a deed of gift, etc. and a transfer by him would be considered void ab initio.

Further for explaining the meaning of unsound mind Section 12 of the Indian Contract Act, 1872 clearly expresses the following:
12. What is a sound mind for the purpose of contracting:

• A person is said to be of sound mind for the purpose of making a contract, if at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
• A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
• A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.

Soundness of mind is required only at the time of making a contract[4], therefore, it can be aptly concluded that a person with mental disability cannot transfer his property as the transfer would be invalid. In order to resolve the legalities of such problems the appointment of guardians and the appropriate way for the maintenance and sale of the immovable property inherited by the mentally disabled person was introduced under the mental laws of India, such as the Mental Healthcare Act, 1987, National Trust Act, 1999.

It is pertinent to note that that Mental Healthcare Act, 1987 was repealed by The Mental Healthcare Act, 2017 which came into force on 29th May, 2018 and extends throughout the territory of India, yet the provision for guardianship which was provided under Section 52 to 54 of the Mental Healthcare Act, 1987 was not reiterated in the Mental Health Act, 2017 but was provided under Section 14 of the Rights of Persons with Disabilities Act, 2016.

Therefore, the legal provisions for the management and guardianship of the person with mental disability in relation to his immovable property is regulated by the National Trust Act, 1999 and the Rights of Persons with Disabilities Act, 2016.

UN Convention
The major change and amendments in the perspective of the legal framework of mental laws in India came into effect when India became a signatory to the Convention on the Rights of Persons with Disabilities and its Optional Protocol, which was adopted on 13th December 2006 at the United Nation Headquarters in New York, was opened for signature in 30th March 2007 and came into force on 3rd May, 2008.

The basic object sought to be achieved by the Convention on the Rights of Persons with Disabilities and its Optional Protocol is to adopt a broad categorization of persons with disabilities and to re-affirm that a person with disabilities must enjoy all human rights and fundamental freedoms and to effectively exercise their rights and areas where their rights have been violated.

Article 12 of the Convention on the Rights of Persons with Disabilities and its Optional Protocol under the heading Equal recognition before the law have been instrumental in directing the equal protection of laws and the framework for property rights of the persons with disabilities, specifically Article 12 Clause 4 and 5, the whole article has been rephrased in the following lines as follows:
Article 12:

1. States parties re-affirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights laws. Such safeguards shall ensure that measures relating to the exercise of legal capacity in respect of the rights, will and preferences of the person, are free from any conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.
5. Subject to the provisions of this article, states parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.[5]

India is a signatory to the Convention on the Rights of Persons with Disabilities and its Optional Protocol and ratified it on October 1, 2007. In pursuance to Article 35 of the Convention and in order to bring the national and local mental laws and/or regulations in adherence to the provisions of the Convention on the Rights of Persons with Disabilities and its Optional Protocol it repealed the Mental Health Act, 1987 and the Persons with Disabilities (Equal Protection of Rights and Full Participation) Act, 1995 with new laws adaptive to the current problems faced by it. Currently the provisions relating to the management of property of the persons with mental illness comes under the purview of The Mental Healthcare Act, 2017 and Rights of Persons with Disabilities Act, 2016.

Appointment Of Guardian For Mentally Ill Persons – Comparative Analysis Between The Mental Health Act, 1987 And The Mental Healthcare Act, 2017:
The Mental Health Act, 1987:
The Mental Health Act, 1987 came into force on 1st April, 1993 and extends throughout the territory of India. This was the first Act which sought to govern and consolidate all previous laws existing in India in relation to the treatment of mentally ill persons and their property.

One of the aspects that it also governs is the appointment of a guardian for the mentally ill persons. However, in order to understand the scope and application of the provisions established in this law, we must first look into the description of persons that this Act is made for and is applied to.

Section 2 (l) of the Act described mentally ill person as: a person who is in need of treatment by reason of any mental disorder other than mental retardation. Therefore, in order for a person to be considered as mentally ill, he/she should fulfil three basic criteria: (i) He/she must be suffering from some form of mental disorder; (ii) The mental disorder shall not fall within the scope of mental retardation; (iii) Such person is in need of treatment by reason of such disorder. This Act, however, does not describe the term mental retardation.[6]

Section 52 of the Act describes the provision related to appointment of a guardian and manager in respect of the taking care of the mentally ill person and managing of his/her property, respectively. Sub-section (i) of Section 52 states that once the District Court is satisfied that a person making the application before it is in fact mentally ill and in capable of maintaining himself/herself, then such District Court has the power to appoint a guardian who would be responsible for taking care of the applicant, in accordance with Section 53 of the Act.

Sub-section (i) also states that the District Court has the power to appoint a manager for the management of the property of a mentally ill person, in accordance to Section 54 of the Act.

Sub-section (ii) of Section 52 states that the District Court may appoint a manager for the management of the property of a mentally ill person, if such mentally ill person is capable of taking care of himself but not of managing his property.

Under Section 52 of the Act, the District Court also has the power to reject an application if the District Court finds that the applicant is in fact not a mentally ill person. The District Court may further appoint a manager or guardian in cases where it deems fit and proper.

Section 53 of the Act states that the District Court or the Collector of the District (in cases where a direction has been issued under sub-section (2) of section 54) has the power to appoint any suitable person to be the guardian of a mentally ill person who is incapable of taking care of himself/herself. However, in cases where the Collector has appointed a guardian in discharge of his/her functions, the Collector shall be subject to the supervision and control of the State Government or of any authority appointed by it in that behalf.

Section 54 of the Act states that a Court of Wards may take charge of the property of a mentally ill person incapable of managing his/her property by himself/herself by and under the authorization of the District Court shall assume the management of such property in accordance with the law being in force at such time. Section 54 further states that in cases where the property of the mentally ill person consists in whole or in part of land or of any interest in land which cannot be taken charge of by the Court of Wards, the District Court may, after obtaining the consent of the Collector of the District in which the land is situated, direct the Collector to take charge of the person and such part of the property or interest therein.

Section 54 also states that in cases where the management of the property of such mentally ill person cannot be entrusted to the Court of Wards or to the Collector, the District Court shall appoint any suitable person to be the manager of such property.

The aforementioned section describes the process involved in the appointment of a manager and/or guardian, as the case may be; whereas Section 69 of the Act deals with the removal of managers and/or guardians so appointed. Section 69 states that the manager of the property of a mentally ill person may be removed by the authority which appointed had him/her for sufficient cause and for reasons to be recorded in writing and such authority may appoint a new manager in his/her place.

The manager so removed shall be bound to deliver the charge of all property to the new manager and to account for all moneys received and/or disbursed by him. In relation to the dismissal and appointment of a guardian, Section 69 simply states that the District Court may remove any guardian of a mentally ill person for sufficient cause and appoint a new guardian in his/her place. Thus, the discretion of removal of the manager and/or guardian lies with the authority that appointed the manager and/or guardian.

The Mental Healthcare Act, 2017
The Mental Healthcare Act, 2017 came into force on 29th May, 2018 and extends throughout the territory of India. The purpose of this Act is to provide mental healthcare and services to mentally ill persons and to protect, promote and fulfil the rights of such persons during delivery of such mental healthcare and services and in relation to matters that arise in connected with them.

This Act also attempts to align and harmonize the existing laws in relation to mental healthcare, its treatment and the rights of mentally ill persons with the Convention on Rights of Persons with Disabilities and its Optional Protocol, being adopted by the United Nations on 13th December, 2006 and which came into force on the 3rd May, 2008, by virtue of signing and ratification of such Convention by India on 1st October, 2007.

Moving on to the definition clause, this Act does not describe the term mentally ill person as had been described in the Mental Health Act, 1987. However, Section 2(s) of the 2017 Act describes the term mental illness as : a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by sub normality of intelligence[7].

Therefore, in order for a person to be considered to have mentally illness, he/she should:

1. suffer from a substantial disorder of thinking, mood, perception, orientation or memory and such substantial disorder must grossly impair judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life;
2. mental conditions associated with the abuse of alcohol and drugs;
3. but it does not include mental retardation, which has been described as a condition of arrested or incomplete development of mind of a person and specially characterized by sub normality of intelligence.

It is important to mention that neither of the Acts defined the term guardian; however, the Mental Healthcare Act, 2017 defined the term care giver under sub-section (e) of Section 2.
Under the Act of 1987, Section 52 to 54 dealt with the appointment of managers and guardians of mentally ill persons and Section 69 of the 1987 Act dealt with the removal of managers and/or guardians, as the case may be; whereas under the Act of 2017, the Sections 14 to 16 enumerate the appointment and revocation of nominated representatives of mentally ill persons, including minors.

Section 14 of the Mental Healthcare Act, 2017 talks about appointment and revocation of nominated representative. It states that every person who is not a minor has a right to appoint a nominated representative by way of making a nomination in writing on plain paper with the person's signature or thumb impression of the person referred to. The person appointed as the nominated representative shall not be a minor and must be competent to discharge the duties or perform the functions assigned to him under this Act and shall be capable of giving his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act.

It is also stated that in cases where no nominated representative is appointed by a person, the following persons may be chosen as a nominated representative of a person with mental illness, namely:

1. A relative; or;
2. a care-giver; or
3. a suitable person appointed by the concerned Board; or,
4. the individual appointed as the nominated representative in the advance directive under clause (c) of sub-section (1) of section 5; or
5. if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness, subject to certain conditions.

The Act, under Section 14, empowers the person who has appointed any person as his nominated representative to revoke or alter such appointment at any time in accordance with the procedure laid down under this Act. Further, it empowers the Board to revoke an appointment of a representative and appoint a different representative if it is of the opinion that it is in the interest of the person with mental illness to do so.

Section 15 states that in case of minors with mental illness, the legal guardian of such minors shall be their nominated representative, unless the concerned Board orders otherwise. Further in cases where an application is made to the concerned Board, by a mental health professional or any other person acting in the best interest of the minor, and on evidence presented before it, the concerned Board is of the opinion that:

1. The legal guardian is not acting in the best interests of the minor; or
2. The legal guardian is otherwise not fit to act as the nominated representative of the minor, it may appoint, any suitable individual as the nominated representative of the minor with mental illness, subject to certain conditions.

One important aspect of The Mental Healthcare Act, 2017 is that it has an overriding effect notwithstanding anything inconsistent therewith contained in any other law being in force or in any instrument having effect by virtue of any law other than this Act.

Other Laws:
The National Trust Act, 1999
This Act is formally known as The National Trust for The Welfare Of Persons With Autism, Cerebral Palsy, Mental Retardation And Multiple Disabilities Act, 1999 and it applies to the entire territory of India except the state of Jammu and Kashmir. It is clear from the title that this Act specifically applies to persons who suffer with autism, cerebral palsy, mental retardation and/or multiple disabilities and these terms have been defined in sub-sections (a),(c),(g) and (h) of Section 2, respectively.

The appointment of guardianship has been described in Section 14 of the Act. It states that the following persons apply to the local level committee for the appointed of a guardian: (i) A parent or relative of a person with disability; (ii) Any registered organization, subject to the consent of the current guardian of the disabled person.

It is pertinent to mention that while considering the application for appointment of a guardian, the local level committee shall consider whether the person with disability needs a guardian and the purposes for which the guardianship is required for person with disability. Section 14 further describes the procedure to be followed by the local level committee after it receives an application for appointment of a guardian.

Section 15 of the Act details the duties of a guardian and states that the basic duties of the guardian are either to have the care of persons with disabilities and his property or be responsible for the maintenance of the person with disability. Apart from this duty, the guardian is also made responsible for furnishing the inventory and annual accounts of the movable and immovable properties belonging to the person with disability. In addition to such duties, the local level committee may direct the guardian to carry on with other duties and/or responsibilities as the committee deems fit.

The Rights of Persons with Disabilities Act, 2016
The Rights of Persons with Disabilities Act, 2016, which came into force on 19th April, 2017, also provides for appointment of a guardian in cases where a person is unable to make necessary decisions on his/her own. One of the most remarkable section which paves the way for the equal treatment of the persons with disabilities is section 13 of the Rights of Persons with Disabilities Act, 2016, which reads as follows:
13. Legal capacity:

1. The appropriate Government shall ensure that the persons with disabilities have right, equally with others, to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages and other forms of financial credit.
    
2. The appropriate Government shall ensure that the persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law.
    
3. When a conflict of interest arises between a person providing support and a person with disability in a particular financial, property or other economic transaction, then such supporting person shall abstain from providing support to the person with disability in that transaction: Provided that there shall not be a presumption of conflict of interest just on the basis that the supporting person is related to the person with disability by blood, affinity or adoption.
    
4. A person with disability may alter, modify or dismantle any support arrangement and seek the support of another: Provided that such alteration, modification or dismantling shall be prospective in nature and shall not nullify any third party transaction entered into by the person with disability with the aforesaid support arrangement.
    
5. Any person providing support to the person with disability shall not exercise undue influence and shall respect his or her autonomy, dignity and privacy.[8]

Section 14 of the Act states that in cases where a district court or any designated authority finds that a person with disability, who has been provided with adequate and appropriate support, is unable to take legally binding decisions such persons may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person.

Section 14 of the Rights of Persons with Disabilities Act, 2016, which reads as follows:
14.Provision for guardianship:

1. Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government:
   Provided that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided.
   
   Explanation: For the purposes of this sub-section, limited guardianship means a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability, which shall be limited to a specific period and for specific decision and situation and shall operate in accordance to the will of the person with disability. 11
    
2. On and from the date of commencement of this Act, every guardian appointed under any provision of any other law for the time being in force, for a person with disability shall be deemed to function as a limited guardian.
    
3. Any person with disability aggrieved by the decision of the designated authority appointing a legal guardian may prefer an appeal to such appellate authority, as may be notified by the State Government for the purpose.[9]

This section also contains a proviso which states that the District Court or the designated authority may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly the decision regarding the support to be provided shall be reviewed by the Court or the designated authority to determine the nature and manner of support to be provided.

Section 14 also states that on and from the date of commencement of this Act, every guardian appointed under any provision of any other law for the time being in force, for a person with disability shall be deemed to function as a limited guardian and that any person with disability aggrieved by the decision of the designated authority in relation to the appointment of a legal guardian has the power to prefer an appeal to an appellate authority as may be notified by the State Government for the purpose.

Conclusion
Since the British Era to the current times, we have witnessed the great transformation of mental laws in India, there has been an exceptional notional shift of the mental laws from the protection of public from the mentally ill persons to the rights, maintenance and interest of the mentally ill persons which is certainly a significant step towards achieving the goals of equality of rights and interest among all the different factions of citizens of the Country.

Management of property of the person with mental illness has been a very big constraint from the beginning of an era and the inclusion of the provisions for the management, guardianship of the property under the Acts like National Trust Act, 1999 and Rights of Persons with Disabilities Act, 2016 have rightly put the issues of management and guardianship of property of the mentally ill persons at bay.

End-Notes:

1. Somasundram 1987
2. Trivedi 2002
3. Section 11, Indian contract act, 1872, Page 8, Universal law publishing Co. Pvt Ltd
4. Page 99, Priciples of Mercantile Law, R.K. Bangia, Allahabad Law Agency
5. Convention on the Rights of Persons with Disabilities and its Optional Protocol, Article 12
6. The Mental Health Act, 1987, Section 2(l)
7. The Mental Healthcare Act, 2017, Section 2(s)
8. The Rights of Persons with Disabilities Act, 2016, Section 13
9. The Rights of Persons with Disabilities Act, 2016, Section 14

Written By:

1. Ozair Elahi, adv. and
2. Karan Daga, adv.