Non-citizens cannot be appointed guardian of persons with disabilities: Delhi High Court

The Delhi High Court recently upheld the validity of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2000 as well as Board of the Trust Regulations, 2001 so far as they restrict a foreign national from being appointed guardian of a person with disabilities. .A division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma upheld the rules and regulations saying that they do not travel beyond the scope of the authority conferred under the Act and that the Central Government as well as the Board of Trustees were empowered to prescribe the qualifications of a guardian.“Not only would the appointment of a person who is neither a citizen of the country nor ordinarily residing herein give rise to serious apprehensions and leave the authorities grappling with various imponderables and a state of continued uncertainty, it would also impede the discharge of the monitoring obligation placed upon the statutory authorities,” the bench said..The High Court was hearing a plea by an American citizen named Sunil Podar seeking a direction to be appointed guardian of his adopted son who suffers from 90% disability.Podar challenged the rules and regulations on the premise that in the absence of the parent Act disabling a non-citizen from applying to be appointed as a guardian of a person with disabilities, such a prescription could not have been introduced by virtue of delegated legislation and in this case the Rules read with the Regulations..After considering the case, the bench said that the petitioner, while being the father of his son with disabilities, in light of being an American citizen cannot claim or assert a vested right to be appointed as his guardian.Such a right 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, the court underlined.“Additionally, the Court notes that guardianship cannot be recognised as a right that may flow from any of the provisions which stand enshrined in Part III of the Constitution and those under which protection may be claimed even by a foreign national. It, in any case, finds itself unable to countenance Articles 14 or 21 as being the source or the repository of a claim that may be raised in that regard,” the Court said. .While rejecting Podar’s plea for appointment as guardian, the Court directed the Local Level Committee to examine and evaluate the circumstances and surroundings his son and advise the measures necessary, bearing in mind his welfare, overall health and well-being.The bench further said that the petitioner can nominate an Indian citizen who may be appointed as the statutory guardian of the son with special needs.“The aforesaid directions, however, shall not be understood as authorising the removal of the son from the custody of his natural guardian, the father and the petitioner here, unless the Local Level Committee finds that circumstances warrant otherwise. The statutory guardian as well as the petitioner shall be jointly responsible to care for and look after the welfare of the person with disabilities,” the Court said..Advocate Dinesh Kumar appeared for the petitioner.Respondents were represented through Additional Solicitor General Chetan Sharma, Central Government Standing Counsel Rakesh Kumar and Kirtiman Singh as well as advocates Sunil, Amit Gupta and Vidhi Jain. .[Read Judgment]