According to a decision by the Delhi High Court, a foreigner cannot claim a vested right to be appointed as a legal guardian of a person with disabilities or claim protection guaranteed under Part III of the constitution that are granted to Indian citizens. The observations were made on February 13 while a division bench made up of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma was hearing a man’s petition regarding the serious mental handicap of his adopted kid. The father was contesting the Board of the Trust Regulations, 2012, and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Rules, 2001, which “restrict the appointment of a guardian to a person who is an Indian citizen.”
Delhi HC : Foreigner cannot claim vested right to be appointed legal guardian of a person with disabilities
The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1993 (National Trust Act), the parent Act, was allegedly violated by Rules 17 and 12. The father claimed that these rules were “ultra vires” of the National Trust Act. It was asserted that the rules and regulations, which in this case constitute delegation laws, cannot prevent a non-citizen from applying to be named as a guardian of a person with disabilities if the parent act does not.
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Father and his adopted son are US citizens who relocated to India
After the father’s marriage to his wife fell apart and they were forced to formally divorce, the father and his adoptive son, both US citizens, moved to India. The father asserted that he has been the child’s primary carer since the adoption and that he has been granted legal custody of him. The father and son both moved to India in 2009, and they are both in possession of Overseas Citizenship of India cards. The father requested to be named as his son’s guardian under the National Trust Act and asserted that the clauses of the rules and regulations stating that “citizenship must be an important qualification” limit his application for guardianship.
The High Court further ruled that the National Trust Act establishes a fundamental framework for people with disabilities, 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,”
High Court underlines that Act does not attempt to specify essential qualifications that a guardian must posses
The Act makes no attempt to define the fundamental skills that a guardian must have, the Court said. The HC ruled that neither the Rules nor the Regulations “travelled beyond the scope of the authority” granted by the Act, and that the National Trust Board and the Center were properly authorised to establish the requirements for guardians.
The father cannot argue a “vested right” to be named as his son’s guardian because he is an American citizen, the court found.
Delhi High Court observed,
“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,”
Additionally, it was noted that because the father is an American citizen, he is not entitled to the protection of Part III’s essential rights, which are provided to Indian nationals.
The High Court said,
“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,”
Delhi High Court directs Local Level Committee to examine and evaluate the circumstances and surroundings of a man
HC further instructed the Local Level Committee to investigate and assess the man’s son’s surroundings and conditions. It further stated that the Committee could make recommendations for additional actions while keeping the son’s welfare and wellbeing in mind. Additionally, it was stated that the committee will consider and review the nomination of an Indian citizen by the father for appointment as his son’s statutory guardian. According to the HC, the father and the statutory guardian will both be responsible for the adopted son’s welfare and upbringing.
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