LEGAL CAPACITY FOR PERSONS WITH DISABILITY

 

"Someone whose disadvantage comes from a natural disaster may be an object of pity, and perhaps of charity. . . . Someone whose disadvantage occurs as a result of social decision has a more obvious claim for social remediation.”

Ron Amundson[1]
Taking it further, for those whose disadvantage also occurs as a result of a legislative decision or due to legislative apathy to the persistent exclusion and discrimination, they have an obvious claim for legislative remediation.
 

Part I: A Build Up for Legal Capacity

 
In this it must be understood that the construction of legal capacity that we want to put in the new law is significantly influenced by our conception of disability policy and equality. Additionally, it is also shaped by our vision for the new law.
 

CONCEPTION OF DISABILITY POLICY

 
The two models of the disability policy are: (i) welfare and (ii) civil rights. One privileging biological severity as method of classification and selection and the other rests on the bulwark of social obstacles that prevented the marginalised sections from participation and exercise of rights. If we consider the experiential aspect of disability the biological severity and the social exclusion may not coincide.[2]
 
The welfare model of disability policy gives priority to persons with biologically severe disabilities, on the assumption that disability policy should compensate for biological limitations. It also emphasizes maximizing aggregate benefits to “the disabled” as a class even when doing so disadvantages persons with the most stigmatized disabilities.[3] In US many courts appear to regard the ADA's employment provisions as a welfare benefits system designed to compensate for inherent biological limitations. It seems that they assumed that unlike the socially imposed disadvantages women experience relative to men or homosexuals vis-à-vis the heterosexuals, social factors do not significantly contribute to the segregation and limited opportunities experienced by persons with disabilities. While there is a consensus about the racist or sexist language or connotations, there is hardly any on what could be the ‘ableist’ language.[4] Thus, they reason that these ‘disadvantages’ flow directly from the individual's biological traits. Several courts, including the Supreme Court of the United States[5] have characterized the ADA[6] accommodation provisions which require employers to remove barriers impeding the workplace participation of persons with disabilities as providing them ‘preferential treatment’ and not something which is inherent in their right to be treated as an equal.
 
A civil rights model, by contrast, focuses on the socially-imposed obstacles faced by people with disabilities and attempts to remove those obstacles. It emphasizes an individual's right to be free from disability-based animus, unnecessary paternalism, and harmful stereotypes.[7] The argument thus is that the persons with disabilities routinely experience disadvantages resulting from socially constructed obstacles wholly separate from their endogenous biological traits.[8] Society's attitudes and practices attach systematic disadvantage to particular impairments through prejudice, stereotypes, and widespread neglect. By so doing, disability rights scholars have persuasively argued, that the society in fact creates an identifiable class of “people with disabilities.”[9] The history of political and social subordination is a ‘trait’ shared by the women, dalits, and backward classes and so also the persons with myriad physical and mental characteristics labelled ‘disabilities’ by persons without those characteristics.[10] Lack of legal capacity only compounds the marginalisation.
However, the attempt to make newer and more comprehensive law seeking for domestic implementation of the UNCRPD[11] should not be understood as abandoning the rationale for protecting the earlier constructed ‘protected class’ to remedy the social exclusion and socially imposed limitations that persons with disabilities frequently experience. CRPD also to this effect says that protective measures taken to bring person with disability at par with others would not be considered as discriminatory.
 
The law must strive to have as much orientation towards civil rights model as could be and for that it is important that we must have some parameters to identify disability and also the persons with high support needs in that framework. There is always an apprehension in reverting back to the medical paradigm, since it is a used and thereby convenient model, allowing it has the probability of overshadowing the model which is relatively new. Hence, to begin with, if the law would contain enumeration of entitlements which would need some fixed criteria of allotment, and hence may not be in complete pari materia with social model, we may forge an amalgam of two paradigms. However, the thrust should be for the civil rights model that will entail far greater development of capabilities. To this end, the law may prescribe a transitional period within which the protocols for identification must be in place and also tried in a few constituencies. The makeshift arrangement however has not had a commendable history particularly in the Indian Context.   
 

CONCEPTUALISING EQUALITY

 
There exists a diversity of opinions as to what is equality and what should a society do to incorporate and promote this value. The idea of formal equality can be traced back to Aristotle and his dictum that equality meant ‘things that are alike should be treated alike’.[12] The formal approach to equality and non-discrimination supports the position that a person’s individual physical or personal characteristics should be viewed as irrelevant in determining whether they have a right to some social benefit or gain. However, it is questionable whether law, legislature and judiciary can claim to be truly neutral to all parties which may render the supposed value of neutrality of formal equality as merely an illusion.[13] A law may be prima facie neutral yet may have subsequent disparate impacts.[14] By masquerading as an independent norm, equality conceals the real nature of the substantive rights creating a dichotomy between human right and equality and keeping the two independent rather than in close conjunction. It misleadingly suggests that one person’s rights vis-à-vis another’s are identical in all contexts. Finally, by encouraging the use of monolithic levels of judicial scrutiny undifferentiated by the importance of the underlying right, equality erroneously suggests that all questions of equality are to be scrutinized under a single standard of justification. In this regard, formal equality may end up confusing than actually clarifying.[15] The richness and complexity of modern life and modern social relations makes the application of this approach, as a basis for integrated and comprehensive non-discrimination laws and measures, too simplistic.[16]
 
With recent constitutional reforms, informed by academic debates, more sophisticated norm of equality was sought to be developed which takes into consideration the richness and variety of human lives and relations and subtle characteristics which may cause discrimination and disadvantage.[17] We made a leap towards substantive equality. In that, we spoke about equality of outcomes and equality of opportunities. Departing from the formal equality models, they are partially based on a redistributive justice model. According to this, certain measures need to be taken to rectify past discrimination as otherwise it will leave the groups at different starting points. The equality of opportunity approach injects substantive element by allowing individuals from traditionally disadvantaged groups to receive special education or training, or encouraging them to apply for certain jobs.[18] ‘Equality of outcome’ on the hand is inherently linked to the group/redistributive justice model and the achievement of a fairer distribution of benefits.[19]
 
It has been suggested that focusing on equality of results may afford too much respect to utilitarianism (in terms of the process of equal distribution where the process may itself be questionable) at the expense of other systems of thought.[20] Another perceived danger of this approach is that it places too little emphasis on the importance of accommodating diversity by adapting existing structures and the more fundamental issues.[21] It, in that sense, tends to get more welfaristic and less civil rights oriented.
 
There has been a new approach suggested for equality which is the human rights based approach. As a beginning point it says that equality as a stand-alone principle has little impact on combating substantive disadvantage.[22] The contemporary approach of bringing the equality and non-discrimination agenda within a human rights framework highlighted other conceptions of equality that previous models perhaps neglected. This approach is based on dignity, but dignity in this paradigm is meant to reflect the universality, indivisibility, and inter-relatedness of all human rights, as understood in present-day interpretations.[23] It proffers a theoretical distinction between equal treatment in the distribution of resources, opportunities and burden and treatment as an equal, which suggests a right to equal concern, dignity and respect but not necessarily an equal distribution.[24]
 
Dworkin says that right to treatment as equal is a fundamental right while the right to equal treatment is a derivative one.[25] Furthermore, in some circumstances, right to treatment as equal will entail right to equal treatment but not, by any means in all circumstances. The strategy for equal treatment must germinate from the right of being treated as equal, as a full individual or an end in one self and not merely the means. This order of fundamental right and derivative right is crucial in the conspectus of legal capacity for sub-thresholds, because if we (including courts) lose the ability of tolerating differential legal treatment actually impairs legal personality, then human rights laws may then become tools that give civil incapacities a legal effect.[26] For example, in most legal systems, disabled people have been among those singled out for legal treatment or rather as a problem in need of special treatment and not as equal citizen with a right to full participation in social mainstream.[27] What they want instead is a law which outlaws and requires removal of environmental and social barriers which prevent them from participating on equal terms in the ordinary activities of daily life, one that enables them to take control of their lives.[28]
 
To be recognized as full person in law means that one’s legal capacity including the legal capacity to act, is equally recognized.[29]  Universal legal capacity may be couched in the terms of formal equality yet without it equality before law and equal protection of laws[30] would lose their basis and to that extent consistent treatment which formal equality postulates has its own role and significance in the society. Legal capacity for persons with disability in this sense is soul of the treatment as equal from where through suitable programmatic interventions we may derive equal treatment through substantive equality which may be then premised on equality of opportunities. This means that the laws or programmes that undermine legal capacity, for example, outdated guardianship, coercive detention and institutionalization must be abolished else equality would only be a rhetoric.
 

Part II: Case for a Separate Law and Explicit Legal Capacity for Persons with Disability

 
Aristotle distinguishes between ‘arithmetic’ and ‘geometric’ justice. While according to the former principle, people who are equal in some respect must be treated equally while according to the latter principle people who are unequal must be treated unequally.[31] In other words discrimination may arise if people who are differently placed are treated similarly.[32] Herein, the term ‘unequal’ implies ‘different’ as the fundamental right to equality that we are speaking about is right to be treated as an equal from which would flow the derivative rights of equal treatment, reasonable accommodation and support. This view also finds support in the Preamble when it expresses a resolve to secure for all citizens ‘equality of status and opportunity’. Further, Article 14, in equality before law and equal protections of law, allows for classification between persons much must pass the twin test of intelligible differentia between the persons covered and excluded by law and the rational relation of such differentiation with the object sought to be achieved by the impugned law.[33] In fact the ‘equal protection of law’ has acquired a positive content.[34] It is an obligation on State to take steps to obviate existing inequalities.[35] Non-action on this front may well violate Article 14. In Naz Foundation case,[36] the Delhi High Court observed that Indian Constitution recognises, protects and celebrates diversity. Further, it said, that the object of the Fundamental Rights was to foster the social revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the state, or by society privately. In Anuj Garg case,[37] the court observed that prohibition of sex discrimination under Article 15 implies the right to autonomy and self-determination, which places emphasis on individual choice. Therefore, a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy is unconstitutional. The court expounding in the concept of ‘strict judicial scrutiny’ observed that:
“…the issue of biological difference between sexes gathers an overtone of societal conditions so much so that the real differences are pronounced by the oppressive cultural norms of the time. This combination of biological and social determinants may find expression in popular legislative mandate… It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy.”
 
It is thus clear that individual autonomy is inviolable. Although, the Court here was speaking in the context of gender discrimination, yet same is true with the disability as well as could be seen in the writing of the disability rights scholarship who have asserted that ‘disability’ more than medical condition is a social construct.
 
That being so, there is a firm legal basis for (a) a comprehensive law for the persons with disability, that guarantees rights; (b) special measures to recognize and protect diversity; (c) this differential treatment as one promoting equality; (d) the guarantee of legal capacity for all persons with disability; and (e) the discontinuation of laws, structures and practices that impinge on the personal autonomy of persons with disability.[38]
 
Article 21 protects life and personal liberty of all individuals.[39] The term ‘personal liberty’ is one of widest amplitude and includes several derivative rights some of which have been raised to the status of fundamental rights protected under Article 19.[40] The fundamental rights in Part III do not have compartmentalized existence, rather the values of fairness, equity, reasonableness and dignity pervades in all these provisions.[41] Shah J. in Naz significantly held:
“At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.”
 
Thus a necessary concomitant of this human rights and dignity based understanding of equality is an unequivocal recognition of universal legal capacity. Though it may be a necessary postulate of the concept of equality and dignity, Lahey offers a word of caution. She says that unless we do not have a specific articulation of legal capacity in law, it is not sure if the courts would actually look beyond the social practices, beliefs and even seemingly innocuous legal texts that normalise the denial of equal rights to the disadvantages groups.[42] So long as the discourse of legal capacity is built around the unarticulated text, merely the values central to human rights, such as, ‘human dignity’, ‘integrity’ and ‘equal respect’ may not form the adequate basis for the equality claims of the persons with disability.
 

Part III: Legal capacity and Persons with Disabilities

 

THE CONCEPT OF LEGAL CAPACITY

 
When a norm qualifies the act of an individual as a legal condition or legal consequence it means that only that individual is ‘capable’ or ‘competent’ of performing or omitting to perform that act.[43] However, competence is generally spoken of in a narrower sense, preferring to restrict it to action only.[44] In a sense, it means a capacity recognised by law which would make a person capable of having rights and obligations. In other words, it makes a person, the subject of law.[45] This subject of law enters into social relations which with the incidence of law are transformed into legal relations. Thus in the nutshell, the holder of rights and duties is called as the subject of law and his/her vocation to participate in legal relations is called as ‘legal capacity’. Legal capacity is decided in its forms and content by the law in force.[46]
 
Possession of rights without legal capacity is impossible.[47] Being declared incompetent to manage one’s personal affairs entails that an individual no longer has the legal right neither to make any personal decisions nor to participate in myriad activities otherwise taken for granted. Denial of legal capacity would virtually amount to a civil death.[48] Loss of capacity is directly related to loss of access, for example, access to justice and access to political process in terms of prohibition on voting and standing in a election, to name a few. It is indeed a matter of regret and that till date no country no country had completely recognized the right to legal capacity of all people with disabilities.[49]
 

LEGAL CAPACITY & UNCRPD

 
Ed Roberts, one of the leading figures in the international disability rights movements, said: “If we have learnt one thing from the civil rights movement in the U.S., it’s that when others speak for you, you lose”.[50] Hence the slogan: “Nothing about us, without us”. The irony, however, is that legal capacity is required to allow for self advocacy and self advocacy is needed to obtain legal capacity.[51] In fact, human rights movement became possible only when state societies began to reach consensus that the norms of ‘civil incapacity’ must not be used to delimit various classes of adults.[52] ‘Gaining Control’ or ‘self-determination’ had a universal appeal as the needs of persons with disability and the potential for meeting them has been conditioned by a dependency born of powerlessness, degradation and institutionalisation.[53] The approbation that the CRPD received may indicate such consensus in the realm of disability rights movement wherein the presumption of ‘legal capacity’ is extended to persons with disability like it is for the adults of other disadvantaged groups. Possibly, this would also initiate a new lexicon which recognises legal capacity universally and makes it illegal and unjust to trample on anyone’s legal capacity without her/his consent.[54]    
 
Legal Capacity is perhaps the most revolutionary of the new norms articulated in the Convention.[55] CRPD replaces the dualistic model of capacity versus incapacity with an equality-based model that complements full legal rights to individual autonomy and self-determination with entitlement to support when needed, to ensure substantial equality of opportunities to exercise those rights. It reflects established principles in international human rights, such as the universality, indivisibility, interdependence, and inter-relatedness of all human rights.[56] A guarantee of legal capacity on an equal basis with others in all aspects of life should result in the elimination of all such legal regimes that premised on an equation of disability with legal incapacity.[57]
 

WAYS BY WHICH LEGAL CAPACITY IS DENIED

 
An examination of disability laws across jurisdictions shows that the attribution of incapacity to persons with disability occurs in the contexts of Status, Functionality and Outcome.[58] As per the Status attribution method, once it is established that any individual is a person with disability, the law presumes a lack of capacity. For example, the provision that a person with psychosocial disability cannot adopt a child[59] or the bar on blind persons' unassisted operation of a bank account.[60] In functional test, the person with disability is considered incapable if, by reason of the disability, he or she is unable to perform a specified function and not merely on the basis of his status. Disability here is a threshold condition.[61] According to the ‘outcome test’, the attribution of incompetence is on the basis of the decision arrived at by the person with disability. For instance, person with a psychosocial disability after voluntarily seeking psychiatric treatment later decides to discontinue. His competence is questioned only in second instance.[62]
 
Professor Dhanda, however, concludes that in reality all these tests operate in a similar manner and once the status of disability is established no searching scrutiny is made by the judiciary as to whether the impugned disability has in fact rendered the person ‘disabled’ or incompetent for any transaction.[63] Again, the spot light is on the opinion of the medical officer or an expert and the experience of the person with disability becomes insignificant. Disability is a status that is initially identified, named, or conferred, not by the individual, but by ‘experts’, usually medical experts, although the ramifications of disability are significantly social and political.[64]
 

MODELS TO PROVIDE FOR LEGAL CAPACITY

 
A law may guarantee legal capacity in three models. It may only declare that all persons with disability shall have legal capacity in all aspects of life and stop at that. There are no special redress mechanisms provided to safeguard it and thus we need to rely on the ordinary courts and ordinary procedures. What this does is, it makes clear that all persons irrespective of disability are persons before law and capable of having rights and obligations. However, this is bare necessity and hence it is the minimalist model. It is a passive model and fails to give any functionality to the capacity. While right to seek support may be implicit in this, it only states that seeking support would not deny legal capacity and there is no obligation in law to support either individually or structurally.
 
In the interpretation of statues there is a heavy reliance on the techniques of literal reading[65] and considering only that which is explicitly expressed and excluding the unexpressed desires,[66] it would be riskier if the statue deals with the sub-threshold without guaranteeing them anything more.
 
The other model could be wherein legal capacity though not explicitly mentioned is presumed; processes and programs are built into the law by which the deprivation is dismantled; and if required, support is constructed to facilitate exercise of legal capacity. This pro-active model of legal capacity is especially suitable for those persons with disabilities who have been for long denied legal capacity and are still in a state of deprivation as for them just a recognition of legal capacity in the law may not be enough to result in their exercising legal capacity and more pro-active measures of establishing support may be required for that capability to actually transform itself into functioning. The issue is that when it is a matter of common knowledge that there are a range of cases wherein the deprivation of legal capacity is either sanctioned or legitimised by legal system it makes more sense to make a clear statement of presumption of capacity. The anxiety is that this model may not end up promoting the paternalism over rights one as it may convey that all people with disability depend on support to exercise their capacity.
 
However, a mere proclamation or right is not fulfilment of right.[67] Merely to enjoy status, and not the substance of right is not enough.[68] If treatment as an equal is a right, then as Henry Shue says, it provides a rational basis for a justified demand that the actual enjoyment of its substance must be socially guaranteed against the standard threats and thus the guarantees must be provided.[69] As right entails a duty, it is justified demand that necessary arrangements are provided, so that one may enjoy the substance of it.[70] In the Dworkinian sense, the access to arrangements then becomes a set of derivative rights that flows from the fundamental or basic rights. The fundamental right is unfulfilled until arrangements are in place for people to enjoy whatever it is that they have right to.[71] They form an essential part of ‘guaranteeing’ the enjoyment of right. The arrangements may also take the form of law, making the rights legal[72] as well as moral. The right to access arrangements or support systems is an essential to exercise all of the incidents of legal capacity and until that right is guaranteed, the social and constitutional guarantees would have a negligible impact on ‘ordinary life’.[73] Thus the model we have will in explicit terms has the following components, viz. (i) recognition and guarantee of ‘legal capacity’; (ii) right to access arrangements and support systems essential to exercise legal capacity; (iii) correlative duties on part of state to guarantee the fulfilment of these rights; and (iv) securing the right by explicitly discontinuing, prohibiting and punishing such practices, whether legally sanctioned or not, that have the effect of denying legal capacity for persons with disability. Since this model has both the pro-active and minimalist parts, it may be called as the hybrid model. In fact the Convention itself provides for right to access support[74] for exercising legal capacity and right to access arrangements for their full participation.[75] Denial of this support or arrangement is also discrimination.[76] Thus it could be seen that the hybrid model is most akin to the one enshrined in the Convention.
 
Part IV: Discredited and Discreditable: Construction of Legal Capacity in the Disability Rights Legislation
 
Taking cue from the modes in which attribution of incapacity is made by the law, it is only logical that there will be certain traits that the law may not expressly label as ‘disability’ while there will be some where the law makes an express mention only to deny legal capacity.[77] There may also be instances or transactions wherein certain requirements only entails incapacity which if disclosed will not allow the maker to enter into such transaction or play him or her out in such instances.[78] They would either consciously opt out of those situations or they would hide their identity to gain access. There might be certain course of action that people may avoid for there may not be any point of return once they are into it.[79] Legal capacity being intrinsic to ones self-autonomy and dignity as an essential to ones personhood, it is one of the most cherished right that any person possesses something that is too precious to be even risked. This may also explain the lack of participation and avoiding specific transactions which they are otherwise entitled to. The issue of ‘coming out’ or ‘disclosure’ is particularly crucial for persons living with invisible disabilities.[80]
 
Thus there emerge two sets of persons with disability: those whose stigmatizing features are public knowledge (the discredited) and those who conceal their stigmatizing characteristic (the discreditable).[81]
Reading human rights in historical context, it can be said that ‘human rights’ movement has had dual functions. First, it sought to bring to an end the political practice of using ‘legal incapacity’ to strip certain groups of human beings of their social and economic powers, and secondly it protected the members of the groups that have historically been denied full legal person hood from wide ranging injuries to their human dignity.[82]
 
It appears that there are two worlds of persons with disability, one whose legal capacity is explicitly denied by the law, judicial interpretations and their societies and others whose capacity is alive but they their disability being invisible or not public there is risk attached with disclosure considering the socio-political ramifications of the declaration of disability. The world of discreditable people with psychiatric disabilities is both much larger and much less visible than the world of discredited people.[83] It must however, be noted that Goffman and Stefan used this classification primarily for the persons with psychosocial disability.
 
It must be noted that the distinctions between discredited and discreditable do not arise from differences in severity of diagnosis, symptomatology, or bizarreness of behaviour[84] nor does it have anything to do with economics and class. The difference between the two, as Stefan chronicles, lies in the social group that they belong to,[85] the attitudes of the parents,[86] their employment which tends to mirror their personal characteristics, etc. But the major distinguishing feature is the oppression that the discredited had to witness at the hands of professionals who are supposed to treat them. This experience communicates and reinforces their diminished status and stigma, their powerlessness to resist indignities and bodily intrusion, their lack of credibility, and the futility of complaint.[87] It must be recalled that once they are in the institutions, there is a loss of legal capacity for them to refuse any intrusion with their bodily and mental liberty, integrity and privacy.
 
There is a clear difference in the discrimination both the groups face.[88] Disclosure is frightening because of the potential for social ostracism and exclusion. It can have devastating effects on employment, educational and professional opportunities, child custody, and medical care.[89] They fear involuntary institutionalisation if they disclose, something that has the potency to spoil their identity.[90] The stigma and the resultant segregation are rigidly enforced by the social norms and social legislations. Goffman notes that for the discreditable people ‘passing’ among the ‘normal’ people is crucial to manage stigma.[91] In my opinion, the legally sanctioned presumption of incapacity associated with disability which prevented equal respect human dignity and integrity to person with disability has a significant role in this. May be due to long history denial of legal capacity, that for a ‘non-disabled’ an image of a ‘person with disability’ is of powerlessness, dependence, dysfunction and helplessness.[92] The absence of these traits in the discreditable group puts a question mark on the credibility on their complaints.
 
Both groups have different agendas. For discredited, it revolves around the issues of choice and the end of coercion and force, whether in law or in practice. They expect that law would minimise their restraints and respect their autonomy.[93] For discreditable, confidentiality is critical and deplore the stigma that forces them to secrecy and deception. Like their discredited counterparts they complain of restraint and autonomy in choosing both therapy and the therapists.[94]
 
If we need to address the concerns of both the groups in the same legislation then we also need to consider the unifying factors of both groups. The primary issue for both the groups is that of credibility[95] which does have a strong connection with denial of legal capacity. The disclosure by the discreditable is important because in the self advocacy of legal capacity for the discredited, it is the discreditable that need to take the lead.[96] It is however true that the alliance would also help the discreditable groups also to participate and lend credibility to their experience and not living a parallel person.[97] The issue now is how a disability rights law should be and in particular how should the legal capacity provision be constructed so that the co-existence of both groups hurts neither?
 
When we are seeking to make a comprehensive legislation for the persons with disability and want it to be profounder than the earlier law consistent with the developments in the international arena, it, in my opinion, would be advisable to consider the entire gamut of disability as a lived experience. Since the discredited group has been denied the personhood either expressly by law or by practice, the discreditable fear the similar loss for them and hence refrain from disclosing their disability.
 
In its own way Article 12 is the vehicle that enables us to complete the non-discrimination journey which protects people against the behaviour of third parties by giving voice back to people to direct their own lives.[98] The insertion of the value of equality in traditional fields like legal capacity enables us to see the imbalance between autonomy and protection for what it is - and to redress it.[99]
 
In Unnikrishnan[100] the court had observed that right to life and liberty inheres in every person.  In another case the court had observed that denial of equality of the rights and opportunities and of dignity and of the right to equal protection against any discrimination violates Article 14 of the Indian Constitution.[101] Significantly, the Supreme Court in the Suchita Srivastava[102] case made an observation: “the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy.” The recent judgments show the significance of ‘personal autonomy’ and it has been regarded as integral to one’s inherent dignity.[103]
 
Human rights discourse in India is primarily comprises of the judicial activism when the Court gave an expanded meaning of right to life and personal liberty. What the UNCRPD did and what the domestic legislations in consonance with it would need is a paradigm shift which begins with explicit recognition of legal capacity of persons with disability and its guarantee. A law on the rights of persons with disability without an explicit provision on legal capacity would be incomplete. The jurisprudence behind Articles 14, 19 and 21 of the Constitution laid down by the apex court is a strong and familiar legal base to incorporate that paradigm shift in the Indian disability rights law making.
 
Thus, for the vast majority of persons with disabilities (includes both discredited and the discreditable) recognition of legal capacity, complimented by penal provisions to secure rights and authority that provides redress when capacity is denied may suffice. However, for those persons with disabilities who have been for long denied legal capacity and are still in a state of deprivation (which primarily would be the discredited group), merely the recognition of legal capacity in the law would not be enough to result in their actual exercise of legal capacity and more pro-active measures of establishing support may be required.[104]  In my opinion, the disability rights movement will greatly benefit with the synergy of both the groups and therefore it may not be advisable to have multiple legislations. The difference between the two lies in the intervention required to express autonomy. In that respect, it seems that the hybrid model guaranteeing legal capacity, supplemented by an efficient grievance redressal and an authority having powers to impose sanctions, is an appropriate model wherein people with disability who need support to exercise legal capacity have right to demand it and the support being a derivative right can in no circumstance determine the fundamental right of legal capacity.    
 

Part V: Legal Capacity for the Persons with High Support Needs

 
Persons with high support needs basically comprise of those who experience much profounder and severer disabilities. Hence, there can be another classification on the basis of the support required to exercise legal capacity. There are persons who have higher support needs and consequently need more proactive interventions for them to effectively exercise their capacity. But in these cases, the rights are contingent on identification. Therefore, how we identify these severer disabilities is crucial. Who shall determine disability and particularly the ‘severe disability’ or what occasions ‘high support’? This is an important question of wide reaching ramifications and I shall briefly touch this now.  
 

PROTOCOLS FOR IDENTIFICATION

 
Persons with disability as a whole are ‘same and different’.[105] This approach, unlike the ‘same but different’ approach, cognizes disability as a part of lives. As said before, disability is not found but it is constructed.[106] The ‘normalization’ thesis with an ableist bias resulted in the marginalisation of the persons with disability. In addition to ‘marginalisation’, which according to Iris Marion Young, is perhaps the most dangerous of the five faces of oppression.[107] This is because it expels a whole category of people from any useful participation in social life and then potentially subjects it to severe material deprivation and even extermination.[108]  Justice requires that every person to develop and exercise his or her capacities. Marginalisation, hence, is unjust as it effectively cordons off the opportunities to exercise capacities in socially defined and recognised ways.[109]  Persons with disability and especially those with severer disability are the recipients of this oppression.
 
In the existing ‘welfare’ paradigm, persons with disability, particularly person with high support needs, are dependent on the will of the state institutions for the support. Their exclusion from equal civil and political rights is beyond doubt. Young says that in this paradigm, being dependent implies being legitimately subject to often arbitrary and invasive authority of social service providers and bureaucrats who enforce rules to which the marginal must comply, and otherwise exercise powers over the conditions of his or her life.[110] The welfare agencies define and construct their needs themselves.[111] Medical professionals know what is good for those they treat and the marginals are virtually stripped of their right to claim to know what is good for them. Dependency thus becomes a sufficient condition to suspend right to privacy, respect and autonomy.[112] When the law is made for extremely marginalised groups who have had their experiences of exclusion to narrate, the power of determining themselves and their needs must be with them and no other agency. Thus, it is for the disability sector (neither welfare agencies nor medical persons) to conceptualise the protocols for identification of ‘severe disability’ and ‘high support’. It is not that the introduction of social and the cultural models of disability means that medicine has no role, after all medical model did have some benefits in terms of devising medicines and techniques that led to a manifold increase in survival rates. However, the issue now is not of life expectancy but the expectation of life and it is here that the narrow partial view of disability by the medical sector is open for criticism.[113] The problem is that they determine ‘not only the form of treatment but also the form of life for the person who happens to be disabled’.[114] The social model only reverses the hierarchy, and gives the right of self determination to persons with disability and since it will be them who would be directly impacted by the law, it is only fair for them to have the final word. The dependency for support must be replaced by right to demand support.
 
I would now touch the issue of equal recognition before law and legal capacity for persons with high support needs differently than the people who do not need such level of support. The constitutional jurisprudence in India surrounding the right to equality tells us that likes may be treated as similarly and alike may be treated differently.[115] To that extent there is a legal justification for dealing with persons with high support needs differently and even separately. What will be the object of this distinction? It is the recognition of difference with an aim to have a law for the realisation of the legal capacity for those persons with disabilities who have been for long denied legal capacity and are still in a state of deprivation whether because they are living in institutions or because they are subsisting under systems of plenary guardianship. They need to be treated differently as merely the recognition of legal capacity in the law may not be enough to result in their exercising legal capacity in fact; and more pro-active measures of establishing support may be required. In fact, during the process of the formulating of Convention, the adoption of the universal legal capacity paradigm was questioned because it was feared that it did not adequately addressed the concerns of the persons with high support needs. It was due to this apprehension that paragraph (3) and (4) were inserted to Article 12 of the UNCRPD.[116] Paragraph (3) obligates the State Parties to provide for support and paragraph (4) was drafted to encompass a range of safeguards against the abuse of support. Thus the persons with high support needs as a group who may well had been short of a functional legal capacity in the absence of the above paragraphs.[117]  This development, though at international forum, is a lesson for all the States who decide to make a law for the rights of persons with disability.
 
That being so, the differentia will be intelligible having a reasonable nexus with the object sought to be achieved by this classification.[118] In his thesis on justice as fairness, John Rawls said that it only promotes fairness, that social and economic inequalities are so arranged that they are to be of the greatest benefit to the least-advantaged members of the society.[119] In the nutshell, considering the judicial dicta around right to equality in the Indian Constitution, the post modernist and liberalist jurisprudence and the UNCRPD experience, it will only promote equality with fairness that persons with high support needs must be dealt with differently from other persons with disability. The options are: a twin track approach in the new law, or a separate law like the National Trust Act[120] which caters specifically to the persons with high support needs.
 
At the cost of repetition, if the right of full legal capacity is a fundamental right then, demanding support to exercise it is a justified one having a rational basis inasmuch as it is a derivative right. In my opinion, like the UNCRPD, the combined effect of legal capacity provision including duty to support along with the definitions of disability, high support and protocols for identification should be inclusive of all persons with disability. The advantage of dealing with persons with severer disabilities with others in the same statute is higher probability that the consistency of interpretation may be maintained in light of better coherence to the rights and other benefits that the statute may provide. As an aside, law making is long process and leaving the persons with severer disability for a subsequent law might be a little unfair. What is suggested is a twin-track approach wherein there are general provisions for all persons with disability and special provisions to reinforce the legal capacity along with other rights for the persons with high support needs. The concern is that the generalised understanding of disability and legal capacity must not devalue their difference and the right to be treated differently.
 
Hybrid model of legal capacity which not only guarantees equal recognition before law and legal capacity but also recognises a right to access support and arrangements necessary for exercising legal capacity and is supplemented with an efficient and effective grievance redressal body and authority which is pro-active in dismantling structural barriers but reactive in assisting individual difficulties seems to be a more inclusive one and at the same time recognises the need for support in exercising capacity but the same still does not undermine the legal capacity of the person with disability.
 

Conclusion

 
What must be understood is that when we take up a legislative exercise to cater to a marginalised section of the society like the persons with disability, an either/or approach in utilizing the principles/models of equality and legal capacity may not be a good idea. They are merely the tools in law making. The only guiding principle is that the statute must benefit the excluded group in the best possible way.  Who decides this? It has to be the sector, the persons with disability, people who have had the experience in dealing with persons with disability (representing different types of disabilities including the people with high support needs), they may include the civil societies, the persons in authorities catering to the sector and the academicians and policy makers who are recognised to be the scholars in the field of disability as Justice Holmes had rightly said: “The life of law has not been the logic, it has been the experience.”
 
If we guarantee legal capacity, the right of informed consent, supported decision making, equality and dignity to the persons with disability in law, why not in its making itself?

ANNEXURE: DRAFT PROVISION ON LEGAL CAPACITY

 
This part is largely drawn from the proposed Amendments to the National Trust for Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act. The proposed amendment recognizes the full legal capacity of all persons with disabilities.  At the same time it is acknowledged that some persons with disabilities may need support to exercise their legal capacity and in the absence of such support the recognition of legal capacity may not result in any real difference in the lived reality of the person with disability. It has the hybrid model and depicts the twin track model spoken in earlier segment. It is divided into three parts. The first part is general. It enunciates the right of legal capacity, right to access support to exercise legal capacity and the safeguards to prevent the abuse of support. The second part specifically caters to the persons with high support needs where the approach is clearly more pro-active. However, since it would be read with earlier provisions, legal capacity retains its character of a fundamental right and the support would not diminish it, as generally the anxiety with a purely pro-active model is.   
 
 
 
 

CHAPTER I: EQUAL RECOGNITION BEFORE LAW AND LEGAL CAPACITY

PART A

1. Notwithsatindig anything contained in any other law to the contrary, 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 persons before the law.
2. All the laws that deny legal capacity to persons with disability on the basis of disability, shall hereinafter be void.
3. Every person with disability has the right to access all arrangements and support necessary for exercising all the incidents of legal capacity in accordance with one’s will and preferences.
The language in this provision is modified to make it gender neutral so that person from third gender, who is at the same time a person with disability is entitled to benefits under this Act.   
4. The prescribed authority shall take appropriate measures and make suitable schemes and programmes to provide access by persons with disabilities to the support they may require to exercise their legal capacity.
The sector needs to take a call as to whether National Trust shall be the authority for all the programmatic interventions or its scope is restricted to the persons with the high support needs only.
5. In no case shall the legal capacity of persons with disabilities be questioned or denied because such person with disability accesses support to exercise such legal capacity irrespective of the extent of support utilized.
6. The Authority must ensure such safeguards such that the arrangements and support relating to the exercise of legal capacity must respect the rights, will and preferences of the person.
This section only reinforces the principle that the demand for support shall in no way undermine the authority of the person.
7. Only persons who have no conflict of interest with a person with disability shall provide support to such person with disability.  If at any time during the subsistence of the support arrangement, a conflict of interest arises, the support arrangement shall cease to have effect.
8. No person providing support either individually or as a part of a network shall exercise undue influence on a person with disability.
 
9. The person with disability using any support or arrangement shall have the right to alter, modify or dismantle any support arrangement and substitute it with another. Provided that such alteration modification or dismantling shall be prospective in nature and shall not nullify any third party transactions lawfully entered into by the person with disability along with the support arrangement.
This addition is made by the way of abundant caution so that transactions entered into by the exercise of undue influence, fraud or mistake, are voidable at the option of persons with disability.
10. In fulfilment of its obligation to facilitate the provision of support for persons with disabilities, the prescribed authority shall draw up guidelines to facilitate:
 
 Registration of Advance Directives
 Recognition of Support Circles
 Registration of enduring Powers of Attorney
 Appointment of Personal Assistant
 Any other suitable support.

PART B

 
(1) The prescribed Authority shall take immediate steps to put in place suitable support measures for the exercise of legal capacity by persons with disabilities and especially for persons with disabilities living in institutions and persons with disabilities who have high support needs.
 
(2) The Authority shall also devise appropriate policies and schemes which provide suitable support to persons with disabilities and especially persons with disabilities who have high support needs to enable them to realize the civil political rights guaranteed under this Act and the social, political, economic and cultural rights guaranteed under the United Nations Convention on the Rights of Persons with disabilities.
 
The addition has been made keeping in view that this Act seeks to be a comprehensive law on civil and political rights.  
 
(3) The authority with all the local level committees shall take suitable steps including, where appropriate, mediation proceedings, in order to assist persons with disabilities to exit from plenary guardianship and to help set up where so desired by persons with disabilities suitable support arrangements for the exercise of their legal capacity. These review activities of the local level committees are facilitative in nature and no person with disability can be denied legal capacity due to the delay or non occurrence of the review activity.
 
The language of this provision is altered to remove the aid component since the persons with disability have right to access support arrangements for exercising their legal capacity as mentioned in earlier part.
 

PART C

 
(1) The prescribed Authority shall undertake the task of conceiving new kinds of support, and formulating guidelines on the already included support, in active consultation with persons with disabilities; disabled peoples organizations; parents associations and other concerned members of civil society.
 
This is important as it ensures participation of persons with disability and the persons associated with the sector for a significant length of time in devising new schemes and mechanism of support. This is also necessary since the thrust of earlier paradigm was legal incapacity.
 
(2) The Authority shall devise suitable mechanisms to obtain feedback from the recipients of support on the suitability and usefulness of the support provided and if and whether they desire any modification or addition to it.
 
(3) In order to ensure that support is provided whilst respecting the legal capacity of persons with disabilities the Authority shall regularly conduct awareness raising and sensitization programmes on the role, necessity and manner of providing support.
 

OTHER RECOMMENDATIONS

It is for the sector to take call as to whether we declare that coercive detention and forced institutionalisation is unlawful and punishable under this part, or this part and part relating to offences and penalties, or only to the part relating to offences and penalties.
Though with Anuj Garg, the Supreme Court did extend the prohibited grounds of discrimination when it included ‘or any other analogous grounds’, yet it will be better if Article 15 is amended to include ‘disability’ in the list of prohibited grounds.
Amendment to Article 14 adding the word ‘All citizens shall have equal recognition before law’ so that we introduce the paradigm of universal legal capacity as like persons with disability there are thousands of people who also have a long history of denial of legal capacity by law, structures and practices.

[1] Ron Amundson, Disability, Handicap, and the Environment, 23 J. Soc. Phil. 105, 113 (1992).
[2] Cox-Interclass Discrimination, 431
[3] Jeannette Cox, Crossroads and Signposts: The ADA Amendment Acts of 2008, 85 Ind. L.J. 187, 190-1 (2010).
[4] Simi Linton, ‘Claiming Disability: Knowledge and Identity’, 9 (New York: New York University Press, 1998)
[5] U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002).
[6] Americans with Disability Act, 1990
[7] Jeannette Cox, Disability, Stigma and Inter-class Discrimination, 62 Fla. L. Rev. 429, 434 (2010). (Hereinafet, Cox-Interclass Discrimination)
[8] Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 Duke L.J. 861, 921 (2006).
[9] Samuel R. Bagenstos, Subordination, Stigma, and ‘Disability’, 86 Va. L. Rev. 397, 418 (2000)
[10] Jacobus TenBroek & Floyd W. Matson, The Disabled and the Law of Welfare, 54 Cal. L. Rev. 809, 814 (1966)
[11] United Nations Convention on the Rights of Persons with Disability, 2006
[12] Aristotle, ‘3 Ethica Nicomachea, 112-117, 1131a-1131b, Ackrill, J. L. and Urmson J. O. (eds.), W. Ross, Translation, Oxford University Press, 1980.
[13] Owen Fiss, Groups and the Equal Protection Clause, 5 Philosophy and Public Affairs, 107 (1976).
[14] For example, building bye-laws that do not mandate construction of ramps, elevators or universal designs.
[15] Peter Westen, The Empty Idea of Equality, 95 Harvard Law Review, No.3, 1982, p.537. (Hereinafter, Peter Westen)
[16] The limitations of the formal approach to equality are acknowledged in the interpretation of the idea of non-discrimination provided by the Committee on the Elimination of Discrimination against Women, where the Committee stated that Articles 1 to 5 and 24 together indicate that State Parties under CEDAW are required to go beyond a formal interpretation of equal treatment between men and women to counter and improve the de facto situation of women and to address prevailing gender relations and the persistence of gender-based stereotypes that affect women. See General Recommendation No. 25 on Article 4 Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures, 30 January 2004, ¶ 6.
[17] The advent of strict scrutiny and intermediate scrutiny in the judicial review of legislations are a pointer to this change.
[18]Christopher McCrudden, The New Concept of Equality, 2003, (available at:
http://www.era.int/web/en/resources/5_1095_2954_file_en.4194.pdf).
[19] For American Context, see Regents of the University of California v. Bakke 438 U.S. 265 (1978). For Indian context, look at Article 15(4) and Article 16(4) of the Constitution. These articles have been expounded in several landmark decisions by the Supreme Court like Indra Sawhney v. Union of India, AIR 1993 SC 447, M. Nagraj v. Union of India, AIR 2007 SC 71. More recently in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1
[20] Fredman, Sandra. ‘Discrimination Law’, 14 (Oxford: Oxford University Press, 2002).
[21] Bhikhu Parekh. A Case for Positive Discrimination, in Bob Hepple, and Erika Szyszczak, (ed.) ‘Discrimination: The Limits of the Law’, (London: Mansell Publishing Limited, 1992) pp.261 –280. See also, Nagel Thomas, Equal Treatment and Compensatory Discrimination, 2 Philosophy and Public Affairs, 356-7 (1973).
[22] Peter Westen, 537-
[23] It can be seen in our conjoint reading of Article 14, 19 and 21.
[24] Ronald Dworkin, ‘Taking Rights Seriously’, 227
[25] It is trite to say that this includes all the positive action taken to accord level playing field to the disadvantaged and the marginalised sections of the society.
[26] Kathleen Lahey, ‘Are we ‘Persons’ Yet?: Law and sexuality in Canada’, 115 (Toronto: University of Toronto Press, 1999). (Hereinafter, Lahey)
[27] Ken Davis, Disability and Legislation: Rights and Equality, 124 in gerald Hales, ‘Beyond Disability: Towards an Enabling Society’, (London: Sage Publications, 2003). (Hereinafter, Ken Davis)
[28] Ibid.
[29] Edah Wangechi Maina, The Right to Equal Recognition before the Law, Access to Justice and Supported Decision Making, Presentation at the CRPD Conference of Parties, 2-4 September 2009, New York. (hereinafter, Edah Maina)
[30] Article 14, Constitution of India, 1950.
[31] George Klosko, ‘Democratic Procedures and Liberal Consensus’, 151 (Oxford: Oxford University Press, 2000)
[32] Venkateshwara Theatres v. State of A.P., (1993) 3 SCC 667
[33] As laid down in state of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
[34] M.P. Singh (ed.) ‘Constitution of India’, 38 (Lucknow: Eastern Book Company)
[35] Indira Sawhney v. Union of India, AIR 2000 SC 48, St. Stephen’s College v. University of Delhi, AIR 1992 SC 1630.
[36] Naz Foundation v. Government of National Capital Territory of Delhi,
[37] Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1
[38] Although these cases pertain to gender issues, yet the jurisprudence laid down by the courts is relevant. See Roe v. Wade (reproductive Choices) John Vallamattom v. Union of India (2003) 6 SCC 611 (Discrimination in Divorce law). Anuj Garg (Supra).
[39] Article 21, Constitution of India, 1951: No one shall be deprived of life and personal liberty except by the procedure established by law.
[40] Maneka Gandhi v. Union of India, (1978) 1 SCC 248
[41] Ibid.
[42] Ibid. at 102. Although in this book the author makes a case for full legal capacity for the Lesbians, Gay, Bisexuals, and Transgender people, in my opinion, this argument holds water for all the disadvantaged groups.
[43] Hans Kelsen, ‘General Theory of Law and State’, 90 (Cambridge: Harvard University Press, 1945, 3rd Print, 2009)
[44] Ibid. at 91
[45] See http://fse.tibiscus.ro/anale/Lucrari2009/123.%20Lepadat.pdf (last visited on: November 4, 2010)
[46] Ibid.
[47] Olimpiad Solomonovich Ioffe, ‘Soviet Civil Law’ 26 (Dordrecht: Martinus Nijhoff Publishers, 1988)
[48] Barbara Weiner and Robert Wettstein, ‘Legal Issues in Mental Healthcare’, 285 (New York; Plenum Press, 1993)
[49] Equal Legal Rights, Access to Justice Crucial to Implementation of Disabilities Convention, Say Speakers as Conference of States Parties Continues, Press Note of the UN General Assembly, September 3, 2009 at: http://www.un.org/news/press/docs/2009/hr5000.doc.htm (last visited: November 4, 2010)
[50] James Charlton, ‘Nothing About Us, Without Us: Disability Oppression and Empowerment’, 3 (Berkley: University of California Press, 2000). (Hereinafter, Charlton)
[51] Amita Dhanda & Gabor Gombos, Catalyzing Self Advocacy: An Experiment in India, p. 60 [52] Lahey, at p. 101. However, the author here speaks in the context of the LGBT rights.
[53] Charlton, p. 3
[54] Amita Dhanda, Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future? 34 Syracuse J. Int'l L. & Com. 429 (2007) (Hereinafter, Dhanda)
[55] Article 12(2) states, “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”
[56] World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, ¶¶ 63-65, U.N. Doc A/CONF.157/23 (July 12, 1993)
[57] Tina Minkwitz, The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Non-Consensual Psychiatric Interventions, 34 Syracuse J. Int'l L. & Com. 405, 408 (2007).
[58] Dhanda, pp. 431-3
[59] Section 7, 8 of the Hindu Adoption and Maintenance Act, 1956
[60] Not actively present in law but routinely reported by blind persons since the bank documents are not accessible to them.
[61] Dhanda, at p. 430
[62] Dhanda, at p. 431
[63] Ibid. at p. 432
[64] Susan Stefan, “Discredited” And “Discreditable”: The Search for Political Identity by People with Psychiatric Diagnoses, 44 Wm. & Mary L. Rev. 1341, 1342 (2003). (Hereinafter, Susan Stefan)
[65] Whiteley v. Chappel (1868; LR 4 QB 147) (the court denied right to vote on the literal reading of the statute) Anjali Roy v. (Interpreting the word ‘only’ in Article 15)
[66] The rule of Expressio unius est exclusio alterius. [67] Henry Shue, ‘Basic Rights: Subsistence, Affluence and U.S. Foreign Policy’, 2nd ed., 15 (West Sussex: Princeton University Press, 1996). (Hereinafter, Henry Shue)
[68] Henry Shue, p. 15-6
[69] Henry Shue, p. 13
[70] Ibid. at p. 16
[71] Ibid.
[72] The importance of translating moral rights into legal claims is highlighted by Kathleen Lahey and to an extent by Hans Kelsen and H.L.A. Hart when they say that while law and morality ought not to be mixed it does not tantamount to say that law should not be moral. The currency in this transformation lies in the clearer mandate which would have to be enforced by even a conservative judge/authority.
[73] Lahey, p. 115
[74] Article 12(3), UNCRPD
[75] Article 9, UNCRPD.
[76] Article 2, UNCRPD.
[77] Particularly if we look at the Status test, the law declares that a person with psychosocial, intellectual, or physical disability cannot perform a specific legal task. For example a person proved to be of unsound mind cannot adopt a child. This entails that once proved unsound, the person is incapacitated. This will obviously reinforce a medical model and hence there would be cases which might not exactly conform to the medical requirements of unsoundness (e.g. extreme depression) while others may (e.g. delusion or schizophrenia). The former are eligible for performing the legal task of adoption. There is no scrutiny of their capacity because the presumption is that of incapacity.
[78] Particularly if we look at the Functionality test, for example, in case of entering into contract one may present oneself as cognizant of all the facts and law relevant for the complete understanding of contract while that may not be the case. The other instance is when people fake their age to obtain driving licence.
[79] Particularly, if we look at the outcome test, there is a constant fear in taking up a psychiatric treatment because once a treatment is given a choice to come out of it is at best non-existent. Besides this, the society with its share of prejudices would have already labeled such person as of unsound mind.
[80] Susan Stefan, at pp. 1343-6.
[81] Erving Goffman, ‘Stigma: Notes on the Management of Spoiled Identity’, 4 (New York: Touchstone Books, 1963). (Hereinafter, Goffman). Although the terminology is pejorative of the persons with disability, it is evocative of their experiences and hence I chose to adopt the terminology used by Goffman and Susan Stefan who have in their respective works given a vivid account of discrimination, exclusion, torture and oppression that persons with disability have faced over the years.
[82] Lahey, 101
[83] Susan Stefan, at pp. 1352.
[84] Ibid. at p. 1354
[85] See Sue Estroff et al., Everybody's Got a Little Mental Illness: Accounts of Illness and Self Among People with Severe Persistent Mental Illness, 5 MED. ANTHROPOLOGY Q. 331 (1991)
[86] Susan Stefan, at pp. 1355.
[87] Susan Stefan, at pp. 1356. I believe that this has a lot to do with the perception of their incapacity to make informed decision once they are admitted into treatment.
[88] Ibid. pp. 1357-1363.
[89] Ibid. at 1358, 1364.
[90] Goffman at p. 51-62
[91] Ibid.
[92] Nicholas Watson, Enabling Identity: Disability, Self and Citizenship, 147 in Tom Shakespeare (ed.), ‘Disability Reader: Social Science Perspectives’, (London: Continuum International Publishing Group, 1998)
[93] Susan Stefan, at pp. 1371.
[94] Ibid. at p. 1371-2
[95] Ibid. at p. 1379
[96] Amita Dhanda & Gabor Gombos, Catalyzing Self Advocacy: An Experiment in India, p. 60
[97] Susan Stefan, at p. 1379-80
[98] Gerard Quinn, An Ideas Paper presented at the Seminar on Legal capacity by the European Foundation Centre at Brussels on June 4, 2009, p. 7.
[99] Ibid. at p. 12.
[100] Unnikrishnan v. State of A.P., (1993) 1 SCC 645
[101] Gaurav Jain v. Union of India, AIR 1997 SC 302
[102] Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235
[103] Selvi v. State of Karnataka, Criminal Appeal No. 1267 of 2004 decided on May 5, 2010; Khushboo v. Kannaimmal, (2010) 5 SCC 600
[104] Consensus Paper on Substantive Content of New Law on Disability Rights, p. 21, proposed by Centre for Disability Studies, NALSAR University of Law, Hyderabad, Andhra Pradesh, India, p. 21.
[105] Patrick Devleiger, Frank Rush and David Pfeiffer, Rethinking Disability as Same and Different: Towards a Cultural Model of Disability, in Patrick Devleiger, Frank Rush and David Pfeiffer, ‘Rethinking Disability: the Emergence of new Definitions, Concepts and Communities’, 10 (London: Garant Publishers, 2007)
[106] Ibid.
[107] Iris Marion Young, Five Faces of Oppression, in Thomas Wartenberg (ed.), ‘Rethinking Power’, 174 (Albany: State University of New York Press, 1992).
[108] Ibid. at 186
[109] Ibid. at 187
[110] Ibid.
[111] Id.
[112] Id.
[113] Michael Oliver, ‘the politics of Disablement’, 48 (Hampshire: Macmillan Press, 1990)
[114] Ibid. at 49.
[115] St. Stephen's College v. University of Delhi (1992) 1 SCC 558, Indira Sawhney v. Union of India, AIR 1993 SC 477
[116] Edah Maina, p. 2.
[117] Ibid.
[118] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
[119] John Rawls, ‘A Theory of Justice’ (Revised edition), 52 (Cambridge: Harvard University Press, 1999)
[120] The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999