Allahabad HC Guidelines
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Appointment of guardians for persons in a coma: Allahabad HC lays down guidelines, asks Centre to consider framing law

The Court clarified that the guidelines laid down by it are temporary in nature and are meant to apply only till an appropriate enactment is passed on the issue.

Shruti Mahajan

The Allahabad High Court on Monday issued certain guidelines for the appointment of guardians for persons who are in a comatose state, and recommended that the Centre introduce a law on this issue (Uma Mittal ad ors. v. Union of India and ors).

The Division Bench of Justices Shashi Kant Gupta and Saurabh Shyam Shamshery observed that none of the enactments addresses the issue regarding guardianship of a person in a coma.

The Court was delivering a judgment on a plea filed by a woman seeking a direction for her appointment as the guardian of her husband who is in a comatose state.

While adjudicating on her plea, the Court today laid down certain guidelines on the subject, given that no enactment addresses this issue at present.

The Court added,

"we wish to recommend to the Central Government to consider enacting an appropriate legislation pertaining to appointment of guardians qua persons lying in a comatose state, as no remedy is provided in any statute to persons in comatose/vegetative state, (as already discussed in detail in earlier part of this judgment), unlike legislations for appointment of guardians for minors and persons with other disabilities, including like mental retardation etc."

The Allahabad High Court agreed with the view that was taken by the Kerala High Court and Delhi High Court in the cases of Shobha Gopalkrishnan v. State of Kerala and Vandana Tyagi v. Government of NCT Delhi respectively that none of the legislation in force deal with the issue.

In light of the vacuum in the law on this subject, the Court was called upon to discharge its 'parens patriae' jurisdiction in the instant case. As per its jurisdiction under Article 226 of the Constitution, the High Court may pass directions for ensuring the ends of justice in situations where there is no remedy provided in any statute.

"The idea behind 'Parens Patriae' is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role."
Allahabad High Court said

While in olden times the King was considered parens patriae, it is the State in modern times which is best suited to assume that role, the High Court observed.

Through precedents laid down by the Supreme Court, the Bench found that even Constitutional Courts have exercised this jurisdiction. These are rare cases, however, where the Court has had to invoke the parens patriae jurisdiction.

In this backdrop, the Bench noted that it could not shirk off its responsibility when the question before it was regarding the protection of the rights of a person lying in a comatose state.

The High Court went on to lay down some guidelines/ norms on the issue of guardianship for a person in a comatose state. These guidelines, the Court said, are temporary in nature, and are meant to apply only until an appropriate enactment is passed on the issue.

Further, these guidelines are general in nature and can be relaxed or be subjected to more conditions by the High Court, as the case and requirement may be, the judgment says.

The guidelines issued include the following:

  • A person seeking to be appointed a guardian of the person in a coma must divulge all financial details regarding all assets, tabgible and intangible, in the petition.

  • The Court will have the person lying in comatose examined by a duly constituted medical board which would include, inter alia, a neurologist.

  • The Court will direct the Tehsildar/ SDM to carry out an enquiry to verify the assertions made by the person seeking to be appointed as the guardian.

  • Ordinarily only that person will be appointed as guardian who is a spouse or a progeny of the person lying in comatose. The person seeking appointment as a guardian in his petition to the court will, however, disclose the particulars of all legal heirs of the person lying in comatose.

  • Only that person shall be appointed as a guardian who is otherwise in law competent to act as a guardian.

  • The order directing the appointment of a guardian shall specify the assets qua which the guardianship order is passed.

  • The person appointed as a guardian will file every six months a report with the Registrar General of this court.

  • The Registrar General of this court will maintain a separate register to record the details of the proceedings, the particulars of the person appointed as a guardian and orders, if any, passed after the appointment of the guardian.

  • It will be open to the court to appoint a guardian either temporarily or for a limited period, as may be deemed fit.

  • In the event, the guardian appointed by the court misuses his/her power, the court would have the power to remove the guardian and appoint another person in his/her place.

  • The guardian appointed by the court will ensure that the transactions entered into by him or her comport with the relevant provisions of the law.

  • In case a relative or a next friend of the person lying in comatose state finds that the guardian is not acting in the best interest, such person will also have the locus to approach the court

  • In case, the guardian wishes to move the person lying in comatose state to another state or even to another country for the purposes of securing better medical treatment for the person lying in comatose state, he/she would approach the court for necessary permission before undertaking such an exercise.

In the instant case, the Court allowed for the petitioner to be appointed as the legal guardian of her comatose husband. The petitioner was thereby vested with the property of her husband and permitted to undertake all the actions concerning her husband's assets, bank accounts, properties, and such.

While disposing of the petition on these terms, the Court also directed the Registrar of the Court to forward a copy of the judgment to the Secretary, Law, Ministry of Law and Justice, Government of India for appropriate steps to be taken.

The petitioner was represented by Advocate Bidhan Chandra Rai and the State authorities were represented by ASGI Amrish Sahai, CSC Maneesh Mehrotra with Advocates Satish Chaturvedi, Seema Singh, and Manish Mehrotra.

Read the Judgment:

Uma Mittal vs UOI (appointment of guardian for persons in a coma).pdf
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