The Understanding of ‘Capacity’ & Decision-Making Under Indian Law Lacks Nuance, Consistency & a Modern Scientific Approach
Part II of a II part series - Legal capacity & decision-making in Contract and Procedural Law
This is Part II of a two-part blog post series focussing on understanding the legal principles and (often outdated or ambiguous) terminology that govern the determination of legal and decision-making capacities in India. Part I of this series critically analysed the legal provisions and judicial pronouncements governing decision-making frameworks in the areas of health and reproductive rights, and marriage and adoption.
Part II will focus on the ways in which the Indian legal framework lays down the contours of decision-making and legal capacity in matters relating to contracts and property ownership, and under certain civil and criminal laws. It will attempt to analyse the larger implications that these have on the rights of individuals who have (or are presumed to have) impaired decision-making capacity.
Contracts, Property, and Testamentary Succession
As far as entering into contracts is concerned, the Courts have held that there is always a presumption of ‘sanity’, unless such presumption is displaced by adjudging a person to be of ‘unsound mind’, upon inquisition. The Courts have clarified that mere “weakness of mind” or temporary forgetfulness is not sufficient to establish ‘unsoundness of mind’. Similarly, a person who is otherwise ‘mentally unsound’ may enter into a contract, when they are of ‘sound mind’. Rather, the test of ‘unsoundness of mind’ concerns itself with whether the person was incapable of understanding the act in question and its implications.
In Inder Singh v. Parmeshwardhari Singh, Justice Sinha explained that ‘capacity’ in relation to contracts would entail that that the party who is entering into the contract has the ability to arrive at a “reasoned judgement as to the consequences of the contract he is entering into.” He said that while externally, a person may behave in a “normal fashion”, nonetheless they may be incapable of forming a judgment on their own, as to whether the act that they are about to indulge in is in their self-interest or not. In Nilima Ghosh v. Harjeet Kaur, the Court reiterated this principle, saying that for the purpose of determining whether a contract entered into by a person of ‘unsound mind’ was void or not, it had to be seen whether at the time of making the contract, the person was capable of forming a rational judgment as to the effects of such contract upon their own interests. Thus, capacity for the purposes of contract law, is a fact and context-specific enquiry, which is required to be carried out before determining the validity and enforceability of an agreement.
The question of capacity to enter into contracts and deal with property has come up before the courts in several instances, including specifically, with respect to presumptions relating to capacity, and the standard applied to determine capacity in the context of a contract. Sona Bala Bora v. Jyotirindra Bhattacharjee, reflects the position in this regard – the Supreme Court, in this case, set aside the sale of properties by the late husband (by the name of Bhogirath) of the appellant (the wife who survived him) on the ground that the husband was experiencing a ‘mental imbalance’ at the time of entering into the contract and was reputed to exhibit ‘irrational behaviour’, as acknowledged by the purchaser of the properties. The court held that the “question of the capacity of Bhogirath to execute the conveyance did not have to be established only by medical evidence. The unsoundness of the mind may be established by proving such conduct as was not only not in keeping with the concerned person’s character but such that it could not be explained on any reasonable basis.” It was held that the initial burden of proof as to the alleged irrationality belonged to the appellant, and once this had been satisfied, the onus was on the respondent to show that Bhogirath had executed the transaction during a ‘lucid interval’ as per the provisions of the Indian Contract Act, 1872.
In matters of administering property, the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999(‘National Trusts Act’) provides for the appointment of a guardian for a person with disability under Sections 15 and 16, who will be responsible for taking care of such person’s property and submitting statements of account of such person’s assets and liabilities to the competent authority under the Act. Under the said Act, a ‘person with disability’ means a “person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability.” Parallel to this, the Rights of Persons with Disabilities (‘RPWD’) Act, 2016 which defines a ‘person with disability’ as someone who has long-term mental or intellectual impairment which hinders their full and effective participation in society (Section 2(s)), lays down that such people have equal rights as others to own and inherit both movable and immovable properties and control their financial affairs (Section 13(1)).Thus, there is some overlap between the two laws and while the former advocates for appointing a guardian to manage the property of a person with intellectual disability, the latter grants full autonomy to such a person to manage their own property. While the older Act has been proposed to be repealed, to bring everything under the ambit of the RPWD Act, intellectual disability focussed activists have resisted the move, saying that the National Trusts Act, being specific to a certain class of people (that is, those with intellectual disabilities) is better suited to those people with developmental needs as opposed to the RPWD Act (which also applies to people with physical disabilities). However, neither Act specifies the level of decision-making capacity which is required for the provisions to be properly implemented or the kind of decision-making mechanisms that need to be incorporated in such a framework.
Under the Indian Succession Act, 1925, a person who is ‘ordinarily insane’ may make a will when they are of ‘sound mind’ (Explanation 3, Section 59).This has been elucidated through case-law, wherein the Court has clarified that certain impediments like hearing, sight or speech disabilities do not constitute testamentary incapacity. In Suresh Manilal Mehta v. Varsha Bhadresh Joshi, the phrase ‘ordinarily insane’ which constitutes rather outdated and ableist terminology, was interpreted by the Court to “include any one or more of the well-known medical mental disorders that are known to medical science today”. However, the Court did not lay down a list of mental disorders that would come under this category. The Court while noting the unfortunate phrasing of Explanation 3 to Section 59 of the Indian Succession Act, 1925 said that a person who is otherwise incapable may nonetheless make a will during a lucid interval. The Court said that it is not enough to merely say that a certain testator suffered from a particular ailment, since it is unreasonable to expect that a person would always be in a perfect state of health. Rather, if that were to be the case, then most testators would be presumed to be incapacitated since most people do not enjoy perfect health. The Court held that “perfection of health is most emphatically not the mandate of the law” and that the legal position in India does not require a testator to be in perfect mental or physical condition or be possessed of ‘sound mind’ and memory to the highest degree. The Court acknowledged that with age, a certain degree of enfeeblement and debilitation is to be expected. However, so long as the testator has the capacity to “discern and discreetly to judge the matters that enter into a rational, fair and just testament”, this is sufficient testamentary capacity.
Under the laws of testamentary succession such as the Indian Succession Act, 1925 (Section 59) and the Hindu Succession Act, 1956, a person who is of ‘sound mind’ is deemed capable of disposing of their property by will. Issues arise before the courts where it is afterwards alleged that either some party has exercised undue influence over the testator (person making the will), or that the testator’s capacity was impaired, and the will is invalid for these or other such reasons (See H. Venkatachala Iyengar v. B. N. Thimmajaama; Rash Mohini Dasi v. Umesh Chunder Biswas). In Dr. Sajjan Singh v. Pushpraj Singh, the Allahabad High Court evaluated the validity of a will purportedly executed by the deceased Maharaja Martand Singh of Rewa, who, apart from being elderly and in poor health, was alleged to alternate between periods of lucidity and incoherence as well as suffering memory loss, in the final years of his life, during which time the will was purported to have been executed. Based on the testimony of medical experts and witnesses, the court found no evidence to prove that the deceased was mentally incapable of making a will. However, when making its ruling, the court took into account the aforesaid testimony and other factors, such as the major role played by the beneficiaries in the making of the will. The court, found that, while the deceased may not have lacked testamentary capacity, it was highly unlikely that in the aforesaid mental state (i.e. deduced from the testimony and evidence produced in court), the deceased would have been able to instruct his lawyer to draft a will as detailed and complex as the purported will submitted to the court for probate.
Thus, these cases show the great importance that Courts have placed on a context-specific determination of decision-making capacity when adjudicating matters related to contracts, testamentary succession, and ownership of property. Such a determination acknowledges the nuanced nature of capacity in different situations and helps protect the autonomy of those making such decisions.
Civil and Criminal Proceedings
The Code of Criminal Procedure, 1973 (‘Criminal Procedure Code’) provides that where it appears to the Magistrate holding an inquiry, that the accused is ‘of unsound mind’ and ‘consequently incapable of making his defence’, the Magistrate must inquire into this fact, and cause such person to be examined by the civil surgeon of the district or such other medical officer directed by the State Government (Chapter XXV). It goes on to provide the specific procedure to be followed in cases where it is found that the capacity of the accused is or is suspected to be impaired. Under the Code of Civil Procedure, 1908 (‘Civil Procedure Code’), suits by or against persons of ‘unsound mind’ or ‘mental infirmity’ must be filed (or defended, as the case may be) through a representative or through a guardian appointed by the court for such purpose, as applicable (Order XXXII). It has been held that a decree passed against a minor or a ‘person of unsound mind’ without the appointment of a guardian to represent them before the court is void. Rule 15 under Order XXXII says that Rules 1 to 14 under Order XXXII (which apply to minors) also apply to persons who have been adjudged to be of ‘unsound mind’, either before or during the pendency of the suit or to those people, who despite not being so adjudged, are nonetheless found by the Court to be ‘incapable’ on enquiry, by reason of any ‘mental infirmity’. Interestingly, despite prescribing a capacity-based determination, the Rules do not elaborate what constitutes ‘unsoundness of mind’ or ‘mental infirmity’.
The Kerala High Court in Raveendran v. Sobhana emphasised the seriousness of a decision under the aforesaid provisions of the Civil Procedure Code. The Court noted that it results in the rights of a party to conduct their own litigation being taken away, “and a guardianship being thrust upon” them; therefore, the court has the “mandatory jurisdiction to enquire into the need for appointment of a next friend” and also “the obligation to consider whether the person” with impaired capacity appearing before it is indeed capable of protecting their interests. They go on to say that the Court should, accordingly, either appoint a representative to protect the interests of such litigant, or ensure “that a next friend or guardian is not superimposed” on them, thereby depriving them of their right to make their own decisions. Thus, in a welcome move, the High Court, through this case, has recognised both, the nuanced nature of capacity and decision-making, and the importance of the right to be able to conduct one’s own legal affairs.
In an interesting and somewhat paradoxical 2020 Kerala High Court decision, it was held that the impairment of persons with physical disabilities that prevent them from communicating their views except with those closely associated with them or through an interpreter, could be regarded as a ‘mental infirmity’ for the purpose of Order 32 Rule 15 of the Civil Procedure Code. In this case, the Court contemplated the communication barriers that a person with sensory impairments may face in mainstream environments such as a courtroom. The intention of the Court in this case, appears to have been, to extend the protection of the special provisions in the law for persons with impaired capacity, to a litigant with a sensory disability, who was also illiterate, and gave her testimony with the help of an interpreter, and who had filed the original suit (to claim property rights) through her daughter (as her ‘next friend’). Unfortunately, the reasoning and language of the ruling raises some concerns. In stating that “living as a deaf and dumb person, has a debilitating effect on the mental faculties of comprehension, thought, communication and even response”, the Court appears to have generalized a specific situation, and fallen prey to the misconception that a sensory disability necessarily leads to reduced cognitive functioning. Such a view is problematic because it may be seen as conflating a physical disability or sensory impairment with impaired mental capacity.
Thus, to start with, there is an immediate need to ensure that: (a) capacity is properly understood and defined in the law, (b) that the legal parameters for determining capacity are clearly spelled out, and (c) that appropriate procedural safeguards are instituted in respect of the foregoing. The issues discussed above highlight the need for the sensitisation of public discourse on the subjects of capacity and decision-making, and more to the point, the urgent need for advancements in legislation, so as to protect the right of every person to represent their own interests and make their own choices.