An interesting statutory lacuna has been noticed by several High Courts in the country, inter alia, the Bombay, Allahabad, Delhi and Kerala High Courts. It appears that at present, there are no statutory provisions that permit a person to be appointed as a guardian to an adult who is in a coma or otherwise incapacitated due to a physical ailment and not due to any mental ailment.

The Kerala High Court in Sobha Gopalakrishnan v. State of Kerala[1] dealt with this aspect in depth. The Counsel for the Petitioners placed reliance on earlier instances where a High Court had faced the issue and issued writs of Mandamus directing the appointment of a guardian[2]. Over the course of the proceedings, the Secretary, Ministry of Health and Family Welfare (Govt. of India), the superintendent of a government hospital and the managers of banks in which the sick persons had accounts were impleaded. The Court also appointed Senior Counsel and lawyers specialising in disability law as Amicus Curie in the matter.

The Court perused medical records to the effect that the Petitioner’s spouses were in a coma and through the Tahsildar, verified the list of legal heirs submitted by the Petitioners. During the course of the hearing, one of the Petitioners’ spouses passed away and the petition was treated as a Public Interest Litigation for the framing of guidelines for similar situations.

The Court considered the following legislations in detail to ascertain whether any of them provided for the appointment of a guardian for a person in a comatose state:

1. The Guardian and Wards Act, 1890
2. The Mental Health Act, 1987 (Repealed)
3. The National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
4. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 (Repealed)
5. The Mental Healthcare Act, 2017
6. The Rights of Persons with Disabilities Act, 2016

The Court examined the ambits of the abovementioned legislations and concluded that none of them provided for the appointment of a guardian in respect of a person in a comatose state. It used the definition of a comatose state / brain death from the landmark Aruna Shaunbaug case (reported in Aruna Ramachandra Shaunbaug v. Union of India; (2011) 4 SCC 454) to make the comparison.

Observing that since there is a lacuna in the body of statutory law on the point, the Court in exercise of its wide powers under Article 226 of the Constitution of India could frame guidelines on the point. It was also observed that the Court acted in parens patrae capacity in respect to the comatose person.

The guidelines that were framed are presently applicable in Kerala and are broadly as follows:

1. The Petitioner shall disclose the details of the illness as well as the details of the assets of the comatose person.
2. The condition of the comatose person shall be verified by the revenue authorities and a Medical Board comprising doctors, one of whom shall be a neurologist.
3. The Petitioner must be a major and a close relative. In the event that the Petitioner is not suitable, a public official such as the ‘Social Welfare Officer’ may be appointed as a guardian.
4. Once appointed as a guardian with respect to specific assets, biannual reports of transactions undertaken shall be filed before the Registrar of the High Court.
5. While the appointment as a guardian may be permanent or temporary, the guardian can be removed for misappropriation or misfeasance by moving the matter before the High Court.
6. The guardian shall immediately after the judgment appointing him/her as a guardian communicate the same to the Social Welfare Officer who shall pay random visits to the comatose patient to ascertain whether interference by the High Court is required.
7. The transfer of the comatose person out of the High Court’s jurisdiction shall be only upon its express permission.

The Kerala High Court appointed the Petitioners as guardians of their spouses in respect of the lists of assets each of them had produced.

The current position of law in other states remains ambiguous in the absence of a Supreme Court ruling or statutory provision providing for this peculiar relief. The states of Maharashtra, Delhi, Uttar Pradesh, Tamil Nadu and Kerala have precedents set by the respective High Courts.

This update has been contributed by Maneesha Kongovi (Partner) and Rohit Shankar (Associate).