Lunacy, mad man, mentally retarded terms are antiquated: Bombay HC Frowns at Centre, warns of usage

The Court was listening to a plea by the son of a physician who has been in a vegetative state since June 28, 2018, after a massive stroke. The son sought to be appointed as legal guardian of his father and the powers to manage his father's movable and immovable assets, bank accounts and affairs.

When the Centre stated that the petitioner must apply under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, the High Court bench comprising of Justice Gautam Patel noted that the Act has terms like mental retardation.

At this outset, the bench noted, "Lunacy, mad man, mentally retarded are antiquated... I'm not going to, even if required, look at these statutes. In my court if these words are used, an order of cost will follow."

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As per the latest media report by the Times of India, the massive stroke resulted in acute brain injury due to oxygen deprivation in the petitioner's father. Although the patient was discharged on August 5, 2018, the January 2021 report of the Neurologist confirmed his condition mentioning that he was bedridden and even though he was conscious, he didn't have the orientation with time, place, and person. Further, having several co-morbidities like diabetes and hypertension, the patient was only hemodynamically stable but he was unable to perform any task or take a decision.

The counsel for the patient's son Pramod Tambe contended that the suit was filed under Order 32 A (2) (guardian of a person under a disability) of the Civil Procedure Code, 1908 as there was no other provision in law for such persons in such condition.

On the other hand, the advocate appearing for the State, Jyoti Chavan mentioned that it was an "unfortunate case" and also pointed out that a panel of JJ Hospital must examine the patient and submit a report. To this, the HC bench asked if the State was disputing the report of a private hospital which was better than JJ Hospital.

Meanwhile, advocate Yogeshwar Bhate, counsel for the Centre opined that the petitioner must apply under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and following that a Trust (committee) would decide on the application.

At this outset, Justice Patel asked why a family member of someone who suffers a stroke can't approach the court for being appointed guardian and whether they are expected to approach the trust for that purpose. He also noted that the Act would not be applied to a clinical condition.

Noting that antiquated statutes with such terms must be repealed, Justice Patel was quoted saying by TOI,

"It has terms like autism, cerebral palsy, multiple disabilities. But mental retardation? Whoever has drafted this is retarded."

The bench also slammed the State pointing out that the JJ hospital of the State also used similar terms like "mental retardation" in certificates and questioned if the State government backed such usage.

"This is insensitivity to their condition (the mentally challenged)," further noted the Bench.

Finally, taking note of the fact that two sisters of the petitioner had consented to him being appointed as the legal guardian, the bench allowed the petition.