Shambhavi Prakash is a first-year B.A. LL.B. (Hons.) student at National Law University, Delhi.
Abstract
Behind every guardianship order is a person whose choices are no longer legally theirs to make. This persists despite India’s commitments under the Convention on the Rights of Persons with Disabilities (“CRPD”). The Indian legal framework formally recognises the legal capacity of persons with intellectual disabilities but continues to condition its exercise on assessments of mental capacity. Moreover, it lacks the institutional mechanisms necessary to operationalise supported decision-making. Until legal capacity is decoupled from mental capacity, constitutional citizenship will remain, for persons with intellectual disabilities, a right in name only.
Citizens with Intellectual Disability
Two terms sit at the centre of disability rights law, and the distance between them determines whether a person with an intellectual disability lives as a citizen or a ward: best interest and wills and preferences. ‘Best interest’ is the standard used to justify decisions taken by a guardian, doctor, or family member on what is good for a person who is deemed incapable of deciding for themselves. By contrast, ‘wills and preferences’ requires that the person’s own choices and wishes guide the decision, with support where needed, rather than being displaced by someone else’s judgment of what is best for them.
This distinction becomes important, especially in the context of guardianship. Guardianship is a legal arrangement that, however well-intentioned, transfers the power to decide from the person with a disability to someone else. The question is whether the Indian framework meets what international law now demands
What the CRPD Got Right
Following the Convention on the Rights of Persons with Disabilities (“CRPD”), perceptions surrounding disability shifted. This shift was driven substantially by disabled persons’ organisations (“DPOs”), which participated actively in the negotiation and drafting of the Convention between 2002 and 2006 to ensure that the Convention reflected the lived experiences of persons with disabilities. This participatory approach contributed to the CRPD’s recognition that a person with disability is legally allowed to assert their ‘wills and preferences’ over the ‘best interests’ as determined by their legal guardians. Article 12 of the CRPD guarantees legal capacity for persons with disabilities on an equal basis with others. Legal capacity confers the capacity to hold rights and duties as a legal person (legal standing) and the capacity to exercise those rights and duties (legal agency). It mandates that support must be provided to enable the exercise of the capacity.
Accordingly, the CRPD favours supported decision-making over substituted decision-making. Substituted decision-making allows another person, such as a guardian, to make decisions on behalf of a person with intellectual disability based on their perceived “best interests.” Supported decision-making, by contrast, enables the individual with intellectual disability to make their own decisions with necessary assistance. This reflects the treaty’s distinction between legal capacity itself and mental capacity, which refers to a person’s cognitive ability to understand or make a decision. Even with limited mental capacity in a given moment, a person can exercise legal capacity with support.
India’s Legal Framework: Progress and Contradictions
The changes witnessed through the CRPD are reflected in Indian laws as well. The Rights of Persons with Disabilities Act, 2016 (RPWD Act) ensures state obligation by providing for reasonable accommodations that enable people with disabilities to exercise their rights on an equal footing. However, not all provisions exist without contradictions. While the Mental Healthcare Act, 2017, mandates taking informed consent from persons with intellectual disabilities about their treatment, it also allows nominated representatives to override their choices in their ‘best interest’ or if the medical diagnosis concludes their incapacity to make decisions. Similarly, Section 14 of the RPWD Act allows for “limited guardianship” based on the mental incapacity of persons with intellectual disability.
India’s framework reflects two major gaps in its institutions. First, Indian laws have failed to comprehensively establish the eligibility and scope of responsibilities of a supporter, or how disagreements between the supporter and the person with disability should be resolved. Second, India lacks the institutional capacity, such as trained personnel and review & grievance mechanisms, that help implement supported decision-making. These gaps become apparent in daily life. Strict procedural requirements become a barrier to accessing support, even with statutory recognition. Banks refuse to open accounts despite RBI guidelines recognising the right of persons with intellectual disability to do so. Courts continue to resort to “best interests” reasoning in difficult medical decisions.
Changing the decision-making approach from substituted to supported leads to substantial institutional requirements, such as envisioning the nature of meaningful support. Support is most likely to be provided by family members because they are often the person’s primary caregivers. Their support remains invaluable. But assuming that familial care is synonymous with autonomous choice can lead to undue influence, overprotection, or conflicts of interest. Therefore, Article 12(4) of the CRPD emphasises regular review by an impartial, independent authority.
In Suchita Srivastava v. Chandigarh Administration (2009), the court rejected the State’s invocation of the parens patriae doctrine, which allows the State to act as guardian for those it deems unable to protect their own interests, to terminate the pregnancy of a woman with intellectual disability in her “best interest”. The court affirmed that reproductive choices flow from Article 21 of the Indian Constitution. It held that disability alone is insufficient to supplant a person’s decision. It ordered a psychiatric evaluation, found she had cognitive capacity to understand the implications of pregnancy and deferred to her clearly expressed wish to continue it. Thus, the court established her right to decide on reproduction.
Similarly, the importance given to decision-making capacity was also present in Sharmila Velamur v. V. Sanjay (2025).The case was concerned with a custody dispute where an adult with an intellectual disability wished to remain in India with his father. The court evaluated his decision-making capacity through medical assessments instead of treating his preference as conclusive. Later, they invoked the parens patriae doctrine when it was concluded that he lacked mental capacity. Ultimately, the court, considering his best interest, directed him to return to the US with his mother. In both cases, the court held the ‘wills and preferences’ of the persons with intellectual disability to be conditional on their mental capacity to make decisions. Autonomy was not presumed. In this way, the court links legal capacity to mental capacity, which is contrary to the distinction drawn in Article 12 of the CRPD.
Supported decision-making in itself is not enforceable. It requires institutional will to make support meaningful. This can work in various ways, such as making communication accessible, providing administrative assistance, and recognising choices with assistance across public and private institutions. A rare and hopeful example is offered by the NIMHANS facility in Bengaluru. It helped long-stay patients obtain Aadhaar cards and disability certificates, thus enabling them to create bank accounts and vote in elections. With modest institutional effort, people with intellectual disability were able to reclaim legal visibility and civic agency.
Comparative Law: Building Safeguards, Not Just Standards
Comparative law demonstrates where different legal frameworks fall on the spectrum between Article 12 and the “best interest” approach that the CRPD calls to abandon. The UK’s Mental Capacity Act, 2005 retains a best-interests standard but requires decision-makers to consider the person’s past and present wishes and feelings. However, this falls short of Article 12, as the CRPD Committee’s General Comment No. 1 notes that it is applied to the person rather than one that comes from their own will and preferences. This matters for India specifically because the RPWD Act already points toward consulting the person concerned without displacing “best interest” as the final word. Therefore, a reform that keeps persons with intellectual disability in a passive role will fail to improve India’s existing framework.
The German Act to Reform Guardianship and Adult Support (2021) restricts the guardian’s authority by limiting their intervention in personal matters to exceptional circumstances and ensuring that their appointment remains subject to judicial review. For India, the German model presents a suitable starting point. It works within the guardianship structure the RPWD Act already has, while tightening judicial oversight and narrowing the scope of substitute decision-making.
Costa Rica abolished all forms of guardianship, creating a “guarantor for equality before the law of persons with disabilities”, who ensures the exercise of legal capacity by all persons with disabilities. Costa Rica’s complete abolition of guardianship is closer to the objective of Article 12. But executing it requires substantial legislative work and real institutional investment that India hasn’t built yet. The fundamental base for these frameworks is the recognition that legal capacity is inherent in a person and is not granted by the State after a medical diagnosis.
Citizenship Requires More Than a Name on a List
Article 12 CRPD focuses on whether a person is capable of making decisions independently to determine what support is required for them to exercise their legal capacity. However, the Indian framework continues to ask whether the person is capable of making decisions before recognising the legal effects of those decisions. This difference determines whether support functions as a means of enabling autonomy or as a prerequisite for recognising it. Consequently, employing ‘supported decision-making’ requires creating safeguards against coercion and recognising supported decisions across public and private bodies. Until the law presumes legal capacity and builds institutions that support its exercise, persons with intellectual disabilities will remain protected rather than recognised as equal citizens.