Namandeep Kaur, 4th Year, B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab
Abstract
Persons with intellectual disabilities have historically been excluded from the electoral process. They have been considered politically incompetent to make political decisions. This blog examines the debate surrounding such disenfranchisement. It analyses arguments based on political competence, explores international developments under the Convention on the Rights of Persons with Disabilities (CRPD), and discusses the shift from substitute to supported decision-making models. The blog further evaluates the Indian legal position and argues that the ‘unsound mind’ disqualification is inconsistent with both India’s international obligations and the constitutional values of equality, dignity, and inclusive democracy.
Introduction
Intellectual disability is a neurodevelopmental condition which limits intellectual functioning, such as reasoning, learning, and adaptive behavior including social and practical skills. It can make an individual’s participation in social, economic, and political life very difficult. The right to vote is one of the most important aspects of democracy. However, persons with intellectual disabilities have historically faced exclusion from the electoral process. There is a widely held global notion that people with intellectual disabilities cannot and should not make important decisions, such as voting. These beliefs raise serious questions about equality, autonomy, dignity, and democratic participation. This has resulted in a global debate regarding the voting rights of individuals with intellectual disabilities.
This blog examines the debate surrounding the voting rights of persons with intellectual disabilities. It analyses the arguments that have traditionally been used to justify restrictions on their participation in elections. It also analyses the legal and policy debates surrounding voting rights, explores international developments, and evaluates the position under Indian law.
Intellectual Disability and Disenfranchisement
People with intellectual disabilities are often denied voting rights because they are considered incompetent to vote. This exclusion is justified by assumptions that individuals with intellectual disabilities lack the reasoning abilities necessary for political participation. Critics argue that allowing people with intellectual disabilities to vote would degrade the quality of the democratic process because they believe that voters must have the basic competence to vote, an understanding of the voting process, and basic reasoning skills.
However, these arguments hold little merit. Democratic systems are generally founded on the principle of equal political participation. Focus is always on collective decision-making, and there is neither a minimum qualification or knowledge required to vote, nor an objective and reliable standard for measuring an individual’s political competence. Furthermore, intellectual disability is a spectrum, and there is only a very small group of people whose disability is so profound that it renders them unable to understand even the basic purpose or nature of voting. Given the highly individualized nature of intellectual disability, any attempt to identify such individuals through a legal standard would risk arbitrary exclusion. Thus, the quality of democracy would be negligibly impacted by providing universal suffrage to all, irrespective of mental capacity.
Global Perspectives on Voting Rights and Intellectual Disability
Historically, democratic participation has been denied to people with intellectual disabilities due to deep-rooted biases regarding their political competence. Electoral laws across the world have used various legal labels, such as ‘unsoundness of mind,’ ‘civil incapacity,’ or ‘mental disorder, to strip these individuals of their suffrage. This domestic disenfranchisement was mirrored at the international level as well. People were endowed with the right to take part in governance, vote, and contest elections under Article 25 of the 1966 International Covenant on Civil and Political Rights (ICCPR). However, in its 1996 interpretation of the Covenant, the Human Rights Committee clarified that mental incapacity can be a ground for denying the right to vote. Nevertheless, this position was increasingly criticized for treating disability as a legitimate ground for limiting political rights without adequately considering principles of equality, or the possibility of providing support.
This position changed with the adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006. As per Article 12(2) of CRPD, persons with disabilities enjoy equal legal capacity as others, while Article 29 explicitly guarantees the right to vote. Together, these provisions establish the principle of universal legal capacity. This promotes equality, non-discrimination, and the full inclusion of persons with disabilities in democratic processes. This position is adopted by many nations like Denmark, Germany, France, Italy, Sweden, the Netherlands, Finland, and Canada. Despite the international convention, restrictions on voting rights still continue to exist in various forms across different legal systems.
Guardianship as a Barrier to Voting Rights
In many other countries, people with intellectual disabilities are not directly denied voting rights, but through the concept of guardianship. In these countries, if a guardian is appointed for a person, the person is devoid of their legal capacity, meaning the guardian makes decisions considering the best interest of the person. This is called substitute guardianship.
In the electoral context, several States such as Estonia, Bulgaria, Cyprus, and Poland have justified voting restrictions on the assumption that people under guardianship cannot exercise political judgment. Supporters of substitute decision-making argue that even if a guardian votes for the intellectually disabled person, his/her preference would be based on his/her own judgment and thus, lead to double voting. However, the fundamental flaw in this system is that it treats a need for everyday assistance as a blanket justification to strip a person of their civil rights. By equating intellectual disability with incapacity, substitute decision-making regimes often deny individuals the opportunity to express their own choices and participate as equal members of the political community. Thus, countries like Spain, Slovakia, Peru, and Colombia have abolished the traditional models of guardianship, and adopted a model of supported decision-making.
Unlike substitute decision-making, supported decision-making does not remove a person’s legal capacity and their will and preferences are considered. Family members, friends, and professionals help the intellectually disabled person to realize their legal capacity, understand daily situations and help them make their own decisions. For example, Section 155 of Canada Elections Act, 2000, allows a friend or relative of a disabled person to assist in marking their ballot.
The challenge with supported decision
Indian Legal Position
In India, persons with intellectual disabilities are not automatically disqualified from voting through guardianship. However, guardians are appointed for taking other legally binding decisions mainly through Section 14 of the National Trust Act, 1999, and Section 14 of the Rights of Persons with Disabilities (RPwD) Act, 2016. As the National Trust Act is an older legislation, it provides for provisions of substitute decision-making. With time, India moved to a better model of supported decision-making through RPwD.
As far as voting rights are concerned, disqualification arises only where a person falls within the legal category of ‘unsoundness of mind’. Article 326 of the Constitution and Section 16(b) of the Representation of the People Act, 1950, disqualifies a person from voting if he/she is of unsound mind and stands so declared by a competent court. It was clarified by the Kerala High Court in Jomon Jacob v. State Election Commission that intellectual disability or mental illness is not the same as unsoundness of mind. However, an unsound mind is not defined under any statute in India. Thus, there is an ambiguity regarding its meaning.
In Lalitha Devi v. Nathuji Joshi, unsoundness was defined as the incapacity to manage one’s affairs. This definition makes the threshold of disqualification very low. However, even if the threshold is very high and only a handful of people are disqualified, this disqualification still violates India’s international obligations. India signed and ratified the CRPD in 2007. Following the ratification, two disability legislations were passed, the Rights of Persons with Disabilities Act, 2016, and the Mental Health Care Act, 2017. Section 13 of the RPwD Act ensures that people with disabilities have equal legal capacity in every sphere of life. Despite this legislation, the disqualification of ‘unsoundness of mind’ still remains.
Way Forward
There is a need to remove the ‘unsound mind’ disqualification from voting through legislative action. There are two major reasons for the need to remove this disqualification. Firstly, it is violative of the CRPD ratified by India. Secondly, this disqualification is also not aligned with the democratic values of our constitution. Although the right to vote is not a fundamental right as held in Jyoti Basu v. Debi Ghosal, the Supreme Court in PUCL v. Union of India established that it is a constitutional right originating from Article 326 of the Constitution. It also promotes the constitutional values of inclusive democracy, universal adult suffrage, and human dignity. By removing the disqualification, the state would better ensure equality as enshrined in Article 14. It would also protect freedom of expression, as the right to express a political choice is linked to it. The right to vote would help promote a life with dignity to all, regardless of any disability.
Merely removing this disqualification would not serve the purpose of providing political rights to people with intellectual disabilities. It is essential that they can participate in the electoral process as well. Section 14 of the RPwD Actprovides for limited guardianship, which operates on mutual understanding and trust between the guardian and the person with disabilities. This provision can be extended to provide supported decision-making in voting as well. However, it is essential that voting should happen according to the will and preference of the voter. To prevent any sort of undue influence, an institutional safeguard can be introduced. Polling officers can be trained to verify the free will and consent of a voter with intellectual disability. Recognizing voting rights and removing the barriers for intellectually disabled individuals will result in a truly inclusive democracy.
