In 2016, the Election Commission in Tamil Nadu made headlines by facilitating the enrolment of a number of voters who were persons with disabilities, including long-term residents of mental health institutions. This was a celebrated effort that has since been replicated in a number of states, and in fact recently there was a special enrollment drive held within the Institute of Mental Health in Chennai where 129 inpatients were registered as voters. This has apparently led to some debate as to whether this was a Constitutionally valid procedure, throwing up issues of whether the votes cast by these persons would be a ‘fair’ vote.
The right to vote and universal adult franchise extends to all citizens above the age of 18 in India. Article 326 of the Constitution permits the exclusion of persons who are otherwise qualified to vote from electoral rolls only by a law passed by the appropriate legislature on specific grounds. These grounds can only be that of non-residence, crime, corrupt or illegal practice, or for ‘unsoundness of mind’. Section 16 of the Representation of the People Act, 1950, enacts this option provided by the Constitution by disqualifying persons who are of ‘unsound mind’ and are so declared by a competent court from having their names on the electoral rolls. This is not new; the term ‘unsound mind’ is used in hundreds of laws enacted since colonial times.
The question is – does the law presume that persons who have the diagnosis of an impairment, be it a mental illness or a developmental limitation, are of unsound mind for the purposes of denying them eligibility to enrol as voters? The short answer is no.
Under the Indian Penal Code, ‘unsoundness of mind’ is an issue of fact that must be decided by a Court under Section 84. In order to acquit a person of a criminal charge, the consequence of ‘unsoundness of mind’ is that a person should not be able to understand right from wrong, or the consequences of their actions.
Under the Indian Contract Act, having a sound mind for the purpose of contracting means that a person is capable of understanding a contract and of forming a rational judgment as to its effect upon his interests. Section 12 of the Act elaborates that the existence or absence of a ‘mental illness’ does not automatically lead to an assumption that a person is not of sound mind.
In fact, there’s a clear example of a patient in a ‘lunatic asylum’ who may be considered to be competent to contract. Both these laws, as archaic as they are, dispel the notion that a diagnosis of mental illness itself is sufficient to deny a person what’s called legal capacity – the ability to be a subject of law and a holder of legal rights and obligations.
In practice, however, the conflation of the terms ‘unsound mind’ and a diagnosis of a mental impairment has led to authorities excluding persons with intellectual, developmental, and psychosocial disabilities from a large number of rights and services on the grounds that they ‘appear’ to not be able to understand what they were getting into. Registration as voters was no different, in that sense.
In 2017, India passed the Mental Healthcare Act, which carried a specific legislative clarification in Section 3 (5) that “The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.”
The Mental Healthcare Act is one of two legislations that implement India’s obligations under the Convention on the Rights of Persons with Disabilities which it ratified in 2007. The Convention, particularly Article 12, prohibits any legislation which discriminates against persons with disabilities by denying them legal capacity on the basis of existence of an impairment. Article 14 prohibits deprivation of liberty on the grounds of actual or perceived impairment, which means ending forced institutionalisation. But let’s leave our international obligations out of this for the time being, and accept the laws of our land as they are and not as they should be.
Barring a declaration by a civil court, the determination of unsoundness of mind with respect to a legal decision or legally binding action is only something that a court can undertake post facto to absolve a person of legal liability for the action. The grounds for remanding a person to a mental health institution are of a standard much lower than ‘unsoundness of mind’, and ostensibly have the primary purpose of providing therapeutic intervention and protection to the person in a situation of actual or perceived risk. Unfortunately, due to a failure of various systems, this remand often ends up being indefinite, particularly for those who end up in institutions because they have no support in the family or community.
At a conference I attended last year, I was told the story of a young man with developmental disabilities who wanted to open a bank account. After many refusals, the bank allowed him to open an account provided he answered an exam to show that he understood the banking system. The young man studied for several weeks and aced the examination, which was quite a media sensation. The researcher presenting this story remarked that the young man was made to ‘know more about banking than any of us did’. Persons with disabilities are placed at a higher standard to prove competence in day to day decision making than others. Take this quote from the IMH head: “We took up the task of assessing our inmates for their decision-making capacity. We wanted to see if they understood the process of voting.” On this basis, 129 out of 900 inmates were selected as being ‘capable’ of voting, a process that no other person has to undergo when they apply to register as a voter.
The existence of an impairment of any kind cannot justify the State’s intrusion into whether or not the persons affected by these impairments can make ‘right’ decisions. I believe that this is a logical extension of the recognition of decisional autonomy as part of the right to privacy laid down in the 2017 Puttaswamy Ruling. It also threatens the right to secret ballot that all voters enjoy.
Empowering voters with disabilities, particularly those with intellectual, developmental, and psychosocial disabilities, is a huge step towards realisation of their rights. It makes them direct stakeholders. In this case, for example, it forces political parties campaigning in the constituencies which have such institutions to appeal to what this group needs, and evaluate what is presently available to them, on an equal basis with other voters being wooed in the constituency.
The Election Commission of India is working entirely in the spirit and letter of the Constitution and law in India by enabling these voting rights for the most marginalised groups and is opening doors towards bridging the care gap.
The next step is to mandate that political parties provide for their manifestos and other campaign materials in accessible formats, including simple language, to help voters make informed decisions on an equal basis with others.
Amba Salelkar is lawyer working on gender, disability, and mental health inclusion based in Chennai. Views expressed are the author's own.