The right to vote forms an integral cornerstone of a healthy democratic functioning. The capacity to elect a government that is ‘of the people, by the people, for the people’ is, therefore, the determinant of the “full rights of citizenship.” As of 2019, around 3 million Indians suffer from neurocognitive disorders (NCD), thereby marginalizing them from the electorate. Disenfranchisement of such a large number of people contradicts the Constitutional guarantees to an Indian citizen along with the principles embedded within a Democracy.
Neurocognitive disorders are largely characterised by a relatively permanent decline in an individual’s capacities of information processing, decision making, speech and abilities to perform daily activities. The symptomatic criteria for NCD was first laid out in DSM-III-R, which then referred to the disorder as ‘dementia.’ DSM, (Diagnostic and Statistical Manual) is one of the most widely accepted handbooks for mental disorders, used by healthcare professionals. Currently in its fifth edition, the manual consists description of, and diagnoses for such disorders. In the most recent edition of the manual, the DSM-5 identifies two types of neurocognitive disorders - major and minor - further developing on the various types of NCD that stem from differing causes. Of these, the diagnosis of NCD-Alzhiemer’s is determined on the basis of cognitive, behavioural, and functional symptoms, where specific cognitive deficits consist of difficulties in information processing and decision-making.
In 2007, India signed and ratified the United Nations Convention on the Rights of Person with Disabilities (UNCRPD) in 2007. Upholding the mandate of the UNCRPD, the government of India amended the Persons with Disability Act, 1996. This led to the establishment of The Rights of Persons with Disability Act, in 2016. The 2016 Act established the legal norms for social inclusion of individuals with disabilities, their rights and entitlements, and penalties for crimes committed against them. It also widened the gambit of disorders from 7 to 21, introducing disabilities such as autism spectrum disorder, specific learning disabilities, and acid attack victims, amongst others. Additionally, it introduced intellectual disabilities, defining it as “a condition characterized by significant limitations both in intellectual functioning (reasoning, learning, problem-solving) and in adaptive behavior, which covers a range of everyday social and practical skills.” Chapter II of the 2016 Act states rights and entitlements conferred to individuals with disabilities, which includes accessibility to voting. Despite the vague nature of this provision, the Election Commission of India released directives to translate the law into norms. However, various news reports suggested that the success rate for these norms was relatively low.
Section 16(b) of The Representation of the People Act, 1950 states that an individual will be disqualified for registration in an electoral roll, i.e., accessing one’s voting right, if they are “of unsound mind and stands so declared by a competent court.” The only law in the Indian constitution that provides a definition of “unsound mind” is Section 12 of the Indian Contract Act, 1972; an individual with a sound mind is one who “for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.” This definition leaves for the legal interpretation that an individual of unsound mind, therefore, is one who does not qualify the aforementioned capacity for rational decision making. These legal complications have frequently been used to deter individuals suffering from NCD-Alzheimer’s from practicing their right to vote. An RTI query filed by Dr. Santendra Singh, a disability rights activist, proved that applying a blanket legal interpretation of “unsound mind” on individuals with intellectual disabilities, especially in the absence of means to test for eligibility, has countered the otherwise conferred accessibility to voting.
In 2001, the Doe v Rowe case filed in the Maine District Court in USA established such disenfranchisement as “unconstitutional,” holding it as a direct “violation of Title II of the ADA and Section 504 of the Rehabilitation Act,” further determining the “Doe voting capacity standard.”
Following this, Appelbaum, Bonnie, and Karlawish (2005) operationalised the standards and developed the Competency Assessment Scale for Voting (CAT-V). This scale aimed to measure the capacity of understanding the nature of voting, the capacity to determine the effect of voting, and the capacity for decision making in the voting process in the way of a brief questionnaire. Preliminary studies aimed at determining the reliability and validity of the scale by testing the performance of NCD-Alzhiemer’s patients concluded that “persons with very mild to mild dementia of the Alzheimer’s type retain adequate ability to vote.” Additionally, the Italian adaptations of the CAT-V aimed at measuring the “understanding nature and effect of voting, expressing a choice, and reasoning about voting choices”. The study reported positive scores in all the intended measures, with “expressing a choice” scoring the highest.
Adaptation of a scale like the CAT-V for the Indian population has the capacity to make unprecedented changes to mental disability voting rights. Determining the degree of understanding the concept of voting and the democratic process therein, strongly counters the assumed status of political vulnerability legally declared for NCD-Alzhiemer’s patients. Such a rebuttal necessarily questions the marginalisation, thereby questioning the Other-ness of such individuals. It not only acts as a way of re-introducing social inclusion, but also upholds laws etched in Constitution(s) of nation states, strengthening the democratic electoral system.
Yarshna Sharma
