THE IMBROGLIO OF LEGAL CAPACITY IN INDIAN DISABILITY LAW However, persons with disabilities were still disqualified from exercising those rights when the CRPD was adopted. Article 12(2), in asking state parties to recognise that persons with disabilities enjoy legal capacity on an equal basis with others, was also seeking dismantling of legal regimes, which disallowed the exercise of agency by persons with disabilities. General Comment No. 1 ( hereinafter General Comment) issued by the CRPD Treaty Body to provide normative clarity to state parties on the mandate of Article 12, identifies this denial as a discrimination practised against persons with disabilities.5 The discrimination occurs, the Treaty Body points out, because both international and municipal laws conflate legal capacity and mental capacity and deny legal capacity to those believed to lack mental capacity. Legal capacity, the treaty body clarifies, is possessed by all humans as an essential attribute of their humanness. Mental capacity, on the other hand, “refers to the decision-making skills of a person, which naturally vary from one person to another.”6 The denial of legal capacity due to the alleged deficiencies of mental capacity, the Treaty Body describes as controversial because these findings on mental capacity are not “objective scientific and naturally occurring phenomenon”;7 rather, they are “contingent on social and political contexts as are the disciplines, professions and practices”,8 which play a dominant role in making the assessment. The General Comment, then, specially draws attention to the functional approach of denying legal capacity to persons with disabilities9 and finds it flawed because, one, it is discriminatorily applied against persons with disabilities. Thus, for example, persons with disabilities being denied the right to bear children because they are considered unfit to perform parental duties is an evaluation, which is made only in relation to persons with disabilities.10 And two, it presumes that it is possible to assess the inner workings of the human mind. Asking for legal capacity to be delinked from mental capacity, the CRPD Treaty Body opines that “unsoundness of mind and other discriminatory labels are not legitimate reasons for denial of legal capacity.”11 5 6 7 8 9 10 11 General Comment No. 1( 2014) “Equal recognition before the law” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.as px?symbolno=CRPD%2fC%2fGC%2f1&Lang=en (last visited 28 October 2022) Id para 13 Id para 14 Ibid Id para 15 the functional approach denies legal capacity on the reasoning that due to deficiencies in mental capacity, the person with disability cannot perform a vital function required for the exercise of that legal capacity. Thus, for example, persons lack contractual capacity if mental incapacity renders them unable to understand the terms of a contract or how they would affect their interests. For a comprehensive elaboration of this approach, see Amita Dhanda, Legal Order and Mental Disorder (Sage Publications, New Delhi. 2000). The case of Sucheta v Chandigarh District Administration (2009) II SCALE 813 where a person with intellectual disability had to fight for her right to retain her foetus right up to the Supreme Court illustrates this bias. Supra note 4 at para 13 33