Generally, it is assumed that for its effective implementation, law must be in conformity and in consonance with social consensus. But what if social consensus is in favour of discrimination, or in favour of exclusion of an entire section of society? What if the social consensus is in favour of perpetuating the stereotypes and myths about a particular section of society?
In such circumstances, should the judiciary of a civilized state remain a passive onlooker, and wait for social transformation from within or call for some proactive steps?
The Supreme Court, through Justice DY Chandrachud, recently dealt with this issue in Vikash Kumar v. UPSC. He has very categorically stated that the Indian Constitution does not envisage a society inclined to favour the majority. Rather, he has emphasized on creation and nurturance of a more egalitarian society. In this backdrop, let me identify some of the USPs which can be drawn from this important and path-breaking judgment.
A befitting burial to Mohan
Culturally in India, every entity deserves a decent burial when it is out of use. Justice Chandrachud did the same with regard to V Surendra Mohan v. State of Tamil Nadu (Mohan), in which the Supreme Court upheld the State's policy of restricting the eligibility of blind and deaf candidates. Justice Chandrachud states:
“In light of the fact that the view of this court in Mohan was rendered in a case under the 1995 Act which has now been replaced by the RPwD Act 2016 and in light of the absence of a reasonable accommodation analysis by this Court, the Mohan judgment stands on a legally vulnerable footing. It would not be a binding precedent, after enforcement of the RPwD Act 2016”.
Inclusive equality
Another extraordinary contribution of this judgment is to break new ground for the interpretation of the concept of equality. Echoing Michael Walzer’s notion of complex equality, Justice Chandrachud very rightly cautions against adoption of a 'one size fits all' approach and urges the Central government to scrupulously observe its individualized duty to provide reasonable accommodation to persons with disability. Articulating the notion of reasonable accommodation in the context of equality, the learned judge very tellingly observes:
“Specifically, the relevant question, under the reasonable accommodation analysis, is not whether complications will be caused by the grant of a reasonable accommodation. By definition, reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden. The two tests are entirely different.”
Implicit in this observation is a very vital point. Only in an ableist environment is interaction with people with disabilities perceived as an avoidable complication. Because by default, the environment is exclusionary, and does not even take cognizance of diversity, leave alone demonstrating any sensitivity to the special needs of a particular individual. By this pronouncement, Justice Chandrachud has categorically conveyed a legal message to policy makers to regard reasonable accommodation as one of the in-built elements of inclusive inequality.
“As the Committee on the Rights of Persons with Disabilities noted in General Comment 6, reasonable accommodation is a component of the principle of inclusive equality. It is a substantive equality facilitator. The establishment of this linkage between reasonable accommodation and non-discrimination thus creates an obligation of immediate effect.”
Abandoning of medical model of disability
Through a very careful analysis, the Court articulates the conception of the Rights of Persons with Disabilities Act, 2016 (RPwD Act), and demonstrates how compared to its 1995 counterpart, its present conception is away from medical model of disability.
“The RPwD Act 2016 has a more inclusive definition of “persons with disability” evidencing a shift from a stigmatizing medical model of disability under the 1995 Act to a social model of disability which recognizes that it is the societal and physical constraint that are at the heart of exclusion of persons with disabilities from full and effective participation in society. (See for detailed reasoning, paras 20 to 28).”
Distinction between persons with benchmark disabilities and persons with disabilities
A remarkable aspect of this judgment is to confine the notion of persons with benchmark disabilities to its particular context i.e. Chapter VI and VII of RPwD Act 2016, thereby enabling the transformative potential of Section 2(s) of the RPwD Act 2016 (defining persons with disability).
“The fundamental postulate upon which the RPwD Act 2016 is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability.”
Implicit in this observation is the idea that the notion of reasonable accommodation, being inherent to the concept of equality under Indian Public Law, can be availed by every person with disability, irrespective of whether she is covered by the label of benchmark disabilities.
Abandoning the deployment of disabling language
It has been very rightly observed that language is a vehicle of thought. It also conveys one’s culture and attitudes, and therefore very aptly the learned judge has cautioned against the perpetuation and endurance of negative imagery of disability. Echoing the view of late Dr. Professor Shirish Deshpande, Justice Chandrachud very categorically holds that disability is inherent to human diversity, and therefore not to be viewed as aberration. His observation is hypnotizingly inclusive on this point:
“When competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom. The most significant loser as a consequence of the UPSC’s rigid approach in this case (of refusing to provide scribes to those not having benchmark disabilities) is the UPSC itself. For it is denying to the nation the opportunity to be served by highly competent people who claim nothing but access to equal opportunity and a barrier-free environment.”
Implicit in this observation is a very vital advice to guard against the notion that disability causes suffering, or it is diabolically diminishing.
Dignitary constitutionalism
Demonstrating the adverse impact of an ableist environment as the default, the learned judge observes,
“There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability.”
Implicit in this observation is the endeavour of the Court to translate one of the vital constitutional values i.e. value of human dignity enshrined in the Preamble, into the legal regime put in place for recognition and enforcement of rights of persons with disability. Even the explicit absence of physical and mental disability as a ground of non-discrimination in Article 15 or 16 does not deter or inhibit the creative thinking of the Court, which observes,
“Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance.”
Recognition of Indian Disability Rights Scholars
Last but not the least, all disability rights scholars in India have to be deeply appreciative and indebted to Justice Chandrachud for taking cognizance of their research work. Particularly, I am thrilled because I have been cited twice by the learned judge (see paras 65 and 71). It is more than a gesture. It goes on to show a very positive mindset of the judge of the highest court of India in enduring the assumption that competence and scholarship should not be confined to the mainstream. In my opinion, recognition and appreciation of work of disabled scholars by the highest court of this country is bound to prove motivational pills for them to work harder.
Creation of RPwD generation in India
Looking at or perceiving PwDs as a generation is something which is spectacular and fantastic. Generally, I have seen a person with disability like me being showered with accolades for my “extraordinary achievements”. I have often seen non-disabled people/colleagues asserting that you are not disabled but we are disabled; as if with my achievements, I have crossed over to the community of non-disabled, and by being like them, I cease to be disabled.
Perhaps this is so because I have somewhat disappointed them in their expectations about persons with disabilities, as if being an extraordinary achiever is unbecoming of a person with disability. This stereotypical and negative imagery, unintentional though it may seem, is extremely inhibiting and condescending. By recognizing people with disabilities forming a generation, Justice Chandrachud has stymied the aforementioned negative notion of disability. His observation on this point is most pertinent:
“Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”
Summing up
I would remind myself the empowering advice of Justice Chandrachud which he had rendered while delivering the valedictory speech in It Can be Done! Three-Day International Summit on Legal Professionals with Disabilities organized by the Equal Opportunity cum Enabling Cell of the ILS Law College. He had observed that for the emancipation of PwDs, we the non-disabled have to fight and challenge the negative notion of disability within our minds.
The late Dr. Shirish Deshpande also used to say the same thing. What we want is empathy rather than sympathy. What we want is comradery rather than populism or paternalism. The mantra is nothing without us about us. Let non-disabled persons not assume us or take us for granted. Once it is realized that disability is nothing more than a mere difference worthy of cognizance, you can transform into a much more humane and more equal society.
I am very much emotional in penning down this piece and thankful and indebted to Justice Chandrachud and his colleagues in particular and the Supreme Court of India in general, for delivering a path-breaking judgment on an opportune day – a day when we were all in a sombre and introspective mood to pay our heartfelt tribute to the legacy of late Dr. Prof. Shirish Deshpande.
While writing this article, I sensed instinctively the continuous presence of the influence of my teacher Dr. Deshpande on me, giving me the strength to complete this article in one go, a feat which in normal circumstances, I would not have accomplished. Sir, I dedicate this piece to you.
The author is an Associate Professor and Principal (Additional Charge) at ILS Law College, Pune.