Aanchal Bhateja

Forcing persons with disabilities to fight legal battles for their entitlements is not only against critical morality, but also against constitutional morality. The system ought not to subject such persons to suspicion and distrust as it makes them even more disabled.

Although public perception has acknowledged the idea that a person with disability is a person with a different ability, this shift in the discourse has not had any impact on the day to day lives of the persons with disabilities. In the Indian context, this marginalisation of Persons with Disability (PWDs) stems from flaws in policy formation. These policies which are aimed at uplifting the PWDs end up marginalising them even further since they neither provide equal access and opportunity and nor do they facilitate the attitudinal change that is much needed to give PWDs a dignified life. Indian policy on PWDs is full of paradoxes. They manifest themselves in two ways – First, they exist at the level of enacting the law and second, at the level of the implementation of the law.

The unfortunate paradox with the legal framework and jurisprudence surrounding disability in India is that it does not derive inspiration from the experiences of the persons with disability and rather reflects the imagination of the able-bodied law makers and administrators. This is a challenge because the able bodied are conditioned in a way that they subconsciously tend to manifest their ableism in the law they draft. This is why many such laws still operate on foundations of a paternalistic philanthropy-based model and a predominantly medical model of disability. An incidental consequence of this ignorance causes the perpetuation of the act of infantilising Persons with Disability (PWDs) or being dismissive of their actual needs all together.

For instance, Section 34 of the much celebrated Rights of Persons with Disability Act, 2016 (RPWD Act, 2016) provides for 4% reservations of PWDs in public employment. However, this ‘progressive’ provision is limited to the number of posts that are considered to be suitable for the persons with disability by the appropriate government instead of the total number of posts available. This provision is highly problematic because it may not be appropriate for the appropriate government which primarily has able bodied representation to pass judgements about the capabilities and disabilities of the PWDs. This paternalistic provision has two negative effects- First, it induces a sense of worthlessness in the minds of persons with disability to an extent that they begin to view the world from an ableist mindset as this provision directly attacks and questions the legitimacy and credibility of the PWDs. Second, the vast unreasonable discretion in the appropriate government invariably excludes a significant number of PWDs as it provides the typical bureaucratic excuse for not providing reasonable accommodation which is, on the contrary imperative for extinguishing ableism. The instance where Ira Singhal was denied a job in the Indian Revenue Service can be a case in point. she secured an all india rank of 815 in the civil services examination but was denied the job as she had a spine related disorder called scoliosis. Ira finally got into the services after a long battle with the administration and the judiciary.

Forcing persons with disabilities to fight legal battles for their entitlements is not only against critical morality, but also against constitutional morality. The system ought not to subject such persons to suspicion and distrust as it makes them even more disabled.

Section 3(3) of the RPWD Act is another grey area which states that a person with disability cannot be discriminated against unless the impugned act is to achieve a legitimate aim. This “legitimate aim” is extremely subjective in nature and further leads to the exclusion of the PWDs. Such regressive provisions that allow for discrimination is a paradox as the ablest imagination projects these laws to be in line with the constitutional ideals of equality.

Another manifestation of ableism has also been seen when it comes to the judicial interpretation of the law. For instance in Surendra Mohan v. State of Tamil Nadu, a division bench of the Supreme Court upheld the validity of a government notification that disallowed people having a disability of more than 40-50% from being appointed as judges. This judgement states that having reservations for the PWDs in judicial offices can create “practical and seemingly avoidable complications” and clearly dismisses all the capabilities of the persons with disabilities by stating that such exclusion is “fair, just and reasonable”. This judgement is a black chapter in the story of the disability rights movement in India as it perpetuates the notion that PWDs are to be excluded and secluded because their body is a deviation from the standard body. The division bench has clearly dispensed “unjust justice” that is replete with “unreasonable reasonability” as it is in direct violation of the equality envisaged by our constitution.

This is how the law itself denies equal opportunity to the persons with disability which further goes on to perpetuate the notion of ableism and goes on to alienate the disabled for being different. Lastly, the fundamental problem with the drafting of the law is that it does not account for cross disability or intersectionality. Not all disabilities are the same. Disability is different for different people. Many factors like financial resources, religion, region, caste, gender, level of education etc interact with one’s impairment and can have different effects on one’s life. The policies tend to be very objective and dismiss all the diversities of the spectrum. This objectivity and exclusivity in policy formation can be clearly seen in the budget allocations for the persons with disabilities in the past few years. The disability pension scheme, for instance, which provides for an amount of Rs. 300 to be given to PWDs on a monthly basis is highly inadequate and does not take the severity or the degree of the disability, the financial status of the beneficiary and their social positioning into account.

Thus, the objectively drafted policies that are skewed according to the ableist mindset do not provide for the different needs of people with different impairments, different degrees of impairments and different identities. This lack of inclusivity in the law also causes the marginalisation of the PWDs as failure of such policies denies them the economic and social capital that is much needed to live in a dignified way.

At the second level pertaining to policymaking, the benefits stemming out of the law do not touch the lives of the people who deserve those benefits. A major reason for the same is that the facilitators of the implementation manifest an evident lack of commitment. Various factors like the lack of the representation of the persons with disability in the drafting and implementation process, lack of academic work on disability as a phenomena and lack of sensitivity and awareness concerning this issue lead to a half-hearted implementation of the policy. Moreover, lack of deadlines and plausible plans of action further make the law redundant and ineffective. The fact that only 1/3^rd of the Indian states have notified the rules concerning the implementation of the RPWD act 2016 is a clear manifestation of this lack of commitment.

After considering everything, it can be concluded that the law cannot be effective in the real sense unless the behaviour of law makers and administrators is altered. We need to scrap the top down model so as to provide equal opportunity to persons with disability to participate in the drafting and implementation of laws concerning them.

The law should strictly be in lines with the social model of disability. The idea is that if a person in a wheelchair is not able to enter a building because it is not accessible, the disability lies in the building and not in the body of the person in the wheelchair. Such a change in approach would help uproot many infrastructural barriers and would go on to curb ableist mindsets. This is unlike other models like the medical model of disability which locates the disability in the body, or the just world model that attributes disability to one’s own deeds, discounting the fact that the people with disabilities are equal citizens and deserve to be treated equally.

The legal and policy framework should lay more emphasis on affirmative policies like assistive technology and reasonable accommodations so as to achieve the goal of providing a level playing field to the persons with disabilities. We also need to acknowledge that disability acts as a barrier which stops all the stakeholders from coming together and initiating a movement for their rights. Therefore, the laws and policies need to be pro-active. In addition to this, policy makers ought to do away with the practice of prioritising the rights of the able-bodied who are in the majority and being dismissive of the rights of the persons with disability who are in the minority. Although the PWDs are the smallest minority in the world, they deserve equitable treatment. Ultimately, all laws should be aimed at uprooting ableism from all spaces. Spaces need to be made more accommodative for the persons with disability to help them live in a dignified manner in a world that is not designed for them. It is high time that we started looking at persons with disability as persons before anything else.

Aanchal is a first year BA LLB(Hons.) Student at National Law School of India University, Bengaluru. She is also the Founder of NLS-Diversiable Alliance.

Image credits – Neami National