'Persons With Disabilities Don't Require Pity, But Entitlement To Equal Treatment' : Justice Chandrachud| Full Text Of Lecture


25 Sep 2022 4:27 AM GMT

  • Persons With Disabilities Dont Require Pity, But Entitlement To Equal Treatment : Justice Chandrachud| Full Text Of Lecture

    This is the full text of the lecture delivered by Justice Dhananjaya Y Chandrachud, Judge of the Supreme Court of India, on the topic "Making Disability Rights Real : Addressing Accessibility and More" as the Third Professor Shamnad Basheer Memorial Lecture organized by LiveLaw. The video of the lecture can be watched here:"A very good morning to Mr. Vikram Raghavan, Shamnad's family...

    This is the full text of the lecture delivered by Justice Dhananjaya Y Chandrachud,  Judge of the Supreme Court of India, on the topic "Making Disability Rights Real : Addressing Accessibility and More" as the Third Professor Shamnad Basheer Memorial Lecture organized by LiveLaw. The video of the lecture can be watched here:

    "A very good morning to Mr. Vikram Raghavan, Shamnad's family and friends, and everyone who has logged in to participate in this event. I am truly honoured to be delivering the third Professor Shamnad Basheer Memorial Lecture today. Thank you to the LiveLaw team for organizing this annual event and for inviting me to deliver the address this year. Events like this one help us keep Shamnad's memory alive.

    On Professor Shamnad Basheer

    August 2022 marks the third anniversary of Shamnad's tragic and untimely death. He was an illustrious scholar, a respected educator, and a changemaker par excellence. He was appointed as the Professor of Intellectual Property Law at NUJS, where he was loved by the students, not only for his expertise on the subject but also because he took on the role of a friend and mentor. SpicyIP, one of India's most widely read blogs on intellectual property law, was founded by Shamnad.

    Beyond his academic achievements lies IDIA or the Increasing Diversity by Increasing Access program – what many would term the crowning glory of Shamnad's achievements. IDIA has the potential to transform the feudal structures of the legal profession by democratising them and making them inclusive. As the audience is no doubt aware, IDIA was a movement that Shamnad spearheaded over two decades ago, with the aim of ensuring equitable access to legal education in the country. The legal profession boasted of a centuries-old presence in India but its higher echelons (or indeed, its lower ones) remained largely inaccessible to the common person. Although the advent of the National Law Universities challenged the notion that the legal profession was for the few and not for the many, legal education continued to remain the domain of the elite. IDIA, through its consistent efforts, has attempted to remedy this systemic flaw and has succeeded in doing so! IDIA prepares young students from marginalized communities for law entrance exams, secures funding for their legal education, and mentors them through their five years at university. To influence the course of even a single person's life is a remarkable thing. That Shamnad influenced the course of so many people's lives so positively is nothing short of extraordinary.

    I had the pleasure of meeting Shamnad at IDIA's annual conference around 4 years ago, where I was invited to deliver an address on law and storytelling. In echoing his human qualities, he tasked me to speak on law and story-telling. Through stories of justice and injustice we attempted to weave a common vision.

    On IDIA

    True to its name, IDIA's programs targeted persons with disabilities as well. Of the 86 students currently reading law in universities across India, 15 are persons with disabilities. Shamnad and others working with IDIA's organizational team have already put into action the theme of today's lecture – 'Making Disability Rights Real: Addressing Accessibility & More'. My congratulations to the IDIA team and all the IDIA scholars. I wish you continued success. By including persons with disabilities within the ambit of its outreach and training programs, Shamnad as well as IDIA recognized that persons with disabilities are just as deserving of and entitled to an education as the next person. It is not just any type of education that they ought to be able to access; they must have an equal shot at the best universities and most sought-after opportunities.

    Stereotypes about disabled persons

    A person can either be born with a disability or become disabled later in life. These disabilities can take a variety of forms – they can be physical, mental, intellectual, learning-based, or communication-based. Some disabilities are immediately visible and others are invisible – you will not know about them unless the person in question chooses to tell you. Many chronic illnesses are also disabilities. The effect that each disability has varies based on a multitude of factors.

    When people encounter others with disabilities, there is a tendency to view them as being very different from able-bodied people, as being "lesser than"them. By this, I mean that they are stereotyped as being less capable and less intelligent than their able-bodied counterparts. The stereotypes that persons with disabilities are burdensome or are defenceless victims also prevail. The differences between able-bodied people and persons with disabilities, both real and perceived, gives rise to immense stigma in society. Children often bully their disabled classmates and friends and adults with disabilities, too, are not treated with respect or empathy. It is also a very unfortunate fact that able-bodied persons discriminate against persons with disabilities and in many instances, commit acts of violence upon them.

    The prevalence of such harmful stereotypes has a pernicious effect, and hinders access to educational spaces, public places, employment opportunities as well as to free and full participation in society. Beyond hampering their access to those opportunities which they are entitled to, such stereotypes also have the effect of dehumanising each complex individual and reducing them to a fragment of all that they truly are. Such stereotypes are based on a denial of a person's rich inner life and their individuality.

    Public places continue to be inaccessible to disabled persons despite laws

    Other, more material barriers also stand in the way of persons with disabilities. Despite laws mandating disability-friendly infrastructure, public transport, government and private buildings, hospitals, libraries, parks, and a host of other spaces continue to be inaccessible to persons with disabilities. Some entities do not even pretend to comply with such laws while others comply with them in a desultory fashion, and only with a view to getting their building and occupancy permits. I have noticed that some ramps are so steep that an able-bodied person cannot walk down without falling over, let alone a person who uses a wheelchair or crutches. This is just the tip of the enormous iceberg of problems with the implementation of disability-friendly policies.

    I recently came across a story narrated by the famous disability rights activist Javed Abidi. Parts of this story were also reported by several media houses at the time. In 2001, Professor Stephen Hawking visited India to deliver a lecture. Mr. Javed Abidi, a disability rights activist, wrote to him and requested him to help with the disability rights movement. Professor Hawking declined but informed Mr. Abidi that he was going to visit the Qutub Minar and other monuments in Delhi. Mr. Abidi and his colleagues promptly approached the Archaeological Survey of India and requested them to install ramps at these historic sites that were on Professor Hawking's agenda. ASI is reported to have refused and the press picked this story up in no time. ASI then sat up and took notice of Professor Hawking's visit, built ramps overnight, and installed them at all the monuments. Professor Hawking and his spouse Elaine, visited the Qutub Minar where she put her arms around the iron pillar to make a wish. She was asked what she wished for, and she replied "I wished for the ramps to stay even after we leave".

    Mr. Abidi passed away in 2018 but his legacy endures, just like Shamnad's.

    It is incumbent on all institutions, be they governmental or private, and all individuals to do their bit to ensure a more just world for persons with disabilities. Governmental or private entities must ensure that laws and policies are being complied with. This is of foremost importance. In our individual capacities, the least we can do is accord persons with disabilities the respect they deserve and treat them as equals.

    Disabled people want rights, not pity

    The disability rights movement has always maintained that they do not want pity and they do not want to be treated as inspirational figures for merely existing. Instead of being spoken to and treated in a patronizing fashion, persons with disabilities require equal access to opportunities at school and work, an equal chance at forging bonds of friendship, an equal chance to marry and have children if they wish and social acceptance. Persons with disabilities have asked to be treated like any other person.

    In the movie 'Margarita with a Straw', the protagonist Laila is a young student who has cerebral palsy. To those who are yet to watch this movie – do not worry, for there are no spoilers ahead. In the movie, Laila participates in a music competition, with her band, and is delighted when the band is declared the winner. But her joy is short-lived. The judge of the music competition is quick to share that they awarded Laila's band the first place because Laila, a disabled person, wrote the lyrics. The undertone is clear: the judge pities Laila and the award is a consequence of the pity she feels. Of course, Laila is unhappy with the turn of events.

    It is not pity that persons with disabilities require, but the entitlement to be treated as equals. We must also aim towards a just society which accounts for their needs and provides facilities to accommodate them. These facilities ensure that they are able to exercise their rights and enjoy their freedoms on an equal footing with able bodied people. These facilities, which are known as 'reasonable accommodations' in legal terms, must not be viewed with contempt or derision. Such "accommodation" as the law calls it is based on the fundamental precept that without it, the quest for dignity and equality for the disabled would be illusory. Some people ask "why do they need special treatment?". The disability rights movement has long advocated against the position that they have special needs. They only have human needs, the fulfilment of which would enable them to participate in society on an equal basis with able-bodied or neurotypical persons.

    Each one of us has needs. This is an undeniable facet of human experience. What we need may vary based on our circumstances, but each of us requires something from society at some point in our lives. A few examples of able-bodied persons who commonly require some or the other accommodation are pregnant women, babies and children, women who menstruate, elderly people, people with illnesses, or single parents. By listing these examples, I do not mean to diminish the difficulties faced by persons with disabilities. On the contrary I am making the limited point that to require accommodations is a human need and not a special need. My court has been continuously been engaging with the University Grants Commission for ensuring that all law schools have infrastructure which accommodates the needs of the disabled. The able-bodied adult male must not be classified as the standard or the norm, with all other groups thought of as a deviation. The spirit of our Constitution accounts for the rich tapestry of human experiences. The one stand-out feature which animates our Constitution is that it accommodates every human condition and experience.

    Disability rights cannot be perceived in silos. Kimberlé Crenshaw coined the term 'intersectionality' in the context of oppression. In this context, it means that various factors such as gender, sexuality, caste, or class intersect with one another and result in unique forms of discrimination. Much closer to home, towering figures such as Dr. BR Ambedkar applied an intersectional lens in their writings much before the term 'intersectionality' came into play. Intersectionality of human experience is the theme of folk lore and literature.

    Let us consider intersectionality in the context of disability – If a child with a disability is born into a rich family, the family will be able to afford expensive prosthetics if required, the best medical care, and the resources to care for that child at home. Now consider a child who is disabled, in a much poorer family. How will the parents afford expensive treatments, or schools which are equipped to teach the child? If both the parents are working, how will they be able to afford to care for the child full-time? If a public bus is not disability friendly, it is very likely that it will impact the child with lesser financial resources much more than it will impact the child whose parents can afford a car or a taxi.

    How do we begin to address the impediments to making disability rights real? Of course, a small but significant aspect is society's attitudes towards persons with disabilities, as I just mentioned. Institutional changes are necessary as well. In the context of the judiciary, sensitivity and empathy are of utmost importance. Judges would do well to remember that a person with a disability who may be before them is a person, first and foremost. We had to overrule a judgment of the Supreme Court which had upheld the denial of entry to the visually challenged into judicial service. The fact that such a denial had been accepted in our jurisprudence shows that there is much work to be done in our minds and hearts in combating disability. Where the law contains provisions for persons with disabilities, they must be followed without exception. Section 164(5A) of the Code of Criminal Procedure 1973 is a good example of a disability friendly provision. Section 164(5A) permits the Magistrate to take the assistance of an interpreter or special educator to record the statement of a person with a disability. Where such enabling laws do not exist, judges would do well to do what they can within the bounds of the law, in recognition of the needs of the person before them.

    In a broader sense, Article 12 of the Disabilities Convention recognizes that persons with disabilities have equal recognition before the law. However, if we look at the legal history, we see that law restricts the legal capacity of persons with disability to make decisions about their body and life by appointing substitute decision-making regimes such as guardians or conservatorships. Such restrictions stem from the assumption that mental capacity is necessary to exercise legal capacity. Even presently, there are many laws in operation which deny legal capacity to persons with disabilities. The United Nations has urged that persons with disabilities have the same rights as able bodied persons to make decisions about their lives.

    The ability to hold rights and exercise them lies at the core of every individual. If this is the case, then arbitrary restrictions on the exercise of legal capacity denies persons with disabilities equal protection before law. By doing so, the law deprives them of a whole host of rights including civil, political, social, economic, sexual, and reproductive rights. In Suchita Srivastava v Chandigarh Administration, the Supreme Court held that the state must respect the personal autonomy of women with mental disabilities to make reproductive choices, including the right to terminate her pregnancy. In case of persons with psychosocial or cognitive impairments, the state should refrain from taking decisions on behalf of persons with disabilities. Instead, the state should positively support persons with disabilities to exercise their rights to the fullest possible extent.

    The Constitution protects full enjoyment of fundamental freedoms and rights of persons with disabilities. This protection is inherently grounded in the principle of dignity of the individual embodied in the Preamble. Persons with disabilities have the right to life and personal liberty in Article 21 of the Constitution. This also includes all the concomitant sets of rights such as right to education, right to information, right to clean environment, right to livelihood, right to shelter, among others that enable an individual to live life to its fullest extent. Exercise of all the rights and freedoms is necessary for social participation and enjoyment of citizenship by persons with disabilities. To live a dignified and an independent life, persons with disabilities should be able to seamlessly participate in the community on an equal basis with others. Today, I wish to focus on two specific aspects integral to full development of life: education and livelihood.

    With a view to realize the right to education of persons with disabilities, the Rights of Persons with Disabilities Act, 2016 mandates reservation of at least 5% of total seats for persons with benchmark disabilities in all government institutions of higher education and other higher education institutions receiving aid from government. However, most schools and higher education institutions in India do not account for any reasonable accommodation that persons with disabilities might require. This puts extra strain on students with disabilities, who have to conform to the existing able-normative rules to succeed academically. Our weekly caseloads are replete with instances where a student with disability is denied admission to medical college on an assessment of the percentage of disability. Behind cold computations of disability made on the examining tables of public hospitals lies a human story of quest and aspiration. Percentages are not unfailing guides to human potential.

    True realization of the right to education of students with disability is possible only in an inclusive and accessible education system. Lack of physically accessible schools, trained teachers and facilitators, and inadequate learning materials exclude students with disabilities from accessing education on equal terms with others. We as a society need to understand the educational needs of students with disabilities and address them in a collaborative manner to help them realize their right to education.

    Similarly, the right to work is fundamental to recognizing other human rights including the right to live with dignity and the right to livelihood. Indian law fosters greater participation of persons with disabilities in organized employment by providing them with reservation in government jobs. The law also mandates the government to provide incentives to employers in the private sector to hire persons with disabilities to compose at least 5% of their workforce. Yet it took the Supreme Court several years of engaging with the government in a PIL, to ensure that the posts which are earmarked for the disabled were identified and publicly notified. The right to work of persons with disabilities should not be limited to their participation in the workforce. According to the Convention on the Rights of Persons with Disabilities the right to work of persons with disabilities includes the right to gain a living by work freely chosen or accepted in labour market and a work environment that is open, inclusive, and accessible to persons with disabilities.

    The constitutional precepts of the right to dignity and equality require public and private employers to do more to make their workplaces inclusive and accessible to persons with disabilities. An inclusive workplace entails creating an environment suited to the needs of persons with disabilities, where people feel welcomed and comfortable, not in spite of their disability, but because of their disability. Public and private employers must also ensure that persons with disabilities develop skills during their employment, and have access to meaningful opportunities to progress in their careers.

    Technology can play an essential role in creating inclusive and accessible workplaces. Emerging technologies such as artificial intelligence and the Internet of Things can help persons with disability to effectively participate and engage in the workspace. However, along with adoption of technology, we as a society should also introspect on the way our workplaces function. As a starting point, we could ensure that persons with disabilities are not ostracized in the workspace. We should make them feel that they 'belong' and are an integral part of the workplace. Creating a sense of belonging in the work environment recognizes the right of persons with disabilities to work on an equal basis with others.

    Accessibility in Legal Profession

    In the legal fraternity, we need to ask ourselves: is the legal profession providing reasonable accommodations to persons with disabilities? Fostering an inclusive and accessible environment at courts will certainly trickle down to society as courts at the end of the day are public spaces where society interacts and engages with its members. At the Supreme Court, our endeavor has been to make our processes and systems accessible to persons with disabilities. The e-Committee of the Supreme Court has been working to make the digital infrastructure of the Indian judicial system more accessible to person with disabilities. We have introduced audio-captchas on the Supreme Court as well as High Court websites to ensure that visually impaired professionals face no hindrances in looking up the cause-list or the case status. We have also ensured that case files are readable and screen-reader friendly to make them accessible to persons with disabilities. The e-committee in collaboration with National Informatics Centre (NIC) has also created a judgment search portal accessible to persons with disability. Over seventy five lakh judgments of thee High Courts will be freely available for access. The visually challenged will not have to confront the unwillingness of private software developers to accommodate their needs. With the Supreme Court of India poised to join the National Judicial data grid in the near future, all decisions of the Supreme Court will be available in a free text search portal which has accessibility built into it.

    Through the initiative of the e-committee, the High Courts of Odisha and Kerala have adopted the paperless courts system. The digitization of files and court records will ensure that courts remain accessible to persons with disabilities. We have also tried to make the Indian judicial services more inclusive by removing barriers to the entry of persons with disability. In Vikash Kumar v. UPSC, we held that the exclusion of persons with over 50% visual impairment from qualifying for judicial services was not in consonance with the reasonable accommodation principle enshrined in the Persons of Disabilities Act, 2016. Of course, I will be the first to admit that much needs to be done to make our judiciary fully accessible to persons with disabilities. But I can say that at least we have taken the first steps in the right direction. My hope for the future, and a wish to the genie if I may, is that our country will see a counterpart of the visually challenged South African judge of the Constitutional court – Zak Yakoob – and many more in the High Courts and District Courts.

    The legal arguments that take place in a courtroom are often backed by substantive legal research, which forms an integral part of any legal professional. Legal databases form an ineluctable part of legal profession both for the academicians and professionals alike. However, most legal databases are inaccessible to persons with disabilities. The presence of access barriers such as unlabeled links, non-screen reader friendly web pages and pdf files, and the absence of alternative text descriptions for images on websites and blogs casts a chilling effect on the ability of persons with disabilities to produce quality scholarship and practice law. As a fraternity, our failure to provide for reasonable accommodation to persons with disabilities invalidates their everyday struggles and conveys a message to them that they are unwelcome in the legal profession. This in turn shapes their social reality within which they are constrained to lead their professional lives. The physical barriers are often symptomatic of an ableist attitudinal mindset.

    Disability is a social construct 

    Ableism is systemic and rooted in the idea of preference for able-bodied and able-minded persons at the cost of discrimination and oppression of the persons with disabilities. Disability is a social construct. The notions of normalcy and intelligence are deeply rooted in centuries of prejudice against persons with disability. We need to understand the experiences of persons with disability in order to change our own attitudes towards disability.

    Ableism is widely prevalent in our everyday lives. In popular culture, disability is often essentialized to draw cheap humor. Treating disability in a cavalier fashion dehumanizes and stigmatizes persons with disability. Ableism can also take the form of inappropriate and harmful language. Language shapes the way we think. It has the power to define the way we interact and value others. Inappropriate or derogatory language can make persons with disability uncomfortable and act as a barrier to their full and meaningful participation in all aspects of society. Therefore, a good starting point to fight against ableism is to unlearn our language by excluding the ableist slurs that often innocently slip from our mouths in everyday conversations.

    In the legal profession, law schools could take the lead in tackling ableist environments. If we truly believe that products of law schools have a role to play in guiding law and policy making, we need to address the failure of our law schools and institutions to provide reasonable accommodation to persons with disability. This affects their ability to assert themselves and contribute effectively to the legal field, resulting in the creation of a legal fraternity that is largely under-inclusive. The invisibility of the identity of persons with disabilities within the legal fraternity is an affront to the constitutional guarantees of equality and non-discrimination enshrined in our Constitution.

    It is often difficult for students with disabilities to avail internships with law firms, or participate in international and national moot court competitions. This is essentially because most of their energies are spent in trying to overcome and interact with an ableist structure around them in order to fulfil their everyday necessities. The lack of reasonable accommodation constrains Persons with Disabilities to shape their entire lives within the interstices of an ableist environment. This can stifle their aspirations.

    IDIA has launched the IDIA Disability Access Programme, through which it sensitized, trained, and supported many students with disabilities. I am happy to note that multiple National Law Universities have collaborated with IDIA as part of this IDIA Disability Access Programme and are taking active steps to tackle accessibility barriers. I would particularly like to mention the Shamnad Basheer Accessibility Labs at NALSAR University of Law and NUJS, West Bengal. The labs are a laudable effort to carry forward Professor Shamnad Basheer's legacy by ensuring the creation of an enabling environment for students with disabilities.

    Before I conclude, I would like to extend my deepest gratitude to all the disability rights movements in the country and world-over. It is due to their tireless work that I am able to speak about some of the themes discussed today.

    Thank you everyone for listening to me patiently. It is my pleasure to have delivered this address today in homage to the life and legacy of Shamnad Basheer..

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