Sanjay Jain is a Professor of Law at NLSIU, Bengaluru; he self-identifies as totally blind since birth
The text of the Constitution of India is evasive regarding discrimination against persons with disabilities. Over 75 years, the story has not changed much despite unconditional adherence to obligations stemming from the United Nations Convention on Rights of Persons with Disabilities (UNCRPD) 2006, and the Rights of Persons with Disabilities (RPwD) Act 2016. The text, with its ablest overtones, unabashedly disqualifies people with unsound mind from holding public offices and regards the infirmity of mind and body as a criterion of ineligibility for holding the office of Judgeship.
Although the RPwD Act prohibits disability-based discrimination, it in the same breath condones the acts or omissions if the same are considered by the State or authorities as the proportionate means for achieving any legitimate aim.
In other words, the legislation permits disability-based differentiation for legitimate ends.
A massive implementation failure of this legislation on the ground compounds the vulnerability of people with disabilities, exposing them to stereotypical and prejudicial treatment. Thus, with deficit in normativity, poor implementation of legislation by the executive and legislative inertia in fixing accountability against the pathological treatment to Persons with Disabilities (PwDs) has virtually perpetuated a denial of rights. With too many un-freedoms, legislative protection has virtually fallen through the cracks. It is arguable that the Constitution has largely seen PwDs as outliers from the net of the fundamental rights regime.
In this somewhat pessimistic scenario, former CJI D Y Chandrachud, with the pronouncement of a flurry of judgements, has helped open up new pathways of freedom, equality, and justice for PwDs. In the Om Rathod judgement, he directed the State to provide a medical college admission to a student with severe upper-limb disability and made a call to the National Medical Council to focus on functionability rather than adopt the quantified approach for measuring disability.
Viewing the disability rights movement as part of a larger social justice spectrum, the former CJI emphasised its potential to earnestly interrogate the so-called fundamental arrangement of society reinforcing prejudicial structures. In other words, he challenged the notion of social contract perceiving the state of physical and mental conditions as ‘aberrations’.
In another judgement (Rajive Raturi), he provided constitutional inlet to the principles of reasonable accommodation and accessibility to redress the textual deficit and prejudices in the Constitution.
It had a significant observation that the inclusion of accessibility within the fundamental rights framework ensures entitlement of PwDs to full participation in society with recognition of right to equal access to spaces, services, and information; guarantee of the freedom of movement, self-expression and self-determination; and the right to live with dignity under Articles 14, 19, and 21 of the Constitution, usually referred to as golden triangle. This broke new ground of judicial review by obligating the state to take positive measures to enable PwDs to enjoy their fundamental rights effectively and fully, irrespective of their conditions.
The recognition here is of reasonable accommodation as a gateway right to avail all other fundamental, human, and legal rights for PwDs and that denial of the same would amount to discrimination, violating substantive equality of PwDs. This is a transformative vision of an egalitarian and inclusive society that elevates the constitutional status of disabled citizenry. The reasoning has the potential to entrench disability equality as one of the features of the basic structure of the Constitution.
This jurisprudence also has the potential to inspire a new dimension of Constitutional morality with impetus to the ideas of inclusion and amelioration to make a real difference in the lives of PwDs, the most excluded and overlooked class of society. The former CJI’s adjudications are significant here because they set an example for reading the Constitution in its best moral light despite its exclusionary texts. n
B R Ambedkar noted that the Constitution of India was not a mere lawyers’ document – “It is a vehicle of life and its spirit is always the spirit of age.” Seventy-five years since the adoption of the Constitution, its living text continues to guide India along the vision of its founders. But these are also times when the constitutional spirit is increasingly in conflict with reactionary narratives that undermine the tenets of the document. The Prism looks at the milestone with a throwback to the Constitution’s framing principles, nods to its endurance, and underlines threats to its foundational ideas.