Law

From Sympathy to Dignity: Jeeja Ghosh Judgment Could Open New Doors for Persons With Disabilities

As the Supreme Court noted, the real reason why the disabled feel handicapped is not because they are looked down upon by society, but because their ability to realise their full potential is hampered by the inability of society to meaningfully assimilate them into the mainstream.

Representational image. Credit: Anjan Chatterjee/Flickr CC BY-NC-ND 2.0

Representational image. Credit: Anjan Chatterjee/Flickr CC BY-NC-ND 2.0

In 2012, when 40-year-old disability rights activist Jeeja Ghosh boarded a SpiceJet flight from Kolkata to Goa to attend an international conference aimed at addressing the systemic barriers faced by the disabled, she was asked to de-board the plane immediately because the crew feared that her cerebral palsy could pose health risks over the course of the flight that they were ill-equipped to handle.

On May 12, 2016, the Supreme Court ruled that the airline’s conduct amounted to unreasonable discrimination and directed it to pay 10 lakh rupees compensation to Ghosh.

Ghosh’s story is emblematic of the discrimination, silent judgment and charitable treatment that has become all too common for India’s 70 million disabled persons. In their everyday lives, the disabled in India are forced to grapple with a lack of autonomy, and a nagging feeling of insecurity and frustration. Indeed, in a nation where persons with disabilities endure daily discrimination, the fact that the country’s highest court took note of Ghosh’s story is attributable in no small measure to her unwavering grit and the determination of the lawyers who represented her.

Even though India was the first major nation to ratify the magna carta on disability rights – the United Nations Convention on the Rights of Persons with Disabilities – too many workplaces lack a barrier-free environment, too many government policies continue to exacerbate (as opposed to alleviate) the challenges faced by the disabled and too many persons with disabilities lack the opportunities to forge for themselves a life worth living.

While the systemic and structural barriers to access that permeate all spheres of public life are a major cause of concern for the disabled, the attitude of the able-bodied, which ranges from treating them as objects of charity and sympathy to recognising them as avatars of the divine, further fuels the sense of isolation and otherness that the disabled have to grapple with. As the Supreme Court pithily put it in Ghosh’s judgment, the problem simply is that “Non-disabled people do not understand disabled ones”.

Last year, in order to address these challenges in a holistic manner, Finance Minister Arun Jaitley launched the Modi government’s much-touted Accessible India Campaign on the International Day of Persons with Disabilities. However, the facile assumptions about the otherness of the disabled that underpin the initiative are best evidenced by the Prime Minister Narendra Modi’s plea to the people of India to refer to the disabled as ‘divyaang,’ meaning divine bodies.

Further, since it came to power in 2014, the government has dragged its feet on the enactment of a new disability law to replace the obsolete 20-year old Persons with Disabilities Act of 1995, which lacks robust provisions and has been poorly enforced. Indeed, the government’s apathy and insensitivity towards the disabled is best epitomised by Union Minister Maneka Gandhi’s statement that the mentally ill lack the competence to pursue regular employment.

Therefore, in light of the fact that public discourse on disability issues in India is couched in such offensive and patronising rhetoric, the Supreme Court’s judgment could not have come at a more opportune time.

Grounding the rights of the disabled in the Constitutional value of human dignity, the court held that what the disabled seek is not sympathy, but a recognition of the fact that they too should be allowed to enjoy the freedom to pursue their hopes, dreams and rights on a footing of equality with their able-bodied counterparts. Noting the paradigm shift in the societal conception of disability, the court took note of the fact that the paternalistic medical model of disability, which views the disabled as persons afflicted with illness and disease, has given way to the social model, which recognises them as equal and competent members of society.

Recognising the centrality of ensuring equal treatment in fact, not just in law, the court significantly held that real equality does not merely mean absence of discrimination; it is equally imperative for the state to provide the disabled access to opportunities through affirmative action and reasonable accommodation.

While these observations are indeed refreshingly progressive from a court that has turned a blind eye to the plight of other minorities in the past, what really sets this judgment apart is the court’s nuanced enunciation of the covert forms of discrimination against the disabled that far too often go unnoticed. As the court rightly notes, the real reason why the disabled feel handicapped is not because they are looked down upon by society, but because their ability to realise their full potential is hampered by the inability of society to meaningfully assimilate them into the mainstream.

Indeed, there can be no better example of the apathy and insensitivity that finds expression in government laws and policies than the fact that in a country that has the world’s largest disabled population, the government has hitherto failed to institutionalise a robust procedure for effectively documenting the total quantum of the disabled population.

Against this discouraging backdrop, this judgment has the potential to restructure public discourse on disability issues in a significant way, in an otherwise desolate landscape.

While the immediate impact of the judgment may remain confined to the formulation of a more progressive and robust code for ensuring hassle-free and non-discriminatory air travel for the disabled, the eloquently articulated observations of the Supreme Court are likely to pave the way for the creation of a more egalitarian social order, not just in law, but also in reality.

In a society where most disabled people feel as though they are trapped behind a locked door, as the court so rightly notes, this judgment might just serve as the elusive key to unlock that door.

Rahul Bajaj is a law student at the University of Nagpur.