In a significant ruling on July 8, the Supreme Court sought to provide a framework for portraying persons with disabilities (PwDs) in visual media that coordinates with the anti-discriminatory principles and dignity-affirming objectives of the Rights of Persons with Disabilities Act, 2016. The court was deciding on a plea by disability rights activist Nipun Malhotra challenging the extremely demeaning and highly insensitive portrayal of PwDs in the Hindi film Aankh Micholi.
The bench of Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala sought to make a thorough distinction between disability humour and disabling humour and advised content creators to be conscious of that.
“We must therefore, distinguish ‘disabling humour’ that demeans and disparages persons with disability from ‘disability humour’ which challenges conventional wisdom about disability. While disability humour attempts to better understand and explain disability, disabling humour denigrates it. The two cannot be equated in their impact on dignity and on stereotypes about persons with disabilities,” the court observed.
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This judgment is a continuation of new jurisprudence developed by the Supreme Court in Vikash Kumar v/s UPSC, where it asserted that insensitive language militated against the dignity of persons with disabilities.
It is a welcome judgment for disability rights movement in India. However, it needs to be celebrated with caution as liberal interventions and liberal legalism may have a limited impact in a deeply unequal society where several marginalised live their daily life precariously in a condition of violent exclusion. The disparaging visual representation is merely one such violent manifestation.
Even in our democratic discourse, disabled citizens have to face such disparaging and demeaning violent comments. During the recently concluded general election, instances of making disparaging references to disability to belittle and demean political rivals came to light, despite the advisory issued by Election Commission of India in December 2023 that cautioned political parties and their representatives from the use of derogatory or insulting references to disability or disabled persons, amongst other things.
In a first, the ECI acted on a complaint filed by the National Platform for the Rights of the Disabled and censured Telugu Desam Party (TDP) DP leader N. Chandrababu Naidu for making disparaging references to disability while speaking against his opponent Jagan Mohan Reddy. However, the Election Commission’s refusal to take cognisance of similar complaints against Bharatiya Janata Party (BJP) leaders is another matter that is a chilling reminder of the limits of liberal intervention in achieving a genuine inclusion of the disabled.
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The usage of ableist language and discourse is so totalised and normalised that they are not sufficiently problematised and critically scrutinised. The deployment of the ableist metaphor ‘Balak Buddhi’ in the prime minister’s speech to mock the leader of the opposition should disturb every stakeholder in democracy. The prime minister’s coinage of the term ‘Divyang’ for the disabled highlights a disturbing trend of patronising the disabled community. However, ableist worldviews and language are normalised to the extent that many accept them without protest.
These instances highlight the inherent limitations of liberal interventions such as judicial decisions. The removal of attitudinal barriers against the disabled requires more than interventions of liberal legalism. It must be remembered that the Supreme Court, which has been proactive in securing liberal rights and semantic protection against disparaging usage of the disabled condition, has not been able to protect the rights of the disabled when disabled activists have raised their voices on uncomfortable socio-political questions.
Cases like those of G.N. Saibaba, Stan Swamy, and Hem Mishra are the testimonies of this failure of our judicial system. Their examples have also highlighted the silences and erasures within the dominant narrative of the ‘apolitical’ disability movement that suffers from a democratic deficit and has preoccupied itself with securing middle-class concessional rights while evading the difficult political question of mass debilitation of a significant population in India that government policies have produced in recent times.
The precarious situation of minorities, Dalits, and other subaltern groups created by the policies of the Central government in the last ten years has put them in a position of mass debilitation. The ‘mainstream’ disability movement in India has been silent on this issue. The judgment on visual and semantic representation is a welcome judgment, but it should not obscure the fact of the failings of our political and judicial systems in protecting those who face debilitating and exclusionary situations in their daily life due to our current political discourse. It should also not conceal the nature of exclusionary disability discourse in India dominated by a few. The celebration of this judgment must come with caution and probing questions about our political and judicial system. And yes, it should also be a starting point in asking difficult questions within our disability movement and discourse.
Muralidharan is general secretary, National Platform for the Rights of the Disabled. Vijay K. Tiwari is an academician with disability and teaches at The West Bengal National University of Juridical Sciences, Kolkata.
