Much has been said since the removal of the blindfold from the eyes of Lady Justice. An opinion piece in Indian Express, ‘Can a new statute of Lady Justice lead to a new conception of Justice?’ lauds this change as “presenting Lady Justice with open eyes and in a decolonial form is a welcome symbolic gesture.” Several other opinions were expressed on different platforms on this symbolic change. However, the voices of disabled people or visually impaired people on this issue are either missing or marginalised. In fact, this entire discourse that was started by the Chief Justice of India, D.Y. Chandrachud, is deeply problematic, and it marginalises the disabled hermeneutically.
Miranda Fricker opines that hermeneutical injustice occurs when socially powerful groups, through their access to knowledge resources, tend to appropriate the experiences of the marginalised groups and thereby prevent the marginalised from making sense of their own experience. This whole discourse around the blindfold is one such glaring episode where disabled people have been blocked from meaning-making and meaning-sharing their own experiences.
‘The lady with blindfold’ – or even without blindfold – privileges the meaning bestowed by abled-bodied people on disabled lived experience.
The privilege, to tell a story, is a social privilege. The social privilege of the abled-bodied allowed them to make a caricature of the disabled, according to the privileged reading of disability and its experiences. A visually impaired cannot have a fuller sense of an elephant, we are told.
With the advent of ‘reason’ and ‘modernity,’ Nirmala Erevelles points out that European, bourgeois, heterosexual, healthy, male body and their ways of knowing were set as normative standards. Compared to this normative standard, disabled bodies and other marginalised bodies were considered ‘deviant.’ Their embodied knowledge and lived realities were considered what Michel Foucault called ‘naïve knowledge’ that lacks scientificity.
Against this backdrop, liberal modern theories took shape. Be it Kant’s ‘Sapere Aude’ or John Rawls‘ ‘veil of Ignorance,’ they all marginalised disabled experiences. Disability studies scholar Ravi Malhotra highlights that Rawls blatantly excluded disabled people from his social contract model. Shelley Tremain points out that Rawls ‘set aside’ disabled people in his theoretical suggestion that the oeuvre of a just society is for “normal and cooperating” people. The famous theoretical assumption of the ‘veil of ignorance’ by Rawls inherently suggests that people with disabilities cannot have a ‘fuller’ ‘authentic’ reading of wealth, status, or circumstances. The assumed ‘neutrality’ of this veil or ‘blindfold’ of Lady Justice, too, came from these ableist frames of liberal thinking.
As the earlier investment of meaning in the ‘blindfold’ came from the ableist framework of liberal theories in which blindness is equated with neutrality, so did the recent removal of the blindfold. The present Supreme Court, which has championed the liberal accommodationist inclusion of persons with disabilities in recent years too, has privileged the sighted people and their understanding of ‘truth’, ‘impartiality’ and ‘justice’ as if only sighted people can understand the complex and intersectional reading of the societal realities In both readings of Lady Justice, blindfold or otherwise, it’s the abled people who are trying to invest meaning in disabled experience.
In a famous letter exchange between BBC host Bryan Magee and professor Martin Milligan, Magee could not agree that Milligan, a visually impaired person, could have a correct understanding of colour. Milligan was considered a ‘defective knower.’ In such a reading of ‘knowing,’ the subject position of ‘knower’ is always given to an abled-bodied person who monopolises ‘reality.’
Abled-bodied people approach disabled people and their experiences through what Anita Ghai calls the ‘epistemology of ignorance’ that denies expression to disability. Approached from these apparatuses, what Fiona Campbell calls ‘ableism,’ “Disability then is cast as a diminished state of being human.”
This entire process and discourse results in testimonial injustice where disabled experiences, lived realities, and understanding of justice and equality are not taken seriously as the dominant ableist discourse considers them fundamentally flawed. These meanings given to the blindfold coerce what Robert McRuer calls ‘compulsory able-bodiedness’ that subdues disabled existence and experiences.
Critical theorists have demonstrated that a fuller understanding of reality comes from marginalised positions, not from privilege. Yet philosophy, jurisprudence, and law continue to prefer privileged reading of knowledge. Shelley Tremain suggests that philosophy as a discipline has marginalised the embodied knowledge and philosophies of disabled people while mainstream non-disabled philosophies have continued their claim of neutrality and rationality. Through this power, jurists and philosophers invest meanings in disabled experiences while simultaneously marginalising the voices of the disabled.
Liberal toleration of disability is not enough. We do not need lady justice with a blindfold or otherwise. To have inclusive justice, we need to question ableism as a network of beliefs to find a better reading of our disabled experiences. Passing the mic to the disabled can be a small and formidable democratic step in this regard.
Vijay K Tiwari is an assistant professor of law at West Bengal National University of Juridical Sciences, who teaches jurisprudence and is a disabled academician.