Inclusion of physical and mental disability as a protective ground in the Constitution will mainstream disability in the public and constitutional law discourse
A few days back, a woman using a wheelchair was denied entry into a club in Gurugram as she could reportedly cause “disturbance” to other customers. The Indian Constitution guarantees a fundamental right to access public places. But does this right also extend to persons with disabilities?
It is often the case that whenever individuals feel wronged and violated, they inevitably go back to the Constitution to look for answers and remedies. The Constitution has been an instrument of empowerment for women, Dalits and religious minorities, both inside and outside of courts. This extremely deplorable act of discrimination against the woman in Gurugram warrants an examination of the Constitution to figure out the answers and remedies it has for the disabled community of the country.
A neglected community
It is hard to gauge the number of persons with disabilities at the time of Independence because they were not considered a different class up till Census 1981. But they were very much in the room at the time of Independence and the drafting and adoption of the Constitution. This is clear from the plethora of scholarship in disability studies that reveal that the British and natives in colonial India saw the PWDs as objects of charity. They felt that making donations for the benefit of the PWDs could bring them fortunes. Resultantly, the rich philanthropists funded the construction and maintenance of rehabilitation institutions, schools and hospitals.
Despite the visibility of the PWDs in public spaces and a realisation that they were prone to mistreatment, discrimination and prejudice, the longest Constitution of the world omitted to confer any rights on the largest minority of the world.
An ableist Constitution
The first blatant omission happened in the Constituent Assembly, where the cause of PWDs was not even mentioned throughout the course of the drafting of the Constitution. Further, the emancipatory Article 15 omits to mention disability as a protective ground. Instead, it ironically states that no citizen shall be subject to any disability on the ground of race, religion, caste, sex and place of birth.
The usage of the word “disability” is not in terms of physical or mental disability. It is rather used as an alongside word like “liability or restriction”. Going by the legal principle of noscitur a sociis as per which words take to the colour of their company, it can be said that “disability” in Article 15 only means a restriction or liability arising out of an individual’s race, religion, caste, sex and place of birth. The usage of “disability” as a synonym of restriction or liability instead of mentioning as a protective ground amounts to an explicit negation of the concerns of the disabled.
The other places where the Constitution mentions disability is when the drafters sought to invoke some sort of socio-economic marginalisation. Examples include Article 17 which prohibits untouchability and mentions that “enforcement of any disability arising out of untouchability shall be an offence”, and Article 39A which provides for free legal aid and mentions that no one should be denied justice by reason by “economic or other disabilities”.
Lastly, the Constitution has a nomenclature problem. In Schedules XI and XII, the PWDs are referred to as “handicapped” and mentally retarded” which are derogatory and anachronistic with the progressive UNCRPD and the principle of people-first language which emphasises on putting the person before their disability and treating them with dignity.
The conflation of physical and mental disability with socio-economic disability amounts to discounting disability as an experience. The marginalisation by virtue of race, religion, caste, sex, place of birth, financial constraints is a separate experience. Disability is a different state of being. It brings different challenges, requires different accommodations and is a different identity altogether.
A call to amend the Constitution
In the Vibhu Dayal Sharma v. Director case, the Punjab and Haryana High Court had observed, “The Constitution of India needs to be amended in order to remove discrimination on grounds of disability so as to include the term disability in Articles 15 & 16 of the Constitution as one of the prohibited grounds. Disability prejudicial references should be removed from the Constitution”.
Even after nine years of this observation, there has been no attempt to provide constitutional status and protection to PWDs. However, including “physical and mental disability” as a protective ground can have plenty of advantages for the community
Currently, the only two progressive instruments that protect the rights of PWDs are the United Nations Convention on the Rights of Persons With Disability (UNCRPD) and the Rights of Persons With Disabilities (RPWD) act. However, both of them are not strong enough to protect and promote the interests of PWDs. The UNCRPD is an international convention that has been signed and ratified by India. But abiding by its principles is not mandatory as effectuating international treaties and conventions is just a non-justiciable directive principle of state policy, as per the Constitution. Further, the RPWD act and the rules notified under the same are susceptible to legislative amendments and executive discretion.
On the other hand, the Constitution is a far more robust instrument in terms of protecting the rights of the marginalised communities as it can be enforced by invoking the writ jurisdiction of the courts and it cannot be amended very easily. Further, laying down a fundamental standard in the Constitution can ensure that legislation drafted for the PWDs meet the threshold provided under the Constitution, or else it can be struck down. In the absence of the same, the laws and rules absolutely become contingent on the whims and fancies of the ruling government, which may or may not have disability inclusion on its agenda. However, the rights of the PWDs should not be contingent on the sympathy of the government and should rather be guaranteed as a rigid and non-negotiable right. And this can only be done by incorporating it into the protective grounds mentioned in the Constitution.
Lastly, the incorporation of rights of a particular community in the Constitution has a cultural value as well. With recent invocations of the Constitution and the Preamble in populist movements like in the anti-CAA protest, it is clear that the Constitution has become a public document. Enshrining something in the Constitution makes it important. The invocation of Article 15 and Article 17 in cultural and artistic references has bolstered the Dalit rights movement in many ways. Similarly, religious minorities have found refuge in Article 15. The doctrine of constitutional morality has been used by the Supreme Court to counteract discrimination against queer individuals, women and Dalits in various instances.
Given the same, the inclusion of physical and mental disability as a protective ground in the Constitution will mainstream disability in the public and constitutional law discourse. It will further render ableism to be an unconstitutional value, that ought to be annihilated in all its forms. Thus, we need a radically inclusive Constitution to build a radically inclusive society for the disabled.
The author is a fourth-year student at the National Law School of India University, Bangalore. Views expressed are personal.
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