Tools of Justice

Non-discrimination and the Indian Constitution

Kalpana Kannabiran

• Publisher: Routledge India
• Year: 2013
• ISBN:
  9781136198755
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In the years since independence, the Indian subcontinent has witnessed an alarming rise in violence against marginalized communities, with an increasing number of groups pushed to the margins of the democratic order. Against this background of violence, injustice and the abuse of rights, this book explores the critical, 'insurgent' possibilities of constitutionalism as a means of revitalising the concepts of non-discrimination and liberty, and of reimagining democratic citizenship.

The book argues that the breaking down of discrimination in constitutional interpretation and the narrowing of the field of liberty in law deepen discriminatory ideologies and practices. Instead, it offers an intersectional approach to jurisprudence as a means of enabling the law to address the problem of discrimination along multiple, intersecting axes. The argument is developed in the context of the various grounds of discrimination mentioned in the constitution — caste, tribe, religious minorities, women, sexual minorities, and disability. The study draws on a rich body of materials, including official reports, case law and historical records, and uses insights from social theory, anthropology, literary and historical studies and constitutional jurisprudence to offer a new reading of non-discrimination.

This book will be useful to those interested in law, sociology, gender studies, politics, constitutionalism, disability studies, human rights, social exclusion, etc.

Part I
Mapping Disability Discrimination in India

Introduction

The three chapters in this part of the book examine the discourse on disability in the Indian context. While disability-based discrimination is the subject of special legislation, the constitution is silent on this form of discrimination, all cases being read within the ambit of equality before law and equal opportunity. The treatment of persons with disabilities in Indian society, however, has historically been discriminatory; practices of discrimination against disabled persons have taken unparalleled forms in India and have provided the language and the medium for the articulation of disabilities in the social sphere. I open the discussion of discrimination and the negation of liberty in this book by unpacking the constitutionally inarticulate field of disability-based discrimination. I do this in the hope that this route offers unanticipated possibilities for understanding the fundamental bases of discrimination, and may have unexpected outcomes in terms of an understanding of constitutional morality.

Chapter 1 examines the jurisprudence on disability through an analysis of case law on disability in India, looking at criminal justice, equality of opportunity, and questions of custody and consent. While the case law on disability is recent and not very extensive, especially in comparison to the existing case law on the other indices of discrimination, a careful reading might foreground the theoretical/conceptual bases for the marginality of disability rights jurisprudence to the larger discussions of non-discrimination in India. Central to this exercise is an examination of the construction of corporeal normativities and their proliferation through the constitutional interpretation of non-discrimination.

Chapter 2 takes a critical look at policy and legislation on disability-based discrimination, setting out the signposts of official concern for and articulation of disability. This chapter is largely descriptive, detailing policy and programmatic commitments to addressing the constitutional goals of equal opportunity and nondiscrimination, and the ambiguities thereof.

The detailed assessment in chapter 2 lays the foundations for chapter 3, which deals with the argument regarding the philosophical basis for the ideas of non-discrimination and personal liberty. It makes the case for a radically new approach to constitutionalism that springs from the question of ability, as this is theorized in philosophy and in the practice of the disability rights movements in India.

Chapter 1
Trends in Disability Rights Jurisprudence

Article 326: Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage: The elections to the House of the People and to the Legislative Assembly of every state shall be on the basis of adult suffrage that is to say, every person who is a citizen of India and who is not less than eighteen years of age . . . and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of . . . unsoundness of mind . . . shall be entitled to be registered as a voter at any such election.

— Constitution of India, 1950 (emphasis added)

Article 41: Right to work, to education and to public assistance in certain cases: The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

— Constitution of India, 1950 (emphasis added)

What is the constitutional position on disability in India? Apart from the two specific provisions just quoted, the fundamental right to life provides the guarantee of life and liberty to all persons resident in India. Article 21 of the constitution of India protects the right to life and personal liberty, which are inclusive of the principles of inherent dignity and individual autonomy for all persons resident in India. Article 21, together with article 14, the right to equality before law, provides the conditioning environment for specific laws and policies that uphold fundamental rights for different classes of individuals. Article 38 directs the state to secure a social order that promotes the welfare of the people. Article 39 enjoins the state to protect the health and strength of workers, men and women, and ensure that children are not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 47 directs the state to raise the level of nutrition and the standard of living and to improve public health.

While these are general provisions that offer protections and form the basis for state policy impacting all people regardless of abilities, there is a double negation of the rights of persons with disabilities in the constitutional scheme: first, the absence of disability as an explicit ground of discrimination under article 15(1); second, the bar on voting rights for persons with any psychosocial or intellectual disability, described by the encompassing term ‘unsoundness of mind’. These negations, taken individually, have specific impacts; but in concert they have far-reaching implications. They mean that the denial of rights of democratic citizenship — rights that are expressed through adult suffrage (not ‘universal adult suffrage’, as has hitherto been assumed) — cannot be brought within the meaning of discrimination against persons of ‘unsound mind’. Nor does the constitution define the attributes of unsoundness of mind, considering that it is a critical, indeed indispensable, political right that is being denied. This omission, I suggest, renders ‘unsoundness of mind’ into a fluid category that shifts constantly, whereby the identification of persons of ‘unsound mind’ becomes part of an exercise of power by the state, sometimes in concert with families and communities. Moreover, if ‘unsoundness of mind’ is a homogenizing construct, the first negation, namely, the absence of disability in the constitution and the refusal of constitutional courts to bring it within the meaning of discrimination under article 15, further truncates fundamental freedoms for all persons with disabilities. The denial of political voice has immediate and serious consequences for the right to liberty of persons of ‘unsound mind’. This is an aspect of the constitutional abridgement of rights that we will revisit at different points in this and the following chapters of this part of the book.

Apart from article 326, quoted at the beginning of this chapter, the seventh schedule (article 246) places ‘lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients’, on the concurrent list.

The language of ‘deficiency’, ‘lack’, ‘impairment’, and ‘bodily defect’ stalks official discourse on disability rights. It is necessary, therefore, to first unpack the construction of disability in official discourse, before moving on to examine the articulation of constitutional rights, non-discrimination, liberty, and the problems thereof.

Social contract theory, argues Nussbaum (2006), imagines the basic structure of society as composed of ‘free, equal and independent’ citizens who are fully cooperating members of society leading complete lives. Disability, then, within social contract, is handled as an afterthought, one that necessitates ‘accommodation’ and the removal of ‘barriers’. The erection of barriers itself, however, is a matter not of volition, but of foundational exclusions, of inarticulate premises that structure consciousness and architectural design.

For the present, however, we may simply mark the clearly discernible disjuncture between the treatment of persons with disabilities other than intellectual and psychosocial disabilities, on the one hand, where the focus is on equal opportunity as distinct from non-discrimination, and persons with intellectual and psychosocial disabilities, on the other, where protections and special measures tend to take the form of custody, while political rights are constitutionally denied.

Problematizing Ability

There are different ways of looking at disability and positioning it in the context of law. The discourse on disability in India, it appears, focuses on a biomedical approach that measures disability against an able-bodied norm. For a person to be brought within the category of the ‘disabled’, it must be certified medically that that person suffers from not less than 40 per cent of any of the listed forms of disability, either singly or in combination. Being included in this category brings such a person under the umbrella of state protection/custody and/or largesse.¹ Recognizing that employers might have an aversion to the idea of employing persons with disabilities, the legislation attempts to regulate this aversion by providing incentives to employers of the disabled under section 41 of the Persons with Disabilities Act.² It is in the structure of the relief itself that the inarticulate ground of discrimination is evident. Whereas reservation is a part of the right against discrimination for any of the stated grounds of discrimination under article 15, in the case of disability, reservation is framed in the language of tolerance. Incentives are the medium through which tolerance is fostered, and discrimination is left unaddressed in any substantive manner, leaving public morality firmly in place.

This biomedical approach was challenged with the ratification of the United Nations Convention on the Rights of Persons with Disabilities in 2008. Around the time of the adoption of the convention by the UN in 2006, the deliberations on the National Policy on Disability Rights and the 11th Five-Year Plan in India marked a similar shift in policy towards the social model of disability. Policy now straddled, as it were, the biomedical and social domains of knowledge on disability.

However, the fundamental assumption about the dichotomy between ability and impairment is common to both the biomedical and the social approaches to disability. The contradictions in law, jurisprudence and policy with respect to equality (the idea of non-discrimination not yet having been articulated in the case of persons with disabilities) can be understood only if we begin to unpack these assumptions and reformulate the ‘problem of disability’. In doing this, I draw on the work of Minae Inahara, who contests ‘the binary categorical system which defines disability in opposition to an able-bodied norm and suggest[s] that the disabled body is a multiplicity of excess which undermines this able-bodied norm’ (Inahara 2009: 47). Critical to this argument is the idea that the able-bodied norm is illusory: all those labelled disabled, female, child, aged, obese, or homosexual, and all those who suffer from chronic illness or are sick, weak, vulnerable, or frail for any of a host of reasons, are set against a norm that is unattainable by definition.

To cite instances from the Indian scenario, the single constitutional provision that speaks explicitly of disability, article 41, addresses the state’s commitment to providing public assistance in cases of ‘unemployment, old age, sickness and disablement, and in other cases of undeserved want’. Labour laws reproduce this conflation of disability with health and age-related incapacities by referring not to disability but to ‘continuous ill health and disablement’ (Vasanthi 2007). And yet, labour is a many-splendored thing, with disability sitting quite easily with manual work, provided the performance of manual work is conceptualized and organized without assuming an able-bodied norm in terms of output or the design of work-enhancing implements;³ further, disability must not be seen in a relation of mutual exclusion with mental/intellectual labour.

That the able-bodied norm is physical, and therefore also sexually coded, is driven home by accounts of women who seek the dissolution of arranged marriages on the ground that the husband is ‘impotent’, a descriptor of homosexuality.⁴ That the norm is male, while self-evident, is also interestingly reflected through a crooked mirror that shows women unable to bear a male child as ‘deficient’. The male able-bodied norm is defined also through the politics of the womb, where femininity is constructed through the capacity to bear children, so that any claim to femininity must fall short absent this capacity. Sameera, a transgender person who identifies herself as female, observed at a meeting of disability rights activists that she was the most severely disabled of all because she lacked the organs necessary for creation (srushti).⁵ The discourse on ‘sexual deformities’ however is discussed at length in the context of sexual orientation in Chapter 12.

The able-bodied norm is set outside of lived experience, with everybody striving to reach up to it for varying periods in differing degrees during a lifetime; or, finding the norm un-performable, simply being framed as its Other. The attainment of this goal or the failure thereof does not in any way reflect capacity or capability or ability; nor is there any fixity to the attainment, which is transient and ephemeral by definition. While there is no doubt that the loss of the effective use of a limb or the sharp decline in physical strength in the elderly creates bodily impediments to functioning, there are ways of getting around the obstructions, of not seeing them as obstructions, of organizing tasks differently, and changing the way in which we are oriented to our immediate environment.

The mastery of an inability, or compensating for it through bodily moves, makes ability itself fluid and malleable. This is the case with most physical disabilities as well. As Inahara puts it so aptly, ‘the complexity of disabled ability does not fit into able bodied notions of ability’ (Inahara 2009: 56). Further, the moment we attempt to demarcate the disabled body, we realize that no body is fixed and perfect, and that the diversity of abilities and disabilities challenges the logic of sa...

Table of contents

• Cover
• Title
• Copyright
• Dedication1
• Dedication2
• Contents
• List of Abbreviations
• Acknowledgements
• Introduction: Liberty and Non-discrimination — The Scope of Intersectional Jurisprudence
• PART I: MAPPING DISABILITY DISCRIMINATION IN INDIA
• PART II: DISCRIMINATION AND THE STANDARD MEASURES OF DIVERSITY
• PART III: SEX, GENDER AND THE DENIAL OF FREEDOMS
• Conclusion: Eliminating Hostile Environments — Non-discrimination, Liberty and an Insurgent Constitutionalism
• Bibliography
• About the Author
• Index