People with disabilities and the need for a radically inclusive Constitution

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 Constitution guarantees a fundamental right to access public places. But does this right also extend to Persons With Disabilities (PWDs)?

It is often the case that whenever an individual feels wronged and violated, they inevitably go back to their 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.

It is hard to gauge the number of persons with disabilities at the time of independence because they were not considered as a different class up till the 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 a fortune. Resultantly, 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. 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 grounds 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 alongside words like “liability or restriction”. 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 place where the Constitution mentions disability is when the draft resorts to invoking some sort of social or 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. The conflation of physical and mental disability with social or economic disability amounts to discounting disability as an experience. Disability is a different state of being. It brings different challenges, requires different accommodations and is a different identity altogether.

In Vibhu Dayal Sharma vs Director, 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, 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.

Robust instrument

The Constitution is a 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 easily. Further, laying down a fundamental standard in the Constitution can ensure that legislations 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 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. 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 the anti-CAA protest, clearly 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 writer is a student at NLSIU)