 does not require any introduction as such, but we are enamoured that Sir has agreed to share the knowledge on an important topic that is facing the legal journey of the concept of disability. And I would request Sir to straight away take us to this insights since we are already late by the scheduled time. Over to you Sir. Thank you very much Mr. Advocate Vikas for this wonderful opportunity to interact with a lot of listeners particularly on a Sunday evening. I know it is not a particularly happy time but nevertheless those who are present and grateful to them for indulging with my endeavor. Today's topic which is assigned to me is tracing the legal journey of the conception of disability. From the topic it becomes clear that there is a distinction between what exactly is meant by, sorry we clearly find that there is a distinction between disability as understand by all of us perceptibly and disability as seen by law. Generally when we use the word disabled in a normal parlance we use it to convey lack, we use it to convey want something which is lacking, a person is in want of certain thing and mostly we invoke disability to convey bodily deficits when a person for example cannot see he is not in a position to walk, he is not in a position to read and write or he is not in a position to speak, he is not in a position to read and write not because he is illiterate but because of absence of eyesight or if a particular person's body has a unusual size or his or her body limbs are different. So in short when a person does not conform to so-called normality when he or she appears different from the perception of the normal than in common parlance such a person is termed as disabled. However let me amplify this point further by saying that in common perception disability is not only associated with bodily deficit but particularly in India disability has a religious and cultural connotation as well. In terms of Hindu religion disability is associated often with your past karma. Suppose in your past birth you have done something very wrong, you are tyrant, you are somebody inherently bad and those karmas of yours in your past birth is a reflection on your disability. So the echoing effect of the karma on your present birth. Culturally again as a disabled you are not somebody who is normal and therefore you are considered to be the symbol of ill women. So we all know the story of Mahabharata where in Dhritarashtra was not given the throne why because he was blind and when Dhritarashtra threw his support over on his son Duryodhana there was the cliché that his support was also blind. In short the figure of Dhritarashtra is a figure of irrationality it is a figure of doing something which is not worth doing and of course the matter whether Dhritarashtra was discriminated because he was blind and therefore his younger brother was given the throne. That matter is under the carpet nobody talks about that because the distinction between the disabled and the normal is natural. By nature you are disabled, by nature you are different and by nature therefore you are inferior. You are not equal because your disability makes you unproductive, your disability makes you unworthy of doing most of the things, your disability does not make you like normal human being. Now this is the perception of the disability then there is another model which needs to be understood if we want to understand the sociology of disability that is charitable model because I am disabled and because I am lesser human being because I lack something therefore I deserve charity I deserve sympathy I deserve support and what amount of charity support or sympathy I should get I will not decide that that will be decided by the society. So again charitable model or charity model is something which pursues persons with disability as somebody who are lesser human beings. Now what is the position in law? Whether law also accounts for the disability as it is perceived normally. Now if you look at the Indian history till 1995 there was no law on disability as such. The most important law on disability came only in 1995 with persons with disability act. Does it mean that disability had not figured in legal order prior to the enactment of persons with disability act? The answer is no disability did figure. For example let's start from constitution. Constitution of India in articles 15 and 16 lays down a number of grounds on which discrimination is prohibited and those grounds include caste, sex, color, place of birth, language etc. But interestingly the constitution does not outlaw discrimination on the ground similarly if you look at the distribution of powers between center and state and the seventh setting particularly leads to the state list. You find disability in entry 9 and this entry is sandwiched between unemployment and burial ground intoxication unemployment on one hand and the burial grounds on the other hand. So entry 8 deals with intoxication unemployment etc. and entry 10 deals with burial ground. So how peculiarly disability is sandwiched in entry 10 entry 8. Now interestingly although disability is a state subject that is to say it is expected that every state government is required to make a law dealing with disabled. We find that till this date no state has enacted any law and I will come to the position of the 1995 law as well as RPWD Act later. Now under article 41 again disability appears in the constitution but again it appears with weaker sections. So again disability is associated with most vulnerable sections as if once you acquire disability you are necessarily weaker, you are necessarily weak and vulnerable, you are necessarily somebody who is in want of certainty. So that's article 41. Then if you look at the different ground and different provisions in our constitution laying down the qualifications for occupying public offices be it Supreme Court and High Court judges or be it member of parliament or member of state legislature or president of India you find one ground clearly mentioned there and that ground is a person should not be of unsound mind. So unsoundness of mind, unsound mind is one of the terms which is used to disqualify people but interestingly the word unsound mind is not generally defined. Article 366 which is the dictionary of the constitution nowhere defines the term unsound mind. It is only defined in respect of the qualifications of member of parliament and member of state legislative assemblies and there it is said that a person of unsoundness a person of unsound mind means a person who is so determined by court of law but again how court will determine unsoundness of mind what procedure court must follow nothing is provided in the constitution. So it's a very a total logical approach to the unsoundness of mind. What I call this is disability constitutionalism because when you look at the disability in our constitution you find it figuring either to symbolize disabled as weak and vulnerable or disability as something which is not worthy of allowing a person to hold public offices. So far as judges of Supreme Court and High Court is concerned a judge can be removed from the office if he suffers from physical incapacity. So again physical incapacity is nothing but physical disability and recently decided Singles case in 2010 which came down very heavily on moment of India for removing governors after the change of government but in that case also Supreme Court maintained that if a governor is removed on the ground of physical incapacity then it's fine. This is another very interesting provision. Members of Union Public Service Commission in respect of members of Union Service Commission I may be wrong in exactly pointing out the article but I think it's there between articles 312-320 that provision empowers the president to directly remove a person who suffers from any physical incapacity. So disability is perceived so dangerous or so distasteful that president can without even following any process of law can immediately remove directly remove a person a member of UPSC from his position. So friends this is a kind of constitutionalism disability constitutionalism of India which which though does not define disability anywhere but perceives disability either as something symbolizing weakness and vulnerability or something which is a marker of disqualification. Marker of abnormality marker which separates a disabled person from non-disabled person. Now if you look at worksman compensation act 1923 which is still a law in India worksman compensation act also focuses on disability but what type of disability when a normal person acquires disability. So again law makes a distinction between acquisition of disability post birth and acquisition of disability by birth. If you are disabled by birth then your status is different from when you acquire disability post birth in other words you are normal and due to some accident due to some mishap due to some disease when you become disabled when you lose your normal state and when you fall into a state which is different with deficit again then you are disabled. Then law also makes this very interesting distinction particularly this distinction is relevant I think in respect of mental health care. If you acquire disability voluntarily for example you are a drunkard you are smoking you are on drugs and because of the intake of alcohol or drugs if your body has adverse impact and you become disabled then it is a voluntarily acquired disability. Again law looks at this kind of disability differently from the disability a person acquires by birth. Then you have another interesting approach to look at disability. Suppose you are disabled and there is some kind of treatment available to cure your disability or to reduce your disability and if you deny treatment if you do not want to do not want betterment or do not want to nullify your disability. So again this is a voluntarily retained disability and again law may look at persons with voluntarily retained disability differently from the persons who have no option but to remain disabled. Now this is general perception of law in terms of how you look at disability. Again law has three different models to look at disability. The first and the foremost model is the medical model of disability. According to medical model of disability a person's disability is because of his bodily deficit because he lacks something his one of the limbs does not work it is not functional or its functions are limited. So under medical model of disability the location of the disability is the body of the individual. So disability is something internal something within the body of a person. Therefore the response of the medical model is the treatment. Response of the medical model is to allow the medical doctors the physicians to engage with the body and make the body normal. The next model is the social model of disability which is a very prevalent model of disability and by Oliver was the main proponent of this model from UK this model has been evolved. What is what exactly is meant by social model of disability? Social model of disability maintains that a person's disability is not within her body. In fact it is external to the body. Social model of disability draws a fundamental distinction between impairment and disability. It maintains that impairment is the bodily deficit and disability arises when impairment in interaction with external barriers limits functionalities. So for example I am blind so lack of eyesight is my impairment and when it interacts with barriers for example one of the barriers may be that the roads in India are full of barriers. The roads in India do not have any verbal signal any audio signal any audio beeps. Similarly the books which are printed in India they are not accessible to a blind person because the books are in print they are not in braille. So clearly these barriers barriers in terms of inaccessible formats barriers in terms of roads with barriers barriers in terms of absence of auditory signals all these barriers when they interact with impairment it results in disability and the disability is my lack of ability to access the books my lack of ability to access the roads and my lack of ability to navigate the road navigate from one place to another. My lack of ability due to inaccessible websites to follow to follow social media or to engage with e-commerce. Now question arises can you conclude from the fact that my impairment of not being able to see is directly resulting in my malfunctioning or lack of functioning without taking into account the intervening circumstances. So social model says that the barriers is the root cause of disability because barriers are created by the society why society creates barriers because the society is designed for a particular group which group the group of able body the group of such persons whose bodies are relatively same that way no body is similar even the bodies of the able body are different but relatively they are similar. So social model says that there is no attention paid to these barriers there is hardly attention paid to perpetuation of these barriers no discussion takes place on why laws are designed to suit a particular section of society why the social political and even the physical structures why they are designed only by taking in mind by keeping in mind a particular section of society. For example I was reading a survey under which it was provided that the AC temperature in car is designed in such a way to suit male members the size of the belts seat belts of the car is generally designed in such a way only to suit male members as if women would not drive cars as if the car driving is the monopoly of the men. So same thing a blind person why he should walk on the road a person on wheelchair why he should go to the airport so the societal structures are deeply they are deeply tilted prejudiced against the disabled and they are completely designed keeping in mind the interests of the able body. Therefore the social model lays down that if you want to empower the people with disabilities then combat disabilities remove barriers deal with discrimination. Now one very interesting feature of the social model of disability is that social model emphasizes this very important fact that discrimination against people with disabilities is mostly indirect it is not direct directly you cannot establish discrimination against people with disability because there is absence of discriminator nobody by intention discriminates. So prima facie you cannot establish discrimination but when you look into the structure for example constitution of India when it says that people with physical incapacity they removed as judges so the very existence of the judges in India when is predicated on site predicated on normal body that is to say as soon as a judge goes into the state of disability he becomes disqualified. So the notion of disability is clearly it is it is so perceived that it should implicate disqualification it should implicate alienation it should implicate segregation. So that is this is all combated by social model social model is rooted in Marxian theory wherein it is said that law is an instrument in the hands of capital capital similarly the social model maintains that law is an instrument sociology is an instrument to simply protect the interests of the able body then nor the interests of those who are not able body so a dichotomy between able-bodied and disabled is perpetuated by medical model and therefore social model is the opposite of medical model. But the problem with the social model is that if medical model is one extreme social model is another extreme social model simply says that disability is external but sometimes the pain of body or a particular experience because of the impairment is also the part of is also may result in disability because of mere pain I may become disabled right. So therefore for improving social model human rights model is introduced and this model is introduced with the adoption of united nation convention on rights of persons with disability under human rights model it is assumed that every person irrespective of his differences or her differences he deserves to be treated with dignity there is inherent worth and dignity in every human being. So intrinsic value is attached to every human being because he is human being and not because he is non-disabled. However some authors argue that although the human rights model may said to be the improvement over social model in a way social model can be invoked to describe disability and human rights model can be used to provides various ways and means to empower people with disability. So this camp of authors they argue that human rights model and social models they are the compliments of each other rather than assuming the position that human rights model you know human rights model improves it is an improvement over the social model. Now how Indian laws have responded to this different approaches of disabilities different models of disabilities in 1995 act parliament had identified seven disabilities broadly speaking those who cannot see those who cannot walk people with mental disability leprosy cured so on and so forth speech impaired people people who cannot hear people who cannot speak these were mental retardation so these were some of the main disabilities. So prima facie without much thinking it becomes clear that the 1995 act simply perpetuated the medical model of disability it simply emphasized how disability is something which is in the body of individuals. However in 2006 with the entry into force of UNCRPD and its ratification by India and with coming into force of the this convention in 2007 a need was felt to transform this law because this law was diametrically opposite to the ideology of UNCRPD and therefore from 2011 the efforts were on to modify PWD act and come out with a different legislation and accordingly in 2016 RPWD act 2016 rights of persons with disabilities act 2016 was introduced. Now before I talk about RPWD act let me draw your attention to the definition of disability under UNCRPD again critics argue that UNCRPD has not defined disability it has only defined a person with disability. So a person with disability is one who has a long standing mental long standing intellectual physical visual or sensorial disability. So again argument is made that UNCRPD although it talks about rights based approach although it emphasizes on dignity and inherent work of every individual but while defining disability again it fall into the same time type of confusing the impairment with disability. Be that as it may when RPWD act was enacted in 2016 again there are two approaches there are two approaches to the definition of disability in this law first approach is to define disability generally. So there it has adopted the definition of UNCRPD person with disability. Another approach is to define persons with benchmark disability and in fact there is third approach which defines disability in terms of support. So a pyramid is constructed wherein those who whose disability is not very severe they are disabled then those whose disabilities more than moderate they are people with benchmark disability and those who need support their disability is the severe disability. So this is a tripartite structure of the conception of disability under the RPWD act. Now this despite this tripartite structure it is very important to remember that this law is not necessarily a law emphasizing on medical model of disability because although this law has purportedly located disability by identifying 21 disabilities and when I said 21 disabilities earlier law only had seven so the main additions were blood disorders, thelesinia etc then there are certain dialect spinal cord injury multiple sclerosis multiple sclerosis and so on and so forth. So in different states a number of other states were added along with the seven disability mental retardation was dispensed with it was not there in the RPWD act. Again while defining benchmark disability what happened was that a distinction was drawn between those disabilities which are defined in measurable terms and those which are not. So for example blindness is defined under RPWD act in a measurable terms. So if you cannot see beyond twenty fifths so it's a measurable term. So therefore benchmark disability is defined in measurable terms they cannot be further reduced into percentages whereas learning disabilities or blood disorders because they are not defined in measurable terms therefore only when you acquire the certain percentage when your disability is beyond certain percentage then only you can be somebody falling under the caption of benchmark disability. Now what is the main difference between person with disability and person with benchmark disability? The main difference is that in case of former special facilities like reservations like protection in service etc sorry reservation or pensions or social security that is not available some facilities. On the other hand if you are a person with disability still a number of provisions are applicable to you. For example nobody can say that because you are not person with benchmark disability therefore we will discriminate with you on the ground of your disability. So so far as non-discrimination is concerned the caption person with disability is good enough. So far as accessibility is concerned the caption person with disability is fine. So far as reasonable accommodation is concerned the caption person with disability so in Vikash Kumar the question before the Supreme Court was whether a person who whose right hand had certain problems which is known as writer's scram writer's scram he is not in a position to write and when doctors diagnosed his disability only as 7% whether such person be entitled to the help of writer in his UPSC examination. UPSC argued that since he is not a person with benchmark disability because writer's scram is not something which is identified as benchmark disability therefore he is not in a position to avail the help of writer. Justice Chandrachur held that because of a certain state of body if a person needs some adjustment some tailoring then clearly it is something which is akin to accommodation provided that it is not very unreasonable and therefore he led down he held very categorical that the law RPWD Act does not anywhere say that writer's should be availed by only person with benchmark disability he invoked I think section 18 if I am right and he identified the facility of writer as the facility of as the part of reasonable accommodation. So suppose I have a leg issue and I cannot climb the stairs to give the interview can they say that okay we have called you for we have called you for interview but because you are not in a position to climb the stairs you cannot apply for it you know you have to make arrangement for ramps right. So therefore justice Chandrachur held that reasonable accommodation is precondition to decide whether a person with disability is treated with equality. So when it comes to when question arises whether disability determination is done properly the first question which has to be asked is whether the person is reasonably accommodated. So this clearly therefore provides the I mean this clearly therefore brings forth the fact that when you intervene when you engage with disability you have to intervene generally as well as individually sometimes you have to individualize now in this case Vikash Kumar's case the court emphasized on individualization when the government of India tried to argue that people may cheat by using writers Chandrachur said that merely because there is a possibility of cheating and then why you are attributing the cheating to only disability anybody can cheat and then there are ways and means to prevent cheating right. So therefore it is very clear that benchmark disability cannot be confused with persons with benchmark disability should not be confused with persons with disability. Now persons with high support needs when for example I am so severely impaired for example my legs are crippled my hands are paralyzed my hip is paralyzed I need support I cannot even use my wheelchair or when my IQ level is very very low so in such cases what is required is support again support does not mean dependency. Law if you want to understand the concept of legal concept of support support is not something which should be taken to mean dependency or something should be akin to inferiority because this whole idea of recognizing a person to be autonomous not requiring any support itself is bogus we all require support only thing is some people may require support more frequently others may require it less frequently therefore to stigmatize support and to say that person who requires support are less lesser human beings is combated by the law combated by UNCR. Therefore support is understood is taken very positively by the law and therefore even if law allows support the support should not be the imposed support person providing support must try every possible make every possible effort to convey to the supportee. Supportee is to whom the support is given supporter and supporter must have a constructive relationship supporter should not dominate support now some you may argue that okay but there may be certain people who may not be in a position to take any decision at all or to do anything at all again there may be certain exceptions every rule has exception every principle has exception but let's not let exception not dominate the principle. Another important aspect which I want to highlight while talking about disability is whether disability is something which is good or which is bad or which is neutral so there are certain views there are certain authors who argue that disability is inherently bad and therefore you have mtpa medical uh medical termination of a pregnancy act which allows which allows pregnant termination of pregnancies abortions even in late stage if fetus is found to be severely disabled right again this is a deeply flawed conception because there is cannot be disability cannot be inherently bad because there is no guarantee that if you are born non-disabled your life will be better than when you are born disabled for example life of Stephen Hawkins was extraordinary it was better than many non-disabled similarly to say that this we should be indifferent to the disability disability must be looked with indifference again that is not a correct position because indifference means you are not attaching any value indeed you have to take into account the special needs of the disabled but special needs because our design is faulty disabled are not special therefore they have special needs they have special needs because our design presently is faulty so Bob Peace one of the authors anthropologist he argues that able-bodied group willed a number of privileges over those who are not able-bodied and while wielding these privileges which may be completely unintentional but while wielding these privileges you don't realize at the cost of whom you are wielding these privileges I can give you very he has he has enlisted a number of privileges but let's look at one or two privileges only for the sake of this lecture size of the door for whom size of the door is designed of your house stairs of your house whom you take into account when you design your house and provide design upstairs yes your dining table and the chairs to have your meals again whom you have in mind your toilet again the toilet is designed for whom do we ever imagine that maybe after 10 years I may myself become disabled and I may have to use wheelchair and then my own toilet may become inaccessible for me so this design gap is ominous and this design gap perpetuates the culture of wielding privileges disproportionately so again therefore I would not look at disability with indifference rather I would like to say that disability indicates a diverse universe of humanity it's an indicator of a diverse universe of humanity therefore I would like to argue that when you look at disability please look at it in terms of difference alone in terms of diversity alone and let's nurture the idea of respect for difference for example using metaphors like blind belief or justice is blind or love is blind or don't give lame excuse how you are portraying disability very negatively in fact if I were given the opportunity I would turn upright down Muhammad and I would be the person to really start any program of diversity by garlanding the portrait of Dhritarashtra because he fought for his rights I want to attribute him his right as a king why he should be deprived of the throne just because he's blind why mantra be portrayed as disability or why a character I think in Krishna's epic I don't remember her name but who used to be very waving and then Krishna just touched his touch her body just give her a big push and then she became normal so why God's association with disabled must be portrayed to symbolize that okay he would make the disabled normal as if disabled are simple and the normal are not so simple if that was the situation then this world would be a very beautiful place with no sense at all because majority is without disability last point and then I may conclude is this that when you encounter a disability or person with disability how should you respond there may be a number of number of ways some people may hesitate how I should interact with somebody who is disabled I don't know can do this person understand the normal language so I remember traveling from US to India and onboard the flight airport air flight person asking me sir how do we feed you and I I was I very wittingly asked him how do you feed your other customers and then he said but sir you're disabled so what I'm blind but I can eat by myself can't you see my hands working so don't try to emphasize on the non-normals on the non-normals right try to for example if somebody meets me often I get this question how sir how do you read how do you write and I'm I'm Bethel somebody from Harvard in a conference asked me sir how are you able to update yourself as a professor I would be happy if she or he would ask me sir can you please throw light on freedom of speech and expression as an expert of constitutional law but no because I'm disabled the first question will always be pointed on my ability because they feel that I have acquired this ability unnatural as if my knowledge of law it's something which is superimposed on me and not otherwise worthy of acquiring this knowledge because why because you're attaching centrality to my disability you're not attaching centrality to my ability and therefore these hopeless words like different ability or special ability or visually challenged it's all nonsense ability is ability it cannot be different or special just last point there are two basic approaches to address persons with disability one approach is known as the person first approach wherein I will be addressing myself as I'm a person with visual impairment here my I'm giving primacy to my person over my disability whereas there is other approach which is known as the identity first approach according to this approach I'm a disabled person because society has disability I was only person but because society disabled me with its barriers therefore I am disabled persons so feds to conclude although the word disability may look very simple to you very innocuous to you although you may find nothing in really talking about or articulating about disability I hope that with this very hurriedly prepared talk I've been able to consultize you I've been able to throw some light shine some light on the important aspects of disability and I hope that after this lecture those who have heard me would never use terms like lame excuse or blind belief right I would like to thank Mr. Vikash Chaturthor giving me this wonderful opportunity to have interaction with you if you have any questions I would be more than happy to respond to those questions thank you the entire camera and such a fashion that everybody was mesmerized the way you took the session I am reminded the famous wordings of the Helen Clare where he says the only thing worse than being blind is having sight but no vision and the another word which comes in the mind of a common man would be kindness is the language which the deaf can hear and the blind can see therefore these all what you have sensitized I will think that the point will be well taken by this society at large here blind sightedness to a lot of issues would be actually be displayed today and again I am repeating that one should always remember that having a sight is also important but the vision is more important to yeah so as long as you are a role model for everyone that since you had the vision mission to succeed and make people sensitized about the issues you have become a torch bearer for many and we all wish that you continue to inspire people before they expire thank you sir it would always be thank you sir my pleasure my pleasure we will always be spellbound by your knowledge being shared and always be indebted the way you have taken the sessions we will stay connected on this platform and otherwise also yeah people would always be happy with your knowledge being shared across the platform across the globe thank you thank you