In Supreme Court’s ruling on disabled advocate, a positive verdict in problematic language

While the ultimate outcome of the judgment is favourable to the appellant, to arrive at this determination, the Court made some very unfortunate observations that betray its lack of awareness about the current thinking on disability rights. It held that in the era of competition, the appellant cannot compete with “normal men”. Worse still, it made the blanket observation that, to be a proficient advocate, “the person must be physically fit as he is required to move frequently to attend the professional work, reaching from one Court to other, and for movements to complete other   professional commitments.” The Court further noted that the appellant was required to make extraordinary efforts to attend court proceedings and come up to the expectations of a client.

There can be no dispute with the fact that the appellant’s disability qualitatively and quantitatively affected his productivity as a legal professional. Thriving as a disabled professional in a world designed for the able-bodied is indeed extraordinarily challenging. However, the Court’s disparaging remarks on the capabilities of an advocate with a disability were completely uncalled for. It is one thing to recognise the genuine additional hardship faced by a disabled person. It is quite another to treat them as an object of charity and sympathy. The Court should have only done the former.

The Court would have done well to remember the observations made by a coordinate bench of the Supreme Court: “A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well.” Further, in its judgment in Vikash Kumar v. UPSC and others, a three-judge bench of the Supreme Court, while ruling on a plea for the grant of reasonable accommodation by an appellant with a disability, had titled a segment of its judgment as “the language of our discourse”. The language of our discourse, it held, “as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realising the rights of the disabled.” It had pointed out the enduring impact of the use of insensitive language on the way the disabled view themselves and are viewed by society. Such language, it had emphatically noted, “offends the human dignity of persons with disabilities.” Similarly, in its concluding observations on India, the Committee on the Rights of Persons with Disabilities had expressed concern about the way the lives of the disabled are compared with “normal life” and objected to the use of derogatory terminology such as “mentally ill” and “divyangjan.”

The Court’s problematic observations are also at odds with the fact that the UN Convention on the Rights of Persons with Disabilities, and India’s Rights of Persons with Disabilities Act of 2016 (RPwD Act), mandate that all public buildings including courts must be made accessible to persons with disabilities. The RPwD Act guarantees the right to access justice to persons with disabilities. Though there are accessibility standards in place for public buildings, they are generally poorly implemented, not regularly inspected or audited by persons with disabilities and dogged by resource deficits.

The Court’s admission that practising law as a disabled person is extraordinarily difficult in India should prompt course-correction. The Court should use these observations to reflect on what it has done of late to make its infrastructure (physical and digital) more disabled friendly. It should identify pathways for actionable change and pursue them with sincerity. It should ensure that judges across India are regularly sensitised to the lived realities of the millions of disabled individuals. Such constructive action would smoothen the path for other disabled lawyers and citizens accessing the court system in future. Such a response would also be in tune with the forward-thinking approach on disability that our laws guarantee and that our courts are sworn to uphold.

 The writers are with the Vidhi Centre for Legal Policy