The Narendra Modi government in 2016 replaced the terms ‘viklang’ or ‘disabled’ with ‘divyang’ for describing persons with disabilities. However, due to the un-participative process of change in terminology, the government failed to correct the deeply entrenched linguistic and epistemic injustice against persons with disabilities. Now, even the judiciary has declined to entertain a plea challenging the use of terms ‘divyang’ and ‘divyangjan’.
My petition in the Madras High Court asked for the removal of all derogatory terminologies, including ‘divyang’ and ‘divyajang’ from legislation, policies, circulars, notification, among others. However, the court has made observations that show the insensitivity prevalent in India in matters of disability.
In its short judgment denying the remedy sought by me, the first female visually challenged advocate at the Madras High Court, the court noted that the expression ‘mental retardation’ had already been corrected to ‘intellectual disability’ (however, there are several legislation that still needs to be amended). With respect to the prominent use of ‘divyang’ in official narrative, the court noted that the Union government “arrived at the words ‘divyang’ and ‘divyangjan’ upon a conscious effort to ensure the use of appropriate words and expressions, in consultation with the States and Union Territories”. So, “such matter should not be stretched to the point of absurdity”.
What is even more concerning is the fact that the court did not evaluate this official terminology on the touchstone of constitutional principles. It was content with noting that the government’s adoption of this nomenclature was pursuant to a reasonable process that “intended” to move towards sensitivity. The judgment also ignores the recent Supreme Court decision in Vikash Kumar v UPSC (2021) where the top court had taken note of the Convention on the Rights of Persons with Disabilities’ (CRPD) observation about derogatory official terminology and expressed its “earnest hope that the paradigm-shifting conversation about the rights and status of the disabled, that the CRPD Committee has generated, will find a resonance in the language we use to refer to them”.
Not only did the Madras High Court miss an opportunity to affirm the right to dignity of the persons with disability, it also patronisingly advised me to pay “greater emphasis” on the “effective measures adopted by the State rather than following the fad of political correctness as to the expressions used to describe them”.
The high court judgment also ignores the observations of the Supreme Court in Manju Devi v. Onkarjit Singh Ahluwalia (2017) where the court found the term ‘harijan’ to be offensive as it humiliated someone. It fails to take note of the Supreme Court’s judgment in Indelible Creative v State of West Bengal (2019) where the court was sensitive to exclusionary impact of seemingly un-offensive speech when it has “the power to confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them more”. The Madras High Court ignores the reasoning in Navtej Johar v Union of India (2018) where the “social effects and manifestations” of cultural stereotypes was given due consideration while invalidating the section 377 of the IPC.
The high court observation seems to be innocent of its essential duty to “act as external facilitators” of the process of imbibing and preserving constitutional morality in our fundamentally hierarchical, ableist society that denies equal citizenship to persons with disability. This duty, as explicated by the Supreme Court in Navtej Johar v Union of India (2018), includes the “responsibility to monitor the preservation of constitutional morality as an incident of fostering conditions for human dignity and liberty to flourish”. The court has also failed to look into the concerns raised by the United Nations, which monitors the implementation of the United Nations Conventions on the Rights of Persons with Disabilities, wherein India is a signatory.
The judgment presumes the existence of an arbitrary and vague ‘limit’ up to which the matter of ‘hurtful epithets’ can be raised. In raising this arbitrary limit on the exercise and assertion of constitutional rights by the hitherto invisible minority of persons with disability, the court is “unwittingly giving disproportionate weight in [its] doctrinal calculus to the interests of those whose perspectives come most naturally to [it]”.
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How India ignored a global principle
‘Nothing about us without us’ is a recent principle adopted by countries at large when taking any decision that affects the lives of persons with disability. But this principle was utterly disregarded when the Bharatiya Janata Party-led National Democratic Alliance government renamed the Department of Empowerment of Persons with Disabilities under the Ministry of Social Justice and Empowerment to Department of Empowerment of Persons with Disabilities (Divyangjan).
Prime Minister Narendra Modi, during his signature Mann ki Baat programme in 2015, had suggested that the term ‘divyang’ meaning ‘divine body’ be used instead of ‘viklang’ or ‘disabled’ for persons with disabilities. He said: ‘We see a person’s disability with our eyes. But our interaction tells us the person has an extra power. Then I thought, in our country, instead of using the word ‘viklaang,’ we should use the term ‘divyaang.’ These are people who have a limb or several limbs with divine powers which we don’t have’.
Kalpana Kannabiran, former Director of the Council of Social Development, Hyderabad, has delineated in her book Tools of Justice (2012), how the socio-cultural and literary metaphors and idioms othered, patronised and stigmatised the persons with disability. She had demonstrated how disability was moral turpitude or ritualistic defiance, which was either “the consequence of endangering prenatal conduct on the part of the expectant mother, or as a penalty for wrong-doing in a previous birth, or as the result of a curse”. Thus, an important opportunity to adequately subvert these hegemonic social conditioning was missed by the government through imposition of a term that detracted from fundamental human fallibility and embraced problematic notion of divinity.
That this happened despite the effectuation of United Nations Convention on the Rights of Persons with Disabilities, 2006, represented a grave injustice.
Activists reasoned that “human diversities cannot be divine” and called out Divyang for being a “regressive terminology, which is dehumanising persons with disabilities”. Asserting that “disability is not a divine gift and a new term does not ensure de-stigmatisation or an end to discrimination”, they underscored the need for governmental identities to accord dignity to persons with disability.
Even the CRPD, in its concluding observations on the initial report of India, mentioned it was concerned about: “Legislation, public policies and practices that discriminate against persons with disabilities in particular guardianship, institutionalisation, psychiatric treatment and segregated community services based on disability, and negative perceptions, including ‘normal life’ as opposed to the lives of persons with disabilities, and derogatory terminology like ‘mentally ill’, or ‘divyangjan’, the latter which is still controversial.” My petition before the Madras High Court relied on this very observation.
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A case of ‘jurisprudential dissociation’
By not acknowledging the real impact of derogatory official terminology on persons with disability, and by ignoring the arguments of the disability rights movement, the judgment betrays a failure to empathise with those whose lived experiences are fundamentally different. Hence, this appears to be, in clear terms, an instance of ‘jurisprudential dissociation’ which is ‘a strategy devised by constitutional courts in India to circumvent providing critical protections to vulnerable communities against discrimination and loss of liberty, even while acknowledging in unequivocal terms, in the same case, that it was the duty of the court to protect the fundamental rights of every citizen’.
This failure to ‘envision the practical consequences on one’s contemporaries of a law or a legal decision’ marks not only a setback to the disability rights movement but also the constitutional promise of judiciary as the ‘last resort of the oppressed’. By its judgment, the court has in fact legitimised the acts of the government, which had blithely ignored the rights-based discourse to embrace a terminology rooted in the regressive charity model of disability.
Karpagam is the first female visually challenged Advocate at the Madras High Court. Dhawan @prannv99 is a founding member of the National Law School Diverseable Alliance. Views are personal.
(Edited by Anurag Chaubey)