Image description: An old woman on a wheel chair being escorted to a polling booth in India.
One of the many positive contributions of the Indian Supreme Court’s decision in Vikash Kumar v UPSC is its call for reflection or ‘introspection’ about the relationship between ‘the language of our discourse’ on disability and the ‘path which our society has traversed and the road that lies ahead’ (para 1). It recognised that such language has an ‘enduring impact in shaping the way the society views the disabled and the way they view themselves’ – even if those using it are unaware of the risk of negative consequences and do not intend harm (para 68). It urged that the language used must ‘evince a clear desire to make the disabled feel empowered and included’ rather than ‘alienated and situated … on a pedestal or in a cage’ (para 67); and must reflect a ‘human rights model’ rather than a ‘medical model’ and must not offend ‘the human dignity of persons with disabilities’ (para 68). The Court expressed ‘our earnest hope’ that the paradigm-shifting conversation about the rights and status of the disabled … will find a resonance in the language we use’ (para 69).
Disability rights activists and scholars have long recognised that the choices they make about disability-related terminology matter. Indeed, as discussion lists such as Disability Research demonstrate, questions about terminology continue to generate requests for guidance and lively debate. A particularly enduring question is that of the relative merits of ‘disabled people’ language (which reflects the social model idea that society disables people with impairments) and ‘people with disabilities’ language (which positions the person before disability). Powerful reasoning, consistent with a human rights approach to disability, underpin both and, in truth, contextual factors are likely to influence choices about which of them is most appropriate for purposes of the particular communication concerned.
Debates about terminology and discourse are therefore an established feature of Disability Studies and disability politics. As made clear by various contributors to The UN Convention on the Rights of Persons with Disabilities in Practice edited collection, the advent of the CRPD – particularly Article 1 and preambular para (e) – has prompted courts in a range of jurisdictions to reinterpret the concept of ‘disability’ and refer explicitly to ideas such as the social model and human rights model of disability. None of this, however, in any way diminishes the significance of the Vikash Kumar call for judges to use language which challenges rather than reinforces disabling attitudes.
This call goes beyond issues of legal interpretation. It focuses more broadly on the language through which judicial rulings are articulated – thus implicitly acknowledging the expressive function of Law and the responsibility it places on law-makers, including judges. The Supreme Court criticises references made in the judgment of the lower tribunal – to the applicant ‘suffering’ from writer’s cramp and the description of that condition as a ‘disease’ – not because of any error in legal reasoning, but because this language suggests that disability is ‘an affliction that causes suffering’, an understanding ‘rooted in the medical model of disability’ (para 68). The Vikash Kumar call to action is an appeal to judges to reflect consciously on what disability-related language they choose to use, and to ensure that disabled people regard it as fostering inclusion and empowerment. This requires an attentiveness to the views of disabled people and their organisations which, in turn, suggests a need for disabled people’s organisations to be invited to contribute to judicial training and guidance.
The fact that the Vikash Kumar call to action will entail listening to and learning from disabled people is noteworthy. So too is the fact that the entire judgement reflects a commitment to a reflexive, outward-looking approach and recognition of the potential value of attentiveness to sources external to domestic legal systems. It is replete with references to the CRPD, the Committee on the Rights of Persons with Disabilities, caselaw and legislation in other jurisdictions, and the work of commentators. This evinces the type of openness to ideas and perspectives that is so crucial to processes of reflection about future discourse. It also reminds us all that this is an issue that reaches across borders and that the Vikash Kumar call to action is one which is relevant to justice systems all over the world.
This post is the last blog of the series titled ‘The Development of Disability Rights in the Indian Supreme Court’.