Our prisons are not equipped to provide custodial treatment that does not erode the fundamental rights of prisoners with disabilities.
Since its adoption, the Indian Constitution has provided the opportunity for an expansive enunciation of basic rights. It has moved to an interpretive tradition that upholds the spirit of the fundamental rights to life, liberty, and equality with dignity, among others. There is little doubt that it has provided the framework for an assertion of fundamental rights importantly against not only the state, but also private actors, providing the standard of constitutional morality that must in all cases defeat public, including religious, morality. This is especially critical where the latter is found to perpetrate stigmatised identities that diminish the dignity of persons and oppress them in untold ways.
In the past months, we have been witness to the virtual negation of the constitutional spirit in every sphere of our public life. State authorities, supported by constitutional heads, justices and priests, propitiate mother goddesses instead of constitutional rule. And constitutional courts see criticism of the government and the police as contumacious conduct. Behold the disablement of a constitutional democracy!
In this melee, we also witness another crisis: the roll-back of hard-won recognition of disability rights in India by the very constitutional authorities entrusted with safeguarding and advancing them.
‘Viklaang’ versus ‘divyaang’
On December 27, Prime Minister Narendra Modi spoke for a few minutes about disability on ‘Mann Ki Baat’: “Those in whom Paramatma has created a deficiency in the body, those for whom some part of the body does not work properly, we call them ‘viklaang’… But sometimes, when we get to know them, we realise that although there is the deficiency that we see with our eyes, Ishwar has given them some extra power, there is a different kind of shakti that Paramatma has created within them which we cannot perceive with our eyes. But when we see… their capability, we are taken aback, ‘Arre wah? How does he manage to do this?’ Then, I had a thought: ‘From our eyes we feel that he is ‘viklaang’, but from experience we find that he has some extra power, atirikt shakti.’Then I had another thought: ‘Why don’t we, in our country, replace the word ‘viklaang’ with the word ‘divyaang’?’ These are those people who possess divinity — divyata — in one or more parts of their body; whose bodies are possessed by divine power (divya shakti), which those of us with normal bodies (saamaanya shareer) do not have. I really like this word. Compatriots, can we adopt ‘divyaang’ instead of ‘viklaang’ in common usage?” In other words, that which is divinely ordained shall not be questioned. The “deficiency” and the “divya shakti” are Siamese twins that constitute the disability stereotype.
On December 23, a single judge of the Nagpur Bench of the Bombay High Court passed an order rejecting the bail application of Delhi University professor G.N. Saibaba on medical grounds, stressing his involvement in a “serious crime”. It said the activities of a “banned organisation” overrode any concerns for his physical health and well-being while in state custody; it even went to the extent of saying that all efforts to secure bail for him on medical grounds are nothing but “subterfuge”. It is useful to bear in mind that we are speaking of a person who has been placed under arrest, but has not yet undergone trial and has certainly not been convicted for any offence under the Unlawful Activities (Prevention) Act.
The court accepts that “the applicant suffered 90 per cent disability from his childhood. He had also undergone cardiac surgery about 8 to 10 years before.” The medical certificate relied on by the court states that Dr. Saibaba suffered from a known case of post-polio residual paralysis with “chief complaints of reduction in left shoulder movements and pain in [the] back…” He was advised to go through regular treatment for three months, and was also advised by the doctor in the super-speciality hospital at Nagpur to undergo a coronary angiography. On the basis of these medical records, the court concludes that the “present health condition of the applicant…is perfectly normal and is in the same position as it was when he was in jail” [emphasis added].
The fact that his disability and attendant medical conditions place Dr. Saibaba at an unfair disadvantage in conditions of custody — that the standard of care required for a person with severe disabilities is of a different order from the standard of care for a non-disabled person; that the standard is not met by simply ensuring the maintenance of status quo (although even this is contested by the applicant); that conditions of incarceration aggravate the risk to life disproportionately in the case of a person with disabilities — does not enter the balance sheet. The tenor seems to be that the diabolical acts that the complainant is alleged to have sympathised with offset any need for state and judicial benevolence. The Constitution hangs in suspended disbelief.
Between the divine and diabolical
Trapped between the divine and the diabolical, it is time, yet again, for us to understand afresh that the disproportionate disadvantage, exclusion, and stigmatisation suffered by persons with disabilities are a result of discrimination against them, and are caused by cultural, social, and physical barriers that obstruct their effective participation in social and political life. Disability is not a divine gift — this assertion is a grave misreading of the place of rights in realising human dignity, and the role of the state in ensuring protection against discrimination. In the same vein, it is important to recognise that accessibility and support services for persons with severe disabilities are indispensable to the protection of their right to life, bodily integrity, and dignity under the Constitution. Incarceration of persons with severe disabilities aggravates their suffering disproportionately in comparison to other prisoners, defeating the fundamental right to equality. For this reason, it must only be used as a measure of last resort, if at all. We need an honest acknowledgement, at least by constitutional courts, that our prisons are simply not equipped to provide custodial treatment that does not erode the fundamental right to life, equality, and dignity of prisoners with disabilities. There is an urgency with which we must wrest constitutional ground for disability rights in these strained times. Importantly, we need a re-education on the Constitution at the highest echelons of our juridical-political order.