A retreat from disability jurisprudence

Courts often lean on and develop existing jurisprudential principles to shed light on matters of public significance. Every now and then, when such issues are thrust into mainstream public discourse, one hopes for a deeper judicial engagement with the questions at stake. Failure to do so risks disrupting the existing legal framework and creating inconsistencies. A recent incident did just that, undermining the court’s past wisdom.

This deviation was reflected in a recent Supreme Court order, underscoring the significance of adhering to and building upon established jurisprudential principles. The case made headlines when comedian Samay Raina made offensive jokes targeting persons with visual disabilities and infants with Spinal Muscular Atrophy (SMA), a rare genetic disorder. In the matter, the Court directed the drafting of guidelines “which would adequately protect the interests of all parties, without impinging upon the individual rights, dignity, honour, and respect.” More recently, the Court addressed the creation of a fund to provide financial aid for persons with SMA. While the respondents agreed to raise funds, the Court remarked that through genuine remorse and commitment, they could leverage their platform to boost publicity for the cause. 

Though hailed as a symbol of retributive justice, upon closer scrutiny, this order suffers from numerous incoherencies and legal pitfalls. It addresses disability justice only at a surface level, which is ironic considering the thorough examination of such concerns by the Supreme Court earlier. 

Last year, the court navigated similar challenges in the case of Nipun Malhotra v. Sony Pictures Films India Pvt Ltd and made strict observations about the depiction of persons with disabilities (PwDs) in the media. 

Malhotra eloquently distinguished between disabling humour, which demeans and perpetuates stereotypes about PwDs, and disability humour, which challenges conventional notions and societal perceptions of disability. The Court reiterated that speech and expression further marginalising and disenfranchising PwDs, will not enjoy the full protection of Article 19(1)(a) of the Indian Constitution. Although the Court stopped short of issuing guidelines to restrict content contravening the RPwD Act and the Constitution, stating that it could not enter the domain of policymaking, the Bench created a nine-point framework on the representation of PwDs in media. This landmark judgment, authored by then CJI Justice Chandrachud, established jurisprudence on the imagery of persons with disabilities in media and the use of humour that entrenched attitudes toward marginalised social groups.

The Malhotra judgment was the first of its kind to bring the issue of stigmatisation of persons with disabilities in the media into sharp focus. 

Conversely, the order in Raina’s case raises concerns on numerous counts. A deeper engagement with the framework laid down in the Malhotra judgment could have fostered greater judicial coherence towards the drafting of the guidelines. 

In Malhotra, the court recognised the need to prevent discrimination against PwDs, due to its disproportionate impact on their dignity and identity, subjecting them to social ostracisation. From that standard, the Raina order is a disturbing disappointment. Here, the court appears to diverge from the rationale of Malhotra, framing discrimination based on disability as a matter of charity rather than a deep and pervasive societal issue. Rather than deliberating upon the systemic and structural exclusion faced by persons with disabilities on a daily basis, the courts’ insistence on creating and sustaining funds for persons with SMA regrettably treats the issue as a one-off incident.

In Raina, the respondents sought court’s permission to invite persons with SMA on their platform to raise awareness and showcase their stories. The court granted the same. However, such appearances reinforce the charity model, situating persons with disabilities as objects of inspiration or sympathy, directly subverting the dignity-based jurisprudence articulated in Malhotra.  

Ultimately, Samay Raina neither builds upon nor adheres to the path laid down in Malhotra. On the contrary, it alarmingly undermines the law established there. 

Disability jurisprudence is still in its infancy in India, with courts continually dispensing new interpretations and clarifications of the barely decade-old legislation. The present scenario thus necessitates interconnectedness with the existing legal principles and established frameworks. Ad hoc adjudication of matters strung together with threads of similar shades will not further the purpose of the law. 

While the case is still pending disposal, not all seems to be lost. It can be an excellent opportunity for the court to affirm and expand on the framework laid down in Malhotra’s judgment by drafting robust guidelines for digital platforms and media to discuss and portray disability. The court must solidify the law by infusing congruity into its judgment, thus developing a thorough and dependable precedent.

(The writer teaches law at the O P Jindal Global University, Sonipat)

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)