Disability, Difference and Pursuit of Equality

The stated objective of the current disability law regime worldwide is to achieve equality between the disabled and the non-disabled. Notions of formal and substantive equality are deployed to this end. These two approaches differ in how they negotiate with the notion of “difference”. The formal approach to equality is concerned with “equal treatment”, i e, likes must be treated alike and unlikes must be treated differently. In other words, the task of the courts when faced with question of equal/unequal treatment of two individuals or groups, is to find out whether the individuals/ groups in question are similarly situated or not. Any finding of “intelligible” difference precludes any further inquiry of equality.

In the formal approach, “difference” justifies “differential treatment” even if it is unequal in effect. For instance, segregated educational facilities for disabled children would be immune from an equality challenge under the formal approach, since there is “objective” difference between disabled and non-disabled children. Substantive equality, on the other hand, focuses on the actual impact of the law. The debate shifts from the question of sameness/difference to the issue of “disadvantage” owing to the “difference”. Here, any equality analysis takes into account the context of systemic and institutional exclusion or subordination and attempts to remedy it substantively. In case of the disabled, this implies taking into account both the social barriers to participation as well as the limitations posed by the body (impairment). However, pursuing substantive equality for the disabled does not mean that the question of sameness/difference is irrelevant, but in fact entails recognising and actively engaging with “difference”, albeit for a different purpose. The substantive approach for the disabled, hence demands that “difference” is accommodated rather than ignored or assimilated.

Thus, the question as to how “difference” is appreciated, conceived and accommodated in law is central to the project of achieving equality between the disabled and the non-disabled. In case of the disabled, where the “difference” is located in the body or is in terms of restriction of activity, how does the principle of equality operate then? And how is equality between the disabled and the non-disabled negotiated and ensured in the judicial discourse? As we show in this paper, the judicial construction of “difference” is coloured by the cultural notions and stereotypes about the disabled and also medical knowledge, which, in turn, influences the model of equality pursued.

The first step in this process is to determine the nature and e xtent of the “difference” between the individuals or groups in question. The need for “evidence” being central to the legal pro cess, the medical discourse is instrumental in validating and quantifying the “difference”. Further, since ensuring substantive equality for the disabled requires recognising and accommodating the “difference”, facilities such as ramps, accessible transport, disabled friendly lavatories in public buildings, and other infrastructural modifications become central to the enforcement of equality. Faced with resource constraints, the courts often r estrict the availability of State assistance to only a few categories of d isabled people. The focus of the judge then is not on the existence of impairment but on the level of vulnerability and the actual need for support necessitated by the impairment (discussed below). This involves the question of securing equality not only between the disabled and the non-disabled, but also among various categories of disabled people themselves. This once

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again indicates that the pursuit of equality is contingent upon how “ difference” is construed by the law and the judicial discourse.

Disability and Juridical Construction of Difference

Much of social policy, including law is driven by the notion of disability as “personal tragedy” which needs to be compensated. Such a view is underlined by the construction of disability as an individual problem located in the body of the disabled person. The focus on the individual body not only flags the themes of need and capacity, but also accentuates the process of medicalisation and a consequent undermining of the role of social factors in the genesis, definition and management of disabilities. Medicalisation could be defined as the process of applying medical knowledge to individual and social problems and establishing medicine as an instrument of their management and control. In the context of disability, the medical model has played a fundamental role in the categorisation and labelling of bodies as normal or pathological; and devising medically oriented remedies to control the manifestations of impairment and bring the disabled in conformity with an assumed norm of normality, which is more often than not the condition or perception of the majority. As Mike Oliver argues, “the disabled individual is an ideological construction related to the core ideology of individualism and the peripheral ideologies of medicalisation and normality” (1990: 58).

An important consequence of medicalisation in the context of judicial adjudication of disability is the important role accorded to the medical professional in mediating the relationship between the State and disabled people. Medical assessment determines who are deserving of legal entitlements, protections and welfare benefits. The PWD Act classifies “disability” into seven categories, namely, blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness.6 Further, there are medical parameters defining each category of impairment.7 For a person to avail of the rights and protections under the act, she must have been certified by a “medical authority” as having at least 40% disability.8 Thus, locating and understanding the process of medicalisation in the judicial d iscourse is crucial to unravel what conditions are recognised as disabilities and who is the subject of disability law.

Such a medically-inspired schema of the act has been criticised by activists, for all those disabled persons who do not fall within the strict parameters of the seven categories are not entitled to the protections of the act. Another criticism of such medicalised definition of disability is that a singular focus on impairment for the purpose of legal redressal, distracts attention from the social and structural barriers that prevent participation of the disabled in society. The judgments discussed in this paper show how medical interpretations of disability are deployed to buttress claims and counter-claims in disability adjudication. They also highlight the impact of such pervasive medicalisation on the legal rights of disabled persons.

The other significant theme running through the judgments is that of capability. The Oxford English Dictionary defines “ capability” as the power or ability to do something. Capability is a contested concept as it is often coloured by stereotypical n otions about the disabled as unproductive and dysfunctional. Such stereotypes are often at play in judicial decisions relating to educational and employment opportunities. Capability as a concept is grounded both in the sociocultural notions of disability and productivity, and the medical discourse. The association of dis ability with the lack of productivity is attributed to the rise of industrial capitalism in the west and the attendant mechanisation of labour and the new norms of production which were unfavourable to the disabled. The replacement of home and community-based production with the factory as the site of production meant the removal of the disabled from the economic process and their relocation in institutions and sheltered workshops (Oliver 1990; Finkelstein 1980). The construction of the disabled as without c apability is further entrenched by the pervasive medical determinism in the diagnosis of disability which gives rise to reductionist views about the abilities, capacities and potential of the disabled. The judgments show that the judicial attitude to the question of capability is influenced to a large extent by the o pinion of the medical professionals irrespective of whether the functional ability of a disabled person in a specific situation is at all affected by the presence or absence of the impairment. As it appears, there is the assumption of a normative person with a certain range of abilities, capacities or capabilities deemed n ormal. This unstated norm is subtly invoked even in the most enlightened judgments that view disability as primarily inflected by social constraints.

The PWD Act’s recognition of specific categories of disabilities raises the issue of differential levels of needs assessment and e xtent of vulnerability. The homogeneity of disability proposed by the disability rights movement and to some extent endorsed by the CRPD is put to the test when claims and counter-claims are made by persons having different disabilities. Such cases r econfigure the subquotas within quotas debate in an ethically fraught context where suffering and injustice are pried open on pragmatic grounds.

Medicalisation of Disability

Medicalisation is the keynote of disability law in the Indian context, even when it is challenged in the course of adjudication. In this section we will illustratively highlight how medicalisation pans out in concrete cases. It will be noticed that even though medical criteria are central in enabling a person to stake claims on grounds of disability, in the majority of cases medicalisation helps in maintaining the status quo by working against the claims of the petitioner. One reason for this is the universality of biomedical categories is seriously undermined in actual practice due to frequent disagreements among experts. When this happens in the judicial context, it can complicate the situation even more with serious implications for the legal rights of the disabled person. In the face of conflicting medical opinions, judges have been found to creatively take recourse to more contextually based n otions of disability and capability thus questioning the often taken-for-granted equivalence between medical and legal definitions of disability.

In Naveen Kumar vs University of Delhi,9 Kumar, a physically challenged person, using a wheelchair, was denied admission to the Bachelor of Engineering (BE) Computer Science course, on account of his impairment. The petitioner had secured a rank of 5,016 out of 25,000 in the entrance test and hence was eligible for admission. In the court, the respondent, the University of Delhi argued that Kumar was so “badly handicapped” that he would not be able to undertake the requirements of the course successfully, and that as a result, it would amount to unnecessarily blocking a seat, which

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could have otherwise benefited another “deserving” candidate. While the court stressed the statutory o bligation of the Delhi University to pursue affirmative action and granted that the petitioner was entitled to be considered for the seats reserved for the disabled, it refrained from commenting directly on the question of Kumar’s ability to pursue the course in the light of his impairment. Instead, it directed the medical o fficer (MO) of the university to examine him and find out whether his impairment would prevent him from pursuing the course. The MO was specifically directed to take the petitioner to the workshops and laboratory and observe, “(t)hat while working on m achines, he would neither be endangering his own life and limbs nor in ordinary course his presence to pursue studies would cause damage to the instruments and other apparatus in the laboratory and workshop”. The judge disposed of the case, by directing the university to decide the question of admission on the basis of the medical examination within a stipulated period of time.

This case illustrates one of the central criticisms against medicalisation of disability. The judge proceeded on the assumption that the “problem” rested in the impairment of the petitioner and then set to depute a medical authority to assess whether Kumar would be able to meet the demands of the course and whether his impairment would prevent him from accessing the laboratory, workshops, etc. An alternative judicial course of action in this case would have been to direct the university to implement the provisions of the PWD Act, which provides for changes in the c urriculum and adaptations in the built environment to facilitate the exercise of rights by the disabled.10

Virender Kumar Gupta vs Delhi Transport Corporation11 (DTC) is a paradigmatic case since a majority of the cases that have come up for adjudication before the courts have similar fact situations, raise similar questions and the litigants make similar claims and counter-claims. Gupta had been working with the DTC as a bus conductor. As a result of an accident, he sustained injuries and was admitted to the All India Institute of Medical Sciences (AIIMS), in Delhi. On being discharged from the hospital, he was given a medical certificate stating that he had recovered from his injuries, but was fit to undertake only a desk job. He rejoined work and sought to be assigned an appropriate desk job at the bus depot where he had been working. He was asked to appear before the medical board of the DTC and undergo another medical check-up. Subsequently, he was retired prematurely based on the assessment of the board which found him medically unfit. The DTC argued before the court, that the MO of the DTC is a “competent authority” as per the regulations binding upon the DTC, and hence the order of premature retirement based on the report of the MO was valid. The petitioner, on the other hand, contended that he had been certified as medically fit by a premier medical institute of the country, and it was the DTC which was disregarding its statutory duty under Section 47 of the PWD Act. The court decided the case in favour of the petitioner by applying the abovementioned provision of law, which mandates the e mployer to provide alternative tasks to an employee who a cquires disability during the employment and maintain the same pay scale and service benefits that she was receiving before the o ccurrence of the disability.

Although the case was decided primarily on the basis of the l egal provision, it is interesting to note how the judge sought to

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resolve the conflicting medical opinions regarding Gupta’s physical condition. He placed his reliance on the medical certificate i ssued by the AIIMS, by noting that the assessment had been done by “an established premier and the famous hospital of the c ountry” (sic). He further reproached the DTC stating:

Even assuming that such a second opinion was necessary, the doctor of the Corporation could not have given an opinion superseding the opinion of a reputed and (sic) expert on the subject working in the i nstitute (AIIMS).

The reasoning behind this judgment not only highlights the manner in which medical opinion is used to disentitle the disabled, but also raises questions about the relevance of medical opinion as evidence in the first place. For instance, to what e xtent, is the statutory provision able to serve its objective independent of “medical proof” supporting it? Or, how would the case have been decided, if Gupta had been certified medically unfit by the AIIMS or, if he had not produced any medical report at all in his defence?

The judicial strategy deployed in Life Insurance Corporation of India vs Chief Commissioner for Persons with Disabilities12 helps answer some of the questions raised above. Harish Chander D abral applied to the Life Insurance Corporation of India (LIC) for the post of a peon. He also submitted a medical certificate stating that he was suffering from chorea (a neurological disorder characterised by jerky involuntary movements) entailing 45% disability. Having cleared the written test and interview, Dabral was asked to appear for a pre-recruitment medical examination. The medical examiner’s report was as follows:

Patient is suffering from Huntington Chorea. This is (a) slowly progressive disease and requires life-long medication. (He is not taking any medication) (It) this may respond to Haloperidol.13 Long-term psychological support and even institutional care may be required as d ementia progresses, which has already started to some extent. He is acceptable only if permanent sheltered employment is available. Has already 45% disability and is likely to increase. In my opinion unfit. However, ZMR (Zonal Medical Referee) opinion is needed.

Based on the above medical opinion supported by two other higher medical authorities, the LIC decided against employing Dabral as a peon. The latter lodged a complaint against this decision with the Chief Commissioner for Persons with Disabilities under Section 59 of the PWD Act. In the course of the hearing b efore the chief commissioner, Dabral submitted a medical certificate issued by the director of the Vivekananda Institute of Mental Health and Neurosciences (VIMHANS), New Delhi which stated:

A case of non-progressive Distonia14 (sic) affecting head and upper limbs. He appears mentally normal and medically suitable for being employed as a peon.

Faced with conflicting medical opinions, the chief commissioner directed Chander to undergo a fresh medical examination by the medical board of the government-run Ram Manohar Lohia (RML) Hospital, comprising specialists from the fields of neuroscience, orthopaedics and psychiatry. Thus a fourth medical opinion was delivered, which was as follows:

He is a case of Generalised Distonia involving face, neck and all four limbs. The total percentage of disability is fifty in relation to [the] whole body. It is also ascertained that the disability is permanent in nature and he is a physically handicapped person. His general intelligence is on an average and he can comprehend and speak normally. Cognitive functions (comprehension, concentration, memory, judgment and a bstract thinking) are within normal limits. He is fit to be employed for the job of peon.

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Based on this medical opinion, the chief commissioner disposed of the matter and directed the LIC to take necessary steps to appoint Dabral without delay. This order was challenged by the LIC before the Delhi High Court. Thus, there were a range of medical opinions before the HC with two experts claiming that Dabral was suffering from chorea and two others of the opinion that it was a case of dystonia, and which again differed on the extent of the disorder. Further, while the LIC doctors opined that he was unfit for the post of peon, according to the director of V IMHANS and the medical board of the RML Hospital, he was fit to be employed in that capacity. The HC judge stated his inability to comment on the different medical opinions and instead focused on the “technical” aspects of the problem alone. He took recourse to the tasks of a peon as enumerated in the Establishment Manual of the LIC and concluded that:

A bare perusal of the main duties of a peon indicates that none of the duties that he is required to perform is of a specialised nature or requires some skill or talent. It is possible that because of his disability, respondent No 2 may not be able to perform a couple of tasks, but it is not as if he is going to be the only peon working with the LIC. There will be other peons also and surely they can chip in once in a while so that all the main tasks of peons are carried out.

Since the judge did not find any legal infirmity in the manner in which the chief commissioner had arrived at his decision, the original order in favour of Dabral was upheld and the LIC was d irected to appoint him to the post of peon. What is noteworthy about the judgment is the pragmatic approach taken by the judge in resolving the claims and counter-claims. The medical opinions remain in the background and do not play any part in the final decision or the reasoning thereof. In the absence of any clear provision of law, the guidance comes not from the medical opinions regarding capacity/incapacity of the disabled person, but from the actual requirements of the task at hand and a s pecific individual’s capacity to undertake it. The focus shifted from the immutable impairment located in the body to the n ature of the task which can be adapted to suit the ability/ disability of the doer. The judgment illustrates how the seemingly uncontested powers of medicalisation can be subordinated in a pragmatic interpretative approach. The judgment also redefines the workplace not only as a site for the exercise of individual skill and achievement but as an interdependent space of m utual assistance.

Disability and Capability

Disability legislation, including the CRPD, is premised on the fundamental idea that society creates the barriers and oppressive structures which impede the capacities of person with disabilities. Capability theorists like Martha Nussbaum (2006) are of the opinion that there cannot be a different set of capacities or a different threshold of capabilities for persons with disabilities. This raises the critical issue of creating a level playing field whereby all citizens to have equality of fair opportunities to enable them to realise their full potential and experience well-being. The j udiciary is one of the fertile sites where the disability-capability debate unfolds in interesting ways as seen in the following judgments.

In Government of NCT of Delhi vs Bharat Lal Meena,15 the respondent Bharat Lal Meena had been appointed to the post of physical education teacher (PET) against the positions reserved for the disabled. After issuing appointment and posting orders to Meena, the government detected that there had been a mistake in appointing a “physically handicapped” person to the post of PET and issued showcause notice to the latter, demanding why his services should not be terminated. Meena challenged the government order and the showcause notice before the Administrative Tribunal, which ruled in his favour and quashed the government order. The government approached the Delhi High Court against the tribunal’s decision. The government argued that the “physically handicapped” cannot perform the duties of a PET, which include training students in several sporting activities r equiring the candidate to be physically fit with all four limbs in proper condition. Additionally, since Meena was appointed only on the basis of a written examination and the appointing board had not had an opportunity to ascertain the candidates’ physical ability through interviews or physical tests, their appointments were marred by procedural mistakes. The respondents, on the other hand, argued that if they were considered incapable of performing the duties of a PET, they would not have been awarded the degree of Bachelor of Physical Education in the first place, which was the minimum requisite for the post in question. The very fact that they were selected for the said course, which they were able to complete, proved that they were suitable for the post of a PET.

After reviewing the objectives and the legislative history of the PWD Act and after summarising the provisions relating to e mployment in the act, the judges noted:

…experience has shown that the government hardly gave effect to this provision of reservation. It is because, notwithstanding such provision, there is a general conception among non-disabled that persons with disability are not capable of doing any job. Such kind of perception brings out discriminatory treatment qua persons with disability when selection is to be made. More often, it would be seen, the e mployer would conclude that even if the reservation was made, the employer could not find suitable persons under this category for a particular job. It would thus become easy for the employer not to select anybody even if the advertisement provided for such a reservation. This mindset of the employer is creating difficulties in the implementation of the provision.

On the question of the capability of the respondents to carry out the duties of a PET, the judges accepted their argument and held that after acquiring the requisite degree, a person could not be told that he was not suitable for the job for which he had been trained and certified. Once such persons had completed the course, it is to be presumed that they are physically fit and competent to perform their duties.

The right to equality of opportunity of a person may be violated on the grounds of presumption of incompetence, a pre-judgment arising out of social prejudice rather than an objective assessment of the situation as illustrated in Amita vs Union of I ndia.16

Amita responded to an advertisement inviting applications for the post of probationary officer (PO) in the Indian Overseas Bank, wherein she mentioned that since she was visually impaired, she would require a scribe at the time of the written exam. However, her application was rejected on the ground that blind candidates are not recruited for the post of PO. Amita challenged this decision of the bank before the Supreme Court as violative of the fundamental rights to equality and equal opportunity. Drawing on earlier judgments, the judges concluded that the decision of the bank not to allow Amita to sit for the exam was unreasonable and arbitrary, and hence had indeed infringed her right to equality. Further, although she had

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applied as a “general candidate” and not as a reserved candidate for the said post, she was not treated at par with the other non-disabled candidates, implying violation of her right to equality of opportunity. The bank made a twofold argument in its defence. First, according to government regulations, the post of the PO was not “identified” for the visually i mpaired by the Department of Personnel and Training of the Government of India in 1986. Second, the tasks of a PO were manifold and complex “requiring greater alertness, presence of mind and maximum utilisation of all his/her physical and mental facilities”, as the functions of the bank had become varied and diverse with the advent of the liberalised economy. It was c ontended that:

(T)he officer in Savings Bank Account/Current Account Department is required to verify the specimen signature of the customers while passing cheques for payment. At the same time the Probationary Officer concerned should also know the customers who come to Bank on and off for transacting business and that it would not be possible for a blind officer to get to know about the customers and verify their signatures for day-to-day banking transactions.

On account of these factors, it was argued that the job of a PO was unsuitable for a visually impaired person. However, the bench ruled in favour of the petitioner stating that Articles 14 and 16 of the Constitution had indeed been violated as she had unjustly been discriminated against in being disallowed to sit for the PO examination conducted by the Indian Overseas Bank.

In the course of the litigation, it was pointed out by the petitioner that the tasks of the “Faculty Member/Training Manager, Administrative Officials, Economic Affair Officers, Raj Bhasha Adhikari/Hindi Officer, Law Officer, etc” can be performed by visually impaired persons without much difficulty. Another issue raised by the petitioner, but not emphasised in the judgment was that of the role of technology in mitigating the limitations of i mpairment. The petitioner informed the court that she had been pursuing an advanced diploma course in computer application and access technology which would help her use the computer as an effective tool for reading soft copies of texts, to create and edit documents, to browse the web and send mails without any a ssistance.

This case had wider ramifications as it led to the long overdue revision of the list of jobs considered suitable for persons with d ifferent types of disabilities at various levels of government service. In this regard, one of the posts identified as suitable for visually impaired persons was the post of PO.

Disaggregation of Disabilities, Vulnerability and Differential Needs

Although the PWD Act and the CRPD posit disability as a more or less unified category, competition among persons with disabilities for limited resources often results in differential assessments of limitations and needs leading to contestation and conflict. Resolution in such cases shows a high level of reliance on contextual variables and the subjectivity of the deciding authority. Kaukab Naqvi challenged an order of the Indian Railways (IR) to offer differential concessional fares to disabled travellers and to at least one person accompanying them.17 However, full reimbursement of fare was only available to the escort of blind persons, TB patients, mentally retarded persons, thalassaemia patients of other major diseases and cardiac patients. The petitioner, whose sister was “deaf and dumb” and had to travel regularly from a place in Uttar Pradesh to Delhi for

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treatment, challenged the o rder on two counts: First, while 75% concession was given to other categories of disabled persons and those suffering from thalassaemia and cardiac problems, the rate of concession available to the deaf and mute was only 50%, such distinction being without any rationale. And second, the decision to deny travel concession to a person accompanying a deaf and mute traveller, which was available to persons with other disabilities, was “ totally arbitrary, irrational and unreasonable”. The IR, on the other hand, argued that the differential rate of concession was not arbitrary but was based on the nature of “affliction and d isease” of the traveller. Similarly, the question of concession to the escort was based on the needs-assessment of the traveller; for instance persons with orthopaedic impairment were in greater need of an attendant, as without one their journey would not only be physically difficult, but also “fraught with risk”. Likewise, in the case of persons suffering from TB or cancer, the nature of their illness is such that their need for an attendant is greater than those who are “simply deaf and dumb”.

The court accepted the arguments of the IR and dismissed the petition. According to the court, the differential treatment was justified as it was based on the objective criterion of gravity of i llness and the relative need for an attendant. The judge c oncluded:

While in the case of deaf and dumb person (sic), he may be physically mobile and, therefore, in a position to board and alight from the train. This would not be possible in case of orthopaedic or paraplegics (sic), who would need assistance for physical movement. Similarly critically ill cardiac or other patients, or cancer patient and other categories specified would need physical help in their movement.

As an aside, the judge considered the case of a deaf and mute person, who is also illiterate. He admitted that in the case of such a person, travelling alone may involve inconvenience and risk as the person would not be able to communicate with her fellow passengers. In arriving at his decision, the judge conducted a needs-assessment based on a hierarchy of vulnerability as it were. On top of the ladder were those with locomotor impairment, visual impairment, TB patients, mentally retarded persons and those with other major illnesses; these categories were the most vulnerable and hence most in need of an attendant. The next level of vulnerability comprised the deaf and mute persons who were also illiterate. And at the bottom of the ladder were those who were “simply deaf and dumb”. The judge decided that it was only those occupying the topmost rung of the ladder of vulnerability, who needed an escort and hence their demand for concessional fare for the attendant was justified. Keeping in mind the relatively less serious needs of the other two categories, he considered it “necessary to give directions for provision of certain basic facilities and amenities, which would mitigate the difficulty of physically challenged handicapped (sic) and deaf and dumb persons (sic), who are not being provided concessional fare for the escort/attendant”.

Considering that the IR did not receive any reimbursement from the government for the concessions offered to certain classes of people, and that the expenditure of the IR on concessions was to the tune of Rs 860 crore in the previous financial year, the judge deemed it proper to frame his directions such that they would not involve “significant financial outflow”.18

The mode of reasoning in this case, shows the coming together of two dominant tendencies occurring in two different spheres:

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dition, the law also needs to be amended to make space for other

Conclusions

boarding station as well as the destination to be (ii) States parties shall recognise that persons filed under it.

printed out/typed out in bold letters.

with disabilities enjoy legal capacity on an equal

6 Sec 2 (i).

(v) Each physically handicapped/challenged p erson, basis with others in all aspects of life.

blind, deaf or dumb or otherwise sick person travel(iii) States parties shall take appropriate meas

ling on concessional fare should carry the card to ures to provide access to persons with disabilities conversational range of frequencies” [Sec 2(l)]. enable seeking assistance from fellow passengers/to the support they may require in exercising their

8 Sec 2 (t). travellers in case of need.

9 Writ Petition (civil) 4657/2000 (unreported). (vi) The Train Ticket Examiner/Guard or the con-Article 12 further reiterates the freedom of choice