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What is in a name? The dignity of persons with disabilities: M Karpagam v The Chief Commissioner for Persons with Disabilities and Others Writ Petition (Civil) 12663 of 2020, Madras HC

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Notes

  1. Peter Messent, ‘Censoring Mark Twain’s “n-Words” is Unacceptable’ (The Guardian, 5 January 2011). https://www.theguardian.com/books/booksblog/2011/jan/05/censoring-mark-twain-n-word-unacceptable. Accessed 26 June 2021.

  2. John 1.1 of the Bible (New International Version) states ‘In the beginning was the Word, and the Word was with God, and the Word was God. He was with God in the beginning.’ The verse is a classic example of the power of words and language. For a sophisticated inquiry into the relationship between language and law, see Marianne Constable, Our Word is Our Bond: How Legal Speech Acts (Stanford University Press 2014).

  3. Rusi Jaspal, ‘Language and Social Identity: A Psychosocial Approach’ (2009) 64 Psych-Talk 17; Henri Tajfel, Differentiation Between Social Groups: Studies in the Social Psychology of Intergroup Relations (Academic Press 1978).

  4. Kris Franklin and Sarah E Chinn, ‘Transsexual, Transgender, Trans: Reading Judicial Nomenclature in Title VII Cases’ (2017) 32 Berkeley Journal of Gender, Law & Justice 1.

  5. Tony Murphy, ‘The Nomenclature of the Underserving Poor: An Enduring History of Marginalization’ (2015) 6(1) Journal on European History of Law 103.

  6. On the genesis and journey of the slogan, see James I Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment (University of California Press 2000).

  7. M Karpagam v The Chief Commissioner for Persons with Disabilities & Ors Writ Petition (Civil) 12663 of 2020 [4], referencing the Counter-affidavit filed by the Chief Commissioner for Persons with Disabilities dated 16 February 2021 [4] (on file with authors).

  8. Vasudha Venugopal, ‘PM Narendra Modi Suggests Use of “Divyang” for Persons with Disability in his “Mann Ki Baat”’ (Economic Times, 28 December 2015). https://economictimes.indiatimes.com/news/politics-and-nation/pm-narendra-modi-suggests-use-of-divyang-for-persons-with-disability-in-his-mann-ki-baat/articleshow/50341878.cms. Accessed 26 August 2021.

  9. Sangeeta Barooah Pisharoty, ‘Use of “Divyang” is Regressive and Patronising, Say Persons with Disabilities’ (The Wire, 01 March 2016). https://thewire.in/rights/use-of-divyang-is-regressive-and-patronising-say-persons-with-disabilities. Accessed 26 August 2021.

  10. Aman Sharma, ‘Department of Empowerment of Disability Affairs to Incorporate the Word “Divyang” in Hindi and English Names’ (The Economic Times, 22 October 2016). https://economictimes.indiatimes.com/news/politics-and-nation/department-of-empowerment-of-disability-affairs-to-incorporate-the-word-divyang-in-hindi-and-english-names/articleshow/52408370.cms?from=mdr. Accessed 27 October 2021. Karpagam and Dhawan, ‘I Pleaded to Junk “Divyang” from Govt Records but Madras HC Quashed It, Ignoring SC Verdicts’ (acknowledgements).

  11. Pisharoty, ‘Use of “Divyang” is Regressive and Patronising, Say Persons with Disabilities’ (n 9).

  12. Ibid. See also National Platform for the Rights of the Disabled, ‘Letter to PM by National Platform for the Rights of the Disabled’ (22 January 2016). http://feministlawarchives.pldindia.org/wp-content/uploads/Letter-to-PM-by-National-Platform-for-the-Rights-of-the-Disabled.pdf. Accessed 26 October 2021.

  13. Ibid.

  14. ‘NGOs Join Issue with Government on “Divyang” Consultation Spin’ (The New Indian Express, 29 May 2016). https://www.newindianexpress.com/states/tamil-nadu/2016/may/29/NGOs-join-issue-with-government-on-divyang-consultation-spin-909097.html. Accessed 12 September 2021.

  15. Ibid.

  16. Kalpana Kannabiran, Tools of Justice: Non-Discrimination and the Indian Constitution (Routledge 2012) 112. Kannabiran notes that in many of these accounts, disability is considered 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.’

  17. See Martand Jha, ‘Indian Mythology has a Problem with Disability’ (The Wire, 31 October 2016). https://thewire.in/rights/indian-mythology-problem-disability. Accessed 12 September 2021.

  18. Writ Petition filed by Advocate M Karpagam in Writ Petition (Civil) 12663 of 2020 [17(a)] (on file with authors).

  19. Ibid. [10].

  20. Ibid.

  21. Ibid. [8–9].

  22. Ibid. [15].

  23. Counter-affidavit filed by the Chief Commissioner for Persons with Disabilities in Writ Petition (Civil) 12663 of 2020 [4] (on file with authors).

  24. Ibid. [5].

  25. Ibid. [6].

  26. M Karpagam v The Chief Commissioner for Persons with Disabilities & Ors (n 7).

  27. Ibid.

  28. Ibid. [5].

  29. The Mental Healthcare Act 2017, Act No. 10 of 2017 s 2(s) defines ‘mental illness’ as ‘means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence’.

    The Madras High Court also ignored a number of existing statutes that use this term, such as The Rehabilitation Council of India Act 1992, Act No. 34 of 1992 s 2(1)(h), The Medical Termination of Pregnancy Act 1971, Act No. 34 of 1971 s 2(b)2, The Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994, Act No. 57 of 1994 s 4(3)(iv), The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999, Act No. 4 of 1999. See also ‘Rosa’s Law Signed into Law by President Obama’ (Special Olympics, 05 October 2010). https://www.specialolympics.org/stories/news/rosas-law-signed-into-law-by-president-obama. Accessed 3 October 2021. Rosa’s law was enacted in the United States to discontinue the use of terminologies such as ‘mentally retarded’ and to replace these terminologies with person-first language which reaffirms the commitment to dignity and respect of persons with intellectual disability. Rosa’s Law could have served as a beacon for the Court to remove terms such as ‘mentally retarded’.

  30. M Karpagam v The Chief Commissioner for Persons with Disabilities & Ors (n 7) [5].

  31. Ibid.

  32. Ibid.

  33. ‘NGOs Join Issue with Government on “Divyang” Consultation Spin’ (n 14).

  34. M Karpagam v The Chief Commissioner for Persons with Disabilities & Ors (n 7) [4]. The Court seems to concur with the government’s view that the change reflects a shift from terminologies that were ‘harsh, rude and humiliating’ for persons with disabilities to terminologies that are empowering and sensitive.

  35. Ibid. [6].

  36. Rajeev Suri v Delhi Development Authority & Ors Transferred Case (Civil) No. 229 of 2020.

  37. Ibid. [621].

  38. Some of the other concerns would involve the accessibility of the medium of consultation for a range of persons with disabilities. Hence, it would be imperative to make the communication available in Braille script and in documents that can be accessed through screen readers. Furthermore, the information would need to be presented and conveyed in a manner that aids persons with intellectual disabilities. Kenyan jurisprudence, especially in the context of constitutional referendums and legislative action, has advanced beyond the idea of ‘consultation’ to ‘meaningful consultation’ wherein concerns regarding the wider accessibility of language, the practical and logistical reasonability of timelines, and other concerns are judicially scrutinised. These precedents, albeit not discussed here specifically, were considered at length by the Supreme Court in Rajeev Suri. See further Gautam Bhatia, ‘Notes from a Foreign Field: An Instant Classic–The Kenyan High Court’s BBI Judgment’ (Indian Constitutional Law and Philosophy, 14 May 2021). https://indconlawphil.wordpress.com/2021/05/14/notes-from-a-foreign-field-an-instant-classic-the-kenyan-high-courts-bbi-judgment/. Accessed 18 August 2021.

  39. This would be in line with the core principles of public participation. See Ministry of Law and Justice, ‘Pre Legislative Consultation Policy’ (Legislative Department at the Ministry of Law and Justice in the Government of India, 2014). http://legislative.gov.in/documents/pre-legislative-consultation-policy. Accessed 28 October 2021; Peter Wilton, ‘Meaningful Engagement is Key for Public Trust’ (Policy Options, 14 June 2019). https://policyoptions.irpp.org/magazines/june-2019/meaningful-engagement-key-public-trust/. Accessed 28 October 2021; International Association for Public Participation, ‘IAP2 Core Values’ (International Association for Public Participation). https://www.iap2.org/page/corevalues. Accessed 28 October 2021. This idea has been discussed further in the next section.

  40. Venugopal, ‘PM Narendra Modi Suggests Use of “Divyang” for Persons with Disability in his “Mann Ki Baat”’ (n 8).

  41. Ibid.

  42. United Nations Committee on the Rights of Persons with Disabilities, List of Issues in Relation to the Initial Report of India (2019) CRPD/C/IND/Q/1, A.1.

  43. Ibid.

  44. United Nations Committee on the Rights of Persons with Disabilities, Consideration of Reports submitted by Parties to the Convention under Article 35, Twenty-second Session (List of Issues in Relation to the Initial Report of India Addendum: Replies of India to the List of Issues) (2019) CRPD/C/IND/Q/1/Add.1, 8.

  45. Ibid.

  46. Ibid.

  47. United Nations Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of India (2019) CRPD/C/IND/CO/1, 6.

  48. The Rights of Persons with Disabilities Act 2016, Act No. 49 of 2016 s 3(1).

  49. See, for instance, cases where the Supreme Court has highlighted the failure to fulfill affirmative duties under statutes to pass writs in favor of the petitioner’s exercise of social rights such as Municipal Council, Ratlam v Shri Vardichan & Ors (1980) 4 SCC 162; Swaraj Abhiyan (II) v Union of India & Ors AIR 2016 SC 2953; Paschim Banga Khet Mazdoor Samity & Ors v State of West Bengal & Anr (1996) 4 SCC 37. See also Madhav Khosla, ‘Making Social Rights Conditional: Lessons from India’ (2010) 8(4) International Journal of Constitutional Law 739.

  50. Vikash Kumar v Union Public Service Commission & Ors (2021) 5 SCC 370 [86]. See also Anchal Bhatheja and Prannv Dhawan, ‘The Supreme Court of India Takes Reasonable Accommodation Seriously’ (Oxford Human Rights Hub, 01 March 2021). https://ohrh.law.ox.ac.uk/the-supreme-court-of-india-takes-reasonable-accommodation-seriously/. Accessed 6 April 2021; Prannv Dhawan and Anchal Bhatheja, ‘Special Undergraduate Series–Enforcing Disability Rights: The Indian Supreme Court’s Judgment in Vikash Kumar’ (I-CONnect, 27 March 2021). http://www.iconnectblog.com/2021/03/special-undergraduate-series-enforcing-disability-rights-the-indian-supreme-courts-judgment-in-vikash-kumar/. Accessed 6 April 2021.

  51. Charlton, Nothing About Us Without Us (n 6) 3.

  52. Vikash Kumar v Union Public Service Commission & Ors (n 50).

  53. Ibid. [95].

  54. United Nations Committee on the Rights of Persons with Disabilities, General Comment No. 7 on the Participation of Persons with Disabilities, including Children with Disabilities, through their Representative Organizations, in the Implementation and Monitoring of the Convention (2018) CRPD/C/GC/7, 4.

  55. Vikash Kumar v Union Public Service Commission & Ors (n 50) [66]. In view of the facts of the case before the Court, the observations were made in the context of reasonable accommodation but are nevertheless relevant to other policy questions having an impact on the rights of persons with disabilities.

  56. Vikash Kumar v Union Public Service Commission & Ors (n 50) [95].

  57. United Nations Committee on the Rights of Persons with Disabilities, General Comment No. 7 on the Participation of Persons with Disabilities (n 54) 5.

  58. Vikash Kumar v Union Public Service Commission & Ors (n 50) [94].

  59. For a powerful account discussing the question of nomenclature, among other issues of self-perception, see Nancy Mairs, ‘On Being a Cripple’ in Jonathan Oberlander, Mara Buchbinder, Larry R Churchill, Sue E Estroff, Nancy M P King, Barry F Saunders, Ronald P Strauss and Rebecca L Walker (eds), The Social Medicine Reader, Volume II, Third Edition: Differences and Inequalities (Duke University Press 2019) 37.

  60. Kalpana Kannabiran and Asha Hans (eds), INDIA: Social Development Report 2016: Disability Rights Perspectives (Oxford University Press 2016); Jayna Kothari and Nina de Puy Kamp, ‘The Wait for a Progressive Disabilities Law is a Long One’ (The Wire, 12 August 2015). https://thewire.in/law/the-wait-for-a-progressive-disabilities-law-is-a-long-one. Accessed 28 October 2021.

  61. Peter Blanck and Eilionóir Flynn, Routledge Handbook of Disability Law and Human Rights (Routledge 2017).

  62. In this context, Pothier notes, ‘The “social construction” of disability refers to the way an able bodied conception of disability magnifies its consequences. The social construction of disability assesses and deals with disability from an able-bodied perspective. It includes erroneous assumptions about capacity to perform that come from an able bodied frame of reference. It encompasses the failure to make possible or accept different ways of doing things. It reflects a preoccupation with “normalcy” that excludes the disabled person.’ See Dianne Pothier, ‘Miles to Go: Some Personal Reflections on the Social Construction of Disability’ (1992) 14(3) Dalhousie Law Journal 526, 526.

  63. Paul K Longmore, ‘A Note on Language and the Social Identity of Disabled People’ (1985) 28(3) American Behavioral Scientist 419.

  64. See, for instance K S Puttaswamy (Retd) & Anr v Union of India & Anr (Aadhaar-5J) (2019) 1 SCC 1; Amish Devgan v Union of India & Ors (2021) 1 SCC 1.

  65. Jeeja Ghosh & Anr v Union of India & Ors (2016) 7 SCC 761.

  66. Manju Devi v Onkarjit Singh Ahluwalia & Ors (2017) 13 SCC 439.

  67. Indibily Creative Pvt Ltd & Ors v Government of West Bengal & Ors (2020) 12 SCC 436 [23].

  68. Navtej Singh Johar & Ors v Union of India (2018) 10 SCC 1 [458].

  69. Ibid.

  70. Ibid. In this judgment, the Court displayed that it was conscious of the role of Section 377 in creating a hegemonic heterosexist culture that infringed upon the human dignity of LGBTQIA+ citizens.

  71. M Karpagam v The Chief Commissioner for Persons with Disabilities & Ors (n 7) [5].

  72. See Vikash Kumar v Union Public Service Commission & Ors (n 50) [43]-[47].

  73. John J Gumperz (ed), Language and Social Identity (Cambridge University Press 1983).

  74. Longmore, ‘A Note on Language and the Social Identity of Disabled People’ (n 63) 420–421.

  75. Irving Kenneth Zola, ‘The Language of Disability: Problems of Politics and Practice’ 1988 1(3) Australian Disability Review 13, 13.

  76. Frances W Pritchett (ed), ‘What Path to Salvation?: Speech delivered by Dr Ambedkar to the Bombay Presidency Mahar Conference’ (31 May 1936). http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/txt_ambedkar_salvation.html. Accessed 26 June 2021.

  77. Dr B R Ambedkar, ‘Note Submitted to the Indian Franchise Committee (Lothian Committee)’ in The Education Department Government of Maharashtra, Dr Babasaheb Ambedkar: Writings and Speeches (Vol 2) (Dr Ambedkar Foundation 2014) 491.

  78. Ibid. 499.

  79. Ibid.

  80. Ibid. 500.

  81. Ibid.

  82. Aishwary Kumar, ‘Ambedkar’s Inheritances’ (2010) 7(2) Modern Intellectual History 391, 398–399.

  83. D Raja, ‘Why Not Dalit?’ (The Hindu, 10 September 2018). https://www.thehindu.com/opinion/op-ed/why-not-dalit/article24909348.ece. Accessed 26 June 2021.

  84. The government’s response to the Standing Committee report mentions that the use of the term harijan was proscribed in 1982. It is noted, ‘A circular dated 10th February 1982, had been issued to the State Governments/UT Administrations requesting them to issue instructions to the concerned authorities not to use the word “Harijan” in the Scheduled Caste certificates.’ Standing Committee on Social Justice and Empowerment, Action taken by the Government on the Observations/ Recommendations contained in the First Report of the Standing Committee on Social Justice and Empowerment on Demands for Grants for the year 2009–2010 of the Ministry of Social Justice and Empowerment (Ministry of Social Justice and Empowerment, Fifteenth Lok Sabha, Ninth Report, 2009–2010) [1.6–1.7] 9–11. http://164.100.47.193/lsscommittee/Social%20Justice%20&%20Empowerment/15_Social%20Justice%20And%20Empowerment_9.pdf. Accessed 26 June 2021. See also Express News Service, ‘“Dalit”, “Harijan” not to be used in Official Papers: Centre’ (The New Indian Express, 5 April 2018). https://www.newindianexpress.com/nation/2018/apr/05/dalit-harijan-not-to-be-used-in-official-papers-centre-1797184.html. Accessed 27 October 2021.

  85. Standing Committee on Social Justice and Empowerment, Action taken by the Government on the Observations/ Recommendations contained in the First Report of the Standing Committee on Social Justice and Empowerment (n 84) [1.5] 8–9.

  86. Pankul Sharma, ‘Minister Uses “Harijan” for Dalits, Asked to Leave Stage’ (The Times of India, 15 April 2018). https://timesofindia.indiatimes.com/city/bareilly/minister-uses-harijan-for-dalits-asked-to-leave-stage/articleshow/63767857.cms. Accessed 26 June 2021; Express News Service, ‘Government Bans Use of Word Harijan’ (The New Indian Express, 15 January 2013). https://www.newindianexpress.com/states/odisha/2013/jan/15/government-bans-use-of-word-harijan--443258.html. Accessed 26 June 2021.

  87. Karen Finlon Dajani, ‘What’s in a Name? Terms Used to Refer to People with Disabilities’ (2001) 21(3) Disability Studies Quarterly 196.

  88. See Karpagam and Dhawan, ‘I Pleaded to Junk “Divyang” from Govt Records but Madras HC Quashed It, Ignoring SC Verdicts’ (acknowledgements).

  89. Kalpana Kannabiran, ‘“What Use is Poetry?”: Excavating Tongues of Justice around Navtej Singh Johar v Union of India’ (2019) 31(1) National Law School of India Review 1, 18.

  90. Navtej Singh Johar & Ors v Union of India (n 68) [601].

  91. Ibid. Since the Supreme Court defined its constitutional duty to include the facilitation of constitutional morality through adjudication, the performance of this duty, in matters concerning vulnerable sections of citizens such as persons with disabilities, becomes pertinent.

  92. Ibid. [601].

  93. Malik Ubaidullah v Government of Punjab, etc Civil Petition 140-L of 2015 [19].

  94. Ibid. See also Barrister Asfandyar Khan Tareen, etc v Government of the Punjab, etc PLD 2018 Lahore 300.

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Authors and Affiliations

  1. National Law School of India University, Bengaluru, Karnataka, India

    Prannv Dhawan

  2. Madras High Court, Chennai, India

    Mayavan Karpagam

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Both the authors are involved in the ongoing public interest litigation pertaining to the case under discussion.

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Prannv Dhawan is a final year law student at the National Law School of India University, Bengaluru, Karnataka, India where he is pursuing BA LLB (Hons). He is also the co-founder of the National Law School Diverseable Alliance.

Mayavan Karpagam is the first female lawyer with visual impairment at the Madras High Court. She had challenged the persistence of derogatory official terminologies for persons with disabilities before the Madras High Court.

We acknowledge the efforts of Advocate G Sivabalamurugan who is representing Advocate Karpagam in her Special Leave Petition seeking appeal of the High Court judgment. We are indebted to Ms Sanskriti Sanghi, Prof Oishik Sircar, Prof Arun Sagar, and other members of the editorial team for their kind guidance and helpful comments. We had written a shorter piece on this issue for The Print. See Mayavan Karpagam and Prannv Dhawan, ‘I Pleaded to Junk “Divyang” from Govt Records but Madras HC Quashed It, Ignoring SC Verdicts’ (The Print, 22 June 2021). https://theprint.in/opinion/i-pleaded-to-junk-divyang-from-govt-records-but-madras-hc-quashed-it-ignoring-sc-verdicts/681973/. Accessed 18 August 2021.

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Dhawan, P., Karpagam, M. What is in a name? The dignity of persons with disabilities: M Karpagam v The Chief Commissioner for Persons with Disabilities and Others Writ Petition (Civil) 12663 of 2020, Madras HC. Jindal Global Law Review 12, 233–246 (2021). https://doi.org/10.1007/s41020-021-00161-6

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