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Colour blindness: An account of disability rights and judicial compassion in Indian constitutional courts

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Abstract

This article argues that judicial compassion is descriptively and analytically useful in thinking about the relationship between courts and disability rights in India. Against the tendency to dismiss judicial compassion as either opposed to the rule of law, or demeaning of the disabled, the article suggests, that we assess it more favourably, for two reasons. First, compassion, on some philosophical and legal theoretical accounts, improves the quality of legal reasoning. Second, compassion allows judges to address gaps in the statutory framework for disability rights. These interventions are executed through the category of colour blindness, which is both a metaphor for the law’s presumed dispassionate objectivity and an embodied state capable of evoking emotions in legal actors.

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Notes

  1. This usage owes its origin to United States Supreme Court Justice John Harlan’s dissenting opinion in the 1896 case Plessy v Ferguson [163 US 537 (1896)], which involved the constitutionality of a state law mandating separate railway cars for blacks and whites. The majority upheld the law on the ground that it was a good faith exercise of the state’s power to regulate the health, safety, and morals of its people, thereby establishing the doctrine of ‘separate but equal’. Disagreeing with the majority, Harlan wrote, ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.’ See Cheryl I Harris, ‘The Story of Plessy v Fergusson: The Death and Resurrection of Racial Formalism’ in Michael C Dorf (ed.) Constitutional Law Stories (Foundation Press 2004) 181.

  2. Yeng Ai Chun, ‘PM: Work Together for Peace and Harmony’ (The Star, 17 December 2007). https://www.thestar.com.my/news/nation/2007/12/17/pm-work-together-for-peace-and-harmony. Accessed 10 July 2021.

  3. Teh Athira Yusof and Dhesegaan Bala Krishnan, ‘Haul Repeat Offenders, Errant Celebs Who Breach SOP to Court’ (New Strait Times, 22 May 2021). https://www.nst.com.my/news/nation/2021/05/692122/haul-repeat-offenders-errant-celebs-who-breach-sop-court?topicID=1&articleID=692122. Accessed 10 July 2021.

  4. ‘Government Minister Condemns Taxi Drivers After TV3 News Investigation Sparks Racism Row’ (TV3, 31 March 2009). https://www.virginmediatelevision.ie/press-release/2/37. Accessed 10 July 2021.

  5. Zovoe Jonathan, ‘Taraba Anti Grazing Law Not Against Any Religion, Tribe – Gov Ishaku’ (The Punch, 11 January 2018). https://punchng.com/taraba-anti-grazing-law-not-against-any-religion-tribe-gov-ishaku/. Accessed 10 July 2021.

  6. Syed Rezaul Karim, ‘Black Money, White Money’ (The Daily Star, 21 May 2010). https://www.thedailystar.net/news-detail-139327. Accessed 10 July 2021.

  7. Judith Resnik and Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press 2011) 91.

  8. Ibid. 96. (Emphasis added).

  9. Ibid. 103–105; For a critique of the racial and disability politics of the colour blindness discourse in the US context, see Osagie K Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). (Emphasis added).

  10. This is usually between green and red, and occasionally blue. David Trubert, ‘What is Color Blindness?’ (American Academy of Ophthalmology, 6 April 2021). https://www.aao.org/eye-health/diseases/what-is-color-blindness. Accessed 10 July 2021.

  11. David T Mitchell and Sharon L Snyder, Narrative Prosthesis: Disability and the Dependencies of Discourse (The University of Michigan Press 2000) 47–49.

  12. Ben Golder has argued that metaphors must be understood ‘as jurisgenerative, as a central juridical technology for the creation of legal meaning and ideas.’ See Ben Golder, ‘Thinking Human Rights Through Metaphor’ (2019) 31(3) Law & Literature 301, 303.

  13. Nandkumar Ghodmare v State of Maharashtra 1995 SCC (6) 720.

  14. The Constitution of India art 32.

  15. Ibid. art 226.

  16. See e.g, S P Gupta vs Union of India (1982) 2 SCR 365. See also, Amita Dhanda, ‘Public Interest Litigation for the Mentally Ill’ (1990) 32(3) Journal of the Indian Law Institute 378.

  17. Amita Dhanda, ‘According Reality to Disability Rights: Role of the Judiciary’ in S K Verma and S C Srivastava (eds.) Rights of Persons with Disabilities (Indian Law Institute 2002) 90–102, 92.

  18. Ibid. 93.

  19. Ibid.

  20. For a recent engagement with the question in the Indian context, see Gerald N Rosenberg, Sudhir Krishnaswamy and Shishir Bail (eds.) A Qualified Hope: The Indian Supreme Court and Progressive Social Change (Cambridge University Press 2019).

  21. Susan Bandes, ‘Compassion and the Rule of Law’ (2017) 13(2) International Journal of Law in Context 184; Martha C Nussbaum, ‘Emotion in the Language of Judging’ (1996) 70(1) St John’s Law Review 23.

  22. Maksymilian Del Mar, ‘Imagining by Feeling: A Case for Compassion in Legal Reasoning’ (2017) 13(2) International Journal of Law in Context 143, 144.

  23. Anselm Eldergill, ‘Compassion and the Law: A Judicial Perspective’ (2015) 2015(3) Elder Law Journal 268, 269 (Emphasis added). Eldergill writes, ‘…compassion requires a feeling, not a mere intellectual acknowledgement of a religious, legal or moral duty….’.

  24. Bandes, ‘Compassion and the Rule of Law’ (n 21); Nussbaum, ‘Emotion in the Language of Judging’ (n 21).

  25. Eldergill, ‘Compassion and the Law’ (n 23).

  26. Nussbaum, ‘Emotion in the Language of Judging’ (n 21); Lynne N Henderson, ‘Legality and Empathy’ (1987) 85 Michigan Law Review 1574.

  27. Benjamin Zipursky, ‘Deshaney and the Jurisprudence of Compassion’ (1990) 65(4) New York University Law Review 1101; Eldergill, ‘Compassion and the Law’ (n 23).

  28. Del Mar, ‘Imagining by Feeling’ (n 22) 150.

  29. Benjamin Zipursky, ‘Austerity, Compassion and the Rule of Law’ in Amalia Amaya and Maksymilian Del Mar (eds.) Virtue, Emotion and Imagination in Law and Legal Reasoning (Hart Publishing 2020) 59.

  30. Dhanda, ‘According Reality to Disability Rights’ (n 17).

  31. The social model is a political articulation of disability that originated in the United Kingdom in the 1970s. It described disability as the imposition of barriers by the society upon bodily impairments. This distinction between disability and impairment has since been criticised for being simplistic, and for invisiblising the body. For a critique of the social model in the Indian context, see Shilpaa Anand, ‘The Models Approach in Disability Scholarship: An Assessment of Its Failings’ in Nandini Ghosh (ed), Interrogating Disability in India: Theory and Practice (Springer 2016).

  32. For a more nuanced, ethnographic account of the contradictory relationship between disability and charity, see James Staple, ‘Doing disability through charity and philanthropy in contemporary South India’ (2018) 52(2) Contributions to Indian Sociology 1.

  33. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, Act No. 1 of 1996 (Persons with Disabilities Act).

  34. For an account of the mobilizations by disabled people that resulted in the passing of the law and the early struggles in its implementation, see David Bornstein, How to Change the World: Social Entrepreneurs and the Power of New Ideas (Oxford University Press 2004) 209–232. For an account situating these events in a longer history of ‘contentious politics’ by the organised blind people since the 1970s, see Jagdish Chander, ‘Disability Rights Law and Origin of Disability Rights Movement in India’ in Anita Ghai (ed), Disability in South Asia: Knowledge & Experience (Sage Publications 2018) 3–21.

  35. Persons with Disabilities Act s 33.

  36. Ibid. s 32.

  37. In contrast to welfare-oriented laws that focus on needs or deficits of the target group, anti-discrimination laws operate on the logic of their minority status. Typically, the former specifies the impairments covered, while the latter leave it for the courts to decide through interpretation. For a typology of legislative responses to disability and their shortcomings, see Jerome E Bickenbach, ‘Disability Human Rights, Law, and Policy’ in Gary L Albrecht, Katherine D Seelman and Michael Bury (eds.) Handbook of Disability Studies (Sage Publications 2001) 565–584.

  38. Persons with Disabilities Act s 2(i). These were: blindness; low vision; leprosy cured; hearing impairment; locomotor disability; mental retardation; mental illness.

  39. Ibid. s 2(t).

  40. G Muthu v Tamil Nadu State Transport Corporation (2006) 4 MLJ 1669.

  41. Persons with Disabilities Act s 47(1), (2). ‘No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability.’

  42. Persons with Disabilities Act s 2.

  43. G Muthu v Tamil Nadu State Transport Corporation (n 40). The judges drew a distinction between persons with congenital impairments (‘person with disabilities’) and persons who acquire impairments due to accident, illness, etc. (‘employee who acquires a disability’). Section 47 used the latter expression. They reasoned that the objective of Section 47 was to prevent employers from treating disabled employees less favourably, which was distinct from the deficit/need-based reliefs provided for by the other provisions of the Act. Hence, the scope of the term ‘disability’ used in Section 47 could be wider than that of the term ‘person with disability’ applicable to the rest of the Act.

  44. The following are some representative cases that relied on G Muthu v Tamil Nadu State Transport Corporation (n 40); A. Aruldoss v The Management of Tamil Nadu State Transport Corporation W P (MD) No. 5558 of 2014 [Madras HC, Judgment dt 4 January 2016]; Rani Paul v Kerala State Road Transport Corporation W P (C) No. 11438 of 2014 [Kerala HC, Judgment dt 21 January 2015]; Amin Chand v Himachal Pradesh Road Transport Corporation W P (C) No. 1668 of 2014 [Himachal HC, Judgment dt 1 May 2015]; M Venkateswarlu v Andhra Pradesh State Road Transport Corporation W P (C) No. 36337 of 2015, [Andhra Pradesh HC, Judgment dt 29 January 2016].

  45. G Muthu v Tamil Nadu State Transport Corporation (n 40) [10.3].

  46. Ibid. [24].

  47. In a 2017 judgement, Andhra Pradesh State Road Transport Corporation v B S Reddy Civil Appeal No. 3529 of 2017 [Supreme Court of India, Judgment dt 23 February 2017], a two-judge bench of the Supreme Court overturned Muthu, noting, ‘We do not find any reason to hold that the expression disability in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2(i) of the Act.’ In my view, the decision is incorrect. For one, it does not engage with the reasoning given by the Muthu Court (n 43). Furthermore, the inference that the Muthu court drew about the statutory scheme of the PWD Act, wherein a restricted definition of disability was meant for reservation and welfare benefits and an open-ended one for the non-discrimination guarantee, stands validated by the current Rights of Persons with Disabilities Act, 2016, which continues the same statutory scheme but only makes the distinction clearer to avoid any confusion.

  48. Justice G P Singh, Principles of Statutory Interpretation (LexisNexis 2016) 936.

  49. Nussbaum, ‘Emotion in the Language of Judging’ (n 21) 26.

  50. Ibid. 29.

  51. Catherine Z Elgin, ‘Impartiality and Legal Reasoning’ in Amalia Amaya and Maksymilian Del Mar (eds.) Virtue, Emotion and Imagination in Law and Legal Reasoning (Hart Publishing 2020) 47–58.

  52. Ibid. 57.

  53. Ibid.

  54. Bandes, ‘Compassion and the Rule of Law’ (n 21) 190–191.

  55. Ibid. 192.

  56. Del Mar, ‘Imagining by Feeling’ (n 22) 150.

  57. Zipursky, ‘Austerity, Compassion and the Rule of Law’ (n 29) 66.

  58. Persons with Disabilities Act s 47. ‘Provided that the appropriate government may, having regard to the type of work caried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.’

  59. Notification dated 10 September 2002, Ministry of Social Justice and Empowerment, The Gazette of India (Available with the author).

  60. Sudesh Kumar vs Union of India, W P (C) 5077/2008, [Delhi HC, Judgement dt 22 March 2011].

  61. This paragraph is based on facts recorded in the High Court’s judgment. Ibid. [16–21].

  62. Sudesh Kumar v Union of India (n 60) [36].

  63. Ibid.

  64. In contrast, in a 2016 judgment, Ganesh Kumar v State of Haryana W P (C) No. 20567 of 2015 [Punjab and Haryana HC, Judgment dt 10 November 2016], the judge wrote that he felt ‘deeply sad’ that a government doctor had refused to medically examine the petitioner, who was colour blind, which blocked his appointment to a job for which he was already selected, and for which he had to file a writ petition before the High Court at considerable expense.

  65. Zipursky, ‘Deshaney and the Jurisprudence of Compassion’ (n 27) 1129–1132.

  66. Ibid. 1129

  67. Del Mar, ‘Imagining by Feeling’ (n 22).

  68. Sudesh Kumar vs Union of India (n 60) [32].

  69. The judgement begins by noting how during World War II, colour blind people were employed to spot camouflaged German camps. Referring to the hearing, the Judges write, ‘Neither the respondents nor their doctors and thus nor their counsel was aware of the utility of colour blind persons in respect of colour blindness being used as an asset and not being labelled a liability.’ Ibid. [15].

  70. The Union government issued a new policy in 2013, which provided, that in future all recruits would have to give an undertaking that if at any stage during their service they were detected with colour blindness, they shall be boarded out. It also provided that the doctor who declared such person to be medically fit at the time of recruitment would also be proceeded against with major penalty. Ministry Of Home Affairs (Pers-II Desk) Police-II Division, Revised Scheme For Common Recruitment Of Constables (GD) In Central Armed Police Forces (CAPFs) & Assam Rifles, National Investigation Agency (NIA) And Secretariat Security Force (SSF) To Be Conducted By The Staff Selection Commission (F No.1-45024/1/2008-Pers.II, 27 February 2013); See Abhilash Kumar v Union of India W P (C) 879 OF 2018, [Delhi HC, Judgment dt 16 October 2018]

  71. The Rights of Persons with Disabilities Act 2016, Act No. 49 of 2016. (The Indian RPWD Act).

  72. Ibid. s 2 (zc) read with the Schedule.

  73. Ibid. s 20(1), (2). For the purpose of these provisions, a ‘person with disability’ is defined by Section 2(s) as ‘a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society with others.’

  74. Pradip Kumar Maji v Coal India Limited and Others W P No. 26990 of 2017 [Calcutta HC, Judgment dt 20 April 2020].

  75. Ibid.

  76. Ibid.

  77. Nandkumar Ghodmare v State of Maharashtra (n 13).

  78. The following is a sample of recent newspaper articles and reports that invoke the terms empathy, sympathy, or compassion to structure their arguments: Ghazala Jamil & Manoj Kumar Jha, ‘A Crisis of Compassion in India’ (The Indian Express, 16 October 2021). https://indianexpress.com/article/opinion/columns/criminal-justice-system-india-judiciary-majoritarian-nationalism-secularism-7572194/. Accessed 25 October 2021; Rekha Sharma, ‘Supreme Court’s Strictures Against Protesting Farmers Show Disturbing Lack of Empathy’ (The Indian Express, 6 October 2021). https://indianexpress.com/article/opinion/columns/supreme-court-farmers-protest-farm-laws-7552198/. Accessed 25 October 2021; Kaleeswaram Raj, ‘Compassion and the Court’ (The Indian Express, 11 July 2019). https://www.newindianexpress.com/opinions/2019/jul/11/compassion-and-the-court-2002219.html. Accessed 25 October 2021; Krishnadas Rajagopal, ‘Judges Told to Practice Constitutional Compassion’ (The Hindu, 1 December 2018).https://www.thehindu.com/news/national/judges-told-to-practise-constitutional-compassion/article25638282.ece. Accessed 25 October 2021.

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    Saptarshi Mandal

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Mandal, S. Colour blindness: An account of disability rights and judicial compassion in Indian constitutional courts. Jindal Global Law Review 12, 247–262 (2021). https://doi.org/10.1007/s41020-021-00157-2

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