ARTICLES

1.  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

Prannv Dhawan & Mayavan Karpagam
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2. Colour blindness: An account of disability rights and judicial compassion in Indian constitutional courts

Saptarshi Mandal
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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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3. Exploring the relationship of law and emotions in the context of Disability Rights jurisprudence

Sanjay Jain
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In this article, I attempt to explore the relationship between law and emotions in the context of disability rights jurisprudence. It is argued that the scholarship on law and emotions has not yet grappled with either the ableist legal theory or infusion of negative emotions in law vis-à-vis physical and mental disability. Using the conceptual framework proffered by Terry Maroney, this article situates the disability rights jurisprudence in the scholarship on law and emotions with critical examination of the United Nations Convention on Rights of Persons with Disabilities (UNCRPD), the Constitution of India, and the Rights of Persons with Disability Act 2016 (RPwD Act). A case has been made out to foster infusion of positive emotions of dignity, empathy, and compassion in legal regime to combat stigmatisation of physical and mental disability, garner respect for difference and diversity and recognise disability as part of humanity.

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4. The soundness of ‘unsoundness’: Marriage, divorce, and mental disability in India

Pinki Mathur Anurag
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The article argues that family laws in India that allow nullity and divorce on grounds of ‘unsoundness of mind’ and ‘mental disorder’ discriminate against persons with mental disability and violate international law on rights of the disabled. Drawing from international human rights law, contemporary disability rights principles and models of disability, the article presents a critical overview of family law and judgements on nullity and divorce on grounds of ‘unsoundness of mind’ and ‘mental disorder’ and builds a case for removal of mental disability as a ground for annulment and divorce.
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5. Is it morally justified to create disabled designer babies?

Shampa I. Dev
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This research paper explores the question—whether it is morally permissible for an auditory impaired parent to create an auditory impaired offspring? It makes an epistemological inquiry into the experiences of persons with auditory impairments to make an informed decision on the question at stake. There is a general attitudinal bias against the disability. On the contrary, arguments have been raised that a parent with auditory impairment may have a moral right and a liberty to have a specially designed deaf baby. It is argued that a deaf parent’s desire to have a deaf child, stems from their need to relate linguistically and culturally with the child. It is also in the best interest of the child and the parent. Such arguments seem grossly misguided and are often countered with arguments of ‘open future,’ and the costs of disability. This research paper seeks to inquire into the epistemic challenges in examining the validity and the soundness of these arguments. It engages into the arguments and counter arguments with respect to whether auditory impairment is a disadvantageous condition to find that deafness does involve an element of harm though it is not only and only harm. It argues against the proposition that laws permitting abortion in case of foetal anomaly are eugenic. It uses Kantian theory to delve into the moral permissibility of the use of genetic engineering for the creation of impairment and enhancement. In the light of moral, ethical and jurisprudential considerations it finds that it is morally impermissible to use genetic interventions to create impairments or enhancements, as it strikes at the humanity in the ‘designer babies’ and uses them as a means for the satisfaction of desires. [/expand]

6. Reproductive rights and disability rights through an intersectional analysis

Dipika Jain & Shampa Sengupta

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In this paper, we argue that the exceptionalism of disability on grounds to unconditionally terminate a pregnancy in law does not consider eugenic and capitalist socio-legal norms that serve to discriminate against persons with disabilities, and that there is a requirement for a nuanced and intersectional perspective. We survey the eugenic rationale of the State where the law allows for termination of early-stage pregnancies, while later pregnancies can be terminated on medical grounds alone, with a notable exception made when the foetus is ‘abnormal,’ granting an almost unconditional right to abortion. Relying on some prominent disability rights activists’ positions on disability-selective abortions, we examine court orders to highlight exceedingly inconsistent Indian jurisprudence on disability-selective abortion. We employ theories of the social model on disability and the reproductive justice framework to advocate for a rights-cum-reproductive justice approach. Such a nuanced approach would ensure that during pre-natal screenings that indicate disability or ‘foetal abnormalities’ as they are termed in Indian law, pregnant persons would have the most accurate and comprehensive information about the diagnosis, including realistic information about living with disabilities from persons with disabilities, as well as orienting them to certain basic ideas and concepts that look at the specific rights and entitlements of persons with disabilities.
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7. Unnatural intimacies and unnatural bodies: Section 377, homosexuality, and disability
Aishwarya Chandran
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Disability sex studies and queer disability theory have long noted how assumptions of able-bodiedness accompany the imperative to compulsory heteronormativity. Queer identity within such a heterosexist narrative is mediated and enabled through the non-identity of able-bodiedness, or the imagination of heteronormative desire as disembodied. Queer discourse in India has largely been mobilised around the establishment—and eventual withdrawal—of Section 377 of the Indian Penal Code 1860 (IPC), which proscribes ‘unnatural’ sex acts. However, the failure to adequately problematise the implicit ableist assumptions that animate the regulation of sexual intimacies invites us to think about the (dis)embodiment of disability within the legal, political, and queer discourse around Section 377, and urges us to try and disentangle from it possibilities to think about the ways in which the disabled body can be imagined within the politics and aesthetics of sexual citizenship. The discursive absence of epistemologies of disability in the legal and queer discourse around Section 377 is therefore constitutive of disabled bodies and disabled sexual practices through a disavowal of what these bodies can do. The eventual revocation of the law by the Supreme Court of India on the basis of arguments pertaining to privacy, sexual identity, and sexual autonomy as conscripted within the promise of adult franchise, points towards liberal humanist notions of universal personhood being rooted in ableist imaginations of corporeal sanctity. This article will try to offer a close reading of the Indian debates on queer sexuality around Section 377 to enable possible ways of locating disabled imaginations of the body in and through the ‘systems of exclusions’ that constitute the word of the law. By engaging with the discourse on Section 377 and how sexual non-normativity is embodied in legal discourse, this article hopes to be able to offer some insight into the poetics and politics of disability, embodied intimacy, and sexual citizenship.

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8. ‘Them in our world’: Examining disabling discourses that pass from disability policy to practice
Riya Sharma
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Disability laws in India, over the many years, have shown a considerable shift in their approach to theorising disability, which invariably changed the landscape of inclusive education. The latest in the timeline is the social perspective, which in the education context has led to viewing inclusion within the broader context of school restructuring as opposed to viewing it as innovation within special education. However, barriers to the full participation of Children with Disability (CWD) in so-called ‘inclusive’ schools are still prevalent, requiring re-evaluation of the very tenets of higher education and in what way it contributes to disablism. Taking disability legislation as a macrosystem that shapes the inclusion discourse, this study aims to uncover legislation and policy shortcomings by examining the school level practices. A private school following the ‘zero rejection’ policy in the admission of CWD was selected for the study. The researcher integrated data from multiple sources, such as field observation notes, official documents (school almanac), and qualitative interviews with teachers. Interviews were analysed at two levels: thematic level and discourse level. Starting with identifying broad themes in interviews, the researcher then treated each as a separate discursive object. The discursive objects were subjected to a critical form of discourse analysis modelled on Foucault’s discourse theory. The analysis, combined with observations from the field, is presented in the form of Critical Themes. The study uncovers the deep-seated neoliberal-ableist assumptions about education, performance, and ability that seep down from policy to practice. The researcher argues for a disability-inclusive education policy informed by a Critical Disability Studies lens and including parameters such as a sense of belongingness and positive identity development. The case analysis holds considerable promise in drawing attention to the problems of a one-size-fits-all disablist approach that the dominant perspective on inclusion has continuously pushed.
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9. Specific learning disabilities and higher education: The Indian scenario and a comparative analysis
Uday Shankar & Ashok Vardhan Adipudi
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Learning is in itself an institute of life. The impact of disability, physical or otherwise, on daily activities is profound. In 2016, the Indian law on disabilities became more inclusive by broadening the categories of disabled persons and widened the rights of persons with disabilities. In the Rights of Persons with Disabilities Act 2016, besides revising the benefits for physically disabled persons, the recognition of equal rights to persons with Specific Learning Disabilities (SLDs) is historic. The paper, set in the context of higher education, explains the concessions and accommodations provided under the current legislative scheme for SLDs and explores how different jurisdictions have addressed SLDs. Secondly, to realise how the rights provided by these legislations are to be operationalised in higher education institutions; this step assumes significance because neither students with SLDs have access to trained personnel, nor the accommodations in the higher education has been well-articulated. The findings of the comparative study and understanding of the Indian legislative framework suggest measures to how higher educational institutions are to made more accessible to SLDs.

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10. Tales of a disabled woman working at ableist, sexist workplaces
Devyani Tewari
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To me, personal is theoretical as well as political. Therefore, when exploring the question of how the workplace is an ableist as well as a sexist space for disabled women, I have linked theory to my lived experiences. My experiences are the starting point for my explication of how intersectional feminist theories on disability, spatial practices, silence, violence, and discrimination provide a source of strength, action, voice, language, and a name to experiences of disabled women of colour working in sexist and ableist workplaces. Relying upon intersectionality, I propose that disabled women are more vulnerable to sexual harassment at the workplace. I have drawn upon Sara Ahmed’s work on ‘girling’ and ‘gender fatalism’ to propose concepts of ‘disabling’ and ‘disability fatalism’. I conclude my feminist resistance project by asserting the necessity of intersectional feminist workplaces.
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11. Disability studies and the law: In conversation with Professor (Dr) Nilika Mehrotra
Ankita Gandhi & Surabhi Singh
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The field of disability studies in India is fledgling, yet burgeoning. Professor (Dr) Nilika Mehrotra is an exemplary scholar from this field, who has played a pioneering role in situating the scholarship on persons with disabilities (PWDs) in a distinctly South Asian narrative. She has not only written extensively on the South Asian experience of disability but has brought together important scholarship by several academics in this area in a recent edited work. Her research on the intersectionality between gender and disability, as well as on the contribution of the state’s schemes on enhancing the rights of PWDs, has shaped the post-coloniality of the discipline in India. As an anthropologist, she has sought to place the experiences of the disabled at the heart of her theorisation, critiquing a top-down approach to representing disability. In this interview, she discusses the inherent interdisciplinarity of disability rights studies and the evolution of disability rights movements in India.
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