In ‘Mann Ki Baat’, Prime Minister Narendra Modi spoke about disability: ‘Those in whom Paramatma has created a deficiency in the body, those for whom some part of the body does not work properly, we call them ‘viklaang’. But sometimes, when we get to know them, we realise that although there is the deficiency that we see with our eyes, God has given them some extra power, there is a different kind of shakti that God has created within them which we cannot perceive with our eyes. But when we see their capability, we are taken aback, ‘Arre wah? How does he manage to do this?’ Then, we had a thought: ‘From our eyes we feel that he is ‘viklaang’, but from experience we find that he has some extra power, atirikt shakti’. Then we had another thought: ‘Why don’t we, in our country, replace the word ‘viklaang’ with the word ‘divyaang’? These are those people who possess divinitydivyatain one or more parts of their body; whose bodies are possessed by divine power (divya shakti), which those of us with normal bodies (saamaanya shareer) do not have. Compatriots! Can we adopt ‘divyaang’ instead of ‘viklaang’ in common usage?’ In other words, that which is divinely fated shall not be questioned. The ‘deficiency’ and the ‘divya shakti’ are the factors that constitute the disability stereotype.
The bail application of Delhi University professor G.N. Saibaba was rejected on medical grounds by a single judge of the Nagpur Bench of the Bombay High Court, emphasising his involvement in a ‘serious crime’, and passed an order that the activities of a ‘banned organisation’ overrode any concerns for his physical health and comfort while in state custody and all struggles to secure bail for him on medical grounds are nothing but ‘subterfuge’. It is useful to accept in mind that we are speaking of a person who has been placed under arrest, but has not yet undergone trial and has surely not been convicted for any offence under the Unlawful Activities (Prevention) Act.
The court accepts that ‘the applicant suffered 90 per cent disability from his childhood. He had also undergone cardiac surgery about 8 to 10 years before’. The medical certificate trusted by the court states that Dr. Saibaba suffered from a known case of post-polio residual paralysis with ‘chief complaints of reduction in left shoulder movements and pain in [the] back .…’ He was advised to go through regular treatment for three months and a coronary angiography by the doctor in the super-specialty hospital at Nagpur. On the basis of these medical accounts, the court concludes that the ‘present health condition of the applicant … is perfectly normal and is in the same position as it was when he was in jail’.
The reality that his disability and related medical conditions has put Dr. Saibaba at an unfair disadvantage in conditions of custody —that the standard of care need for a person with severe disabilities is of a different from the standard of care for a nondisabled person; that the standard is not met by only ensuring the maintenance of status quo; that conditions of imprisonment worsen the risk to life disproportionately in the case of a person with disabilitiesdoes not enter the balance sheet. The tenor seems to be that the diabolical acts that the complainant is alleged to have sympathised with offset any need for state and judicial benevolence. The Constitution hangs in suspended disbelief.
Trapped between the divine and the diabolical, it is time, yet again, for us to understand afresh that the discrimination results in disproportionate disadvantage, rejection, and stigmatisation suffered by persons with disabilities, and are caused by cultural, social, and physical obstructions that obstruct their effective contribution in social and political life. Disability is not a divine giftthis declaration is a serious misconception of the place of rights in realising human dignity, and the role of the state in ensuring protection against discrimination. Similarly, it is important to recognise that ease of access and support services for persons with severe disabilities are necessary to the protection of their right to life, bodily integrity, and dignity under the Constitution. Imprisonment of persons with severe disabilities worsens their suffering disproportionately in comparison to other prisoners, crushing the fundamental right to equality. We need to accept, at least by constitutional courts, that our prisons are not well-equipped to provide custodial treatment that does not erode the fundamental right to life, equality, and dignity of prisoners with disabilities. There is an urgency with which we must wrest constitutional ground for disability rights in these worried times. Importantly, we need a re-education on the Constitution at the highest levels of our juridical-political order.