OPINION

Impediments to equal productivity, dignity

Rahul Bajaj

Rahul Bajaj  

As a disabled person inhabiting a world designed for the able-bodied, one learns to put up with a lot of indignities that others would consider unacceptable. These include: the everyday pain of being excluded from a whole host of normal life activities, and the challenge of having to constantly find ways of living with equal productivity and dignity as others which the able-bodied often simply do not have to think about. Even so, sometimes, one is overcome by the hot, white anger of something so irredeemably unfair that it cannot be just treated as one of the thousand cuts the disabled face everyday.

Access to a database

In her speech recently to the National Federation of the Blind, Laura Wolk, the first female disabled law clerk on the U.S. Supreme Court, noted how there exists a massive gap between what blind legal professionals, when provided appropriate tools and resources, are capable of achieving and what they are allowed to achieve, on account of the multiple impediments placed in their path.

And an incident last week served for me as a painful reminder of two such impediments and of how it feels to be on the receiving end of the kind of irredeemably unfair treatment I referred to earlier.

A battle I have been waging for some time now has been to make SCC Online, India’s premier legal database used by practising lawyers, accessible to persons with disabilities. This database is the only online supplier of true copies of judgments (which are the only authenticated copies of any judgments accepted in Indian courts, apart from the copies of judgments uploaded on the website of the relevant court).

SCC Online has myriad accessibility barriers — unlabelled links, search filters which cannot be applied with screen readers, and the text of judgments being inaccessible due to security settings. Thus far, the company running this website has baulked at any attempts to make it more accessible — a response characterised by defensiveness, indifference and sheer insensitivity.

Therefore, I took to Twitter in the hope of creating a groundswell of demands for SCC to mend its ways. The response I got is emblematic of the belief system that prevents the disabled from realising their full potential. In response to my plea, a person said: “His [sic; how] exactly can that make it more accessible? Set out your suggestions if you want traction. @... are busy helping us win cases.” When I asked him to explain why lawyers like me should not be similarly helped by the platform, he stated: “Tough. Learn to be brief.” Given that SCC Online is a private database, much like private property, the person said, no one has the right to ask that it be made accessible. His first tweet received the endorsement of SCC Online.

This incident vividly brings to light two fundamental issues that prevent the disabled from leading lives of equal dignity and productivity: an exclusionary mindset and the inability to recognise the disabled as rights-bearing citizens, entitled to demand fair and equal treatment from every service provider, public or private.

An exclusionary mindset

It has always been my aspiration to be a litigator: nothing about the law excites me more than the prospect of winning a battle of wits in a courtroom. During one of my internships at a leading litigation firm in India, I was unable to get meaningful work. On being informed of this by one of my mentors, the partner at that firm said to the former: “But one thing I should indicate is that usually people with special skills have a harder time coping with litigation and it might not be a bad idea in future to advise them towards the corporate side as that is on the whole, slower paced.”

In the same vein, the Supreme Court of India held last year, in V. Surendra Mohan vs. State Of Tamil Nadu that ‘Tamil Nadu’s policy, of reserving the post of civil judge only for people whose percentage of blindness does not exceed 40-50%, was rational and reasonable. It ruled that a judicial officer has to possess a reasonable amount of sight and hearing to discharge her functions. It accepted the claim that impaired vision makes it impossible to perform the functions required of judicial officers’.

The fallacy in this line of thinking is that it starts with the wrong premise. Instead of starting with the premise that a blind person is as much entitled as anyone else to freely choose what profession they wish to pursue, meaning thereby that any barriers on their path must be attenuated, it instead starts on the premise that the existing ways of doing things will always remain the way they are, so tough luck to those whom they exclude.

As the Supreme Court held last year in the case of B.K. Pavitra vs. Union of India , albeit in a slightly different context: “Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order.”

Compliance on accessibility

Equally important, in the public imagination, doing right by the disabled is still widely considered a function of the goodness of one’s heart, a favour that constitutes one’s good deed for the day. The project of affording them full inclusion and access is not thought of as their right which everyone must help vindicate. This view is innocent of the 2016 Rights of Persons with Disabilities Act (https://bit.ly/2ZDREDL). Section 46 of the Act requires all service providers, public or private, to comply with the rules on accessibility framed by the Central Government within a period of two years from the date of their promulgation. This two-year period expired in June 2019.

Until each of us is firmly committed to the idea of implementing the two fundamental changes sketched above, we will continue to live in an environment in which, even as we sing praises of the disabled who achieve success despite the obstacles placed on their path, we do not pause to reflect on what it is that makes it so hard for them to succeed in the first place and what we can do to reverse this state of affairs.

Rahul Bajaj is a Judicial Law Clerk at the Supreme Court of India

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