A movie, Aankh Micholi, the petitioner-appellant claimed, violates constitutionally protected rights of persons with disabilities, the Cinematograph act, 1952, and the Rights of persons with Disabilities Act, 2016. The petitioner-appellant claimed that the Central Board of Film Certification has failed in its statutory duty to certify the film in accordance with the applicable guidelines.

Delhi High Court’s judgement

The petitioner first approached the Delhi High Court against the film and the Central Board for Film Certification. He sought two directions from the Court:

1. The petitioner sought to include an expert on the subject matter of the Rights of Persons with Disabilities Act, 2016 (‘RPWD Act’) within the Board of Film Certification under Section 3 of the Cinematograph Act, 1952 (‘Act of 1952’) and advisory panel constituted under Section 5 of said Act.
2. The Petitioner also sought relief(s) against Sony Pictures including the relief of punitive damages to any charitable organization that support PwDs and a public apology.

Petitioner’s arguments before the Delhi High Court

The petitioner’s argument was that the movie had portrayals of persons with disabilities as stooge and anomalous to common people, and that it reinforces negative stereotypes. It was argued that the movie violates Section 3(3) of the RPWD Act which states that no person shall be deprived of his or her personal liberty only on the ground of disability.

Respondent’s arguments before the Delhi High Court

Sony Pictures stated that when petitioners served a notice to them, they clarified the stance on the movie and had stated that the overall message of the movie and the core storyline is centred around overcoming disability.

Delhi High Court’s reasoning

The Court observed that the petitioner’s notice to Sony was based on the movie’s trailer and not the movie itself. It noted that after the reply to the notice by petitioners, which specifically refuted all the allegations, there was no follow-up from the petitioners until the filing of the petition. The court also noted that the petitioner did not specifically refute the claim made by Sony Pictures that the overall film is centred around overcoming disability and that the movie depicts the strength of characters therein who are suffering from disabilities.

The Delhi High Court also stated that since there are already Central Government guidelines for CBFC for the purpose of sanctioning of the film, there are no grounds for the relief of fresh or new guidelines to be given to the CBFC. Saying this, the Court dismissed the petition.

Thereafter, the petitioner appealed to the Supreme Court.

Supreme Court judgement

Relief sought by the appellant:

1. Beeping out parts of the film: The appellant sought to have certain parts of the film beeped out. The Court declined, noting that a disclaimer was sufficient.
2. Producing a separate awareness film: The appellant requested Sony Pictures be directed to create an awareness film. The Court declined, stating that Section 7(1)(d) applies to the government.
3. Inclusion of subject matter experts: The appellant sought more subject matter experts in the film certification process. The Court held that existing rules are adequate and no further intervention was needed.

Validating restraints on speech via differentiation between disabling and disability humour

The Supreme Court opined that the right to exhibit films is part of filmmakers’ fundamental right to freedom of speech and expression under Article 19(1)(a), which is subject to reasonable restriction under Article 19(2). The Cinematograph Act is an instance of reasonable restriction on the Right under the ‘decency and morality’ rubric of Article 19(2). It noted that restraints on cinematic speech must be narrowly construed because of their potential to imperil the significant value of free speech, which is a constitutionally protected value.

The judgement authored by Chief Justice DY Chandrachud took the opportunity to discuss the aspect of hate speech too. CJI, while discussing the importance of context in understanding the nature of an expression, differentiated between ‘disabling humour’ that demeans and disparages persons with disabilities from ‘disability humour’ that challenges conventional wisdom on disability. Quoting Professor Jeremy Waldron, author of the book ‘The Harm in Hate Speech,’ the CJI opined that context is of paramount importance in deciding the validity of restraints on speech. The judgement states as follows, in this context:

“Derogatory speech and stereotypes usually target the marginalised. The impact of the speech on human dignity; the identity of the speaker and the target; and the linguistic connotations of the speech may be considered in deciding issues around stereotypical speech. The standard of the ‘overall message’ of a film, in some ways, furthers this emphasis on the importance of context and manner of portrayal in visual media.”

Emphasis on social aspects rather than medical aspects

The CJI noted that consistent and recurring negative portrayals of PwDs result in channelling of attention on the medical aspects of impairment rather than the social aspects that actually disable a person. The judgement stated as follows:

“Such disabling imagery formed “the bedrock on which the attitudes towards, assumptions about, and expectations of disabled persons are based.” Such portrayal perpetuated stigmatizing views about disability as a vulnerability or a ‘suffering.’ Recurrent negative portrayals as illustrated above and frequent use of patronizing and offensive language such as “victim,” “differently abled,” or “unfortunate” to describe individuals continue to perpetuate negative attitudes towards persons with disabilities.”

Discussion on national and international jurisprudence

After discussing the national legislation on Persons with Disabilities and the International Jurisprudence under the United Nations’ Universal Declaration of Human Rights, 1948, the Convention on the Rights of Persons with Disabilities, 2008, etc., the court acknowledged the importance of involving and closely consulting persons with disabilities through their organizations in the development and implementation of awareness campaigns.

The Supreme Court relied on Vikash Kumar vs. Union Public Service Commission[1] to state that the government should enable the exercise of rights, including the right to equality and dignity; and that both the state and private parties have a positive obligation to provide support to persons with disabilities to facilitate their full and effective participation in society.

The decision

The Supreme Court stated that the freedom under Article 19(1)(a), that is the creative freedom of the filmmaker, cannot include the freedom to lampoon, stereotype, misrepresent, or disparage those already marginalized. However, it added, in appropriate cases, if stereotypical/disparaging portrayal is justified by the overall message of the film, the filmmaker’s right to retain such portrayal will have to be balanced against the fundamental and statutory rights of those portrayed.

Against the specific reliefs prayed for by the appellant, the SC stated that it was not inclined to recommend beeping out parts of the film considering the inclusion of a disclaimer in the film.

On producing a separate awareness film

The petitioner prayed that the SC direct Sony Pictures to make an awareness film under Section 7(1)(d) of the RwPD act. The SC declined to do so since Section 7(1)(d) is directed at the government i.e., the appropriate government is directed to take measures to protect PwDs, including the creation of awareness films.

On inclusion of subject matter expert

The Supreme Court stated that the inclusion of subject matter experts in the Board and advisory panels is adequately addressed by the Cinematograph Act and the certification Rules of 1983 and 2024, which do not require further interference. Under the 1983 and 2024 Rules, the Examining Committee may include women and consult experts. The Court highlighted that existing committees are competent to assess films while considering other relevant laws and expert opinions. Additionally, the 2024 Rules enhance the role of subject matter experts, recognizing that their consultations can significantly inform the Board’s perspective. The Court mentioned that it cannot impose additional requirements or guidelines beyond the current legislative provisions.

The guidelines

The Court took the opportunity to provide a framework for the portrayal of persons with disabilities in visual media that aligns with the anti-discrimination and dignity-affirming objectives of the Constitution as well as the RwPD Act. The Court issued the following guidelines:

1. Inclusive Language: The language used should be inclusive and not alienating. Terms like “cripple” and “spastic” should be avoided as they contribute to negative perceptions and discriminatory attitudes.
2. Accurate Representation: Creators must strive for accurate representation of medical conditions to avoid perpetuating misinformation and stereotypes.
3. Multifaceted Portrayal: Visual media should depict the diverse realities of persons with disabilities, highlighting their challenges, successes, talents, and contributions to society.
4. Avoiding Stereotypes: Persons with disabilities should not be lampooned or depicted as having extraordinary heroic abilities that merit dignified treatment.
5. Participation Principle: Decision-making bodies should include persons with disabilities in statutory committees and consult them for assessing the overall message and impact of films.
6. Collaboration with Advocacy Groups: Collaboration with disability advocacy groups is essential for respectful and accurate portrayals, ensuring alignment with the lived experiences of persons with disabilities.
7. Training and Sensitization: Implementing training and sensitization programs for individuals involved in creating visual media content is crucial to foster a deeper understanding and commitment to responsible portrayal.

Conclusion

The Rights of Persons with Disabilities (RwPD) Act of 2016 and the Supreme Court have taken the human rights approach to the rights of persons with disabilities. It sets a precedent for respectful and accurate representation of PwDs in visual media, reinforcing the importance of context, dignity, and collaboration in combating stereotypes and promoting inclusivity. Despite exercising restraint on itself over limiting the freedom of speech and expression, the Court actively fulfilled its role in protecting the constitutional rights of PwDs by laying down guidelines for better portrayal of people with disabilities.

(The author is part of CJP’s legal research team)

[1] Civil Appeal No. 273 of 2021

Related:

Students with disabilities, those from underprivileged households and women left out of online learning during pandemic

Children with disabilities: India’s partial progress in harmonizing national laws with UN requirements

ILO bats for making the future of work inclusive of persons with disabilities

The post Balancing Countervailing Rights: SC lays down guidelines for portrayal of Persons with Disabilities in visual media appeared first on SabrangIndia.

The World Bank estimates that one in twelve Indian households have a family member who has a disability. For persons with disabilities in India, life is full of obstacles and marred with awful scenarios. Most of them struggle to live a fulfilling independent life and almost 90 percent of persons with disabilities are below the poverty line.

Today, India is a long way from wholesomely including persons with disabilities in all its policies. Accessibility to some key information and communication technologies (ICTs) like TV, websites, mobile phones, websites, assisted medical devices and apps for disabled persons yet remain a mere lip service.
In an example of how persons with disabilities are left out of jobs, the Supreme Court directed the State of Tamil Nadu to fill more than 2000 backlog vacancies in government department under the reservation for disabled persons.

Taking a comprehensive view of the situation related to persons with disabilities in India, the United Nations Committee on the Rights of Persons with Disabilities, composed of human rights experts issued positive developments,concerns and recommendations with regards to India on September 18, 2019.
Welcoming the efforts to adopt legislations recognizing and enforcing the rights of persons with disabilities, the Committee issued the following important recommendations:

It asked the State to bring the guidelines for assessing and certifying disability into line with the human rights model of disability and to ensure that organizations dealing with the rights of disable persons are involved in the reform of these guidelines. It emphasized that the State move from only care and protection towards a more wholesome goal of eliminating attitudinal and environmental barriers that prevent their equality and inclusion in society.

It also placed special emphasis on ensuring that the State work towards repealing derogatory terminology like “mentally ill” or “divyangjan” from its legislation, policies, government regulations, and government websites and especially from public discourse.

Expressing concerns that participation of organizations with disabled persons is not prioritized in the decision-making processes related to them, it recommended that the State of India remove such barriers, provide resources for their participation and ensure that their opinions are given due weight in all decisions.

The Committee showed concern about multiple and intersecting discrimination and discrimination by association in legislation and in practice against persons affected by leprosy and their family members, particularly women. It was also concerned about absence of measures to combat multiple and intersecting forms of discrimination against persons with disabilities in the scheduled castes and scheduled tribes, including Dalits and Adivasi, older persons with disabilities, persons with disabilities living with HIV/AIDS, indigenous persons with disabilities, persons with disabilities belonging to ethnic, linguistic and religious minorities, and lesbian, gay, bisexual, transgender and intersex persons with disabilities.

In its recommendation with regards to the above matter it asked the State to repeal all discriminatory legislation against persons affected by leprosy in all areas and assess the situation of and adopt anti-discrimination legislation and public policies to tackle multiple and intersecting forms of discrimination, with the aim of achieving inclusive equality for persons with disabilities facing intersectional discrimination.

With regards to Women with disabilities, the committee advocated the State to strengthen measures to address multiple and intersectional forms of discrimination, adopt national and state action plans for promoting equality, ensure that the national policy for women aims at reducing stigma, establish gender-responsive policies and budget allocations to address the rights of all women irrespective of their caste, location, ethnic identity, socio-economic status or religious background while ensuring the effective participation of women with disabilities in policy-making.

With respect to Children with disabilities, the committee recommended the State party to Allocate financial resources to ensure inclusion in basic public services and support for all children with disabilities; ensure the effective protection of all children with disabilities under the Child Protection Scheme and other programmes, prioritizing children in rural areas and children facing a risk of abandonment and institutionalization, strengthening measures to provide support in the community, including foster families and adopt measures to facilitate children with disabilities express their views in all matters related to their lives – including in administrative or judicial procedures.

In 2019, the NarendraModi government released a draft of the National Education Policy, which proved to be a disappointment for children with disabilities. Not only does it quote a Disability Act that doesn’t exist, its section titled ‘Education of children with special needs’ is vague and lacking in depth. The draft also skips any mention of students with intellectual disabilities.

In light of the article 9 of the Convention, the committee recommends that the State Implement the Rights of Persons with Disabilities by taking a cross-sectoral approach and enforce accessibility of transportation services, including transport concessions and licenses, accessibility of information, and accelerate the implementation of the barrier-free buildings.

Keeping in light the situations of risk and humanitarian emergencies, the Committee recommended that State to ensure the provision of human rights-based response to internally displaced persons with disabilities particularly those who have been displaced for prolonged periods in all situations of risk. It also recommended the State to adopt measures to assess the situation of persons with disabilities in the state of Kashmir and ensure their access to assistance and community basic services.

Recommending provisions for Equal Recognition before the law, the Committee asked the State to repeal all types of guardianship (no ‘limited guardianship’) from its national and state legislation and practices and introduce supported decision-making systems respectful of the autonomy, will and preferences of all persons with disabilities.

With respect to rehabilitation, the Committee is concerned that the Deendayal Disabled Rehabilitation Scheme emphasizes a medical and charity-based approach to disability, and that it discriminates against persons with disabilities from marginalized groups. Hence, it recommends that the State party promote community-based inclusive development, reframing the Deendayal Disabled Rehabilitation scheme in consultation with organizations of persons with disabilities, particularly those in rural areas, ensuring budgetary allocation for habilitation and rehabilitation across the State party and quality standards of programmes, monitoring and evaluations on regular basis.

The Committee found that only 37 percent of persons with disabilities have access to employment and that only 1.8 percent of women with disabilities access to employment. It is also concerned about information about cases of sexual harassment in the workplace against women with disabilities and the lack of measures to prevent and protect them.

To combat this lacuna, the Committee recommends that the State adopt a national and state strategy for ensuring access to employment by persons with disabilities in the open labour market, through equal opportunity policies and recruitment and skill development training programmes. It also recommends decisively combating sexual harassment and exploitation of women with disabilities at the workplace by disseminating accessible public information and implementing redress for women facing sexual harassment.

It is time that policy makers in India take heed of the recommendations and involve civil society organizations, in particular organizations of persons with disabilities, in drafting frameworks, disseminating information and ensuring implementation and monitoring progress with regards to laws and participation for effective change.

The full report of the concerns and recommendations of the committee specifically with regards to India can be found here.

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