On July 8, the Supreme Court laid down a framework for the representation of persons with disabilities in visual media. The ruling came in response to an appeal against a Delhi High Court ruling. The case concerned the content of the film Aankh Micholi, produced by Sony Pictures, which featured characters with various disabilities. Since the release of the trailer, disability activists and scholars have criticised the film for promoting stereotypes and prejudices against persons with disabilities. While the Supreme Court did not pass any adverse order against Sony Pictures under the Rights of Persons with Disabilities Act, 2016 (RPwD Act) or the Cinematograph Act, 1952, it did lay down and elaborate some basic principles regarding the rights of persons with disabilities in its order.
The SC emphasised the human rights model of disability, which goes beyond the social and medical models of disability. The medical model tracks disability in an individual’s medical condition. The social model locates disability in society’s attitudes and structures. The human rights model goes beyond the social model and is embedded in the principles of international human rights law. The human rights model states that disability is a natural part of human diversity and that people with disabilities are also rights holders whose participation and inclusion in society must be guaranteed.
The Supreme Court’s emphasis on the human rights model is significant as it imposes a positive obligation on the appropriate government and private parties to promote full and effective participation. The scope of the private parties’ obligation under the RPwD Act is under challenge. In Vikash Kumar vs UPSC, the Supreme Court had recognised the obligation of private parties under the RPwD Act and in the present case, it has also recognised the limitations of this obligation. The Supreme Court had rejected the applicant’s request under Section 7(1)(d) to direct Sony Pictures to make an awareness film and observed that this amounted to “compelled speech” (para 72.2). Thus, the scope of the private parties’ obligation under the RPwD remains an evolving case law.
Highlighting attitudinal barriers
The Court missed an opportunity to link the “attitudinal barriers” aspect of the RPwD Act in its detailed order on various aspects of the language. Though the Supreme Court did not use the phrase “attitudinal barriers”, it provided detailed case law on the same. Attitudinal barriers are recognised as one of the social barriers under the RPwD, in line with the social model of disability.
Stereotypes play a significant role in perpetuating attitudinal barriers against group members. The Supreme Court has acknowledged that stereotypes operate as discrimination against group members (paragraph 32) and emphasised the importance of stereotypes being “the antithesis of dignity and non-discrimination”. Thus, stereotypes which perpetuate incompetence or condescension and lead to exclusion from different social environments amount to discrimination. This is exemplified in cases such as Navtej Johar and Anuj Garg, where gender stereotypes caused indirect discrimination and were held unconstitutional.
Stereotypes about groups and their members also undermine the individual dignity protected under Article 21. This point was highlighted by the Supreme Court in the Sabarimala Temple case (Indian Young Lawyers Association v. State of Kerala, 2018): Inferiority complex and patriarchy towards persons with disabilities leads to systematic and hidden exclusion, violating the dignity of persons with disabilities.
Movie speech and hate speech
The Supreme Court has recognised differences in the laws relating to speech, hate speech and class defamation in films. For example, in Pravasi Balai Sangathan, the Supreme Court explained that hate speech is an act that seeks to marginalise an individual because of their membership in a group, which often leads to the perpetuation of hatred and violence. On the other hand, the US Supreme Court in Beauharnais v. People of Illinois defined class defamation as amounting to hate speech, which is also similar to individual defamation. This distinction was essential to elaborate the scope of free speech in films, since the standard for limiting speech differs in the other two aspects.
The Court adopted a “context of speech” analysis, emphasizing that stereotypes and derogatory remarks are often targeted at marginalized communities (here, people with disabilities). Other aspects that define the context of this speech are the impact of the speech on human dignity, the identity of the speaker and the speaker, and the linguistic connotations of the speech. These aspects are not in addition to the reasonable restrictions imposed on freedom of speech under Article 19(2), but rather operate within it. The Court has previously held, and reiterated in this judgment, that speech that targets marginalized people, confirms or reinforces people’s prejudices and causes further marginalization and disenfranchisement is not protected under Article 19(1)(a).
The Court concluded that “the creative freedom of a filmmaker does not include the freedom to satirize, stereotype, misrepresent or denigrate those who are already marginalized” (para. 70). In assessing these aspects, the “intent” and “overall message” of the film must be taken into account.
Timely intervention
The SC Framework is a timely intervention and highlights the urgency of a more sensitive understanding of disability in the visual media space. The nine-point guidelines cover various aspects ranging from the use of language to participation and consultation with disability advocacy groups. More nuanced portrayals of disabilities and disabled people are expected from mainstream production companies, as seen in the recently released film ‘Srikanth’. The effectiveness of these guidelines will be evident in the coming years.
The author is a Delhi-based lawyer and founder of the Politics and Disability Forum.
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First uploaded on: October 7, 2024 17:48 IST