Back in his native India, Dr Sanjay Jain wanted to buy a car. So he went to a bank to get a loan. Having recently been appointed a professor, Jain told the bank manager he wanted a car because it would make his life easier. That wouldn’t be possible, the bank manager said, as Jain couldn’t drive because he was totally blind and those who couldn’t drive were not permitted to buy cars. He could, however, buy a taxi that his wife could drive.

Jain said he could pay down the loan so why did he also need to be able to drive? The bank manager said those were the rules. Jain left the bank, disappointed but not discouraged. Another bank welcomed him with open arms.

“See the change in attitude?” Jain asks attendees of his Mindful Legality talk, recently hosted by ADLS. “What matters, I think, is not so much the law. What matters is the attitude, how you interpret the law.”

Pillar to post

It isn’t the first instance of hardship that Jain, a disability rights activist and professor of law at the National Law School of India University, has experienced.

In 2015, as an associate professor of ILS Law College in Pune, Jain requested from Kuwait Airways some additional support to make a flight he had booked to attend a conference in the US. Jain says that after being told the airline didn’t have a policy of offering additional support or that the company wouldn’t have sold him a ticket had it known he was blind, he went to the media.

Suddenly, a manager of the airline called. After talking to him, the manager apologised and sought to solve the issue rather than continue to obstruct, Jain says. The manager assured the professor he would travel “like an Amin”, to which Jain replied: “I would like to travel like a human being with dignity.”

If being forced to run from pillar to post can happen to a professor of law, “one can imagine what should be the plight of the people with disabilities who are not in positions of power and authority”, Jain says. Worldwide, one in six people experience significant disability, according to the World Health Organisation.

Some die up to 20 years earlier than those without disabilities; people with disabilities are twice at risk of developing depression, asthma, diabetes, stroke, obesity or poor oral health. And many health inequities afflict persons with disabilities, often arising from stigma, discrimination, exclusion from education and employment, and other unfair conditions.

Regression

So how do constitutions around the world treat an estimated 1.3 billion people? “You’ll be surprised to know that only 27% of the constitutions around the world have provisions prohibiting disability-based discrimination,” Jain says, “which means that 73% do not have anything to say on disability-based discrimination.”

New Zealand’s constitutional arrangements prohibit disability-based discrimination through s 21(1) (h) of the Human Rights Act 1993, which is affirmed by s 19 of the New Zealand Bill of Rights Act 1990. New Zealand has also signed and ratified the Universal Declaration of Human Rights 1948, which declares all human beings are born free and equal with dignity and rights, and the UN Convention on the Rights of Persons with Disabilities 2008, which protects the dignity of people with disabilities and ensures fair and equal treatment under the law.

In India’s constitution, the law-making subject of disability is “awkwardly sandwiched” between intoxicating liquors and burial grounds, Jain says. Moreover, it talks about giving relief to “the disabled and unemployable”, which suggests a “very paternalistic, very patronising picture” of disability, even if it’s construed as one of the state’s law-making domains.

Elsewhere in the constitution, Jain says people of “unsound mind” and are declared as such by a competent court are ineligible to hold public office or contest election. Moreover, “unsoundness of mind” disqualifies people from voting.

The “handicapped and mentally retarded” fall under the social welfare ambit of India’s Panchayats, one of the oldest systems of local government in the subcontinent. And the country’s municipalities must also “safeguard” the interests of “weaker sections of society, including the handicapped and the mentally retarded”.

The constitution hasn’t been “de-medicalised” in respect of people with mental disability, which still shows that India’s “post-colonial and very transformative constitution can be regressive with regard to people with disabilities”, Jain says.

Models

Drawing on Professor Amita Dhanda’s work in mapping how different jurisdictions engage with people with intellectual disabilities, Jain says there are three basic approaches.

The first legally incapacitates people with disabilities simply because of their status as someone with a disability. In 2019, India’s Supreme Court held a blind person cannot be appointed a judge unless their visual or hearing impairment is less than 50%. “Now, I am reading, I have written right? Because I have written, I can read. So, as a blind person, I can read and I can write,” says Jain, who criticises the court for having made the judgment call on how much sight or hearing a person must possess to adjudicate disputes.

The decision was ultimately overruled. The second approach focuses on outcomes. Jain gives the hypothetical of a patient who has initially consented to treatment, only to withdraw it in respect of any further treatment. “This would be treated as a sign of incapacity, which is dangerous to society. Probably I have taken a decision that is dangerous to me. In other words, by taking a decision, I have undermined my ability,” he says. “What is not appreciated, of course, is the fact that this decision is a decision taken by me by exercising my self-determination.”

The third approach is known as the functional approach, which recognises that decision-making capacity can fluctuate and is specific to any given issue at any point in time. What matters is the individual’s ability to make the decision at the time and the processes they followed in arriving at the decision. In keeping with many other countries, New Zealand has rejected the first two approaches and instead uses a “functional” approach to define capacity.

Compassion

Jain explains that two models largely define legal capacity: it’s either rested in every human being, provided he or she has access to support or help, or rested only in particular social groups. The “universal” model doesn’t stigmatise the reliance on support because supported decision-making champions the idea of co-dependence.

In the professor’s opinion, New Zealand’s mental healthcare law needs to be infused with compassion and based on human rights and co-dependency too. “We are all dependent on each other. We all need support and assistance from one another,” says Jain, who views the model as compassionate. “Law without emotions is no law at all because law is not merely a set of rules. The law is supposedly a social institution to empower everybody, to transform the lives of everybody. Why should disabled people be the exception?”

Transformative justice

In an “historical” judgment, India’s Supreme Court might have entered an “era of transformative and empathetic justice”.

In 2010, the Central Reserve Police Force decided to suspend one of its assistant commandants, Ravinder Kumar Dhariwal, after he was allegedly heard saying he was obsessed with either killing or being killed and made a threat that he could shoot. Counsel submitted the officer had developed mental health issues as a result of being continuously posted, for seven years, in areas where anti-insurgency operations were being conducted.

Before the incident in 2010, the appellant started experiencing obsessive compulsive disorder, secondary major depression and bipolar affective disorder, which he developed during service. After he was suspended, he received psychiatric treatment on several occasions. He was later assessed as having a permanent disability in the range of 40% to 70%. Instead of sending the appellant for medical treatment, the police department initiated criminal action against him. Should the official have been suspended or reasonably accommodated? The court allowed the officer’s appeal.

“It is music to the ears – the Supreme Court of India very clearly held that to suspend such a person is to impose on him punishment which he doesn’t deserve,” Jain says. “Just because there are certain symptoms of stress or anxiety, the same should not result in denial or deprivation of the capacity of an individual.”

Perfect example

Back to Jain’s experience with trying to get a bank loan: “I narrated the whole story and [the second bank manager] was laughing. The manager said ‘it’s all about understanding’. Not only did he ensure I was able to get my loan, he gave me some additional benefit. Within the next hour, my loan got processed and three or four days [later], I was able to buy my car.”

When the first bank manager heard about the professor’s new loan, he called Jain “and told me ‘why you did not let me know about your credentials fully? Because I got calls from a few people who say I have humiliated a professor’,” Jain said. “I told him that what should be enough to buy a car is my ability to pay the loans, not my credentials.

“This is the perfect example to bring home the fact that the authorities must have faith in the ability of people, irrespective of their abilities or disabilities.” ■