Reinstating the dignity

One of the greatest judges of modern times, Justice Benjamin Cardozo had once famously observed that “the process of justice is never finished, but reproduces itself, generations after generations”. The Supreme Court of India, in a significant judgement delivered on July 8, 2024 in the case of Nipun Malhotra v. Sony Pictures Films has yet again lived up to what Justice Cardozo had said a century ago by creating a framework for the sensitive portrayal of persons with disabilities on visual mediums, which buttresses the existing structure of the Rights of Persons with Disabilities Act, 2016 (RPwD Act).

This case came in an appeal against a judgement delivered by the Delhi High Court and concerns a movie named Aankh Micholi, where certain medical conditions have been misrepresented and derogatory terms have been used for characters who are persons with disabilities (PwDs). The verdict details the length and breadth of jurisprudence around disability rights while shedding some light upon the aspect of human dignity and its intrinsic link with the rights of PwDs. However, the most intriguing aspect of the judgement is the discussion around the context of speech and how to curb speech that prejudices the marginalised and disenfranchises them further.

The dimension of ‘context’ in speech

Elaborating upon the already enriched jurisprudence of disability rights, the Apex Court elucidated upon the dimension of speech qua the rights of PwDs. Relying upon the argument of Jeremy Waldron from his famous work, The Harm in Hate Speech, the court opined that on certain issues, society is past the point where it needs to debate fundamental aspects of issues such as disability rights. As Waldron had argued, if hate speech were to be allowed because of its ability to sustain a public debate, such debate would come at the cost of the dignity of racial minorities, who have had to bear humiliating attacks on their objective social standing due to such speech. With this background, the court ruled that such speech must be curbed based on objective criteria rather than the subjective notion of its 'effect on one's feelings'.

What is significant about this observation is the fact that the Supreme Court for the first time in the history of this republic highlights the importance of the ‘context’ in speech as paramount, while deciding the validity of restraints on it. We have seen that derogatory speech and stereotypes usually target the marginalised. On the question of how to separate actions done in the cover of free speech, the SC offers a unique solution by holding that the impact of the speech on human dignity; the identity of the speaker and the target, and the linguistic connotations of the speech must be considered in deciding issues around stereotypical speech. The other thing which should be considered is the fact that 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.

The SC opines that in the context of historically oppressive representation of persons with disabilities, speech that entrenches stereotypes is opposed to the dignity of such individuals. However, the Court also adds a caveat by observing that not all speech that uses stereotypes commonly employed against persons with disabilities is abhorrent by reason of such use alone. So it is here, that the context, intention and overall message of the speech becomes very important, and it must be considered as a whole before such use may be termed as prejudicial, and the protection of free speech lifted.

Dignity of PwDs

Another very significant point in the judgment is the fact that the Apex Court was cognisant of the impact of stereotypes on discrimination and the enjoyment of fundamental rights. The safeguards against stereotyping in the anti-discrimination code can be directly traced under Article 15 of the Constitution, and the right to dignity and equality under Article(s) 14 and 21. This aspect had been further expanded by the judgements of the Supreme Court in Jeeja Ghosh v. UOI and Rajive Raturi v. UOI. Thus, human dignity is both a constitutional value and a constitutional goal. But this raises an interesting question about the dimensions of the constitutional value of human dignity in the context of the rights of PwDs. The answer comes from the philosophy of law laid by the Supreme Court in various cases including the ones mentioned above, expanding and evolving the contours of the RPwD Act.

For instance, the Apex court in Jeeja Ghosh—citing the famous treaties of Justice Aharon Barak on Human Dignity—had held that the constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the Constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; and third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.

Balancing the two rights

In the present case, the Supreme court has also put forward the need for balancing the freedom of speech under Article 19(1)(a), if such a speech is infringing the dignity of PwDs. This balancing of the two rights can be undertaken according to the single or the double proportionality test depending on whether it felt one of the rights took precedence over the other. Taking forward the law laid down in Vikas Kumar v. UPSC, the court has also provided a nine-point 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 RPwD Act while balancing the creative freedom of the filmmakers.

The judgement in Sony Pictures is also a locus classicus in the sense that the court for the first time observed that the “creative freedom of the filmmaker cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalised.” However, even after this judgement, a lot needs to be done to safeguard the rights of PwDs. We have the human rights and social justice approach which enables the use of various categories of rights and also recognises how rights have to be a concern in thinking about approaches to disability and social policy that enhance, rather than diminish, the status of those with disabilities. Our joint efforts, with all the backing of international and domestic laws, can materially transform the existing scenario and general attitudes of people towards disabilities. The social as well as the legal order should keep in mind the fact that it is never the wrong time to do the right things. Let us all work in this direction.

The writer is an Associate to Hon’ble Justice AK Sikri, Singapore International Commercial Court and Former Judge of the Supreme Court of India. Views expressed are personal