In a first before the Supreme Court of India, a lawyer with a hearing impairment was allowed to virtually argue a matter with the assistance of a sign language interpreter.
While the Bench’s forthcoming attitude towards making the hybrid court infrastructure accessible for the lawyer was lauded from all corners, the road to genuine inclusivity continues to be paved with barriers limiting access to justice for Persons with Disabilities ("PwDs”).
Such barriers, both infrastructural and attitudinal, must be systemically dealt with to ensure that rights and entitlements available to PwDs under domestic and international legal frameworks are effectively realised.
Extant Legal Framework and Existing Initiatives
Right to justice is the cornerstone of a right-based system of jurisprudence and has been codified as an integral legal right under international human rights instruments such as the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights.
Article 13 of the United Nations Convention on Rights of Persons with Disabilities ("UNCRPD”) provides that State Parties should ensure effective access to justice for PwDs on an equal basis with others, including through the provision of procedural and age-appropriate accommodations in all stages of legal proceedings. Article 13(2) further emphasises the need to train law enforcement personnel, including police and prison staff, for enabling them to better understand the special needs of PwDs.
The right to access justice has been spelled out under Section 12 of the Rights of Persons with Disabilities Act, 2016 ("RPwD Act”) which requires the appropriate government to take suitable measures for ensuring that PwDs are able to exercise the right to access any court, tribunal, authority, commission etc without discrimination on the basis of disability.
The RPwD Act also provides for the concept of reasonable accommodation which may include necessary and appropriate modifications or adjustments to ensure that PwDs are able to enjoy their rights equally with others.
Additionally, the requirement of making information and communication technology content and built infrastructure accessible for PwDs has been recognised under Sections 42 and 45 of the RPwD Act respectively.
In addition to the extant legal framework which provides for the right to justice, Justice DY Chandrachud has previously foregrounded the issue of accessibility for PwD lawyers and litigants in the virtual court infrastructure by calling for disabled-friendly information and communication technology systems.
As a part of the Supreme Court’s e-Committee initiative, various matters such as the need to make filings accessible to lawyers with visual impairment; ensuring proper placement of stamps/watermarks to promote accessibility through assistive technology; and making captchas on the Supreme Court and High Court websites accessible have been underscored. More recently, in December 2022, the SC Committee on Accessibility was constituted with the objective of conducting a comprehensive accessibility audit of the justice system and the Supreme Court’s premises.
Persisting Barriers
PwDs may engage with justice systems in more than one capacity ie, as litigants, lawyers, witnesses, arbitrators, or judges. However, their ability to access law enforcement and court systems is significantly impeded by the presence of infrastructural and attitudinal barriers, sometimes existing in complex combinations thereby, compounding the disadvantages faced by them.
The existing system of filings in most courts, particularly at the lower levels, involves the scanning of documents which lack optical character recognition for persons with visual impairment. Such documents are inaccessible and it may place undue burden on PwD lawyers and litigants to convert them in accessible form.
Further, despite the mandate to make all public buildings physically accessible to PwDs, 67% of court complexes continue to remain inaccessible for PwDs as per data compiled by the SC registry.
Attitudinal barriers which promote a patronising view that PwDs are wholly dependent on others conflate disability with incapacity and further perpetuate stigma and discrimination against PwDs both inside and outside court complexes.
Additionally, while some disabilities may be visible and require a reasonable accommodation in terms of physical infrastructure, invisible disabilities such as autism spectrum disorder require the mitigation of social barriers including stereotyping and stigmatising.
The UNCRPD Committee in its Concluding Observations on the Initial Report of India expressed concerns on PwD's right to access justice due to lack of accessibility of court buildings and unavailability of sign language interpreters.
It was noted that the limited provision of procedural and age-appropriate accommodations to PwDs coupled with a lack of awareness and capacity-building in the justice system constituted barriers affecting equal access to justice.
The Way Forward
Given that PwDs are a vulnerable community and face a higher risk of violence and abuse, access to justice is critical towards ensuring that their rights meaningfully translate from paper to practice.
The need to place lawyers with disabilities at par with their able-bodied counterparts has been recognised as a corollary to the right to equality enshrined under Article 14 of the Constitution of India. Article 19(1)(g) of the Constitution further guarantees the right to practise a profession of one’s choice.
In line with the requirement of making all public buildings accessible, entry and exit points in court complexes as well as rooms should be made accessible through the construction of ramps, special toilets, and wheelchair-friendly corridors.
Further, PwDs appearing in courts should be provided reasonable accommodation through the appointment of sign language interpreters, without any additional cost to the PwD lawyer or litigant, and provision of case information including filings in an accessible format.
Novel technological methods aiding accessibility may further be adopted to make judicial processes smoother. For instance, the Madras High Court’s installation of a braille printer in Chennai to provide visually impaired persons with copies of judgments is one such move in the right direction.
Similarly, the Delhi High Court’s recent order requiring the Delhi Government to provide financial assistance for procuring essential gadgets to promote the participation of PwDs in judicial proceedings is a positive development.
Lower Courts Must Step Up Too
At the macro level, existing filing practices must be reconfigured at a wider scale with a collaborative approach between the bar and the bench to make this system more inclusive.
While the constitution of the Supreme Court Committee on Accessibility and its call for an accessibility audit are welcome steps, suitable directions for compliance should also be issued at the lower-court level for a bottom-up approach and devising disabled-friendly practices right from the district level.
All actors within the criminal justice system, including but not limited to judges, police personnel, court staff as well as prison officers should be provided with sensitivity training on a regular basis to promote and support the participation of PwDs, with both visible and invisible disabilities, in judicial systems.
A component of disability sensitisation may be incorporated as a part of the curriculum in legal educational institutions to raise awareness levels among legal students and professionals. Further, PwDs and their organisations must be involved in the planning and implementation of such initiatives to better account for the practical challenges faced by them on an everyday basis.
While broad-based policy reform may be instrumental in tackling some of these issues, much work remains to be done at the systemic level to ensure that all proposed reforms are duly implemented and suitable individual action is proactively taken where required.
(Lakshita Handa is a Research Fellow in the Legal Design and Regulation Team at Vidhi Centre for Legal Policy, New Delhi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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