THE INDIAN JUDICIAL SYSTEM IS FAMOUS for its slow pace. The crawling of cases - with it the lives of millions involved - has been the subject matter of numerous films, caricatures in media and commentary in the runaway world of social media. There are over 50 million pending cases across district and High courts. It is almost double the count of the official disabled population in the country.
The first inaccessibility faced by disabled in Indian courts is the duration of court cases. A person with disability would, on average, be short on time compared to a normal bodied person. The remedy may come too late, physical deterioration may warrant early judicial intervention, a disabled accused awaiting sentence may simply be rotting away in prison. The disabled quest for justice can be broadly compared to a litigant with a serious medical condition.
For millions of disabled Indians, justice is inaccessible not only in time but also in understanding — physical, intellectual, and legislative. We can talk about physical inaccessibility to courts infrastructure but that is a universal feature across the Indian landscape. So let us not dwell on it. Intellectual inaccessibility is the biggest obstacle the disabled face in Indian courts. District courts – where over 90 percent of pending cases are stuck – seldom have sufficient knowledge of disability laws to decide cases involving disabled litigants. However, it must be said that in a majority of cases, provision of disability laws may not kick in. Judicial officers simply need to decide on civil or criminal matters.
Hence, the judicial process simply becomes oblivious to the ability/ disability of litigants. The judicial officers are expected to uphold fairness in passing the judgements. What happens if judicial officers start becoming too sympathetic to the disabled accused?
This is where the district judicial system is stuck in a time warp. The United Nations Convention on the Rights of Persons with Disability (‘UNCRPD 2007’) coupled with The Rights of Persons with Disabilities Act, 2016 (‘RPwD Act’) clearly outlines the rights of disabled persons.
Conduct a survey among judicial officers at district level and you will be surprised how few would know that UNCRPD is an international treaty that is binding on India and Indian courts. The knowledge of UNCRPD is as crucial for judicial officers as that of Bharatiya Nyaya Sanhita], 2023 (‘BNS’). Disabled people are perhaps the only specific citizen class for whom an international legislation is applicable in an Indian court. Non-invocation of UNCRPD provisions by disabled litigants and their lawyers is no excuse for ignorance of the legislation by judicial officers.
Forget the UNCRPD — even awareness of the RPwD Act remains sketchy among judicial officers. Expecting them to meaningfully incorporate its provisions in their judgments may be overstating the system’s current capacity.
Some real scenarios of intellectual inaccessibility could be demonstrated by attempting to ask and answer the following questions:
Can district judges even define what “inaccessibility” means for disabled accused in police custody?
When a disabled woman is denied sanitation in lock-up, can a judge identify the crime the State has committed, and its remedy?
A disabled accused is arrested by police without prior notice in a non-heinous crime. Can the judiciary combine the UNCRPD’s Article 13 (Access to Justice) with Indian legal precedents to offer relief?
Do the judicial officers have knowledge of various manuals - related to disabled accused/ witness - of police and government that are in force? Can the judicial officers pre-empt ill-treatment to disabled people in the justice system?
Do the judicial officers insist on specific medical examinations of disabled accused while deciding on police/ judicial custody? Are they equipped to understand different types of disability to ensure equitable justice?
Listing out more complex scenarios might be unfair to the overburdened district judicial system. But without basic understanding of disability laws, the judicial system presents a huge roadblock before disabled litigants in their journey to get justice. Justice cannot be a sermon, well-meaning thought or simply fair intent. Justice has to be grounded in the provisions of legislation and their proper understanding by judicial officers. Non-familiarity with the law cannot be an excuse to deny disabled their rights and justice.
Some may argue that lawyers of disabled litigants must be aware of relevant laws and provisions. Why place the onus on judicial officers?
Firstly, lawyers argue in the courts, but judgements are passed by judicial officers. Lawyers may or may not have too many disabled clients but judicial officers deal with multiple cases involving the disabled. Judicial officers have more impact on the fate of disabled litigants and consequentially, greater responsibility.
Legislative inaccessibility is another big challenge for disabled litigants. The provisions of RPwD Act are not buttressed in the relevant civil and criminal laws. There is a need for consistency in provisions across statutes to safeguard the exploitation of disabled people in the justice system.
Finally, there is inaccessibility created by bundling of disabilities. There have been many well-meaning judgements on disability by higher courts and the supreme court. The courts are inclined towards encompassing all kinds of disabilities in their judgements. Lack of focus on specific disability of litigant dilutes the effects of judgements. Justice, like disability, is not one-size-fits-all. Unless judges understand the specific realities of different disabilities, even well-meaning rulings risk perpetuating inaccessibility.
Each type of disability is a vast area of enquiry and research. What may work for a locomotor disabled person would not work for a visually impaired person. Similarly, intellectual disability would need a completely different approach compared to sensory disability. Within locomotor disability, there would be at least six to seven major variants of disability.
The real question is whether the higher courts can devote time to learn about disability and the disabled. Then only a sincere attempt can be made to mitigate the seemingly insurmountable inaccessible judicial system for disabled.
A simple starting point?
Every district judicial officer should read Standing Order 109/2020 of the Delhi Police, which prescribes procedures for inquiries involving disabled persons. Among other well-intentioned rules, the order mandates at-home inquiries for senior citizens, women, and persons with disabilities, and lays down detailed protocols for questioning inside police stations. Imagine the impact if judicial officers began referring to Standing Order 109 in their proceedings.
A large number of police cases would likely collapse for procedural violations. Police officials would be compelled to act with greater restraint and civility. But for that to happen, the custodians of justice must first be aware of the rules they are meant to uphold.