Supreme Court’s Samay Raina order: Reflecting on disability justice in the era of precarious liberties

‘SUN SUN SUN Didi tere liye ik rishta aaya hai’ is a famous song by Gulzar in the movie ‘Khoobsurat’. In the song, meant to be playful, the younger sister, played by Rekha, chides her elder sister that she has received a marriage proposal, but the groom stammers, the future mother-in-law has hearing difficulties, and the father-in-law has speech difficulties. One might expect Gulzar not to produce a stereotype of disabled people, but even the sensitive poet failed to acknowledge the dignity and sensibility of disabled people. 

From ‘Khoobsurat’ to ‘India’s Got Latent’, India’s art community has shown a remarkable lack of understanding of the human dignity of the disabled. Often, it produces a story of ‘inspiration porn’ in the name of celebrating the disabled, or mocks them, robbing them of respect and dignity. There are some profound attempts to make meaningful art and cinema based on disabled experiences, too, but every time disabled people and their experiences are mocked in artistic expression, it is deeply felt as humiliating. 

The recent order by the Supreme Court to comedians Samay Raina, Vipul Goyal, Nishant Tanwar, and others to put online apologies for their insensitive remarks has again highlighted the inability of India’s art community to engage with the question of disability. It also has some important constitutional lessons for the disabled community. 

Academic Tobin Siebers points out that disability is perceived as “an aesthetic of human disqualification.”   Perceived as such by the normative majority, the disabled are made caricatures of ridicule. An aesthetic that primarily perceives them as inferior, incapable, and lacking produces an art and discourse that brutally excludes and demeans us. This time, with the India’s Got Latent controversy, the disabled community reacted sharply and angrily. 

The reaction hints at the new emerging sociological reality of India’s disabled community. Anuj Bhuwania, in ‘Courting the People’, points out that Public Interest Litigation became a tool for the population who were living at the ‘margins of legality’. The strong subaltern movements of 1970-80, such as Dalit and Feminist movements, were the first ones that used legal routes to ensure their rights and dignity.  The disabled community was a late entrant in using the legal tool for securing its rights. Disability scholar Meenu Bhambhani highlights that in the initial phases of the Indian disability movement, the pressing questions of livelihood, daily survival, and rehabilitation occupied most of the resources and imagination of India’s disability movement. Portrayal of disability in art was never a primary consideration of the movement. 

But as a new class of disabled people with economic resources and access to justice has emerged, the disability movement is taking up the issue of the insensitive portrayal of disability in different forms of art. Nipun Malhotra’s case against Sony Pictures in 2024 was one such example where a disabled activist took the legal route to fix accountability for the insensitive portrayal of disability. In this case, the Supreme Court made a fine distinction between ‘disabling humor’ that demeans and humiliates the disabled and ‘disability humor’ that challenges the conventional wisdom regarding disability and thereby better explains and understands disability. Samay Raina, Vipul Goyal, or Gulzar, in their artistic expressions, disparaged the disabled and thus engaged in ‘disabling humor’. The message from the Supreme Court has been that such a humiliating portrayal of disability will no longer escape scrutiny and will be called out. 

Limits of the carceral disability justice movement

India’s disability scholars and activists should shape this new trajectory of the movement cautiously so that constitutional liberties are not put at risk. Several disability activists were dismayed by the leniency shown towards Samay Raina and other comedians by the Court. However, the carceral disability justice approach will not be enough to overcome the attitudinal barrier in a society that is based on deep social inequities. The disability justice movement can learn from the shortcomings of carceral feminism. 

Academic Brenda Crossman, in an interview with Oishik Sircar in 2016, had highlighted the limits of carceral feminism by suggesting, “Just because you scored a legal victory doesn’t mean it’s a feminist victory. We need to critically examine the celebratory discourse that surrounds legal victories; we need to look at the ways in which such discourse is being embedded in the state.” 

Crossman’s cautions against governance and carceral feminisms hold some significant lessons for India’s disability justice movement, which is increasingly getting dependent on governments and courts for concessions and enforcement of rights. 

Somnath Lahiri in the Constituent Assembly had warned us that our fundamental rights are framed from “the point of view of a police officer”. 

I fear that the Court’s directive to the Union government, in the Samay Raina case, to have a guideline to regulate ‘commercial speech’ can have a chilling effect on speech, which is inconvenient for the political establishment. Several journalists in recent years have depended on YouTube to distribute their journalism having been forced to leave the mainstream media, owing to their journalism not being inconvenient for the current political regime. They, too, monetise their speech. 

Therefore, we must be vigilant to ensure that, after the Court’s order to frame guidelines, the government does not use this opportunity to suffocate inconvenient speech. Carceral disability justice imagination can be misappropriated, and it is also limited in its imagination. Digital authoritarianism can come piggybacking on the carceral model of disability justice. 

Researcher and activist Akriti Mehta warns us that the ‘apolitical’ disability movement does not respond to the dangers of authoritarianism meaningfully due to its heavy reliance on funding, which can be restricted by authoritarian governments. In this situation, the crucial question remains in what way various manifestations of disability justice through courts should not be allowed to be misappropriated for enabling unfreedoms and authoritarianism. 

The way ahead

Our approach, instead, should be to correct constitutional infirmities that do not address the disability question, and engage and learn with other subaltern movements on the question of self-respect, dignity, equality, and fraternity. We need to challenge the social framework that, in Dr. Ambedkar’s words, ‘confiscates our persona’. 

In this regard, we must seek and forge social fellowship with other subalterns.  Historian V. Geetha underscores that for Dr. Ambedkar, in Buddha’s teachings, social fellowship was crucial as compassion alone would not be sufficient. This is profoundly true for the disability justice movement as it rejects charity, and needs social fellowship (maitri) on equal footing. This new imagination of fraternity, social fellowship, or maitri (by whichever name we call it) in our constitutional imagination, centering on our disabled experience, requires our overall commitment to justice for all and constitutional liberties while holding people accountable who attempt to humiliate us.