Freedom Of Speech V. Disabling Humor: Navigating Disability Portrayal In Media And Beyond

Starting in antiquity, it was common to laugh at the disabled, who often performed as jesters or in circuses. These so called 'freaks of nature' were an object of amusement and were carried around the world for display. These shows soon went out of fashion. Today discrimination against disabled people is unlawful. But such harmful portrayals continue to exist, affecting the Right to life with dignity. The current article aims to explore the legal mechanism regulating the rights and portrayal of disability in the media.

1991 Guidelines

In December of 1991, the Ministry of Information and Broadcasting issued guidelines to the Board of Film certificate. The guidelines were primarily aimed at making movies culturally and socially acceptable according to the attitudes prevalent in society. It emphasized avoiding the glorification of violence and criminal activities, protecting children from depictions of violence and abuse, and ensuring sensitivity towards animals. They also mandated the exclusion of vulgar, obscene, and depraved content, and prohibited scenes that justify substance abuse, degrade women, or show sexual perversions unless crucial to the theme. Additionally, the guidelines aimed to respect racial, religious, and national integrity, prevent defamation and contempt of court, and appropriately depict national symbols. The intent was to strike a balance between artistic freedom while avoiding the depravity of cinema. Among its several recommendations, the one that most stuck out was 2(iii)(b) which directed the Board to ensure that scenes showing abuse or ridicule of the disabled are not shown. It was aimed to prevent the perpetuation of negative stereotypes and to foster a more inclusive and respectful representation of disabled individuals in Indian films.

Article 19(1)(a) and Morality

Article 19 of the Indian Constitution provides for protection of certain rights. Among these Article 19(1)(a) freedom of speech and expression is the among the most important. This right can only be restricted only on grounds provided in Article 19(2) inter alia morality and decency.^[1] Morality refers to the principles and values that distinguish between right and wrong, good and bad. It is a fundamental aspect of human societies, shaping laws, customs, and personal conduct. Morality is often influenced by cultural, religious, and philosophical beliefs, and it encompasses a wide range of issues, including justice, rights, obligations, and virtues. In parliamentary democracies like India, political and moral considerations often shape the concept of crime. Morality finds its mention in Part III of the Indian Constitution under Articles 19(2), 19(4), 25, and 26. However, the morality enshrined in the constitution is not societal morality but rather constitutional morality. Equating constitutional morality with popular morality would strike at the very core of the Constitution as the protector of the rights of minorities. Protecting values that are broadly accepted is not required. It is encroachment by these values through democratic mandates that requires constitutional safeguards.

According to Pratap Bhanu Mehta,^[2] constitutional morality means:

“In Grote's rendition, 'constitutional morality' had a meaning different from two meanings commonly attributed to the phrase. In contemporary usage, constitutional morality has come to refer to the substantive content of a constitution. To be governed by a constitutional morality is, on this view, to be governed by the substantive moral entailment any constitution carries. For instance, the principle of non-discrimination is often taken to be an element of our modern constitutional morality. In this sense, constitutional morality is the morality of a constitution. There was a second usage that Ambedkar was more familiar with from its 19th-century provenance. In this view, constitutional morality refers to the conventions and protocols that govern decision-making where the constitution vests discretionary power or is silent."

He identifies three types of constitutional morality^[3]; the morality of the constitution, the morality that fills the gaps where the constitution is silent, and the morality of historic claims of the constitution. Ambedkar dealt with the third kind of constitutional morality. According to Ambedkar constitutional morality emphasizes the “formal elements of self-restraint, respect for plurality, deference to processes skepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism that remains at the core of constitutional forms.” He points out that while constitutional morality presumes certain formal equality among the actors involved, but it does not assure that this would produce substantive equality.

Most recently, the Supreme Court in Navtej Singh Johar v. Union of India^[4] explained the concept of constitutional morality. Constitutional morality was defined as adherence to not merely the literal text but rather observation of the core principles and values enshrined in it. This includes but is not limited to ideals such as pluralism, inclusivity, democracy, and the welfare of individual citizens. A dignified life for an individual is one of the values enshrined in the Constitution by way of Article 21. Being a constant victim of caricatures by the media negatively affects this right of millions of our disabled citizens. The Constitution, therefore, would dictate the censoring of such media as it violates its ethos.

S.5(B) of Cinematographic Act, 1952

The Cinematograph Act, 1952 regulates the certification and public display of cinematographs. S.5(B) provides grounds for restriction of free speech similar to Article 19(2) of the Indian Constitution. This includes the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, defamation or contempt of court. The restriction by way of this act has been recognized as valid under the constitution. These restrictions are to be narrowly constricted to grant the highest degree of free speech possible. In KA Abbas v. Union of India,^[5] the SC held that when determining the effect of a film, the Board of film censors must view it from the point of an ordinary person of common sense rather than a hypersensitive person. Moreover, the Board must be alive to social change and must not adopt a conservative or orthodox approach. The limits on expression must be 'necessary' and allow creative works to interpret both the evils as well as the good in the society. As long as the purpose of a film is not to extol a social evil its portrayal should not be restricted.^[6] Therefore the Cinematographic Act would allow for the depiction of disabled people. The only caveat being that it should not cross the limits of morality and decency.

Right of Person with Disabilities Act, 2016

The Act, passed in 2016, aims to give effect to the United Nations Convention on the Rights of Persons with Disabilities. It seeks to ensure equality for disabled members of society, grounded in the principles enshrined in the Constitution. It envisages a normal social life for the disabled to the greatest possible extent. Recognizing that disability compounds the social disability of a person, the act has special provisions for women and children. It has special provisions to ensure that the education, legal, and political rights of the individual are realized. It further provides for skill development and the right to child rearing for the disabled person. The act puts an onus on the government to carry out awareness programs and ensure the accessibility of services and infrastructure to the disabled. Overall, the act represents a significant step towards creating an inclusive and equitable environment for the disabled, ensuring that their rights are protected and their potential is fully realized

International norms

The rights and status of people with disabilities have been an issue for the UN since its founding. It acknowledges that prejudice against people with disabilities harms the social and economic well-being of entire communities. One of the UN's core values is the rights of people with disabilities. The UN Charter of Human Rights through its emphasis on equality for all regardless of race, sex, language, or religion forms the nucleus of protection of the rights of persons with disabilities. Article 1(3) states that the purpose of the United Nations is “.…to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction.” The United Nations Declaration of Human Rights (UNDHR) serves as the foundation stone for international norms and standards concerning people with people with disabilities. It has the most direct reference to disability among the UN declarations. Article 25 of UNDHR recognizes that everyone has “.…the right to security in the event of unemployment, sickness, disability, ...) or other lack of livelihood in circumstances beyond his control.”

Apart from the UNDHR, six core human rights conventions relate to the rights of the disabled. The International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) ratified in 1966 are the two basic human rights treaties and together with the UNDHR constitute the International Bill of Rights. The other four core human rights conventions are the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)(1949); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979); the Convention on the Rights of the Child (CRC) (1989); and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1966). While all six conventions provide the principle of non-discrimination, the treaties specify the general rights mentioned in the ICCPR and ICESCR.

In the past few decades, the UN has shown considerable attention to the rights of the disabled resulting in several landmark resolutions. The Declaration of the Rights of Mentally Retarded Persons aims to ensure equality for people with mental disabilities. At its heart is the vision to provide a life closest possible to bringing normal to a person with mental disabilities. Article 6 of the Declaration says that a Mentally retarded person has “…right to protection from exploitation, abuse, and degrading treatment. If prosecuted for any offense, he shall have a right to due process of law…”. Similarly, in 1993 'The Standard Rules of the Equalization of Opportunities for Persons with Disabilities' was adopted by the General Assembly. They do not have the full force of law but have been adopted by a large number of states. The rules symbolize a strong moral and political conviction on the part of the states to commit to the welfare of the disabled. It has four preconditions for equal participation: awareness raising (rule 1), medical care (rule 2), rehabilitation (rule 3), and support services (rule 4).

Supreme Court Guidelines

Recently, the Hon'ble Supreme Court in Nipun Malhotra v. Sony Pictures Films IndiaPrivate Limited & Ors.^[7] issued guidelines to regulate the portrayal of disabled people in the media. It recommended sensitivity while choosing words to describe them, avoiding terms such as “cripple” and “spastic” etc. The Supreme Court further requested creators to steer clear from any stereotypes associated with the disabled and to show them beyond being victims but rather their lived experiences showcasing their fair share of successes and achievements. Their portrayal should also not be that of a 'super cripple' with heightened senses but rather as a normal individual. While accessing films and visual media, expert opinions must be sought to better analyze films and their impact on the dignity of individuals. Noting the lack of awareness about disability, the Supreme Court also recommended awareness and sensitization programs by relevant authorities. This marks the first-time dedicated guidelines have been formed for the portrayal of disabled individuals in the media. This has the potential to have the same effect on Disability Rights as Vishaka Guidelines had on protection of women against harassment.

Looking to the future, there is a positive shift towards greater awareness and respect for disabled individuals in media. With the implementation of the Supreme Court guidelines and growing societal sensitivity, the portrayal of disabilities can move away from harmful stereotypes toward more empowering and dignified representations. This progress promises a more inclusive media landscape that upholds the rights and dignity of all individuals, reflecting the core values of equality and respect enshrined in the Constitution. With the implementation of robust legal frameworks like the Rights of Persons with Disabilities Act, 2016, and adherence to international norms, we can anticipate a media landscape that celebrates diversity and promotes equality. The journey towards this future is ongoing, but with continued commitment and advocacy, we can create a world where disability is no longer a punchline but a testament to human resilience and strength.

The author is a 2^nd year student at GNLU, Gandhinagar. Views are personal