'Intersectional Discrimination': Madras HC Lays Down Guidelines For Fair Treatment Of Disabled Women Athletes, Condemns 'Romantic Paternalism'

While issuing the directions after referring to a catena of international conventions and judgments, intellectual discourse and studies conducted along with its application in the Indian context, Justice R. Mahadevan noted in the order as follows:

"In India with burgeoning population, women in general and disabled women in particular, struggle with both the oppression of being women in male dominated societies and the oppression of being disabled in societies dominated by the able-bodied. Women with disabilities in aspiring to achieve laurels in high levels of sport competition seldom gets encouragement and assistance and often face double discrimination associated with gender and disability…"

The Court observed that the case at hand was a precise instance of 'discrimination based on the gender as well as the disability' and that the state and central governments have failed to ensure support and safety to disabled women athletes.

"In the instant case, the petitioner being a disabled girl, had to overcome the psychological trauma of speech and hearing impairment. Despite the same, she excelled herself in the events of the long jump and high jump at State and National levels and bagged gold, silver and bronze medals, totalling 13. However, she was denied the opportunity of being participated in the 4th World Deaf Athletics Championship, 2021, though she was qualified in the National Selection Test…"

According to the Court, even after the interim order on 13th September , the disabled sportswoman couldn't participate effortlessly in the Championship in Poland. The improper and non-cooperative attitude of the Sports Council of the Deaf at the State and Central Levels worsened the situation. The Court underscored that fairness and justice must be crystallised in all forms of human activity, including sports, and issued a set of directions as discussed below.

Court's Observations

Concept Of Intersectionality And Its Application In Indian Context

The athlete, Sameeha Barvin, was not initially selected to participate in the World Deaf Athletics Championship, 2021, despite her exceptional performance in the selection rounds. The reason cited by the selection authorities was that they were 'not inclined to send a lone female member to the event and therefore, they have preferred male members for the event'. With the help of the Court's interim order, the petitioner was able to participate in the Championship and qualify for World Deaf Olympic Championship 2022 and Paralympic Olympics 2023.

At the outset, the Court noted that the relief sought in the original writ petition was no longer applicable because she had already participated in the Championship. However, the Court noted as below:

"This is a clear-cut case of gender discrimination attracting the rigour of Article 15(1) of The Constitution of India and the petitioner has been meted out the double discrimination and hence, this has to be examined with an intersectional lens so as to take appropriate measures by the authorities concerned for the purpose of eradicating all the difficulties / challenges faced and preventing from the injury suffered, not only by the petitioner, but also all the women athletes with disabilities", the court clarified before quoting Kimberle Crenshaw, who propounded the concept of 'intersectionality'.

The Court noted that the proposition of Kimberle Shaw has applicability in the Indian context since factors like gender and caste are intrinsically linked, and the axis of discrimination almost always intersects when analysing the barriers faced by the people.

Placing reliance on Patan Jamal Vali v. State of Andhra Pradesh, LL 2021 SC 231, which categorises disability and gender as the twin tales of societal oppression, the judge observed that the apex court judgment applied the concept of 'intersectionality' after having considered that 'it was a relevant factor in sentencing the accused for the offence of rape under section 376 of the Indian Penal Code, 1860 in the light of the woman's caste and disability.'

Such an analysis through the intersectional lens also allows understanding the barriers faced by women with disabilities. The judge also noted that such intersectional analysis must include social divisions such as organizational, experimental and representational discrimination.

Protectionism and Romantic Paternalism

Before delving into the subject, the Court noted that, as in the present case, the discrimination caused to women is often couched in 'protectionism',  citing traditional concepts of stereotyped roles for women and the purported concern for their safety and security, as laid down in American jurisprudence via the judgments in Frontiero v. Richardson and Dothard v. Rawlinson.

Citing Anuj Garg which also forays deeply into the concept of romantic paternalism, the court observed:

"…by not permitting the petitioner herein to travel along with her male counterparts, once again the government and the respondents have discriminated against her on the ground that she is a woman and that she also suffers the further cumulative and intersectional disadvantage of being disabled, and that on account of these factors, the justification seems to be that she is at the risk of being assaulted or unsafe, sexually or otherwise. In effect, this rationale is, what has been referred to in the above decisions as perpetuating the dangerous myth that women are seductive sexual objects.."

Application Of 'Indirect Discrimination'

Citing Ministry of Defence v. Babita Puniya and Lt. Col. Nitisha and Ors. v. Union of India and Ors, LL 2021 SC 181, the court explains the concept of 'indirect discrimination'.

"While explaining the concept of indirect discrimination, it has been stated that actions taken on a seemingly innocent ground in-fact have discriminatory effects due to structural inequalities that exist between the classes. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion", the court observes in the order.

The court, therefore, concluded that the conduct of respondents not allowing the petitioner to participate in the Championship, supposed for her safety and security, falls within the ambit of 'indirect discrimination'.

"..It is important to identify these instances of systemic and indirect discrimination, couched in neutrality and seemingly innocent reasons perpetuated by social conditioning but which cannot stand scrutiny before law in the teeth of the expansive substantive equality as envisioned and envisaged in our Constitution, and to discard them just as stark instances of discrimination", the court underscores in its analysis of indirect discrimination as applicable to the facts of the case

The Rights of Persons with Disabilities Act, 2016 (RPwD Act)

The Court noted that the principle of 'reasonable accommodation' has been stipulated in the Act under section 2(y), which means "necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others".

"According to Section 3(2), it is for the appropriate government to take steps to utilise the capacity of persons with disabilities by providing appropriate environment. In Sub-section (5) of Section (3) it was further reiterated that the appropriate government shall take necessary steps to ensure reasonable accommodation of persons with disabilities. In the opinion of this court, the said provisions of Sections 3(2) & 3(5) of the RPwD Act are directly attracted the facts of the present case"

Citing the case of Vikash Kumar v. UPSC, LL 2021 SC 76, the court further added that the apex court has held  equality, non-discrimination and dignity as the essence of the protective ambit of the Act.

About the participation of disabled women in Sports, the court said that:

"The data furnished on the side of the petitioner, during the course of hearing, would show that during the 2018 Winter Olympics, 23 out of the 92 competing countries, did not send any female athletes. The 2018 Winter Olympic Games consisted of 1724 male competitors and 1224 female athletes… In 2021, India had sent its largest ever contingent to the Tokyo 2020 Paralympic Games with 54 athletes out of which 40 were men and 14 were women, which makes it a mere 25%. It is therefore apparent that the sheer lack of numbers in participation by itself acts as a barrier to disabled women athletes."

Doctrine Of Reasonable Accommodation

'Reasonable accommodation' has been given effect to in the case of Vikash Kumar, whereby it was held that to deny the facility of a scribe in such a situation would negate the valuable rights and entitlements recognised by the RPwD Act, 2016.

"In the present case, if the respondents would have given effect to the principle of reasonable accommodation as mandated by the legislature, the reason cited for not permitting the petitioner to travel along with her male competitors, smacks of blatant discrimination cloaked in protectionism, which is anathema to the substantive equality as envisaged under the Constitution of India. Rather than citing the reason of unsafe travel, it is incumbent on the State to ensure safety and security of its women, disabled or otherwise, as highlighted by the judgment in Anuj Garg v. Hotel Association of India", the court observed.

International Instruments Cited

Article 6 of the Convention on the Rights of Persons with Disabilities (CRPD) specifies that women and girls with disabilities are subject to multiple forms of discrimination, and the states should take appropriate measures to prevent the same. Similarly, Article 30(5) provides for the right of persons with disabilities to participate "on an equal basis" in sports, recreation, and leisure activities.

Various Articles in International Covenant on Economic, Social and Cultural Rights (ICESCR) also reverberate the duty of states to uphold the equality of people, including the right to sport and recreation. The order also cites The Convention on the Elimination of Discrimination against Women Committee (CEDAW)and Article 25 of Universal Declaration of Human Rights.

Directions Issued By The Court

Among the directions issued, the Court has instructed the authorities, including the Ministry of Youth & Sports, Sports Authority of India, All India Sports Council Of The Deaf, Tamil Nadu Department of Welfare of Differently Abled Persons to enable disabled sportswomen to participate with 'dignity and respect' at all levels of competitions.

Case Title: M. Sameeha Barvin v. The Joint Secretary, Ministry of Youth & Sports & Ors.

Case No: WP No. 16953 of 2021

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