'Disabling Humour' Disparaging Persons With Disability Must Be Distinguished From 'Disability Humour' : Supreme Court

The Supreme Court today (July 8) in a significant ruling on the Rights of Persons with Disabilities (PwDs) laid down guidelines for ensuring their sensitive portrayal by Creators on Visual and Electronic Media. The Court also highlighted the difference between 'disability humour' and 'disabling humour' which often gets overlooked by the media creators.

The Bench of CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra was deciding on a plea that challenged the insensitive portrayal of PwDs in the film 'Aankh Micholi,' produced by Sony Pictures.

The Court observed that creators should be cautious of the difference between disability humour and disabling humour. The first type, disability humour, is positive and aims to offer a better understanding of disabilities. The second type, disabling humour, is negative and belittles people with disabilities. These two should not be seen as the same because they have very different impacts on the dignity of people with disabilities.

"We must therefore, distinguish 'disabling humour' that demeans and disparages persons with disability from 'disability humour' which challenges conventional wisdom about disability. While disability humour attempts to better understand and explain disability, disabling humour denigrates it.The two cannot be equated in their impact on dignity and on stereotypes about persons with disabilities."

Seeing Disability Humour From Modern Social Model And Not Old Medical Constructs 

The Court analysed that in the past, humour was often used to make fun of people with disabilities, treating their condition as a joke or a tragedy. This old view, known as the medical model, saw disability as a personal misfortune that didn't fit with humour. 

However, this perspective is outdated. The modern social model understands disability differently, seeing it as a result of societal barriers rather than an individual's problem. This model suggests that stereotypes about disabilities come from not knowing enough about them, which is often due to a lack of representation in mainstream discussions.

The Court noted that today humour is increasingly being used by people with disabilities as a way to connect with others and share their experiences. This can help break down harmful myths and change how people think about disability. By using humour, especially making fun of themselves, disabled comedians challenge old views of being 'different' or 'less than' and promote equality. 

"The medical model treats disability as a personal 'tragedy' which is by definition, incompatible with humour.This understanding is now obsolete under the social model which views disability as a function of social barriers that disable such individuals.The social model says that stereotypes stem from a lack of familiarity with disability. This lack arises due to inadequate representation and participation of persons with disabilities in dominant discourse. Despite the history and the obsolescence of the medical model, humour is not universally denounced in the context of disability. It is now being increasingly used as a sophisticated literary medium for engagement with the society by persons with disabilities. It familiarises the society with the lived experiences of persons with disability, thereby dispelling prejudicial myths, and sensitizing people. Challenging notions of 'otherness' or 'inferiority' associated with persons with disability, humour creates an equal space"

"Humour is a reclamation of the public discourse by persons with disabilities who are pushing back against the dominant, ableist narratives around disability."

Therefore disability humor can be used as a tool for PwDs to initiate healthy conversations of their lives and push back stereotypical notions about themselves. 

Overall Message Of The Film Determines If Restrictions Under Article 19(2) Can Be Applied 

The bench referred to its recent Judgement in Vikash Kumar v. UPSC where the court held that insensitive language was contrary to the dignity of persons with disabilities. Applying the same line of reasonings to the guidelines that are laid as above the Court stressed that "language of our discourse ought to be inclusive rather than alienating". 

It clarified that films may show negative or disparaging language towards people with disabilities if it helps convey the film's overall positive message. This will not fall under the restrictions imposed in  Article 19(2). However, if such language only makes things worse for disabled people by increasing social exclusion without any beneficial message, it should be handled carefully. This kind of portrayal is harmful not just because it might hurt feelings, but because it negatively affects how society treats these groups. 

As long as the overall message of the film justifies the depiction of disparaging language being used against persons with disabilities, it cannot be subjected to restrictions beyond those placed in Article 19(2). However, language that disparages persons with disabilities, marginalises them further and supplements the disabling barriers in their social participation, without the redeeming quality of the overall message of such portrayal must be approached with caution. Such representation is problematic not because it offends subjective feelings but rather, because it impairs the objective societal treatment of the affected groups by society. 

Demand For An Inclusive Composition Of Advisory Panel Under Cinematograph Act 1952

The petitioner had challenged the alleged insensitive portrayal of disabled individuals in the film 'Aankh Micholi,' produced by Sony Pictures. The petitioner has not sought any ban or censorship of the film in question but sought guidelines against filmmakers, regarding the provisions of the Rights of the Persons with Disabilities Act 2016 ( Act of 2016) and the composition of the Board and the Advisory panel under the Cinematograph Act 1952. 

Before the Court, it was argued that while the advisory panel consists of 25 members, one could possibly be from the disabled section either physically or mentally. The petitioner suggested that having representation on the advisory panel would ensure the consideration of sensitivities in the certification process. 

S.5(1) of the Cinematograph Act provides for the constitution of advisory panels by the Central Govt. to judge the effect of films on the public. S.5(4) prescribes it is the duly of the advisory panel to review the film and give its recommendations to the Censorship Board.  

However, the Court in its decision has expressly held that (1)  the Central Board Of Film Certification (CBFC) is left to oversee adequate guidelines on the permissibility of such content on PwDs is in place; (2) the prayer to direct Sony Pictures to make n awareness film according to Section 7 (d) of the RPwD Act could not be granted as that would amount to 'compelled speech'; (3) There exist adequate rules and provisions under the Cinematograph Act and the certification Rules of 1983 and 2024 to look into the inclusion of subject matter experts to Board and Advisory panels. 

The following are the guidelines on the sensitive portrayal of PwDs : 

1. Words Cultivate Institutional Discrimination- terms such as cripple and spastic have come to acquire devalued meaning in society's perception of PwDs;

2. There should be avoidance of language that 'Individualizes impairment and overlooks the disabling social barriers' like 'suffering' or 'victim';

3. The Creators should adequately research and check for the accurate representation of a medical condition. Lack of such accuracy may lead to misinformation about the disability and entrench stereotypes about persons with such impairment, aggravating the disability;

4. Visual media should strive to depict the diverse realities of PwDs, showcasing not only their challenges but also their successes and contributions to society;

5. They should not be lampooned based on myths such as a blind person bumping into objections nor be presented in super cripples on the other extreme;

6. Decision-making bodies should bear in mind the values of participation, the ' Nothing about Us, without Us' principle is based on the promotion of participation of PwDs and equalisation of opportunities; It must be put to practice in constituting statutory committees and inviting expert opinions for assessing the overall message of films and their impact on the dignity of individuals under the Cinematograph Act and Rules

7. The Convention of Protection of Rights of PwDs also requires consultation with and involvement of PwDs for implementation of measures to encourage a portal that is consistent with it- collaboration with disability advocacy groups can ensure a sensitive portrayal and provide valuable insights

The court also referred to Training and Sensitization Programmes as a framework for the ideal portrayal of PwDs by the visual and electronic media without there being an entrenchment of the Media's right to Freedom of Speech under Article 19(1). 

Background 

In January, the Delhi High Court refused to entertain a public interest litigation claiming that the film “Aankh Micholi”, which was released in November last year, is derogatory to people with disabilities.

A division bench comprising  Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora said that Courts generally do not interfere once the Central Board of Film Certification (CBFC) gives a certificate to a film.

Observing that a lot of latitude is given in cinematic work, the court remarked:

“We do not want too much censorship. We are one of the few countries where there is prior censorship. We have gone the extra mile. Normally, in the rest of the world, it is only grading which takes place and there is no prior censorship. We are a country where scenes are deleted before a film's release.”

The bench observed that creative freedom should be cherished and that there is no need to curtail it.

The PIL was moved by Nipun Malhotra, a disability rights activist suffering from a locomotor disability, claiming that the film was disparaging and violative of the rights of several classes of PwDs, including those with speech, vision and hearing disabilities.

The plea sought direction from the producer of the movie to make a short awareness movie about the hardship faced by PwDs and create awareness about the subject.

It also sought a direction upon the producer to ensure an equal opportunity policy is formulated in conformity with the Rights of Persons With Disability (RPWD) Act and encourage employment of people with disabilities.

Senior Advocate Sanjay Ghosh and Advocate Jai Anant Dehadrai appeared for petitioner Nipun Malhotra. Senior Advocate Parag Tripathi appeared for Sony Pictures. Solicitor General of India Tushar Mehta appeared for the CBFC.

Case Title : Nipun Malhotra v. Sony Pictures Films India Private Ltd