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The Supreme Court of India recently declined a plea seeking reservations for persons with disabilities in the Lok Sabha, emphasizing judicial restraint in policy matters. This article, by analyzing existing legal frameworks, argues for legislative change to ensure representation for the differently-abled individuals, promoting inclusivity and equality and advocating for the 'politics of presence.'
INTRODUCTION
The Supreme Court of India in a recent judgment, declined to entertain a plea seeking reservation for persons with disabilities in the Lok Sabha. At the outset, it is crucial to recognise that using the term 'disabled' to describe such individuals is inappropriate and disregards the spirit of The Rights of Persons with Disabilities Act, 2016 (RPWD Act) and is an affront to their dignity. The Act aims to ensure that persons with disabilities are able to participate in society on an equal basis with others. Referring to them as ‘disabled’ is not only demeaning but perpetuates a normalised institutional approach of regarding them as a separate class of persons. Hence, it would be more appropriate to describe them as individuals with 'different abilities' or ‘differently abled’. This inclusive stance was also upheld by a recent ruling from the Delhi High Court in Sanjeev Kumar Mishra v. Jawaharlal Nehru University & ors., which directed JNU to accommodate a student with different abilities.
Reverting to the plea before the Supreme Court, the Court held that it was a matter of public policy and refused to intervene judicially. While agreeing with the Court's stance on judicial restraint in policy matters, this article proposes that legislative change is required to provide reservation to differently-abled persons in legislative bodies. To substantiate this proposition, the article first analyses the existing legal framework for reservation for differently-abled persons, and then presents the rationale for extending such reservations to legislatures.
The RPWD provides a comprehensive framework to protect the rights of persons with disabilities and ensure their full and effective participation in society. It mandates such facilities to differently-abled persons which are enshrined in Article 16 of the Constitution in various spheres of life, including public employment and education. For instance, it stipulates a 4% reservation in government jobs and higher educational institutions for persons with benchmark disabilities. These provisions aim to provide equal opportunities to differently-abled persons and enable them to participate in society on par with their peers who do not face these challenges. The judiciary has consistently upheld and even expanded the scope of this right through its interpretations, extending it to promotions and other aspects of employment (see here, here and here).
Given the existing constitutional and statutory framework that recognises the need for affirmative action for differently abled persons, why not provide reservation in the legislature as well? I contend that an understanding of promoting differently-abled rights through ‘politics of presence’ necessitates the inclusion of differently-abled persons in policy-making through adequate representation in legislatures.
Differently-abled persons are provided reservations along the lines of the horizontal framework of reservations. Women in India are provided reservations on the same axis. However, women have successfully achieved reservation in the legislature, through The Women's Reservation Bill, which was passed by the Parliament last year, by advocating for more representation through the politics of presence. The presence of women lawmakers in the parliament, guaranteed by providing them the platform to raise their concerns at the stage of policy making, not only allows for increased representation and diverse perspectives but a nuanced approach to policy making which helps frame more equitable and accessible laws. Extending this opportunity to differently-abled people would contribute to the development of a more inclusive and just society. By ensuring the presence of differently abled individuals in decision-making processes, we not only uphold the principles of equality and non-discrimination but also tap into a wealth of unique experiences and insights, tailored by shared and lived experiences.
Not being able to secure a presence in the legislature has led to differently-abled persons being deprived of the opportunity to voice their concerns and participate in the policy-making process on issues that concern them. The 'politics of ideas' framework underscores the invaluable substantive contributions that differently-abled persons can make to the lawmaking process itself. It posits that representation should be based on shared beliefs, ideologies, and policy preferences rather than shared identities. However, the approach of ‘politics of presence’ advocated by Anne Phillips rests on the understanding that when the 'politics of ideas' is viewed in isolation from the 'politics of presence', it fails to adequately account for the lived experiences and historically entrenched exclusion faced by certain marginalised social groups from the democratic process based on their race, religion or gender.
In the context of differently-abled persons, the 'politics of presence' stance argues that their physical representation in legislatures is crucial. This presence would not only ensure that their voices are heard directly but also change the dynamics of political discourse, potentially leading to more inclusive policies and a deeper understanding of disability issues among other legislators.
POLITICS OF PRESENCE IN DIFFERENTLY ABLED RIGHTS
The 'politics of ideas' framework emphasises the substantive exchange and contestation of differing viewpoints, ideologies and policy proposals within democratic institutions. However, this idealised notion of a free marketplace of ideas presupposes a level playing field and equal access to spaces of discourse and decision-making. It overlooks the systemic barriers and underrepresentation that certain disadvantaged groups have endured owing to their unique social identities and positionalities.
The sole pursuit of the 'politics of ideas' divorced from affirmative measures to enable the 'politics of presence' risks perpetuating the exclusion and silencing of marginalised voices. It assumes that the mere articulation of ideas is sufficient, disregarding the historical and structural impediments that have obstructed the participation and representation of these people in democratic processes.
Here, the 'politics of ideas' alone cannot adequately capture the experiences of differently-abled people who have faced discriminatory disenfranchisement, inadequate support and lack of descriptive representation in legislative bodies. Moreover, the 'politics of ideas' in isolation cannot fully grasp the multidimensional barriers confronted by them in accessing decision-making spaces, owing to entrenched societal norms which label them as being not good enough as a ‘normal’ person.
Thus, while the 'politics of ideas' is a vital component for advocating differently abled rights, it must be complemented by a conscious and sustained effort to enable the 'politics of presence' – the direct and proportionate representation of marginalised groups in democratic institutions. Only by ensuring their substantive presence can the unique perspectives, concerns and lived realities of these communities be actually reflected in the ideation and decision-making processes.
The implementation of the 'politics of presence' for differently-abled persons faces significant political challenges, which explain why it hasn't been fully realized yet. Established political parties and incumbents often resist changes to the existing power structure, viewing reservations for differently-abled persons as a threat to their electoral prospects. There's often a lack of genuine political will to push for such reforms, as differently-abled persons are not seen as a significant vote bank. Persistent societal misconceptions about the capabilities of differently-abled persons lead to skepticism about their ability to effectively participate in legislative processes. Political parties and government institutions cite logistical challenges in accommodating differently-abled persons in political processes and physical spaces of power. The diverse nature of disabilities and their intersection with other marginalized identities complicates the implementation of a uniform reservation policy.
Furthermore, there are fears that reservations might lead to tokenism rather than meaningful representation, potentially undermining the credibility of differently-abled representatives. In many jurisdictions, implementing reservations in legislative bodies may require constitutional amendments, which are politically challenging to achieve. The differently-abled community, due to various socio-economic factors, often lacks the organized political mobilization necessary to exert pressure for such reforms. In a political landscape where various marginalized groups are vying for representation, the demands of differently-abled persons sometimes get overshadowed. Some oppose reservations citing economic inefficiency, arguing that merit should be the sole criterion for political representation. Overcoming these challenges requires sustained advocacy, awareness campaigns, and a shift in societal perceptions about disability. It also calls for coalition-building among various marginalized groups and allies to create a broader movement for inclusive political representation.
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UNDERSTANDING THE NEED FOR LEGISLATIVE RESERVATIONS
One concern with reservations like this is of the ‘us v/s them’ mentality created by such ‘identity politics’. However, the need for this reservation arises from an already existing ‘us v. them’ notion where differently-abled people are viewed as being a separate class of persons in society. This mentality divides society into distinct groups, fostering an attitude of superiority and distrust towards those perceived as different. This mindset can lead to discrimination, conflict, and barriers to mutual understanding and cooperation.
Historically, differently abled people have often been marginalised and excluded from many aspects of society, creating an implicit "us" (able-bodied) vs. "them" (differently abled) divide. Underrepresentation in decision-making bodies has reinforced the idea that differently-abled people are separate from mainstream society.
When viewed through the lens of differently abled rights, the combination of 'politics of presence' and 'politics of ideas' can be instrumental in ensuring the meaningful inclusion and participation of differently-abled persons in democratic processes, while mitigating the risks of narrow identity politics.
The 'politics of presence' is crucial for addressing the stark under-representation and marginalisation of differently-abled individuals in decision-making institutions like legislatures. Their direct presence as lawmakers, backed by affirmative measures like legislative reservations, is vital for ensuring that policies and laws are differently abled-inclusive and grounded in their lived realities.
However, the 'politics of ideas' serves as an important counterweight, preventing the discourse from being confined solely to issues based on ‘identities’. Once present in the legislative arena, differently-abled representatives can engage in substantive ideological exchanges, and scrutinise policies through a nuanced lens for multiple issues faced by them.
ADVANTAGES OF POLITICAL RESERVATIONS FOR THE DIFFERENTLY-ABLED
Their presence can enrich deliberations with unique perspectives born of their experiences, fostering more nuanced approaches to policy making. For instance, a differently abled legislator could valuably contribute to framing holistic policies on urban planning, public transportation, and disaster management – domains that may not be traditionally viewed through a lens keeping in mind the problems faced by the differently-abled community but deeply impact this community.
Moreover, by ensuring the presence of differently-abled persons in legislatures, other lawmakers gain first-hand exposure to their concerns and capabilities, challenging deep-rooted stereotypes and misconceptions. This can help shift perspectives from a charity-based, welfarist approach towards a rights-based, empowerment-oriented ethos regarding issues differently-abled people face.
Crucially, the 'politics of ideas' within legislatures prevents the participation of differently-abled representatives from becoming an exercise in narrow identity politics. The 'politics of presence' approach is not just about representation but also about participation. Their presence is not an end in itself but a means to infuse inclusive perspectives across the entire policy spectrum for the larger societal good. Additionally, having differently abled legislators can foster greater trust and buy-in for democratic institutions among the larger differently-abled community, fostering a sense of shared belonging and national identity.
A holistic approach of aligning the 'politics of presence' with the 'politics of ideas' can help democratic societies uphold and strengthen their rights, while mitigating the risks associated with exclusive identity politics. It can lead to a genuinely inclusive and representative democracy, where various identities are heard, while collectively endeavouring towards an overarching vision of a pluralistic society rooted in equal rights and opportunities for all citizens.
CONCLUSION
I have attempted to make a case for extending affirmative action in the form of legislative reservations to differently-abled individuals. This is not just a matter of tokenistic presence but crucial for making democratic institutions and processes more inclusive, participative and responsive to the needs of this marginalised community.
Ensuring the descriptive representation of differently-abled persons in legislatures through the 'politics of presence' is vital for differently abled-centric policies and laws to be rooted in their lived realities. However, as outlined, their presence must be combined with the 'politics of ideas' to enrich deliberations across all policy domains with their perspectives for larger societal benefit.
Achieving harmony between the 'politics of presence' and 'politics of ideas' can navigate the concerns around narrow identity politics that could breed further social divides. Instead, it paves the way for democratic strengthening by fostering trust, combating stereotypes, and ultimately greater inclusion in policy-making and nation-building.
While procedural challenges remain regarding criteria, rotation and accessibility, India's constitutional ethos of substantive equality necessitates affirmative steps to enable the full participation of its differently-abled citizens. Legislative reservations present a progressive, constitutionally tenable pathway towards realising the founding ideals of equal rights and dignity for all.
Providing a voice and platform to India's differently-abled community in the highest deliberative bodies is not just an issue of social justice - it is imperative for nurturing a vibrant, pluralistic democracy that is truly of the people, by the people and for the people and embracing diversity. The need for implementing these changes is immediate and pressing.
By Saksham Agrawal
Saksham Agrawal is a second-year student at the National Law School of India University, Bangalore. Their interests lie in the workings of the criminal justice system and comparative constitutionalism.
Very thought-provoking!