The personal is political.
This oft-repeated call of the feminist movement resonates right down to the present, to every story of every marginalized group. Back then, as it does now, the phrase conveyed the importance of so called “private experience”. To quote Catherine MacKinnon : “ women’s distinctive experience as women occurs within that sphere that has been socially lived as the personal–private, emotional, interiorized, particular, individuated, intimate … to know the politics of woman’s situation is to know women’s personal lives.”
I am an adult male, who as of writing these words is, for most practical purposes, non-disabled. On the one hand, I do suffer from a disastrously severe case of myopia, and am classified as a minor thalassemic – and yet, these have barely been impediments to most of my daily endeavours. I don’t imagine my quality of life would have been drastically different with 20/20 vision or a perfect blood iron count. If I do lay personal claim to any marginalized group, it would be the tag of LGBT. There again, I’d be a gay male in a society that has atleast superficially, been opening itself up to chips and cracks and niches, bit by bit, for spaces for alternate voices.
So, yes, there does exist, for me, on the contours of my lived experience, a veritable cornucopia of communicative platforms. I have the freedom to write these words; to type them on a computer or scrawl untidily in a notebook. I can step up, make an intervention, on a platform, in the classroom – the forums are diverse, and only limited by my own personal initiative.
I can do this because the laptops easily available around me are designed for persons without disabilities, because of course every stationary shop has pens to write; because across the board classrooms are simply that much more amenable to a loquacious speaker, or simply any person who can string together sentences in a manner the majority would deem as “usual”. I can simply voice harshly dissenting opinions every now and then, and atleast have the opinion be considered on its merits, as opposed to the person from whom it emanates. I can do all of this, and with Article 19(1)(a) of the Indian Constitution crystallizing this right, the State is effectively allowing me to realize my fundamental rights, with simply not interfering with the exercise of the same.
Freedom of thought and expression promote individual autonomy, involving considered freedom of choice. Atleast in liberal democracies, autonomy is regarded as intrinsically valuable as well as the basis for people developing a lifestyle that is more fulﬁlling than they could achieve by simply conforming to standards set by others. Communication is a prerequisite for autonomy. It is also a crucial way for people to relate to each other, an indispensable outlet for emotional feelings , and a vital aspect of the growth of one’s character and ideas. Granting – and realizing – the liberty of speech constitutes a recognition of people, both speakers and listeners, as autonomous and rational, and further constitutes public recognition that people have dignity and are equal.
But what happens when those very rights selectively fall silent for one set of people ? Within the matrix of disabilities that impede communication, that hamper flow of information, that shut a person out from cultural participation, that silence dissent – it’s clear that the mandate under Article 19(1)(a) requires much more than non-interference from the State. No, in the case of a large set of persons with disabilities, there is a very strong positive obligation on the part of the state that is required to realize the right to freedom of expression.
This paper thus begins with an acknowledgment of the lack of media – or space – for persons with disabilities when it comes to meaningful exercise of the right to freedom of speech and expression. In making a case for effective realization of the right to freedom of expression for persons with disabilities, the paper will first delve into international jurisprudence, where the UN Convention on the Rights of Persons in Disabilities will prove particularly significant. Next, the paper will move towards domestic jurisprudence relating to the right.
The jurisprudence of Article 19(1)(a) as it stands today in India has little to address directly to persons with disabilities. It then becomes imperative to read between the lines, and tease out the ways in which the considerable body of case law that exists around this much contested right can be extrapolated to persons with disabilities. Here, analogical extensions from existing caselaw will be made to illustrate how persons with disabilities are continually denied exercise of this fundamental right, and make a case for the clear positive obligation that lies on the State to realize the same.
Finally, the paper will delve into examining the different kinds of provisions that would foster space for realization of the right. It is important to note that whilst civil-political rights are recognized in Constitutions, legislations rarely evoke platforms for crystallization of the right, rather, they are primarily used to evoke procedures by which these rights can be deprived. With this paper, the argument entails the unprecedented exercise of specifically imposing obligations on the state to promote the realization of these rights. 
The UN recognized the right to freedom of information as early as 1946 when the UN General Assembly during its first session adopted Resolution 59(1), which stated: Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated. The Universal Declaration of Human Rights went on to become the first international instrument crystallizing the right, recognizing the universal right to freedom of opinion and expression and to receive and impart information and ideas through any media and regardless of frontiers. The International Covenant on Civil and Political Rights further solidified the importance of this right, with Article 19 positing the right to further include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally in writing or in print, in the form of art, or through any other media of a person’s choice.
In 1998 the UN Special Rapporteur on Freedom of Opinion and Expression declared that the freedom of information includes the right to access information. Under the Biwako Millennium Framework, access to information and communications was listed as one of the seven priority areas for governments with respect to persons with disabilities. Among the targets set in the framework include mandates on the respective government to develop and coordinate a standardized sign language, to adopt ICT Accessibility guidelines, and establish a system to train and dispatch sign language interpreters. The importance of this right also reasonates through conventions dealing with other vulnerable groups, be it the CERD, the CEDAW, or the CRC.
Finally coming to the Convention on the Rights of Persons with Disabilities, in order for us to truly appreciate its mandate, it is important to acknowledge the issues with the prior international regime concerning not just this particular right, but the entire panoply of civil and political rights on the one side, and social and economic rights on the other. With the divide between these 2 sets of rights that succeeding conventions introduced, what was also institutionalized was the idea that civil and political rights were as such “negative” rights, while social and economic rights were “positive” in their content. In effect, the presumption that stood was that while States needed to expand resources to uphold social and economic rights, no such correlative obligation required observance in respect of civil and political rights.
The CRPD acknowledges the flaw in this understanding, based on the later reasoning that both civil and political rights and social and economic rights give rise to positive and negative duties. What it thus guarantees are hybrid rights, the example of the right to freedom of expression being a notable one : for recognition of this right, provision has to be made for alternative and augmentive modes of communication, as without such provision the right would be meaningless.
Central to the realization of this right is Article 21 of the Convention. The obligation placed here is on States Parties to take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice. This inclusive understanding of the right is further defined by a number of examples. These range from providing information intended for the general public to persons with disabilities in accessible formats and technologies, to accepting and facilitating the use of sign languages Braille, augmentative and alternative communications; from encouraging accessibility of information through the mass media, including through the Internet, right down to recognizing and promoting the use sign languages.
The scope of this right may be further defined by taking recourse to a few other provisions of the Convention. Starting with the General Obligations : Clause 1(g) of Article 4 lists the undertaking or promotion by States parties, of research and development of, and promoting the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost.
Communication, as defined in the convention, includes “languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology”. Article 9, dealing with Accessibility, involves ensuring access by persons with disabilities to information and communications, including information and communications technologies and systems.
Also of particular relevance is Article 30 of the Convention, providing for enabling measures to enjoy access to cultural materials in accessible formats. There is a specific provision for ensuring access to television programmes, films, theatre and other cultural activities, in accessible format. Further, there is a provision focusing on laws protecting intellectual property rights which may present an obstacle to the transcription of material into accessible formats. It requires States to take appropriate steps to ensure that such laws do not constitute an "unreasonable or discriminatory barrier" to access to cultural materials.
As mentioned in the introduction, the jurisprudence on freedom of expression in India is largely silent when it comes to persons with disabilities. This section of the paper will attempt to look at some important case law related to flow of information, communication, and the right to dissent, and in these cases, demonstrate how analogical extensions are evident in the case of persons with disabilities.
Article 19(1)(a) of the Indian Constitution guarantees to every citizen the freedom of speech and expression. As with all the other rights under Article 19, this freedom is not absolute. Article 19(2) allows the continuance of existing laws and enactment of future laws so long as any restriction on the exercise the right is reasonable and ‘in the interests of the sovereignty and integrity of India, the security of state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence.
Freedom of speech and expression has been held to include freedom of propagation of ideas  and opinions. True democracy, the courts have held, cannot exist unless all citizens have a right to participate in the affairs of the country. This right is meaningless unless the citizens are well informed on all sides of issues, in respect of which they are called upon the express their views. In the judgment of S P Gupta v. Union of India, the Supreme Court deduced the right to information from the guarantee of free speech and expression contained in Article 19 1(a) of the Constitution of India. Its reasoning is clearly influenced by the doctrine developed by the US courts that certain unarticulated rights are immanent and implicit in the enumerated guarantees.
Of particular significance is the case of Bennett Coleman v. Union of India. Here, the validity of the Newsprint Control Order, which fixed the maximum number of pages for newspapers, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the plea of the Government that it would help small newspapers to grow. Freedom of the press, and consequently dissemination of information to people was held to be integral to the effective exercise of the freedom of speech and expression.
Extending this argument, it can clearly be argued that citizens with disabilities should be provided information by methods and through a medium which they can access. Without such information citizens with disabilities cannot have the informed understanding of issues which is required for the effective exercise of the freedom of speech and expression.
Further, the non-recognition of sign language, Braille script and other modes of communication is a restriction on the freedom of speech and expression. As this restriction results in a total loss of freedom, it cannot be considered reasonable, even other than the fact that it can’t really be justified under any of the grounds for restriction. A hearing impairment coupled with an inaccessible phone system, for example, results in virtual exclusion from telephony and all of the roles telephone communication can play in everyday life.
Access to information and communication would not necessarily be based on mechanical faculties – there is also the realm of learning disabilities which must be taken into account. Further, with the United Kingdom case of Hewett v. Motorola Ltd., the Employment Appeal Tribunal confirmed that difficulties in understanding were not limited to difficulties in understanding information or knowledge but included difficulties in understanding social interactions. Based on this acknowledgment, impediments faced by persons with Autism or Asperger’s Syndrome, or related disabilities would also come under the ambit of protection under this right. 
It is important to recognize that a budgetary restraint argument simply cannot be maintained by the State in this regard. The State and its agencies often tend to counter allegations of non-realization, with economic incapacity. The Supreme Court has set aside such a trend in Municipal Council, Ratlam v. Shri Vardhichand : “The Human Rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Otherwise a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget.”
Silence is a way of talking, of writing; above all, it is a way of thinking that obfuscates and covers up for the cruelty that should be a central preoccupation of those who make talking, writing and thinking their business. The tyranny of the majority is often the tyranny of society – the tendency of society to impose, by means other than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them.
Cass Sunstein argues that at the core of modern free speech law is a prohibition on government discrimination against any point of view. He makes a point about terrorists suffering from a crippled epistemology – that, in effect, conformists of all kinds in their way suffer from a crippled epistemology. While public forums may not always supply a complete corrective, things are likely to go far better if dissenting views are heard and if people reject those views only after actually hearing them. Free societies depend on a high degree of receptivity in which many perspectives are heard, and in which dissent and disagreement are not unwelcome. 
A legal system that is committed to free speech forbids the government from silencing dissenters. This is an extraordinary accomplishment, but it is not nearly enough – people often silence themselves not because of the law but because they defer to the crowd – something that the binary of discredited and discreditable in the realm of persons with psychosocial disabilities lays testament to.  A well functioning democracy necessarily has a culture of free speech, not simply legal protection of free speech. It encourages independence of mind, imparts a willingness to challenge prevailing opinion through both words and deeds. Equally important : it enourages a certain set of attitudes in listeners, one that gives a respectful hearing to those who do not embrace the conventional wisdom. In a culture of free speech, the attitude of listeners is no less important than that of speakers.
Courts in India have time and again recognized the importance of this aspect of the right to freedom of speech and expression. In Anant Janardhan Karandikar v. State, the court proclaimed that the right to dissent is the very essence of democracy. Conformity to accepted norms and belief has always been the enemy or freedom of thought. Any form of intolerance to dissent is dangerous to democracy. Peaceful protests and the voicing of a contrary opinion are powerful wholesome weapons in the democratic repertoire.
In Sec., Ministry of Broadcasting v. Cricket Association, Bengal, where the Supreme Court was dealing with the regulation of air waves and frequencies, it stated that freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfillment, enabling people to contribute to debates on various issues. If speech can communicate ideas and viewpoints, selective silencing of certain communities has the opposite, totalitarian effect. Thus, in effect, not providing an adequate platform to disabled persons to express themselves amounts to this kind of selective silencing.
The importance of the right to reply was examined by the Supreme Court in Manubhai Shah v. Life Insurance Corp. of India. In this matter, Professor Manubhai Shah had published a study paper which was strongly critical of the working of the government-controlled Life Insurance Corporation (LIC). A reply to Professor Shah's article was published in Yogakshema, a magazine of the LIC. Shah's request that his article should also be published in the same magazine was refused. The Supreme Court held that LIC's refusal was "unfair because fairness demanded that both viewpoints were placed before the readers".
The importance of dissent and diversity in a democracy has perhaps most eloquently been worded by Sanjay Kaul, J. in Maqbool Fida Husain vs Raj Kumar Pandey, “India is ... (a) pluralist society which acts a model of unity in the mosaic of diversities and has taught the world the lesson of tolerance by giving shelter to the persecuted and refugees of all religions and all nations. The standards of the contemporary society in India are fast changing and therefore, now in this age of modernization, we should more so embrace different thinking and different thoughts and ideas with open arms. Democracy has wider moral implications than mere majoritarianism. A crude view of democracy gives a distorted picture. A real democracy is one in which the exercise of the power of the many is conditional on respect for the rights of the few. Pluralism is the soul of democracy. The right to dissent is the hallmark of a democracy. In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech.”
History has often found individuals with disabilities having been classified as having little social value or as not part of society at all. The social construction of mental illness has become a vehicle to allow for marginalization and exclusion and allows for communities to deny the social and cultural conditions that gave rise to the expression of what is referred to as a mental illness. It allows for communities to conveniently label the biological difference as “illness” and not accept the diversity of subjective life experience. It is as important to see how conversations are avoided, as it is to see how they are made, and with non-recognition of this aspect of the right to freedom of expression in the case of persons with disabilities, the conversations are often closed at the very onset. It is in that context that this aspect of the right to dissent becomes important to persons with disabilities. More than that, it is the very prescence of the alternate voices that come from the midst of persons with disabilities that solidify this right.
A final question to be raised in this portion of the paper- could freedom of expression work as a double-edged sword and reinforce disability discrimination by allowing some forms of hate speech ? A comparative look at legislative arsenal across the world is discouraging, with incitement to hatred legislations often being silent on the aspect of disability. However, the speech would still clearly not fall in the category of being “protected” instead coming within the exceptions to the right, by nature of being discriminatory, defamatory and inciting hatred or violence. A cue could be taken from cases relating to communal violence where the Supreme Court has held that aggravated forms of insult which would disrupt public order would be proscribed. However, the existence of these kind of extreme standards will necessitate a look beyond strictly penal provisions, and require a more creative way of dealing with disability-related hate speech offences, if only so that relatively milder forms of hate speech, which still cause some amount of mental distress, may be allowed to be dealt with in some way by legislation.
Having charted out the scope of the right to freedom of expression with respect to persons with disabilities, it is clear that persons with disabilities have a number of claims regarding the practice of this right which the state has a duty to fulfil : what Hohfeld would term jural benefits to the state’s jural vulnerabilities.  This section of the paper will proceed with discussing the various ways in which this right may be enumerated, and the duties of the state thus realized.
The Sub-Group on Civil and Political Rights under the Committee to Draft A New Legislation To Replace The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has listed a set of requirements that a provision dealing with freedom of expression must engage with. These include keeping in mind a broader understanding of the concept of communication, that persons with disabilities should have the freedom to express themselves in any manner they choose, that their views and opinions be legitimately accepted, that social and emotional communication be developed to foster interdependence, and that personal assistance and supports be provided for expressing oneself.
One level of interventions are required in the form of funding and support of all the necessary aids and equipment that will enable persons living with disability to access the full range of information and communications products and services that are available to the rest of the population. Comparative provisions may be found with respect to Title IV of the Americans with Disabilities Act which amended the prior Communications Act of 1934. This amendment requires that all telecommunications companies in the U.S. take steps to ensure functionally equivalent services for consumers with disabilities, notably those who are deaf or hard of hearing and those with speech impairments. The Telecommunications Act of 1996 further establishes accessibility requirements for telecommunications equipment and services, applying to the design, manufacture, and delivery of telecommunications services. Intended to provide both physical and intellectual access, this law mandates that, when possible, accessible telecommunications technology is available for federal agencies providing government information and services online.
Internet Accessibility is another important area of concern. As the content of the Internet has become more popular and more complex, constantly evolving graphical, auditory, and other features have made it continually harder for persons with visual, hearing, mobility, cognitive, and learning disabilities to use the Web. Though assistive technologies and adaptive devices have been designed to help overcome the general inaccessibility of the online environment, so long as most sites are not developed to be accessible to users with disabilities, many of the services and much of the content on the Web remain beyond the reach of many persons with disabilities.
Recognizing the importance of accessibility in the online environment, the World Wide Web Consortium began to develop the Web Content Accessibility Guidelines in the late 1990s. These guidelines are recommendations for all Web sites to follow to ensure accessibility for users with a range of disabilities, emphasizing design for full accessibility for all persons with disabilities in the creation of a Web site. They are in effect, the touchstone by which most lobbyists, legislatures and web developers determine the accessibility of a website. 
The United States’ Rehabilitation Act provides a comprehensive mandate for online accessibility, establishing accessibility requirements for government information and services involving technology under Section 508. As existing Web sites are updated and new sites are brought online, Section 508 requires that the sites be accessible for persons with disabilities so that all citizens may use the sites equally.
Information and programs broadcast on television are inaccessible for deaf and blind persons. It is necessary that certain laws are amended with a view to ensuring that persons with auditory/ visual disabilities be able to enjoy television with the benefit of closed captioning that would enable captioning of all audio content on a program, as well as audio transcription to benefit blind persons. Provisions for close captioning can be found in a number of countries across the world, notably Argentina and the United States. 
Sign language finds mention in multiple legislations across the world. The Constitutions of Uganda and Finland recognize sign language and the duty of the State to foster development of the same. Legislation in New Zealand Recognizes the New Zealand Sign Language as an official language of New Zealand and the right of persons who are deaf to use it in legal proceedings, and sets out principles to guide Government departments in their recognition of the language. The Slovenia Sign language Act further stipulates the right of the Deaf to use the Slovenian Sign language and a sign language interpreter.
In India, the Official Languages Act, 1963 is the law enacted to provide for languages that may be used for the offcial purposes of the Union, for transaction of business in Parliament, for Central and State, Acts and for certain purposes in the High Courts. The Rules made under the statute deal with the language of communication between the center and state and between central departments. Indian Sign Language should be notified as an official language under the Offcial Languages Act by the center and by all states for use for official purposes. In providing for the services of sign language interpreters, it must be ensured that there are proper systems in place for adequate training of interpreters.
Intellectual access to information for persons with disabilities, at a more conceptual level, entails equal opportunity to understand intellectual content and pathways to that content. For individuals with learning disabilities, intellectual access is a keenly important issue, as their ability to understand certain content may hinge on how it is organized and represented. Clarity in organization and representation is similarly essential for intellectual access for individuals with cognitive disabilities. For instance, it does no good for a screen to be made readable if the user still cannot access the information on the screen.
Looking towards fostering social and emotional communication when it comes to disabilities like autism, the Code of Practice issued by the Secretary of State under UK’s Disability Discrimination Act is indicative. It states that account should be taken of a person’s ability to remember, organize his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than normal. Examples are listed as to what amounts to substantial adverse effect, including inability to remember names and to adapt after a reasonable period of time to changes in work routine. It is stated that it would be a reasonable adjustment for an employee to communicate in a particular way to an employee with autism – and the responsibility of the employer to seek the cooperation of other employees in communicating in that way.
When it comes to regulating hate speech, recommendations abide that social and professional self-regulation may well be the best policy for protecting persons with disability from offensive comments, or that a broad piece of legislation containing anti-discrimination and equality provisions be considered as a sufficient tool to police “private” prejudiced attitudes against disabled persons.  A creative route might be taken in the form of mandating a certain amount of time in community service related to persons with disabilities in the case of a hate speech offender.
The paper in the previous part made a note of the right to dissent, to freedom of thought, and how it would extend to persons with disabilities. When it comes to operationalizing this particular right, however, it cannot simply be realized on the basis of the kind of direct interventions listed above. When persons with disability fall into the category of the discredited – when we acknowledge that the binary of discredited and discreditable is very much real – the prime line of reasoning that we can tease from the right to freedom of expression is chiefly that such right will be granted to persons with disability, such that it will not be curtailed on the basis only of their disability. The other restrictions on the right are of course taken care of by the Constitution, and will not require repetition. Over and beyond this, allowing for persons with disabilities to truly enjoy the right to dissent will only really be realized by a legislative framework that recognizes their legal capacity and makes interventions at multiple levels – be it at the level of awareness raising, or at prohibiting forced institutionalization. There is a certain atmosphere that is required for this particular right to thrive, and a rights-based legislation would certainly go a long way in fostering that environment.
Words are magical things.
Language so very often controls – and even constructs – thinking. One single term can define a group of persons, an entire movement and in the process either be hugely empowering – or rob them of personal autonomy. One way of reading the Constitution is envisioning it as a city of word built on the foundational promise made in its preamble – towards securing for its citizens justice, equality and fraternity.
It is important to recall that these are virtues that justify why we give unto ourselves a constitution or why we agree to be ‘constituted’ within a collective. Somewhere in this thicket of a social contract, persons with disabilities have been left out, at the most being considered objects rather than of rights, rather than being participative subjects. 
As this paper has sought to argue, the rights guaranteed under Article 19 of the Constitution must be realized for persons with disabilities by way of positive interventions on the state’s behalf. Central to my argument has been the idea that freedom of speech is neither a value peripheral to the real concerns of Indian democracy nor a bourgeois virtue but a clue to our survival as a civilised society.
At a time when we find this very right in peril – when values that ring arguably of fundamentalism or jingoism threaten to displace the ideals of freedom of expression, the recognition and crystallization of this right with respect to an oft-marginalized group of persons will stand to be as much a triumph of democracy as it is for the rights of the group in question.