1 The Need for a Politics of Presence

The conformity of the racialised positivist identity that is imaginary, eternal, self-evident, autonomous, absolute, abled, rooted in biology and stable is the result of politics of recognition which by the same token forges a condition of “nonconformity incarnate” to the body of the woman with disability that resists any inclusion in privileged social rules or categories. This recognition and/or de-recognition through biological determinism becomes an embodiment of universal “reason” based on the hegemony of ability leading to the hierarchy and recognition of the “abled” body and the de-recognition of its “Other” – the disabled body. In general, at once it subsumes the disabled woman’s body within itself and forecloses the possibility of all difference, be it of gender, of nationality, of physiology, psychology, social, economic, cultural, civil or political where the woman with disability is concerned. The double-bind of the politics of recognition and/or de-recognition of identity as a woman with disability within the normative social rules and categories essentialises and homogenises racial and positivist identities.

Both recognition and de-recognition also become precursors for the disqualification for women with disabilities to access the rights of a reasoning or a rational citizen, of the west or its other, and renders them to the margins of socio-economic, cultural and civil, and political privileges. The politics of recognition or derecognition of social rules or categories, we argue, not only de-privilege or delegitimise the very citizenship of women with disabilities – colonising

Economic & Political Weekly

EPW

REVIEW OF WOMEN’S STUDIES

them in a postcolonial situation – but importantly manifest themselves within the authoritative power of law and policy framework in general and their allied apparatuses of implementing institutions, agencies or individuals in contemporary India.

In other words, the very deployment of the social rules and categories (that are part of the status quo) of a priori conformity that governs the recognition renders women with disabilities as persona non-grata/“diminished”/“lesser” citizens, therefore the need for possible politics of “nonconformity incarnate”. Further, the very difference that distinctively shapes the identity of women with disabilities within the “nonconformity incarnate” paradigm also sets it apart from the overarching master narrative of biological determinism. Here we would like to invest the notion of “nonconformity incarnate” with the attributes of resistance to subsumption and assimilation. That is, women with disabilities have the potential to proactively carve a space, which allows them to acquire a unique identity for themselves – an identity which is different and challenges the fundamental assumptions of positivist identity formation in western discourse and patriarchal hegemonic discourse in India.

2 Social Construction of Gender and Disability

What makes people different is the social construction of disability, like that of gender. The structures, institutions and values of the wider community also determine and define disability more than the biological characteristics of the disabled (Pane 1995: 3).

To begin with, social construction of difference structures institutions of law and policy, at once rendering women with disabilities de-privileged or marginal. If one were to argue from the point of view of a woman with disabilities, from her specific position of marginality, that is, what would be the choices of standpoints available to her? Should she assume the standpoint of “nonconformity incarnate”? Should she speak as a woman with disability? Should she give voice to the “disabled woman”? Or should she speak as a woman – beyond disability?

It is also important to note here that such experience of position outside the recognition as woman with disabilities has to be seen in the context of prevailing stigmatised social attitude, within law and policy – at the international and national levels, both with specific reference to persons with disabilities and more generally with reference to the difference between rich and poor nations. The artefacts of law and policy are spread out and range from the philosophical and cultural to the economic, political and importantly the biomedical artefacts of modern science.

It is apt to summarise this argument in the words of justice A S Anand (2005):

The difference that disability represents is frequently viewed as deviation, an abnormality, a disqualification and in its extreme form, a danger against which society must be protected. The genesis of this skewed construction of disability can be traced to the ancient laws of India and to a trend in Western thought that provided a scientific justification to maintain social inequality on the basis of ‘natural laws’ at the level of ‘biology’.

On the one hand, women with disabilities, to echo Pane (1995: 2), are “left merely to inhabit the empty space that the progress of women has left behind”. On the other hand, they are located on the side of disadvantage and deprivation in a series of binaries

38 that typify unequal classifications based on universal reason – “occident”/“orient”, white/coloured, rich/poor, ability/disability, metropolis/the rest (sub/semi-urban/rural), dominant caste/ dalit, ruling class/ruled, metropolitan men and women with disabilities/the rest (sub/semi-urban and rural persons with disabilities), rural men/rural women with disabilities.

Further, as justice Anand points out, consequent on their representation as deviant, women with disabilities construct their selves within the multiple parameters of social inequalities that are mirrored in ancient laws, natural laws, constitutional law, western philosophy, biological determinism and human rights discourse. The body of the deviant woman with disabilities, located outside the normative paradigm of both society and law thus becomes the base for/of repression. In the words of Terry and Urla (1995: 2):

embodied deviance…[is] the historically and culturally specific belief that deviant social behaviour (however that is defined) manifests in the materiality of the body, as a cause or an effect, or perhaps as merely a suggestive trace. In short, embodied deviance is the term we give to the scientific and popular postulate that the bodies of subjects classified as deviant are essentially marked in some recognisable fashion.

In summary, the term “deviant” in relation to the body of the subject – the deviant body – traces or tracks “some” recognisable body of modern epistemology in order to postulate what constitutes the basis for recognition or de-recognition of the body of the woman with disabilities in conformity with the social rules and categories. Following are the social rules or categories that determine the deviant body subject, that is, woman with disabilities:

(a) Apart from colour or sex – the size of the body of the subjects

– the size and shape of the limb structure, functions of sensory organs such as eyes, ears, mouth, intellect, mobility/kinesis, visual and oral/aural communication from hieroglyphic to gestural, pictorial, oral and written;

The knowledge content of the body subjects, as we have mentioned above, precedes and appropriates the modes of both recognition and de-recognition to assimilate differently the body subject of women with disabilities and able bodied women and men into the social rules and categories. This hegemonises the difference between categories of body subject, that is, full men, women and women with disabilities and erases the value of distinctiveness that exists because of difference both for full bodied men and women and women with disabilities. Thus, the distinctiveness/difference is a value that is associated with nonconformity incarnate which is also resistance to (hegemonic) assimilation to keep distinctions and difference alive towards building a progressive activism.

To the extent that it exists, the recognition of the identity of women with disabilities in policy to date is in the nature of a dole

– it is not a recognition of a right. It is not surprising for instance

october 31, 2009 vol xliv no 44

REVIEW OF WOMEN’S STUDIES

that the debate on the Women’s Reservation Bill in the Parliament does not refer to a constituency of women with disabilities in the context of their right to political representation. Can the women with disabilities negotiate for political power with the ruling class from their position of “nonconformity incarnate” and powerlessness?

As Martha Nussbaum (2006: 4) aptly states: Doctrines of the social contract have deep and broad influence in our political life. Images of who we are and why we get together shape our thinking about what political principles we should favour and who should be involved in their framing.

Can there be a place for recognised or de-recognised bodies of women with disabilities or body subjects within the imagined asymmetric capabilities of “full women and men” who decide both political life and principles that govern recognition and derecognition? The story of social contract is preceded by the imagination of a particular productive/participatory/reasoning body and that body with its particular abilities authorises moral and political right in the social contract and asserts patriarchy in conjuncture with state and judiciary (Pateman 1988). Similarly, the approach to freedom or rights is preceded by bio-centric modes of recognition and/or de-recognition that legitimise and consolidate the power of the State and judiciary in the nation state.

We argue following Pateman, that knowing the history of systematic exclusion from social contract theory of the discussion on family and the private sphere, and its contribution to the growth of society and public institutions, it is more apt to locate our work with reference to political interventions of women with disabilities in the context of resistance to liberal humanism offered by social contract. Nussbaum (2006: 98) summarises this neatly:

The failure to deal adequately with the needs of citizens with impairments and disabilities is a serious flaw in modern theories that conceive of basic political principles as the result of a contract for mutual advantage. This flaw goes deep, affecting their adequacy as accounts of human justice more generally.

Further, the ruling class, for the hypocritical justification of its exploitation of the oppressed and exploited class of women with disabilities, introduces love, charity and palliation or outright denial to cover the evils of exploitation. To substantiate our earlier statement as to why it is important to work on our international and national legal instruments and constitutional obligations, with reference to resistance to liberal humanism, we quote from the National Human Rights Commission’s (NHRC) Disability Manual:

The dominant social attitude towards persons with disability has been one of pity, from which springs insidious forms of discrimination – the eventual source of their exclusion and extreme isolation. While many marginalised social groups have been able to project their specific social experiences of discrimination and their aspirations onto the wider social plane for discussion and debate, interventions from the disabled have been minimal as they lead dispersed social lives that make their discrimination appear as individual problems. This is exemplified in the Constitution of India that prohibits discrimination on grounds of religion, race, caste, sex or place of birth (Article 15) but does not explicitly mention persons with disability as a group to be protected against discrimination (Anand 2005: 3).

The very identity of persons with disabilities in general and women with disabilities in particular does not find mention in the most important article in the Constitution that speaks of non-discrimination, hence the need to focus on the questions that women with disabilities ask for their legitimate role in participatory democracy. The very exclusion of women with disabilities from the Constitution of India is not only the result of ancient laws in India but also the limitations of those able-bodied intellectuals responsible for the writing of the Constitution, who could not think beyond the charity model when it came to persons with disabilities. Marcia Rioux (2005: 18) reflecting on the roots of such thinking observes:

The charity model shares many common features with the bio-centric model. There is a similar imperative of social responsibility that is derived from charity and benevolence, rather than justice and equality. The notion of charitable privilege has its roots in the English Poor Laws, which primarily protected drain on social resources and created criteria to limit claims to rights. In other words, the charity model was based on an assumption that claim to rights is valid on certain grounds and invalid on certain others. Disability was perceived as a disqualification and perhaps for this very reason the expression “invalid” became synonymous with persons with disabilities.

The use of the term “invalid” carries with it the archaic value that refers to: “in·va·lid n. One who is incapacitated by a chronic illness or disability”1 and: “invalid, Noun – a person who is disabled or chronically ill and Adjective – sick or disabled”2

The usage of this word denotes the standard American and British (respectively) notions that reflect their social attitude, rules and categories. The British came out with the legislations that address the issues of persons with disabilities from 1970 to 1998. Chronologically, these were Sick and Disabled Persons Act 1970, Disability Discrimination Act, 1995 and New Deal for Disabled People, 1998 (Fairchild and Quinn 2000) and the United States government enacted the Americans with Disabilities Act, 1990, in spite of which the significance of the term “invalid” with reference to persons with disabilities still continues to prevail in the dictionaries of those nations.

This means, persons with disabilities in general and women with disabilities in particular have to bear with the archaic notions such as “invalid”/objects of charity that becomes a cultural deterrent to their identity as against citizens with disabilities as bearers of rights. The terms like ashakth and viklang (as also manasik viklang) in the Indian context denote that women with disabilities are either without strength or one with deformed/ disfigured limbs, sense perceptions or intellectual capabilities. Recognition/de-recognition as invalid or ashakth and viklang (or manasik viklang) is not simple words that are used for identifying the difference that exists between abled and disabled persons but a hegemonic characterisation of so-called able-bodied individuals, law and culture that privileges its ability over the de-privileged abilities of citizens with disabilities.

In other words, by “othering” women with disabilities with the use of archaic expressions, the able-bodied citizens vest rights exclusively in themselves and deny such privileges to women with disabilities. Hence the need for a critique of the use of law and

EPW is grateful to Kalpana Kannabiran for putting together this edition of the Review of Women’s Studies.

Economic & Political Weekly

EPW

REVIEW OF WOMEN’S STUDIES

uses of democratic political processes to address the issues of women with disabilities.

3 Two Cases

To demonstrate the need for the use of law and uses of democratic political processes, we examine two cases. The first documents the exemplary work initiated by the disabled peoples’ organisations (DPOs) in the state of Andhra Pradesh to address human rights of women with disabilities. The second is a recent Supreme Court decision on the rights of women with disabilities. Significantly, both the cases foreground the criticality of the right to sexuality and reproductive choice where women with disabilities are concerned.

Marriage as Resistance

R who hails from a village in Ananthapur district is 19 years old, belongs to the Boya community and is affected by moderate cerebral palsy. During the absence of her parents, who left for Bangalore in search of livelihood for the better part of an year, she was raped for months by her mother’s brother. This happened in spite of the security of her maternal grandmother. As a consequence of this rape, she gave birth to a girl child, who is now seven months old.

When the parents negotiated for marriage between R and her maternal uncle, her grandparents and her uncle denied any such relationship and questioned the legitimacy of R’s pregnancy and suspected her chastity. However, the parents of R insisted on marriage, for the reason that both R and her newborn daughter will have the right to inherit the property of the maternal uncle, the perpetrator of the violence. But R, while rejecting the need for sharing conjugal love with a rapist, claimed her right to dignity and right to reproductive freedom alongwith her daughter’s right to love and affection of both the parents and other legitimate rights of inheritance such as property/customary rights. When R’s family approached the police, the local village elders/politicians stood behind the perpetrator of the violence/violation and managed to prevent the police from registering the case in the police station.

The family of R then approached the village DPO and participated in many consultative meetings organised in the village for justice to the victim. In the final instance, the Mandal Vikalangula Samakhya took up the case and with the consent of the parents and R, lodged a complaint against the perpetrator with the district collector, superintendent of police (the highest police official at the district level) and the district legal services authority. Subsequently, the district collector intervened and asked the district family counselling centre and the superintendent of police to arrange for a reconciliation meeting to legalise the relationship of R and her maternal uncle. Therefore their marriage was performed in the village in the midst of members of the disabled group, village elders and other government officials.

Belaboured by the call for restoration of right to life with dignity and reproductive rights, right to marriage and family and child rights, marriage seems to be one among many solutions that was chosen by R with the support of her peers, though she was reluctant to share a life with the man who had abused her. The very gesture of R to participate actively in the taking of decisions regarding her life is best exemplified as progressive resistance, that of nonconformity incarnate on the one hand and on the other, with her decision she

Chandigarh Administration vs Nemo

Absence of disability rights law – and one that specifically stresses on the issues relating to women with disabilities – and family in the public and private spheres respectively and negative social attitudes, rules or categories leads to the “legal” violation of the human rights of women with disabilities to the extent of dehumanising her and portraying her as “invalid” by the denial of her right to choice. This can be best exemplified in the recent judgment delivered by the High Court of Punjab and Haryana that ordered an Expert Body in various fields of medicine for a judicial abortion on the basis of Medical Termination of Pregnancy Act, 1971 in the case of a 19 or 20-year-old intellectually disabled woman. As per the judgment on 9 June 2009, the woman with intellectual disability wanted to retain her pregnancy because she desired a

REVIEW OF WOMEN’S STUDIES

child of her own. The most significant fact in this case is that the woman became pregnant while she was in the protective custody of the state – in a Nari Niketan.7

We underscore several problematic points in the reading of her ability by the state and judiciary, before moving to a general consideration of the wider implications of this judgment.

Hence the need for special leave petition to the Supreme Court which issued a stay order on the ruling of the Punjab and Haryana High Court on 17 July 2009.14

We will move now to some larger concerns this case raises.

Because of her desire, her difference constitutes a platform for justice. The absence of such justiciability prior to her expression of desire, calls into question the absence of legally recognisable parameters of her fundamental rights such as equality before law and right to life with dignity and liberty (Articles 14 and 21, respectively) – both in terms of the failures of the state in its self assigned role of parens patriae on the one hand and on the other, the possibility of derecognition of her value on par with her peer citizens – women in particular, irrespective of whether they were single or married. Further, it was the legal recognition of her as a “mentally ill” person rather than a person with “mildly retarded” intellectual abilities/disabilities15 that collapses her emotional quotient with her intellectual quotient and denies her the capacity and volition to consent to continue her pregnancy as she desired. Wrenching her body and mind apart, the court subjects her to the guardianship of a callous “protector” with a scientific, diagnostic stereotype that derecognises her ability and desire.

Consequently, the consent accorded to the guardian (the “protector” state) is privileged/authorised in conjuncture with the support of available modes of dispensing justice for a ward

16

with “unsound mind”– in accordance with Section 375 of IPC.Obviously there are multiple factors other than her intellectual disability: the physical condition of the mother, social conditions and sarrounding environment, financial conditions and social or family support are the conditions deployed to assess the compatibility of the ward with the imagined “ideal mother” and a “full woman” and lead to the benevolent/sympathetic reasoning for the termination of her pregnancy.17

‘Natural’ Parameters

Scientific diagnosis together with law and justiciability in conjuncture with assumed sociocultural notions of ideal mother on the one hand, and self-sustainability in terms of earning capabilities, sociability and adaptive behaviour on the other hand are the “natural” or obvious parameters that characterise the ideal woman/ full woman. As such, the assumption is that the character of that ideal of the full woman is universal irrespective of the sociocultural, economic, civil, and political differences. Contrary to this assumption, we argue, that the assumption of full woman with “ideal character” irrespective of physical or psychological conditions, becomes a benchmark for motherhood in wedlock or beyond, and other factors such as sociability, self-sustenance, knowledge of sexuality and pregnancy and child rearing prior to and after wedlock are tagged on to the assumption of ability – working powerfully against the testimony of the ward in this case to fulfil “her” desire – the deviant’s desire.

Further, the judiciary under the assumption of having absolute power, rationality, reason, and more than all this, capabilities for justiciability, constitutes a panel of experts ranging from gynaecology, psychiatry and paediatrics on the one hand to, social activists, human rights activists and amicus curae and a judicial officer on the other to defend the guardian state and to direct legal termination of pregnancy of the ward.18

It is important to note here that it is not only necessary to enquire into the reason for making the distinction between so-called “mental illness” and “mental retardation” to understand why that distinction is made in the Medical Termination of Pregnancy Act, 1971 but also to unravel the sociological, cultural, judicial and political reasons to the extent possible to study the nature of prejudice that sanctions the medical termination of pregnancy in the context of mental illness of a person.

Is it not the prejudice of the privileged in the society who assume they have access to absolute knowledge of the body and mind of every woman including the woman with intellectual disability – the “unsound mind”? Is this not merely the reinforcement of the

october 31, 2009 vol xliv no 44

REVIEW OF WOMEN’S STUDIES

Notes

1 Fromhttp://www.thefreedictionary.com/invalid, The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company, updated in 2009, published by Houghton Mifflin Company. All rights reserved, accessed on 29 July 2009.

2 Ibid, Collins Essential English Dictionary 2nd edition 2006 © HarperCollins Publishers 2004, 2006. 3 ICCPR: International Covenant on Civil and

Political Rights was signed by India in July 1979. ICESCR: International Covenant on Economic, Social and Cultural Rights, was signed by India in July 1979.

CEDAW: Convention on the Elimination of All Forms of Discrimination against Women was signed and ratified by India in August 1993.

ICRPD: International Convention on the Rights of Persons with Disabilities was signed and ratified by India in March 2007.

4 “From our own experiences and from the 1993 United Nations Report on Human Rights and Disability we know that the human rights of disabled people are violated all over the world” – from An International Resource Kit, available at: http:// www.empowermentzone.com/womenkit.txt, accessed on 6 July 2009.

5 The International Conference on Population and Development (ICPD) held in Cairo in 1994.

6 Paragraph 46. The Platform for Action recognises that women face barriers to full equality and advancement because of such factors as their race, age, language, ethnicity, culture, religion or disability, because they are indigenous women or because of other status. Many women encounter specific obstacles related to their family status, particularly as single parents; and to their socio-economic status, including their living conditions in rural, isolated or impoverished areas. Additional barriers also exist for refugee women, other displaced women, including internally displaced women as well as for immigrant women and migrant women, including women migrant workers. Many women are also particularly affected by environmental disasters, serious and infectious diseases and various forms of violence against women – from

Economic & Political Weekly october 31, 2009

EPW

References

vol xliv no 44

Fairchild, Sherry and Peggy Quinn (2000): “Socio-Empowerment Issues for Women with Disabilities” in CASSW Pre-Conference Symposium on Women, Joint Conference of the International Federation of Social Workers and the International Association of Schools of Social Work, Montreal, Canada, 29 July: www.wwda.org.au/fairchild1.pdf accessed on 6 July 2009, pp 1-15.

Nussbaum, Martha (2006): “Introduction”, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, Massachusetts: Harvard University Press), pp 1-8.

Pane, Lina Geltrude (1995): “Women – Moving Beyond the Disability”, Paper, on behalf of Women with Disabilities Australia (WWDA), presented at the 4th International Abylimpics Conference, Perth, Australia: http://www.wwda.org.au/moving.htm, viewed on 7 June 2009, pp 1-7.

Silvers, Anita (1999): “Double Consciousness, Triple Difference: Disability, Race, Gender and the Politics of Recognition”, Melinda Jones, Lee Ann Basser Marks (ed.), Disability, Divers-ability, and Legal Change (The Hague; Boston: Martinus Nijhoff Publishers), pp 75-99.

Pateman, Carole (1988): Sexual Contract (Stanford: Stanford University Press), pp 1-19.

Rioux, Marcia (2005): “Approaches to Disability”, Disability Manual 2005 (New Delhi: National Human Rights Commission), pp 17-26.

Shalev, Carmel (1998): “Rights to Sexual and Reproductive Health – The ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women”, paper presented at the International Conference on Reproductive Health, Mumbai (India), 15-19 March 1998, jointly organised by the Indian Society for the Study of Reproduction and Fertility and the UNDP/UNFPA/WHO/ World Bank Special Programme of Research, Development and Research Training in Human Reproduction: available at http://www.un.org/ womenwatch/daw/csw/shalev.htm viewed on 12 August 2009, pp 1-18.

Terry, Jennifer and Jacqueline Urla (1995): “Introduction” in Jennifer Terry and Jacqueline Urla (ed.), Deviant Bodies (Bloomington and Indianapolis: Indiana University Press), pp 1-18.