W. P. No.29131/2017 (Contesting the use of derogatory terms for those with disabilities)

The public interest petition was filed in the Supreme Court of Pakistan and the petitioners challenged the use of words “disabled”, “physically handicapped” and “mentally retarded” mentioned in The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (“Ordinance”) by arguing that they violated fundamental rights of persons with disabilities- in particular, right to life, right to dignity and right to non-discrimination under Articles 9, 14 & 25 of the Constitution of Islamic Republic of Pakistan, 1973.

The petitioners argued that the constitution did not make a distinction between ‘a person’ and ‘a person with disabilities’, as the correct term used to refer to all categories of persons is the word ‘person’ and the definition of this word under the Ordinance can be altered to describe those persons with mental or physical disabilities, wherever the ordinance applies.[1] Relying on  Hafiz Junaid Mahmood v. Government of Punjab and others[2] and the UN Conventions of the Rights of Persons with Disabilities (CRPD), the petitioners requested that terms like “disabled”, “physically handicapped” and “mentally retarded” be struck down as being unconstitutional (as the removal of these words does not affect the scope, operability and enforceability of the Ordinance). Representatives of the state submitted that they supported the petitioner’s submissions to the court[3] and that article 199 (1) (c) read with Article 7 of the Constitution can be used to direct the Parliament to ensure that as a consequence of striking down the words in question in the Ordinance, other laws also be examined and any such words appearing in any other legislation be corrected. They submitted that directions may also be issued to the Executive Branch of the State not to use these words in any executive orders, notifications or directives.

The court’s decision:

The court decided that the question requiring determination was whether words/terms like “disabled”, “physically handicapped” and “mentally retarded” provided in the Ordinance are unconstitutional and as a consequence, are to be struck down from the statute?

• Disability and its meaning:

The court used Hafiz Junaid’s case[4] to source the definition of ‘disability’ to be

“lacking one or more physical powers, such as the ability to walk or to coordinate one’s movements, as from the effects of a disease or accident, or through mental impairment. According to the UN Convention on the Rights of Persons with Disabilities (CRPD) ratified by Pakistan in 2011, persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which ….. may hinder their full and effective participation in society on an equal basis with others. Disability is an evolving concept and results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”

The court described disability to be ‘what someone lacks’ not ‘what someone is’. A distinction was drawn between impairment (a problem in body function/structure), activity limitation (difficulty encountered in executing a task) and participation restriction (impediments to involvement in “life situations”) to illustrate the complex nature of the term ‘disability’ and to depict it to be an umbrella term covering the interaction between features of a person’s body and features of the society in which a person resides.

• Disabled person versus person with disabilities or different abilities

The court categorised disability to be situational (to be faced by individuals in the absence of social/environmental/medical/economic/human services) as its cause was dependent on the environment or the individual.  Since the depiction of disability was ‘the condition itself’, the court argued that a person could not therefore be labelled ‘disabled’. The court lead with the example of a person diagnosed with autism, who wouldn’t then be autistic but would rather have autism as the person itself does not change due to a medical condition which does nothing to contribute to their identity.

Alternative terms like ‘differently abled’ were noted to have been made use of globally, rather than the term ‘disabled’. ‘Differently abled’ was described to be an inclusive term which offered an equal platform to those falling under it. Those with conditions affecting them physically or mentally were differently abled due to their unique abilities and perspectives. The term ‘differently abled’ was described to not hide the fact that one has been diagnosed with a certain condition, but rather, to empower such individuals, despite this.  Being abled differently from others allowed individuals to perceive the world differently which made such perspectives merely different, not inferior or superior. The court stated that conditions like autism could affect everyday functions but they should not impede those diagnosed with them, from enjoying a fulfilling life. For this the use of “people-first” or “person-first” language was recommended as it puts the word ‘person’ or people’ before the word ‘disability’. This helps shift the focus from the condition to the person and prevents the use of the name of the condition as an adjective or the defining characteristic of the person, thereby humanising the individual in question (saying “person with a disability,” “woman with cerebral palsy,” and “man with an intellectual disability).  It also helps focus on the many abilities of those diagnosed with disabilities, as opposed to focusing on the one disability they are affected by. The court also noted that terms like “disabled”, “physically handicapped” and “mentally retarded” were hurtful and offensive.

• Disability and Dignity

In international law, rights of persons with disabilities are provided in the Convention on the Rights of Persons with Disabilities and Optional Protocol (CRPD), to which Pakistan is a signatory. This convention recognises the inherent dignity, worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. It reaffirms the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination. The Universal Declaration of Human Rights (UDHR) and other international covenants on human rights agree that the rights they protect are available to all, without any distinction.

The court stated that emphasis on the full enjoyment by persons with disabilities of their human rights and fundamental freedoms results in their enhanced sense of belonging which helps them contribute to the society. It also deemed it to be critical that those with disabilities are capable of independence as the belief that one is equal to its peers is an important empowering context for individuals, especially children.

Referring to the Hafiz Junaid Case the court held that the constitution protected immutable fundamental values like the right to life (Article 9), the right to dignity (Article 14) and the right to equality (Article 25) which it accorded to all without distinguishing between a person with or a person without disability. The constitution was stated to carry a triangular construct of the right to life dignity and equality which offered a robust platform for mainstreaming persons with disabilities.

The court then turned to right to dignity which it stated to be rooted in the idea that ‘justice consists of the refusal to turn away from suffering’. It also stated that this fundamental right recognised the free will and independence of people and their choice in shaping themselves a certain way and that this right was violated when a person’s physical or mental welfare was harmed. This was linked to the case of Hafiz Junaid, where the court had previously debated the inclusion of the right to ‘reasonable accommodation’ in the rights of those with disabilities.

While the case concluded that this right was in fact a constitutionally guaranteed right, protected by the right to life and dignity (and protected by the CRPD), it also made a very important point about the right to dignity and the protection it offers to those with disabilities. It stated that these rights were at the epicentre of the constitution and they included the right to enjoy one’s life (at par with those without disabilities) and to allow for the realisation of a person’s humanity (the free will to choose to shape one’s life and to fulfil one’s self). Article 25 of the constitution was added to this argument by stating that the constitution abhors discrimination and that any discrimination on the basis of a disability was a violation of this article which promoted inclusiveness, effective participation and recognised human diversity in society. Non-discrimination being a fundamental right guaranteed reasonable accommodation to eliminate exclusion of persons with disabilities. Since persons with disabilities are equal in dignity and entitled to the same fundamental rights and freedoms as others, their inclusion in society is also protected by the constitutional values of social, economic and political justice. The constitution is a living document which provides passionate constitutional support for persons with disabilities. This creates a constitutional obligation on the state and its institutions to ensure that persons with different abilities are mainstreamed and that the diversity they bring to the society is embraced.

The court then addressed the words of the legislation, objected to in the petition. It stated that the use of words or terms like “disabled”, “physically handicapped” and “mentally retarded” to characterize and label a person on the basis of an impairment, negated reasonable accommodation (which was decided to be protected by the constitution in the Hafiz Junaid case) as it denied persons with disabilities the enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms. These words amounted to discrimination on the basis of disabilities, for the same reasons. They were therefore, deemed to be violative to the right to be a person, infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles 9, 14 and 25 of the Constitution.

The court stated that use of outdated language and words to describe people with disabilities helped enforce old stereotypes. Being aware of the words we choose when we communicate is the first step toward correcting injustice. These portrayals led to unwanted sympathy, or worse, pity toward individuals with disabilities. Respect and acceptance is what people with disabilities would rather have. By carefully choosing our words, we could make a tremendous difference in the lives of other youth with disabilities. Using respectful language can dramatically change our communities for the better. The words under challenge have been rebuffed and looked down upon by the civilized world. It is more humane to use the term: persons with disabilities or persons with different abilities. This is the practice outside Pakistan. Legislations from the United States of America[5], the United Kingdom,[6]Australia[7] and India[8] were cited to highlight the fact that the world as a whole was rejecting old terminology and accepting the ‘people/person first’ language to frame legislation addressing those with disabilities.

The court noted that the words disabled persons appear 34 times in the Ordinance, other than in the title of the Ordinance, while “physically handicapped‖ and “mentally retarded” appear once in the definition of disabled person in section 2(c) of the Ordinance. Since removal of these offensive words does not affect the scope, extent, operability or enforceability of the Ordinance, the court, applied the Doctrine of Severance, and removed the words “disabled,” “physically handicapped” and “mentally retarded” from the legislation (as they were violative of articles 9, 14 and 25 of the Constitution and hence unconstitutional and illegal).

The definition of the term ‘disabled person’ was replaced with:

“ ‘disabled person’ means a person who, on account of injury, disease or congenital deformity, is handicapped for undertaking any gainful profession or employment in order to earn his livelihood, and includes a person who is blind, deaf, physically handicapped or mentally retarded”

While the original title of the Ordinance was retained[9] the court ordered Federal government and the government of Punjab to discontinue the use of these words in official correspondence, directives, notifications and circulars and shift to persons with disabilities or persons with different abilities.

[1] Cases of Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others (2016) 10 SCC 165), Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCMR 206) and R.M.D. Chamarbaugwalla and another v. Union of India and another (AIR 1957 S.C. 628).

[2] (PLD 2017 Lahore 1).

[3] Relying on the case of Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1).

[4] Ibid.

[5] Rehabilitation Act, 1973.

[6] Disability Discrimination Act, 1995.

[7] Disability Discrimination Act, 1992.

[8] Rights of Persons with Disabilities Act, 2016.

[9] The court relied on Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others (2016) 10 SCC 165), Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCMR 206) R.M.D. Chamarbaugwalla and another v. Union of India and another (AIR 1957 S.C. 628), The Corporation of Calcutta v. Calcutta Tramways Co. Ltd, (AIR 1964 SC 1279), Satyawati Sharma v. Union of India and another (2008) 5 SCC 287).