'...the Court said that "disabling humour" that demeans and disparages PwDs must be distinguished from "disability humour" which challenges conventional wisdom about disability. The two cannot be equated in their impact on dignity and on stereotypes about PwDs, as disability humour attempts to better understand and explain disability, disabling humour denigrates it. It said “training and sensitization programmes should be implemented for those involved in creating visual media content”...'
SWARNALATHA RENGARAJ
Lights! Camera! and Ableist humour! The visual media has persistently perpetuated ableist stereotypes against persons with disabilities (PwDs) for far too long. Despite the adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which champions the human rights model of disability,[1] media representations stubbornly adhere to the outdated medical model. [2] It is unsettling that the Indian cinema is not alien to derogatory remarks about disability, India being one of the pioneers to sign and ratify the UNCRPD in 2007.[3] Films often depict disability as punitive, fostering dependence, disequilibrium, and maladjustment[4]. Humour targeting disabilities contributes to a culture of ridicule, reinforcing negative stereotypes about PwDs and reducing them to mere punchlines. However, it is crucial to distinguish between innocently jesting about a character with a disability and making the disability itself the butt of the joke, as these carry vastly different implications. Making disability a joke is neither comedy nor art.[5] Nevertheless, jokes and quips that mine laughter from physical, intellectual or cognitive disabilities remain disturbingly prevalent. The portrayal of disability in Indian mythology further exacerbates these negative stereotypes, historically justifying discriminatory attitudes towards differently-abled individuals.[6] This raises a poignant question: Can we even begin to imagine what a person with disability would go through while watching someone pretend to be them so that other people can laugh?[7]
The recent ruling of the Supreme Court of India in Nipun Malhotra v. Sony Pictures Films India Private Limited[8] marks a watershed moment in the crusade for respectful depiction of disability in media. Led by Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra, the Bench’s decision on July 8, 2024 is a profound affirmation of India’s commitment to promote equality, non-discrimination and non-stigmatization of PwDs to foster an inclusive society for all. This judgment is a cause for celebration as it marks the pivotal shift away from archaic views that reduce PwDs as objects of pity or sources of amusement. The Supreme Court has unequivocally condemned the use of stigmatizing terms like ‘cripple’, and ‘spastic’, embracing the modern social model of disability. It mandates creators to provide an accurate representation of disabilities and neurodiversity rather than mocking or lampooning them based on myths. In a society where disability has often been reduced to comic relief, at the expense of the dignity of PwDs, the Court emphasized the need to distinguish between 'disability humour' which aims to foster understanding and 'disabling humour', which perpetuates harmful stereotypes.
Background
A case[9], brought forth by Nipun Malhotra against Sony Pictures Films India Private Limited &Others, sought judicial intervention to address the alleged egregious portrayal of persons with disabilities in the movie Aank Micholi, potentially leading to stigmatization and discrimination. The petitioner, who is a disability rights activist and a person with locomotor disability contended that the depiction violated Constitutionally protected rights of persons with disabilities as well as the provisions of the Cinematograph Act, 1952 and the Rights of Persons with Disabilities Act, 2016. The movie under challenge was alleged to convey a disconcerting underpinning that persons with disabilities have to keep their disability under wraps, in order to fit in the institution of marriage and be validated by a conjugal partner. The plot, being an ableist comedy of errors invited censure and criticism. The matter escalated to the Supreme Court after the Delhi High Court had dismissed the petition on grounds of maintainability, noting that the film was certified for unrestricted public exhibition by the Central Board of Film Certification (CBFC) and that the primary challenge of the film being offensive to PwDs was not established.
Key Arguments by the Petitioner
Violation of Fundamental Rights: The petitioner argued that the film, through its portrayal of PwDs, infringed upon their rights under Articles 14, 15, and 21 of the Constitution by reinforcing stereotypes.
Offensive Nature of the Film: The petitioner contended that the film was offensive to the sensibilities of PwDs, highlighting concerns about the depiction of disability in the media. The petitioner challenged the misrepresentations of conditions of disabilities such as night blindness and the derogatory references such as referring to a person with Alzheimer’s as a forgetful father ("bhulakkad baap"), a hearing-impaired person as a "soundproof system," and a character with speech impairment as a stuck cassette ("atki hui cassette”).
Need for Judicial Intervention: The petitioner called for judicially mandated checks and guidelines to regulate the portrayal of characters with disabilities in films, emphasizing the importance of sensitivity and respect in such representations.
Challenging Stereotypes: The petitioner sought to distinguish between 'disabling humor' and 'disability humor,' advocating for a nuanced approach that challenges conventional perceptions of disability.
Promotion of Rights: The petitioner aimed to promote inclusive media representations which resonates with the broader principles of equality, non-discrimination, and dignity upheld by international human rights instruments like the United Nations Convention on the Rights of Persons with Disabilities.
Decision of the Supreme Court
"The freedom of speech and expression of filmmakers does not include the freedom to lampoon, stereotype, misrepresent, or disparage those already marginalized, including persons with disabilities. Films must be viewed in their entirety, considering the overall message and impact on marginalized groups. Sensitivity and respect in portraying persons with disabilities are essential to uphold dignity and non-discrimination in media representations." The bench stated, “Stereotyping is an antithesis to dignity and non-discrimination.” Further that, such stereotypes stem from a lack of familiarity with disability and this lack arises due to inadequate representation and participation of persons with disabilities in dominant discourse. Therefore, the Court said that ‘disabling humour’ that demeans and disparages PwDs must be distinguished from ‘disability humour’ which challenges conventional wisdom about disability. The two cannot be equated in their impact on dignity and on stereotypes about PwDs, as disability humour attempts to better understand and explain disability, disabling humour denigrates it. It said “training and sensitization programmes should be implemented for those involved in creating visual media content”.
Key takeaways from the guidelines.
In Vikas Kumar v. UPSC,[10] the Supreme Court had opined that the language of our discourse should be inclusive rather than alienating PwDs and the fundamental rights under the Constitution apply with same vigour to PwDs as well. In Indibly Creative Private Limited v. Government of West Bengal,[11] the Court had clarified that the creative freedom of the filmmaker cannot include the freedom to lampoon, stereotype, misrepresent or disparage those already marginalised. In the light of these two judgments, the Supreme Court issued the following guidelines, in this case.
Usage of respectful Language:
Insensitive language is an antithesis of the dignity of persons with disabilities. Terms like 'cripple' and 'spastic' should be avoided, as should terms like 'afflicted,' 'suffering,' and 'victim.' These terms contribute to negative self-image and societal marginalisation.
Accurate and Non-Stereotypical Portrayals:
Creators should adequately research and check for the accurate representation of a medical condition. Lack of such accuracy may lead to misinformation about the disability and entrench stereotypes about persons with such impairment, aggravating the disability.
Diverse Realism in Media:
Visual media should strive to depict the diverse realities of PwDs, showcasing their challenges and successes and contributions to society. Visual media must reflect their lived experiences. Their portrayal must capture the multitudes of their lived realities, and should not be a uni-dimensional, ableist characterisation.
Inclusive Stakeholder Engagement:
The 'Nothing about Us, Without Us' principle, is based on promoting the participation of PwDs and equalising opportunities. This principle must be put into practice in constituting statutory committees and inviting expert opinions to assess the overall message of films and their impact on the dignity of individuals under the Cinematograph Act and Rules.
Consultation and Collaboration with Disability Advocacy Groups:
Collaboration with disability advocacy groups can ensure a sensitive portrayal and provide valuable insights.
Training and sensitization:
Training and sensitization programs should be implemented for individuals involved in creating visual media content, including writers, directors, producers, and actors. These programs should emphasize the impact of their portrayals on public perceptions and the lived experiences of persons with disabilities. Topics should include the principles of the social model of disability, the importance of respectful language, and the need for accurate and empathetic representation.
Opinion
Visual media can be a vital instrument in raising awareness, countering stigma and misinformation about disability. It can be a powerful force to change societal misconceptions and present persons with disabilities as individuals that are a part of human diversity. The roots of ‘othering’ and ‘stigma’ begin when people distinguish among and label human differences. The connection between stereotypes (ableism) and so-called undesirable characteristics (disabilities) becomes the justification for the perception that ‘them’ are so essentially different from the ‘us’ that the ‘them’ are completely different types of people almost entirely irreconcilable with the ‘us.’ This potentially leads to the probability that ‘them’ are so qualitatively different from the ‘us’ that they may not even be considered human, thereby justifying many ways of treating ‘them’ poorly or abusively.[12]
Society has rightfully begun to scrutinize and challenge derogatory remarks or harmful depiction of women in media, recognizing their harmful effects on gender equality and respect. However, there remains a troubling tolerance for jokes and insensitivity towards narratives that dehumanize PwDs. For instance, both Bollywood and pan-Indian movies often portrayed characters with disabilities and neurodiversity in exaggerated or caricatured ways, making a mockery of their quirks or challenges without portraying the full complexity of their experiences. Inevitable Foundation’s latest survey report[13] cheekily titled “Audiences Are Waiting for Hollywood to Greenlight Disability” (surveyed over 1,000 people about the current state of disability and mental health representation on screen) has found that 66% of audiences are “unsatisfied with current representations of disability and mental health in film and TV.” Disability and humour are strange bed-fellows. However, the far-reaching effects and impact of disparaging humour about disability are often over-looked.
The discussed judgment of the Supreme Court is path-breaking as it can be viewed as a significant step towards creating a more inclusive and equitable society where PwDs and neurodiverse persons are not subjected to harmful stereotypes and discrimination in media. The Court’s careful dissection of ‘disability humour’- (a PwD character being sarcastic about societal barriers) and ‘disabling humour’ (insensitive mockery about PwDs) is the icing on the cake. The former helps addressing misconceptions to educate the audience about disability while the latter lacks understanding and sensitivity, perpetuates ignorance and negative stereotypes about PwDs. It is a clarion call that reaffirms the duty of creators to avoid disparaging portrayal of PwDs and the role of certification process to ensure compliance with guidelines and statutes governing media content. The Court has set a precedent by emphasizing on an authentic portrayal of disability through the prism of PwDs’ own lived experience. Only such a depiction can make possible to humanize disability, destroy stereotypes and clichés that dominate in the media, avoid one-dimensionality or one-sidedness, and problematize disability.
However, the road to anti-ableist media representation is quite bumpy and the acute lack of awareness in India is overwhelming. Shortly after their victory in England, legendary cricketers Yuvaraj, Harbhajan and Raina succumbed to infamy for their insensitive post on Instagram. In their rendition, the trio is seen limping and holding their backs in their attempt to recreate Vicky Kushal’s viral dance steps for ‘Tauba tauba’ song. The depiction of physical toll of cricket matches through mobility issues for few laughs is disabling humour. It’s not only disgraceful and poor in taste but also mirrors the entrenched ableism that persists in the society. Harbhajan Singh’s subsequent apology also fails to acknowledge the ableism and ageism, inherent in their actions. Arman Ali[14], has lodged a complaint against the ex-cricketers in the video for violating the rights of PwDs. Instances don’t seem to end. Disabling humour is still capable of entertaining and winning a standing ovation from judges, hysterically laughing and clapping.[15] (India’s got talent show).
Are some people just intolerant to jokes or are they taking it too far? No! Mocking one’s disability for another’s hilarity isn’t funny.[16] Disability studies utilize humour as a tool of discourse but when humour becomes a vehicle for humiliation and perpetuation of ableist stereotypes, it must be condemned. It is noteworthy that intentionally insulting or intimidating with an intent to humiliate PwDs within public view attracts punishment under Section 92 of the Rights of Persons with Disabilities Act, 2016. If only we realise that ability is temporary non-disability contingent upon several factors like age, disablement etc., we will give up ableist attitude. Disability does not define a person; it's the portrayal of their stories in an authentic and multi-dimensional way that can redefine society. In the portrayal of disability, let media be not just a mirror to society's prejudices, but a beacon of hope and change. Applying the call of UNCRPD under Article 8 to raise awareness against stigma and stereotypes against disability, media can combat stereotypes, prejudice, and harmful practices towards PwDs, strengthening respect for the rights and dignity of people with disabilities. Resting hopes on moves such as the release of 'Handbook Concerning Persons with Disabilities[17]' with a glossary of terms that perpetuate stereotypes and provides an alternative neutral and inclusive terminologies to refer to PwDs in the legal context, thereby the society at large.
The author, Ms. Swarnalatha Rengaraj is a research scholar at the South Asian University, New Delhi.
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End Notes:
[1] Lawson, A., & Beckett, A. E. (2020). The social and human rights models of disability: towards a complementarity thesis. The International Journal of Human Rights, 25(2), 348–379. https://doi.org/10.1080/13642987.2020.1783533
[2] “Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs. This has resulted in severe isolation for people with disabilities and their families." See "South African Integrated National Disability Strategy", White Paper Office of the Deputy President of South Africa, 1997
[3] India signed the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) on March 30, 2007 and ratified the same on October 1, 2007.
[4] Joyojeet Pal, 'The Portrayal of Disability in Indian Cinema: An Attempt at Categorization' Phalanx https://www.phalanx.in/pages/article_i009_Portrayal_Disability_Indian_Cinema.html, accessed on July 9, 2024.
[5] Shashank Pandey, 'Making Disability a Joke Is Neither Comedy Nor Art' (The Wire, 4 December 2023) https://thewire.in/film/making-disability-a-joke-is-neither-comedy-nor-art accessed 9 July 2024.
[6]Martand Jha. ‘Indian Mythology Has a Problem With Disability’ THE WIRE October 31, 2016,
https://thewire.in/rights/indian-mythology-problem-disability accessed 9 July 2024.
[7] Baradwaj Rangan, 'Readers Write In #49: The Portrayal of Disability in Indian Mainstream Cinema – Where’s the Nuance?' (16 September 2018) https://baradwajrangan.wordpress.com/2018/09/16/readers-write-in-49-the-portrayal-of-disability-in-indian-mainstream-cinema-wheres-the-nuance/ accessed 9 July 2024.
[8] 2024 INSC 465
[9] Nipun Malhotra v Sony Pictures Films India Private Ltd, Civil Appeal No 7230 of 2024, Special Leave Petition (C) No 5239 of 2024.
[10] (2021) 5 SCC 370
[11] (2020) 12 SCC 436
[12] Mark P Mostert, 'Stigma as Barrier to the Implementation of the Convention on The Rights of Persons with Disabilities in Africa' (2016) 4 African Disability Rights Yearbook 3.
[13] The full Greenlight Disability Report can be found at inevitable.foundation/greenlightdisability.
[14] The Executive Director of the National Centre for Promotion of Employment for Disabled People (NCPEDP)
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