SEKAR REPORTER

Court News from Madras High Court

HIGH COURT JUDGMENT A ‘LONG JUMP’ FOR WOMEN ATHLETES WITH DISABILITIES. When 18 year old Sameeha Barvin of Nagercoil, a differently abled long jump and high jump athlete with 90% hearing and speech impairment, approached the Madras High Court seeking the

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HIGH COURT JUDGMENT A ‘LONG JUMP’ FOR WOMEN ATHLETES WITH DISABILITIES.

When 18 year old Sameeha Barvin of Nagercoil, a differently abled long jump and high jump athlete with 90% hearing and speech impairment, approached the Madras High Court seeking the limited relief of participation in the 4th World Deaf Athlete Championship, 2021, little did she imagine that she would be pioneering the cause of all women para-athletes. Despite having been selected as a lone female athlete at the national trials, she was denied the opportunity to travel and compete at the World Championship at Lublin, Poland on the only ground that she was the only female amongst ten other male counterparts.

Viewing this as a classic case of protectionism couched in romantic paternalism, which is nothing but invidious discrimination on the specific ground of gender and which can have no place in a Constitution that guarantees equality and holds nondiscrimination in highest esteem, the Madras High Court came to her immediate rescue by passing an interim order on August 13, 2021 and on the strength of which she was able to travel to Poland to participate in the championship and has now qualified for participation at the Paralympics, 2023. And when she did, she took along the entire array of hopes of several other hundreds of female para-athletes who face similar forms of discrimination on account of being women and further on account of being disabled. It is this double discrimination associated with gender and disability that is the essence of the concept of ‘intersectionality’ coined by Kimberle Crenshaw in 1991, that has been recognised first by the Supreme Court and most recently by the Madras High Court in Sameeha Barvin’s case by its landmark judgment rendered on December 20, 2021 by Justice R. Mahadevan.

The Court has held that where the axis of discrimination is more than one, the judicial approach should be to view the case from an intersectional lens so as to understand the problems and barriers faced by persons facing such discrimination due to multiple factors that most often overlap. Such cases require a different approach in the opinion of the Court which has stressed on the aspect of reasonable accommodation to be afforded to such persons in tune with the provisions of the Rights of Persons with Disabilities Act, 2017, that lays a roadmap to ensure the enjoyment of equal rights and opportunities by persons with disabilities on par with able-bodied persons. While taking judicial notice of the fact that constitutional exponents have from time to time advocated the inclusion of disability as one of the specific grounds to be envisaged for non-discrimination under Article 15 of the Constitution, the Madras High Court has incorporated the spirit of such an argument by not only holding that the case at hand is a clear cut case of discrimination on the ground of gender under Article 15(1) of the Constitution of India but also that double discrimination is equally anathema to the constitutional scheme and thereby liable to be interfered with. Laying down in no uncertain terms that the state is under a legislative mandate to provide ‘reasonable accommodation’ to the petitioner and also issuing guidelines for emancipation of women para-athletes who are at the receiving end of intersectional discrimination, this judgement signifies a high judicial watermark in the field of gender equality and non-discrimination on additional overlapping grounds that women face, and which have to be dealt with sensitivity and deeper understanding.

While also issuing specific directions to encourage equality of opportunity for women with disability in sports, the court has held that the state as the parent of the citizen has a heavy burden to discharge by providing adequate financial assistance to the athletes and their families, necessary free training and other incentives along with medical facilities as well as provision of all disabled friendly accessories, clothes and prosthetics apart from working towards the sensitisation of their male counterparts in order that women para-athletes are ensured a safe and secure environment for both travel and participation where their focus would be on excelling in their respective fields and the weight of the other factors would be off their minds and shoulders, while they work towards fulfilling their dreams. This judgement provides the much-needed impetus to the disability jurisprudence in the country and lays down a charter of rights for female para-athletes that will go a long way in ensuring them equal opportunity and participation in order to mitigate their sufferings and grievances that spring from grounds of gender and disability.

Key highlights of the judgement

  • Women with disabilities are often at the receiving end of double discrimination on grounds of gender as well as disability.
  • Such double discrimination needs to be viewed from an intersectional lens and a unique sensitive approach needs to be adopted by the state and the courts to redress the grievances of persons suffering such discrimination.
  • The state must give full effect to the principle of ‘reasonable accommodation’ in order that female para-athletes achieve their fullest potential and in order to ensure equal participation of women in sports.
  • The state must provide adequate financial assistance to the athletes and their families as well as other incentives, medical facilities, clothes prosthetics and disabled friendly accessories. The state must ensure a safe and secure environment for female athletes to travel as well as to participate in sports events in their respective field, and not be bogged down by grounds of gender or disability or both.
  • Protectionism couched in romantic paternalism has no place in our Constitution set up and must be countered with ‘reasonable accommodation’ which is a legislative mandate under the Right of Persons with Disabilities Act, 2017.

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