The death of scholar and rights activist GN Saibaba on October 12 underscored India’s failure to meet its obligations under the United Nations Convention on the Rights of Persons with Disabilities. The wheelchair-using former Delhi University, who had an estimated 90% locomotor disability, died just seven months after being acquitted of terrorism charges for which he had spent a decade in jail.

Article 13 of the United Nations convention, which India ratified in 2008, obligates the state to provide all “procedural and age-appropriate accommodations” to enable persons with disabilities to participate in legal proceedings.

Reasonable accommodation – which is among the convention’s fundamental principles – was not afforded to Saibaba, who had polio. His condition was worsened by the arduous conditions in prison and during his dealings with the police and judiciary over the course of the decade-long case.

“Prison doesn’t have a single ramp for people like me,” he told one interviewer after he was released. “Now my heart is functioning at 55% capacity.” In another interview, he added, “I could not move out of my wheelchair. I could not go to the toilet [on my own], and I could not take a bath.”

Missing numbers

The glaring omission of proportional accommodation in India’s criminal justice system is facilitated by a paucity of data about prisoners with disabilities.

In response to a question in Parliament in 2016, the government said that it does not collate data on prisoners with disabilities. The National Crime Records Bureau, which aggregates data from states and union territories, lacks records on the disability status of prison inmates.

Though the bureau’s latest report from 2022 includes data on caste, religion, and gender, it conspicuously omits details on disabilities. The only data provided is the number of cases pending investigation under the Mental Health Act – 137 at the end of 2022.

The consequences are profound, not just for prisoners but at all stages of the justice process. For instance, relying on oral or written forms of communication for evidence or testimonials without making public interpreters available jeopardises the sanctity of the trial or causes disproportionate delays.

Access to justice

The United Nations Convention on the Rights of Persons with Disabilities is not the only document that lays down guidelines for justice systems. In the 2009 Handbook on Prisoners with Special Needs, the United Nations Office on Drugs and Crime expressed the hope that the countries would frame disability discrimination acts. These could be used as a basis for developing policies and strategies in prisons and criminal systems to address the unique needs of this vulnerable group, it said.

However, India’s Rights of Persons with Disabilities Act in 2016 did not address this.

The disclosure of disability should occur during the first interaction of persons with disabilities with the criminal justice system. This will allow the individual to be placed within a framework tailored to their disabilities or for the existing system to be adapted to their needs. In India, this option would be more viable as the government often cites the lack of economic capacity to establish a separate framework.

The prison manuals that govern operations in Indian states are not cognisant of the realities of disability within the prisons and often address such issues through a lens that conflates disability with diminished mental capacity. This eliminates the opportunity for any prisoner to receive reasonable accommodation and often piecemeal measures are implemented only with the interference of the court.

This pervasive reliance on the medical model of disability within the criminal justice system is frequently applied to determine an individual’s mental capacity to commit an offence or is invoked as a mitigating factor in the adjudication of sentences.

Such a framework fails to address, much less integrate, the unique needs of persons with disabilities into the structural and operational design of prisons.

Losing years

In October, the Supreme Court earlier ordered the deletion of columns identifying the caste of prisoners, Among other things, the caste categorisarion resulted in prisoners from marginal groups being allotted demeaning work.

But designating disability as a variable among prisoners is not intended to foster segregation among incarcerated individuals. Instead, it aims to prompt the development of inclusive frameworks in prisons.

The Model Prisons and Correctional Services Act of 2023, for instance, does not include provisions for persons with disabilities – in stark contrast to its provisions for women and transgender individuals.

As a result, the plight of persons with disabilities within correctional facilities remains a pressing concern. In 2000, the chairperson of the National Human Rights Commission, Justice JS Verma, wrote to all state and union territory administrations about the incarceration conditions of individuals with mental disabilities. He issued directives based on the Mental Health Act of 1987, which explicitly prohibits mentally ill persons from being confined in prison facilities.

It is a fact that prison design aims to dismantle both physical and psychological integrity. Particularly for persons with disabilities, this environment accelerates the erosion of their life expectancy. In the 2019 case of X vs State of Maharashtra, the Supreme Court highlighted the state’s duty under the Mental Healthcare Act, 2017, to provide mental health services in prisons, acknowledging that incarceration not only exacerbates existing disabilities but may also induce new ones.

Political movements and disability

The systemic neglect of Saibaba’s health, the denial of medical treatment and the rejection of his bail application reflect how the process itself can become a form of punishment, especially for persons with disabilities. In a regime where dissent is criminalised, the procedural delays and legal roadblocks faced by persons with disabilities engaging in political activities can turn the process into a life sentence.

What makes Saibaba’s case even more alarming is the bipartisan support it received. Major national parties in India remained largely silent or supportive of his incarceration. In this environment, the disability rights movement in India has struggled to protect a vulnerable member.

Saibaba’s advocacy went beyond disability rights, championing the causes of Adivasis and Dalits who face displacement and state violence as their natural resources are seized. His solidarity extended to others like him fighting battles against an exclusionary state that were far larger than themselves.

His imprisonment and death is a wake-up call for the disability rights movement: it must extend its fight beyond demands for inclusion and accessibility to confront the state’s power to punish dissent.

Shashank Pandey is a lawyer and Founder of Politics and Disability Forum. Srijan Rai is a former LAMP fellow and 2Policy Researcher.