Amba Salelkar is a lawyer, writer, queer feminist and advocate for disability rights and inclusion, with a specific interest in building capacity of disabled people’s organisations around advocacy. She is based in Chennai, India. She has previously been a Fellow at the Inclusive Planet Centre for Disability Law and Policy in Chennai, and worked on issues of disability and the law with the Equals Centre for Promotion of Social Justice. As of August2020 she has joined the secretariat of the International Disability Alliance. Based on her wide-ranging personal and professional experience, Amba says, “To truly leave no one behind, we might have to slow down a little and listen to what we all have to say.”

Shikha Aleya (SA): Very happy to interview you Amba, for this issue of In Plainspeak. To begin, please set up a broad context of understanding the interaction between law and contemporary Indian society, focusing on gender, sexuality, and rights, for diverse communities and intersectional identities.

 Amba Salelkar (AS): The law is only as good as the way in which stakeholders put it to use. All of the important laws in India, including the Constitution of India, have been strengthened and refined through judicial precedent, which is where contemporary issues and intersectional issues have been examined and recognised. We have seen this through the activism around Section 377, for instance. There is no law that has all the answers. Especially when one looks at gender and sexuality of persons with disabilities it’s very hard to find a ‘place’ for this in law. Within a mainstream disability law, there is a hierarchy of priority of issues determined by the disability movement which often doesn’t look at gender, except for issues of abuse.  Getting the Government authorities to recognise the need to have a gendered approach within the law itself, was an uphill task, because persons with disabilities are considered to be a homogenous entity. This is despite the fact that the Convention on the Rights of Persons with Disabilities (CRPD) is quite clear in Article 6 that you need to take a twin track approach to disability and gender. Sexuality is processed in terms of sexual and reproductive health and rights. The question of intersectional approaches for persons with disabilities who inhabit other marginalised identities has not been adequately addressed in disability law at all.

There is a lot more discussion seen around intersectionality when we consider policies at the state and central level especially with regard to social protection, which is a very important issue for persons with disabilities. Marginalised communities, because of the lack of access to capital, including social capital, are extremely vulnerable in times of risk, be it occasioned by an event like a health setback or something completely unprecedented like the present COVID-19 pandemic. We are beginning to see the impact on the diversity of the disability community through studies from the ground and this impact is even more pronounced when there is another factor of marginalisation like caste, indigenousness, gender, etc.

There are emerging leaders and organisations of persons with disabilities in India that are doing great work around addressing the intersectional forms of discrimination and barriers, including Kiran Nayak in Karnataka, Dr. Aiswarya Rao in Chennai and the All Tribal Disables’ Union Manipur. There are many others. The disability movement needs to support building their capacity to engage in advocacy and also to ensure that they are able to fully participate in the mainstream movements they identify with.

SA: Thank you for identifying and locating these reference points, in what is complex territory. Taking off from the points you have shared, please tell us your top of the mind thoughts on some features of current legal changes and trends in India that impact sexuality, disability and rights.

AS: There is a lot of great work being done around sexual and reproductive health and rights and disability in India, and around the world; unfortunately, this work is often not being meaningfully included in the mainstream discourse. In India, a lot of the discussions around the amendment of the Medical Termination of Pregnancy (MTP) Act, and the Transgender Rights Act and Rules find overlaps with the work in the disability movement. It has been a privilege to work with many organisations on the intersections of these. One of the early iterations of the Transgender Bill by the Government used the concept of reasonable accommodation. Reasonable accommodation refers to necessary or appropriate modifications and adjustments to a physical space, a service, a practice, that are required for persons with disabilities to enjoy their rights on an equal basis with others. So it is very much linked to achieving specific rights. To access healthcare, if you need a ramp to the hospital, or a sign language interpreter, that’s reasonable accommodation. It’s a concept that can be used in many contexts, but as it was used in the draft of the law on transgender rights, it was just: transgender persons shall be given reasonable accommodation – but for what, was not clear, and ambiguity never works in favour of marginalised groups as we all know.

Advocacy around the MTP amendment is quite contentious. The disability movement has a real dilemma: when the law, courts, and practitioners emphasize the need to medically terminate pregnancies on the grounds of any foetal impairment, it risks sending a particular message that this is a life not worth living. It is also frustrating that many times the SRHR movement only refers to disability in this context, and is not equally invested in ensuring that women and girls with disabilities can access SRHR on an equal basis with others. This is especially relevant for many young people with disabilities who are studying in segregated settings or at home and do not have access to quality and accessible learning materials on SRHR. There is also a need to confront biases that persist around persons with psychosocial and learning disabilities and their supposed inability to make decisions. Unfortunately, amendment processes have limited windows of opportunity to intervene, and my personal grouse has always been that the voices that end up being heard, including my own, are those of the more privileged and those who face fewer barriers to participation. Self-advocates from amongst persons with psychosocial and learning disabilities, for example, may need more support to participate. To truly leave no one behind, we might have to slow down a little and listen to what we all have to say.

SA: Going forward, what do you feel are the challenges in the field of law that need to be addressed for the creation of safe, inclusive and sexuality affirming spaces in society?

AS: I don’t think you’re going to find all of the answers in law. The principles on which these laws are based, be they the Yogyakarta Principles on sexual orientation and gender identity, or the CRPD General Principles, have to be internalised by people, be they persons with disabilities or allies or family members or professionals. A denial of rights, discrimination, can be addressed in the law, but accessing the justice system is something which is very difficult. Especially in the sphere of sexuality and safety – of course, if one faces abuses, one can go to the court, but these processes are not always accessible and can often lead to further harm. But not every issue of discrimination and conflict can go to a court. Say for example, affording privacy to a young adult with disability to understand their body and sexual responses, or enabling access to accessible sex toys or assistive devices related to sexual pleasure. If your family does not allow you access to these, you can’t go to the disability commissioner – this really comes down to having honest discussions with families, ensuring that professionals who work with persons with disabilities acknowledge that they could be sexual, or asexual, or queer or straight. And let’s be honest, this is still looked upon as a privilege and luxury and is not available to most. I remember running workshops on sexuality for women with disabilities in a district in Tamil Nadu and one of the participants told us that her sisters, who were not disabled, had so many questions for her because they didn’t have access to such spaces and information. There is an idea that sexuality education and privacy are not ‘priority’ rights. Some organisations refused to send their women members to our workshops saying that their members were so busy with their impairments, they didn’t have time to think about sex. Others said that these workshops would put ‘ideas’ into their heads. I mean, this is Tamil Nadu where, at every 10 metres, there are posters depicting film heroes with their noses perpetually in the heroines’ bosom. Songs are full of suggestive lyrics. No matter what your impairment you are exposed to sex in some way or the other, so why not address it?

But back to the law, there is a lot of discussion on restorative justice in cases of sexual offences and intimate partner or family violence. Restorative justice emphasises repairing the harm that an act of violence causes to people by bringing offenders and survivors to the table to address the incidents rather than focus on merely punishing an offender. I think this can be enriched with a focus on accessibility and inclusion. Post the accusations of sexual misconduct by Oxfam staff in Haiti, there has been a lot of discussion around safeguards as preventive measures, but many of those discussions have not been inclusive of persons with disabilities. Many of them do not count the barriers that people with disability face in the processes related to addressing sexual harassment, abuse and exploitation. Many of them do not recognise the unique forms of abuses that persons with disabilities may face. Inquiry committees may have preconceived notions about persons with disabilities, such as their being asexual or hypersexual.

SA: In October last year, at the Nairobi Summit on ICPD 25, you were one of the speakers at a session on SRHR and women with disabilities. What were some of the takeaways connected to law and legal provisions that emerged for you from the discussions at this forum?

AS: The International Conference on Population and Development took place in 1994 and was considered a milestone in sexual and reproductive health and rights. A 20-year programme for action was one of the outcomes of this meeting, which was extended in 2010. It was meant to move away from looking at people as data points to be measured and controlled, and more towards looking at individual and familial aspirations. The Principles identified in the ICPD Programme of Action have a huge reflection of sustainable development as we see it today, as well as of gender equality and elimination of discrimination against women and girl children. There are also actions specific to persons with disabilities, including on ensuring support to them to exercise their familial and reproductive rights and responsibilities, and linking the needs of persons with disabilities to ‘ethical and human rights’ dimensions. This event reflected the 25 years of the ICPD and the way forward. I was supported to attend it by CREA, New Delhi, who have supported a lot of my own work, as well as that of my erstwhile organisation, Equals, to work on sexual and reproductive health and rights. But my reflections in this interview are my own. Linked to the Sustainable Development Goals (SDGs) and the concept of Universal Health Care (UHC), most of my focus as a participant in events both prior to and during the conference was on the inclusion of sexual and reproductive health and rights in UHC, and ensuring that this was inclusive of persons with disabilities. There were some discussions on access to safe abortions. These discussions were already becoming difficult in light of the global gag rule. Even where there was a panel discussion on access to abortions, there was no participation of organisations of disabled persons on them, though panellists were talking extensively of legislative victories in the form of allowing for abortions in the case of impaired foetuses. The lack of intersectionality was a huge learning for me, that it was something both the mainstream reproductive movement needed to work on as well as us in the disability movement. And even in the disability movement, we perhaps needed to work more on these issues and not limit SRHR as a “second tier” right. It was a great opportunity to connect with other activists representing other marginalised groups as well.

SA: In a 2018 interview available online, on the subject of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, with regard to the Internal Committee responsible for receiving and responding to complaints, you said, “It’s really important that the members are trained not only on the law and procedures but also to confront their own biases”. Please share your insights and experiences in this context.

AS: I’ve been involved in prevention of sexual harassment at the workplace related work for a long time, and in 2018 I co-founded Paarvai Advisors with Akila Ramalingam that works on strengthening mechanisms around diversity and inclusion at the workplace. That involves Sexual Harassment at the Workplace which is a legal mandate but also requires looking at policies around anti-bullying, whistleblowing, child protection, whatever is relevant for an organisation. The internal fact-finding mechanisms are an integral part of everything you do under this. If your mechanism is prejudiced against a certain kind of complainant or even a certain kind of respondent, your mechanism is not going to be of value. The circumstances under which complainants access these mechanisms are really varied, and sometimes Internal Committee (IC) members have preconceived notions about what kind of men harass women and what kind of women come forward to report harassment. The law also has limitations of its own, and only envisages women as victims, though my reading of the law is that the respondent can be of any gender. We know that transgender persons are extremely vulnerable to sexual harassment, and cismen who either are or are assumed to be queer also face a lot of workplace hostility that is sexual in nature, so a real commitment to safe workspaces means that IC members need to go beyond the statute. Sadly, there are still organisations that want to train only their ‘female staff’ on the law.

When you look at the intersection of disability, for example, there is this belief that women with disabilities will not be sexually harassed because they are not considered to be sexually desirable. So a woman with a disability coming forward may be disbelieved. But we know that sexual harassment is not always a crime of passion (in fact, in my experience, it is very rarely so) but just another awful means of putting women ‘in their place’. Women with psychosocial disabilities or a history of mental illness are often dismissed as imagining entire situations of abuse. We need to engage with IC members to ensure that they are aware of their biases, are encouraged to voice them during discussions with other members so that collectively they can talk through them.

SA: One of the most recent features of India’s legal landscape is the Transgender Persons (Protection of Rights) Act 2019. Amongst the issues raised by activists a basic one is about the very process of establishing identity. Currently this requires the individual to undertake both medical / surgical procedures, and evaluation by government officials, to receive the ‘transgender certificate’. What are the key legal and human rights perspectives you identify in this context?

 AS: Yes, there is a medicalisation of the procedure that is very disturbing and goes against what was envisaged by the Supreme Court in the NALSA ruling. And so there is gatekeeping by the medical community, including psychiatrists, of the entire procedure. If you want to start hormonal treatment, you need the go ahead from a psychiatrist. We have been allies with the queer movement but we also got to actively support the advocacy of organisations of transgender people because the process being envisaged was highly similar to the process of disability certification, which is also extremely medicalised for something that’s supposed to be an interaction of social barriers and one’s impairment. In fact one of the earliest iterations of the Bill, like I said earlier, borrowed heavily from the CRPD but still presented problems. Of course, organisations of transgender persons and activists have written extensively on this. As an ally, and from the experience of persons with disabilities, the issue is that the Government approaches things from an “identification of beneficiaries” view point; the idea seems to be always to create a difficult process of certification so that you know how many beneficiaries there are for social protection and affirmative action and only the “really marginalised” are counted. But from an anti-discrimination standpoint, it’s a question of how I identify myself and my right to protect that identity. And my right to bodily integrity means that I cannot be forced to undergo any invasive procedures to claim my identity or claim eligibility for social protection measures. I should be afforded that protection regardless of whether I have a “certificate” or not. With disability as well, if we look at the anti-discrimination framework afforded under the CRPD, which is very similar to the Yogyakarta principles (both came out in 2006, incidentally) it’s very clear that protection against discrimination is not just limited to people with disabilities, regardless of whether they have certificates or not, it’s also protecting their family members, people who are perceived to be disabled, people were once disabled or who may be disabled in the future – it’s so much broader. And that’s how we have to look at discrimination on the basis of sexual orientation or gender identity as well. We cannot be obsessed with gatekeeping if we want to address discrimination.

SA: Thank you! As the final question of this interview – please tell us a little about yourself and the milestones in your personal and professional journey thus far.

AS: Well, in terms of training I am a lawyer and I completed my law degree in 2006 from the National Law School of India University. Over the last few years, I have had the opportunity to reflect with peer and professional support on the barriers I have faced throughout my life and realised that I am autistic. When I was at law school I experienced intimate partner violence that led to my becoming a user and survivor of psychiatry, and I identify as a person with psychosocial disability. So, even as a person with disability, my personal relationship with disability is evolving.

I worked as a criminal trial litigator for around six years, but I had to take a break after a psychosocial crisis in Court. My colleagues were supportive but personally I could not go back to Court. After my recovery, I made myself available for legal research work, which is when I met Rahul Cherian who had founded the Inclusive Planet Centre for Disability Law and Policy. Being exposed to the CRPD and the social model of disability positively impacted my recovery, I began to understand that there were barriers I was experiencing which were disabling me. In a way, the CRPD saved my life. I worked with Rahul for a year until his very untimely passing in 2013. I continued work on legal harmonisation – which is advocacy towards ensuring that Indian law which concerned persons with disabilities, whatever law that was, was in line with the Convention on the Rights of Persons with Disabilities. Over the years I became more focused on capacity building, because I believed, and this was a belief shared at the Equals Centre for Promotion of Social Justice which I joined in 2015, that more organisations of persons with disabilities should have the capacity to do this advocacy themselves on the issues close to their heart. It was always a struggle because even when such opportunities to train arose, there were always people who were not in the room, especially people with psychosocial or developmental or intellectual disabilities.

In 2015, I attended the pilot Bridge CRPD-SDGs training organised by the International Disability Alliance (IDA) and the International Disability and Development Consortium, as a candidate proposed by TCI Asia Pacific. It was an amazing experience because I got to actually learn about the CRPD (I was pretty much thrown into the deep end when I started working with Rahul) and the links to sustainable development and the Agenda 2030 which was entirely new for me. And also, I was learning with a diversity of persons with disabilities including people with intellectual and learning disabilities. I learned that this kind of capacity building was possible, you just had to change the rules of the game. You can’t plan a one-day packed training and expect everyone to participate. You had to ensure that a training was CRPD-compliant before you could teach CRPD-compliance.

I ended up re-joining the Training of Trainers process of the Bridge CRPD-SDGs initiative after the birth of my child (and a very long postpartum depression related recovery), and later worked as a fellow to support the most recent cycle of the Bridge CRPD-SDGs training in South Asia last year.

I’m really happy to have joined IDA’s capacity building unit as the Bridge CRPD-SDGs Officer, especially since the training programme is so close to my heart. In my new role, I have the privilege to actively support capacity building of organisations of persons with disabilities, especially those from under-represented groups and those at the intersection of disability and other marginalised identities, by persons with disabilities themselves.

Cover Image: Shared with permission from author