11-05-2025
Legal Victories, Lived Defeats: Disability Justice After the ‘Courtroom Revolution'
Philosopher Slavoj Žižek asks for a sequel to the film V for Vendetta that depicts a successful revolution, saying, 'Now that people took power, what will they do? It is not enough to overthrow a tyranny; you have to replace it with a new structure.'
Recently, we have seen several judgments from the Supreme Court enabling disability rights, valorising reasonable accommodation, and even using its powers under Article 142 to do 'complete justice' for persons with disabilities. The Supreme Court has called the Rights of Persons with Disabilities ( RPwD ) Act, 2016 a ' super statute ' containing the ingredients of a quasi-constitutional law.
A Whiggish historian of disability justice might call this the 'golden age' of disability justice, marked by interventions of the courts. However, sincere teachers of historiography often warn against labels such as 'golden age', as supposed 'golden ages' usually mask several exclusions and debilitations. This might be one reason why Dianne Otto, while writing an endorsement for the book, Desire and its Discontents , warns: 'Too often, queer activists and scholars seeking emancipation through legal rights forget how much context matters, and how much law is committed to maintaining the very hierarchies that state power relies upon.' Dianne Otto's warning is significant for the disability justice movement, too. The sky is purple, or maybe not
Liberal disability jurisprudence in India, exemplified by Vikas Kumar v. UPSC, marks a progressive shift by expanding reasonable accommodation to focus on individual needs instead of rigid benchmarks. However, this moment of progress exposes deeper contradictions. Similar to the ' Naz moment' in LGBTQ+ rights, the shift signals visible change, but beneath it lies an entrenched ableist scaffolding that continues to govern who is deserving of rights.
The judgment's characterisation of disabled persons as a 'discrete and insular minority' reinforces the idea that disability is exceptional , not normative, reflecting a logic hard-wired into law . Borrowed from US constitutional jurisprudence, this framing isolates disability even as it claims to include it. The accompanying rhetoric of 'assets, not liabilities' might seem empowering, but the underlying dichotomies – abled/disabled, asset/liability – are not neutral. Ableism is hardwired into law not just by contrasting ability and disability, but by co-constituting them through a norm-deviation dyad, rendering disabled existence intelligible only through the spectacle of deficit. Disabled litigants often have to perform their deficiency to fit legal expectations. Even as liberal jurisprudence claims to promote inclusion, it reifies exclusion through modular forms of citizenship that favours able-bodiedness.
This jurisprudence doesn't emerge in a vacuum. Courts operate within constitutional and statutory frameworks already shaped by ableist assumptions. To truly understand how disability justice becomes a performative act – how courts reinforce dominant norms through the politics of recrimination , construct the disabled litigant as a narrowly legible subject, and turn legal redress into a public enactment of worthiness – we must first examine the underlying script. Central to this script is the RPwD Act, 2016, which, despite being hailed as a progressive milestone, rests on assumptions that often reify exclusion under the guise of inclusion. The Act's principles of equality, non-discrimination, and participation in society are framed as protective, but they often obscure the lived realities of discrimination and humiliation faced by disabled persons. The emphasis on equality and non-discrimination can falsely imply that the work of dignity has already been achieved, leaving unchallenged the deeper vocabularies of humiliation that shape the experience of disability in legal and social life.
Similarly, the idea of participation assumes a false neutrality in an ableist world, where ability and disability are framed as opposites. Ableism rests on the production of a naturalised ideal of the fully human, that depends on the erasure of bodily and cognitive differences. In everyday life, this manifests through the ethos of ' compulsory able-bodiedness ' – a cultural demand to perform able-bodied norms aligned with ideals of health, beauty, and productivity. Legal systems do not just mirror these norms; they embed them. Law often treats able-bodiedness as the default standard of personhood, casting disability as something to be managed or overcome. Participation, then, becomes a conditional offer – extended only to those who can approximate the very norms that excluded them.
Legal recognition under this framework does not affirm difference; it masks it under the guise of neoliberal inclusion. If ableist norms already shape the parameters of participation, even the RPwD Act's most celebrated safeguard – reasonable accommodation – may inadvertently reinforce the exclusions it seeks to remedy. Framed as 'necessary and appropriate modifications and adjustments, without imposing a disproportionate or undue burden,' the principle appears to promise inclusion. But in practice, it acts as a strategy of containment, asking not how the law must transform to centre disabled experiences, but how far accommodation can be extended without disrupting able-bodied norms.
This logic of containment is compounded by Section 3(3), which legitimises discrimination if it is a 'proportionate means of achieving a legitimate aim.' Vague and flexible, this clause allows exclusions to be framed as neutral – justified by cost, efficiency, or convenience. Reasonable accommodation becomes limited to what the system can tolerate, while exclusion is permitted whenever inclusion feels too unsettling. Both provisions reflect the culture doing the asking , where the law expects disabled people to adapt to institutional norms, rather than changing to reflect their realities. This re-centres the state's interests over disabled rights, flipping the burden: the disabled person must prove injustice; the state merely invokes abstract legitimacy. Disability then is not treated as a legitimate form of human variation, but as an ontological aberration – something to be corrected, tolerated, or eliminated. Within such normative frameworks, courts do not disrupt the underlying structures of exclusions; they merely manage them. Inclusion becomes conditional; calibrated to what able-bodied structures can absorb, offering tolerance rather than affirming dignity. What is needed, then, is a shift in focus – from the disabled litigant who must conform, to the legal system that must transform. This shift is especially urgent in a time when the judiciary's role is becoming increasingly precarious and democratic commitments are under strain.
Also read: How We Marginalise Disabled Experiences When We Speak of the Blindfold of Lady Justice Final concern: Disability rights in Schmittian times
German philosopher Carl Schmitt , who supported authoritarianism, developed the concept of the 'total state,' where the political space is shaped by the 'friend-enemy' distinction. Schmitt was sceptical of bourgeois political norms, embracing instead a vision of racial homogeneity. In a total state, where the state intervenes in all spheres of life and liberal democratic protocols are suspended, court judgments lose their significance.
While India has not yet descended into a Schmittian dystopia, we cannot ignore the fact that the Supreme Court's use of Article 142 to do complete justice, as seen in the In Re: Recruitment of Visually Impaired in Judicial Services and Rekha Sharma cases, coincided with vice-president Jagdeep Dhankhar's attack on Article 142, calling it ' a nuclear missile against democratic forces available to judiciary 24×7. ' This attack highlights the precarious nature of disability justice achieved through court rulings when executive power leans towards a 'total state'.
Moreover, the Supreme Court's own conduct of disregarding precedents whenever it is convenient, and its polyvocal nature , make the possibility of a rollback on disability justice very real. In a polity increasingly defined by the 'friend-enemy' distinction, where a vast segment is debilitated, we need a cautious celebration of courtroom revolution.
Vijay K. Tiwari is an assistant professor of law at West Bengal National University of Juridical Sciences, who teaches jurisprudence and is a disabled academician.
Aditi Thakur is a Research Assistant – Legal at the Centre for Child and the Law, National Law School of India University, Bengaluru, and is currently part of the Right to Food team.
