The second coming of charity in disability discourse

In Season 2 of Maamla Legal Hai the protagonist, Justice V.D. Tyagi, wishes to take some ‘bold’ steps towards judicial reform. When his court staff remind him that the system will not allow him to go too far, he makes a ‘balanced’ decision to make the Patparganj court disabled-friendly. The makers of Maamla Legal Hai offer a sharp commentary on the Indian judiciary’s treatment of disability as a low-intensity, non-controversial human rights issue.

The Supreme Court’s disability rights jurisprudence evolved considerably during Justice D.Y. Chandrachud’s tenure as a judge and Chief Justice. While I remain a critic of its language of liberal legalism, these judgments expanded India’s constitutional imagination by taking the question of accessibility seriously. Under Chief Justice Surya Kant, I see a significant reversal of this trend. Case in point is the 21 August decision in Bhumika Trust v Union of India.

Insincere engagement and the return of charity

In Bhumika Trust, a 2:1 decision of CJI Surya Kant and Justices A.G. Masih and K.V. Chandran modified the three-year practice requirement for the Civil Judge (Junior Division) examination. For recruitments notified on or after 1 April 2027, the Court reduced the prior practice requirement to one year. Candidates selected for appointment must thereafter undergo one year of intensive training at the concerned State Judicial Academy, followed by one year of structured law clerkship before assuming regular judicial duties.

The petition was filed by Bhumika Trust on behalf of disabled persons, but much to my dismay, the Court’s engagement with questions of accessibility remained perfunctory and doctrinally thin.

The majority opinion authored by CJI Surya Kant acknowledges that disabled candidates may struggle to obtain “meaningful opportunities for practice at the Bar.” However, it provides a common scheme going forward, suggesting that this scheme adequately addresses the need for ‘appropriate accommodation’. Justice Chandran’s minority opinion defends the three-year practice rule but postpones the disability question for consideration by another Bench. Neither opinion examines the barrier that makes Bar inaccessible. Moreover, they do not attempt to translate the duty to provide reasonable accommodation as an identifiable and enforceable obligation. Both proceed on the assumption that government employment as a Civil Judge (Junior Division) is attainable for disabled law graduates, whereas finding briefs and surviving the struggles of the Bar may not be. In these assumptions, the ghost of charity returns in a profound way.

The disappearance of reasonable accommodation

India’s disability rights jurisprudence has its own life of contradictions. While the enactment of the Rights of Persons with Disabilities Act, 2016 gave a new doctrinal vocabulary to the Supreme Court, it has created a troubling distinction between modular disabled litigants who are politically benign and those like Prof. G.N. Saibaba who are labelled as ‘problem’ citizens.

Despite this ‘balanced’ approach, several judgments since 2021 have expanded constitutional jurisprudence by taking disability as an important vantage point for interpreting the Constitution. In Vikash Kumar v Union of India (2021), the Court highlighted reasonable accommodation and non-discrimination as the pivots of contemporary disability jurisprudence. It made a sincere attempt to expand these concepts, although its use of a ‘discrete and insular minority’ model has been criticised by disability scholars. In Om Rathod v Director General of Health Services (2024), the Court placed reasonable accommodation in relation to the constitutional ideal of fraternity and the constitutional goal of achieving a progressive grundnorm. In Patan Jamal Vali v State of Andhra Pradesh (2021), it drew upon Kimberlé Crenshaw’s formulation of intersectionality to examine how caste, gender, and disability interact to produce distinct forms of disadvantage and discrimination. 

Sadly, none of these jurisprudential developments finds a place in Bhumika Trust. Discussion of the RPwD Act and the obligations under Articles 5, 9, 13, and 27 of the Convention on the Rights of Persons with Disabilities is equally absent. To me, this omission is doctrinally consequential. Reasonable accommodation requires identifying a disability-related barrier and the modification required to remove it. Obligations placed on the responsible entity must be determined after considering whether the modification would impose a disproportionate or undue burden. The majority undertakes none of these inquiries. It records the amicus curiae’s proposal for reasonable accommodation, assistive infrastructure and the professional engagement of disabled persons through law clerkships but these concerns never enter its legal analysis. The Court does not identify the barriers confronting disabled advocates or the institutions responsible for removing them. Nor does it consider the modifications necessary to make practice at the Bar genuinely accessible, a measure all the more pertinent in light of Justice Chandran’s own observation of “the Court room being the most profound of all classrooms.”

The Court’s failure even to determine the content of reasonable accommodation produces an epistemic injustice that cannot be cured merely by relaxing the eligibility requirement. The doctrinal architecture of reasonable accommodation thus disappears precisely when it is most needed.

The contrast with Rajive Raturi v Union of India (2024)  is particularly revealing. In that case, the Court asked the Center for Disability Studies at NALSAR University of Law to conduct an extensive empirical study on accessibility. It engaged closely with the CDS report, its methodology and its account of lived experience of disability and the structural failures underlying inaccessibility. The findings helped shape the Court’s understanding and materially influenced the decision. 

In Bhumika Trust the Court invited responses from High Courts and law universities. However, these responses were largely centered on the question of essential qualifications for the Civil Judge (Junior Division) examination. Neither the majority nor the minority opinions engaged with these responses regarding reasonable accommodation. Consultation was reduced to enumeration. Institutional opinions were recorded in extremely truncated form. Disabled experience supplied neither the epistemic foundation nor the normative direction of the judgment.

Performative inclusion

Judith Butler uses ‘performativity’ to explain how repeated words and acts do not merely describe reality but actively participate in producing it. Thus, something comes to appear natural or true because it is repeatedly named or performed as such.

Paragraph 77 of the majority opinion in Bhumika Trust declares that the scheme adequately addresses the concerns of disabled candidates. It enumerates provision of ‘appropriate accommodation’ without judicial engagement, and accommodation is presumed to have been provided merely because the Court says so. In this narrative, the Court emerges as the progressive benefactor and the disabled candidate as the grateful recipient of a relaxation. Meanwhile, the able-bodied architecture of the Bar is simply ignored. 

In her seminal essay, Gayatri Spivak distinguishes two forms of representation and reminds us to be attentive to the complicity between representation as proxy and representation as portrait. I found this distinction useful to understand the representational politics of the Bhumika Trust judgment. The majority decision produces a particular image of the disabled wherein they appear not as rights-bearing professionals negotiating an inaccessible Bar, but as ‘specially-abled’ candidates requiring the Court’s benevolence. Thus, in representing the disabled, the Court decides how disability will be understood.

Not so “specially-abled”

The expression ‘specially-abled’ in the majority opinion is particularly unsettling. It must be noted that the Supreme Court’s own Handbook Concerning Persons with Disabilities describes ‘specially-abled’ and ‘differently-abled’ as euphemistic terms which may be patronising or offensive. The Handbook rightly notes that euphemisms deny the reality of disability and avoid speaking about it. Yet, the majority uses this expression repeatedly. 

Unlike the Handbook on Gender Stereotypes which has received much attention from the Court, this handbook seems to have been forgotten. I do not see this problem as merely academic. It is an instance of marginalization in which disabled people are prevented from participating in the meaning-making of their own experiences. 

I return to the provocation of Maamla Legal Hai, which captures this judicial balancing act. Judge Tyagi clears the ramps. He appears progressive but the system remains undisturbed. Similarly, Bhumika Trust offers disabled candidates relaxation from Bar practice without making the Bar accessible. Disability justice remains a low-intensity human rights issue through which judicial compassion can be displayed without redistributing institutional power. As a disabled academic, I write from the location that the Court has misnamed and reject its benevolent description. The judgment performs the act of speaking for us without seriously listening to us. Both the majority and the minority opinion mark a regression in the Court’s disability jurisprudence. 

Vijay K. Tiwari is an Assistant Professor (Law) at the West Bengal National University of Juridical Sciences. He is an academician with disability. He can be reached at vijaykt@nujs.edu.