The renaissance of inclusion: From pity to dignity

In the annals of Indian constitutionalism, there are judgments that scream their significance from the headlines, and there are those that quietly, almost imperceptibly, redraw the canvas of
our rights.

The Supreme Court’s recent decision in Jane Kaushik v. Union of India belongs to the latter category. While formally an adjudication on transgender rights, its perhaps more revolutionary contribution may also lie in heralding the next frontier of disability law. It signals a decisive shift from formal guarantees to a thick, structural jurisprudence of “reasonable accommodation”. This is because for decades, disability law in India has been trapped within the confines of the ‘Medical Model’, viewing disability as a tragedy to be cured by state benevolence.

Jane Kaushik attempts to dismantle this architecture by explicitly borrowing from the Rights of Persons with Disabilities (RPwD) Act, 2016, and transplanting the logic of reasonable accommodation into the transgender context. Now, the Court has established that accommodation is not an act of executive kindness. It is a positive obligation flowing directly from Articles 14, 16, and 21 of the Constitution.

If read as a doctrinal charter rather than a case confined to its facts, Jane Kaushik heralds a kind of constitutional renaissance of its kind.

By framing accommodation as a constitutional necessity, the Court has validated the shift toward a ‘Human Rights Model’ of disability, where the focus is not on ‘fixing’ the individual but on fixing the broken environment that excludes them. Perhaps the most methodologically significant aspect of the judgment is its frontal engagement with ‘omissive discrimination’. Here, the Court characterised legislative and administrative inaction, such as the failure to notify rules, create grievance cells, or appoint liaison officers—as a form of discrimination itself.

This aspect resonates deeply, as violence against the disabled in the Global South is often found in the silence of the state and the invisibility of support structures.

For lawyers, this opens new avenues to challenge the ‘design silence’ of welfare schemes where benefits exist on paper but lack operational pathways. Think of the lack of accessibility in most railway stations and the travel concessions given. How can a person, say who uses a wheelchair, use the concession if the architecture is inaccessible? 

Jane Kaushik’s ruling also validates the argument that institutional non-action, which produces patterns of exclusion, is a constitutional wrong as potent as any overt discriminatory order. It also highlights an insistence that equality duties extend to private ‘establishments’ disrupts the traditional public/private divide. It acknowledges that exclusion is just as brutal whether it occurs in a government office or on a private digital platform. By framing private power as a central object of disability law, the Court has signalled that the constitutional project of inclusion must permeate every layer of society. 

Resultantly, this approach offers a transition from episodic litigation to institutional design. This is the essence of the Constitutional Renaissance in disability rights: a movement where the promise of reasonable accommodation ceases to be a ‘dead letter’ or a charitable gesture and becomes the living, breathing grammar of everyday justice. It is a call to build a legal culture that does not merely tolerate difference but regards it as an essential, dignified thread in the tapestry of our republic. 

As we observe World Disability Day, Jane Kaushik’s ruling stands as a constitutional reminder that the struggle for inclusion is not merely about rights asserted but about structures redesigned and cultures transformed.

A jurisprudence of dignity demands that we confront the forms of exclusion that hide behind inertia, silence, or procedural apathy. It calls on institutions to treat accommodation not as a favour extended but as a duty owed. This day urges us to carry that mandate forward, to build systems that are accountable, responsive, and genuinely accessible, and to cultivate a culture where disabled persons are not peripheral but central to our democratic and academic life.

If the Court has opened the door to a new constitutional imagination, it falls upon us to walk through it with commitment, humility, and resolve.

(The writer teaches law at the Jindal Global Law School, OP Jindal Global University)