From favours to full rights: Rethinking disability jurisprudence

India’s disability rights jurisprudence stands at an uneasy crossroads. On paper, the Rights of Persons with Disabilities Act, 2016 (RPwD Act), marks a decisive shift from charity to rights, from welfare to enforceable entitlements. This is complemented by many progressive judgments that have breathed life into these rights and insisted that all stakeholders in society must do their bit to help make these rights real. In many courtrooms, however, a different story unfolds.

When found on the opposing side of a case filed by a person with disability, respondents can often be heard saying they do not treat the case as “adversarial”. In the legal system, the typical approach is adversarial: one side presents an argument, and the other rebuts it. By saying they wish to take a non-adversarial approach, lawyers often mean that they want to be constructive and not spar on technical niceties, but instead focus on finding a solution to the problem at hand.

So far, so good. The problem arises when “non-adversarial” becomes a shield for preventing a thorough and fact-based consideration of the issue within the framework of law and, instead, turns into finding a compromise formula that all parties can live with.

Those in the legal profession often resort to euphemisms such as “differently abled” or “specially abled” – phrases many disability rights scholars reject as patronising and evasive. The law uses precise terminology: “persons with disabilities”. Nothing more, nothing less. More troubling is how this mindset shapes relief. Court orders frequently resolve disputes through negotiated concessions, rather than authoritative declarations of law. The outcome is driven less by constitutional principle and more by what the respondent is willing to concede after judicial prodding. That courts want to come up with solutions that practically work for both parties is understandable, but the result is fragmented, piecemeal justice, which sometimes results in more litigation. Professor Ameeta Dhanda has described this as the “fire-fighting” role of courts – intervening to extinguish immediate hardship without addressing systemic non-compliance. Fire-fighting saves the day; it does not rebuild the structure.

This is not for want of doctrinal clarity. The Supreme Court has laid down robust principles in cases such as Vikash Kumar v. UPSC, Jeeja Ghosh v. Union of India, and Om Rathod v. Director General of Health Services. These cases clarify that reasonable accommodation is a matter of fundamental right; that issues concerning the disabled must be approached through a rights-based approach. Yet, many disability cases are resolved as if they were pleas for indulgence rather than enforcement of statutory rights.

The structural design of enforcement compounds the problem. Under the RPwD Act, a person with disability may approach the Chief Commissioner or State Commissioner for Persons with Disabilities (CCPD/SCPD). But these authorities possess recommendatory powers, not coercive ones. Their directions lack executory teeth. If a respondent ignores a recommendation, the aggrieved person must approach a High Court or another judicial forum.

If a favourable judgment is secured, implementation may require contempt proceedings. If the respondent appeals, the litigant is propelled into another round of litigation. Unfortunately, governments frequently contest disability rights rulings vigorously. A recent case in point is a Central Administrative Tribunal judgment from September 2025. This judgment set aside the failure to provide a reservation for individuals with disabilities of the mind, contrary to the RPwD Act, 2016, and ordered reconsideration of this matter before the notification for the Civil Services Exams 2026. Instead of complying with this forward-looking and rights-based judgment, the Union of India chose to challenge it in the Delhi High Court by way of a writ petition, which was ultimately dismissed. [disclosure: I was the lawyer for the applicants in this case].

A rights-based statute cannot function in an adversarial culture that treats every accommodation as a concession extracted under pressure.

Non-adversarial procedure was meant to soften the edges of litigation for vulnerable groups. It was not meant to dilute enforceable rights into moral appeals. Disability rights cases require empathy, but they must be decided strictly according to the law, imposing legally prescribed consequences on those who fail to comply. What is required are structural directives, heavy penalties for egregious violations, and a firm discouragement of routine appeals of judgments that favour the disabled person and lack legal infirmity. If disability rights are to move beyond lollipops and fire-fighting, we must resist the temptation of easy compromise. The promise of the RPwD Act is not charity in instalments. It is equality in full.

The writer is a practising lawyer with expertise in disability rights and IP law, and is co-founder of Mission Accessibility. He wears more hats than he can himself sometimes count.

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH).