Opinion Indian Constitution is ableist. We need to confront its foundational gaps
Article 41 is a classic example of deep-rooted ableism in the Constitution, where disability is placed along with “unemployment, old age, and sickness”
The matter has now reached the Karnataka High Court, with the real estate executive Ashwin Sancheti from the Sattva group, who was released on bail following an arrest two weeks ago, and others accused of cheating and forgery seeking a quashing of the FIR. Written by Vijay K Tiwari and Sanjay Jain
Every year, Constitution Day (November 26) offers us the opportunity to reflect on our constitutional journey. It is also an occasion to examine the constitutional text itself in terms of its promises, silences, and the many ways different communities make meaning out of it. For a long time, this text has been read and interpreted by liberal males who have remained its primary meaning makers. However, as subaltern groups, enabled by the Constitution, have gained political power and developed the language for articulating their political and republican aspirations, they too are now reading, interpreting, and providing constructive critiques. People with disabilities, too, are attempting to do the same and often find themselves missing, subdued, or erased in the text of the Constitution, which is widely hailed as inclusive.
A recent and significant intervention in constitutional history, Assembling India’s Constitution by Rohit De and Ornit Shani, provides a valuable entry point into this conversation. It challenges the prevailing consensus of elite historiography, which posits that the Constitution was crafted through elite deliberations. Ordinary people attempted to shape India’s constitutional text in their own way, sending petitions, letters, and memoranda to the Constituent Assembly. The Deaf and Dumb Society of India said that merely granting equal citizenship would do little if inbuilt discrimination against disabled citizens in existing laws was not removed, and if they were not provided with affirmative action in jobs and employment. The reply of the Constituent Assembly that adult franchise would take care of disabled people if they are not excluded by any existing law caused anguish to the members of the Society.
This moment becomes particularly significant when viewed from a disability or “crip” vantage point. While the book celebrates the agency of disabled people as constitutional actors, it also reveals that disabled people were systematically prevented from contributing to the core meaning-making of the Constitution. This testimonial erasure resulted in a Constitution that is based on ableist assumptions and marginalises the question of disability in obscure places in the text, or looks down upon it as a “deficit”. For example, it places people with disabilities with the unemployable in entry 9 of the state list and thereby validates the stereotype of the disabled being unemployable and unproductive. Disability remains a ground for “valid” discrimination within the Constitution, in which a person with disability can be removed from her office “for the reason of infirmity of mind and body”. Article 41 is a classic example of deep-rooted ableism in the Constitution, where disability is placed along with “unemployment, old age, and sickness”.
This inbuilt ableism of the Constitution continues to dominate our discourse on disability, albeit in different forms. The Persons with Disabilities Act, 1995, provided a definition of disability that was based on the medical model. The figure of the doctor became the sole arbiter of disability with enormous discretion, as the Act had not provided any criteria to calculate the percentage of disability. With the advent of the Rights of Persons with Disabilities Act, 2016, we have seen a progressive trend of judgments from the Court. However, the spectre of constitutional ableism haunts even in these disability-affirming judgments and governmental schemes. This is evident in recent judgments which appear progressive on the surface, but often celebrate only a particular kind of disabled citizen — one who is upwardly mobile, apolitical, and fits neatly into a nationalist narrative of perseverance. The Supreme Court’s judgment in Omkar Ramchandra Gond (2024) is illustrative. The Court praised a select group of disabled individuals as “shining sons and daughters” who had achieved “extraordinary heights.” Although well-intentioned, such praise creates a template of normative citizenship. Disabled people who excel within the nationalist paradigm are valorised; those who do not fit into it — such as the late Prof G N Saibaba or Father Stan Swamy — are framed as inconvenient or “problematic” subjects. Saibaba, who had over 90 per cent disability, and Swamy, who lived with Parkinson’s disease, received little of the empathetic accommodation that disability rights discourse demands. Their disabilities did not translate into constitutional protection or institutional sensitivity. This contrast reveals a troubling reality: Disability rights are often extended selectively, shaped by broader able-nationalist expectations rather than constitutional principles.
India must confront these foundational gaps and ableism in its Constitution. The social contract of the disabled with the Republic is based on ableist assumptions. This Constitution Day should be used to honestly acknowledge and call out constitutional ableism.
Tiwari is assistant professor (Law), West Bengal National University of Juridical Sciences, Kolkata, and Jain is professor of Law, National Law School of India University, Bengaluru
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