Aastha Saboo (Himachal Pradesh National Law University) has posted From Paternalism to Personhood: Evolving Jurisprudence on Disability Law in India on SSRN. Here is the abstract:
The philosophy derived from John Locke establishes a premise that there is a denial of full personhood to the persons with disabilities. In the system per se, there exist an inherent way of exclusion and the practice of substituted decision-making have continued since time immemorial. Based on these considerations, this paper traces the jurisprudential evolution of disability rights in India, through the decisions of the Hon’ble Supreme Court of India and other courts that has made an attempt to dismantle the dogmatic ideas of Capacity Contract. This paper analyses the application of Articles 14 and 21 of the Constitution of India, 1950 to move beyond the welfare-centric, paternalistic model to a rights-based policy development. The paper analyses this evolution through three critical phases: first, the aggressive confrontation of structural exclusion and arbitrary terminations; second, the elevation of Reasonable Accommodation to an enforceable fundamental right, mandating comprehensive Universal Accessibility across physical, digital, and cultural domains; and third, the assertion of full bodily autonomy and legal capacity. This progressive jurisprudence has redefined persons with disabilities as citizens with absolute jurisdiction over their own lives, establishing the much-required constitutional guarantee of freedom and dignity.
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