Pranay Rajesh Sonkusare, B.Sc. LL.B. (Hons.), Second Year student at West Bengal National University of Juridical Sciences, Kolkata

ABSTRACT

This blog contends that in India, disability, poverty, and incarceration are intertwined within a closed circuit, rather than being separate. It is well known that people with disabilities are more likely to be unemployed than non-disabled people, and that a significant proportion of people with disabilities are worse off financially. Nussbaum’s capabilities approach can help to illuminate the situation. Essentially, if people are not allowed to work, they have to ‘make a living’ by illegal informal activities. This is not only a violation of several laws in India, such as the beggar, vagrancy and public nuisance laws, and these laws fails to uphold Articles 14, 21, and 39(a) of the Constitution and the Rights of Persons with Disabilities Act, 2016. This blog advocates for the economic inclusion of people with disabilities through MGNREGA, the decriminalization of begging, and the collection of disaggregated data on disability in the criminal justice system.

From Family Calculations to State Criminalisation

When my extended family calculated whether my education was “worth the investment,” they reflected the same capability deprivation that India’s criminal justice system institutionalises. If a disabled person cannot reciprocate economically, they are rendered expendable, first by families, and subsequently by the State that criminalises their survival strategies.

This exclusion is not merely theoretical. As a person with locomotor disability, I have observed how economic participation is foreclosed not through explicit denial but through structural design such as inaccessible built environments, inadequate public transportation, and employer discrimination expressed through stated preferences for “more mobile candidates.” However, access to familial support prevented such exclusion from escalating into criminalised poverty. For the 66% of Persons with Disabilities [‘PwD’] below the poverty line, this structural exclusion channels into criminalised survival such as begging or informal vending which results in incarceration. This blog examines how India’s legal architecture transforms capability deprivation into incarceration.

When ‘Mutual Advantage’ Excludes 66% of PwD

The extent of economic exclusion of PwD in India is structural rather than incidental. The employment rate of PwD in India is roughly 36%, whereas the employment rate of the non-disabled population is 75%. Additionally, those PwD who find employment are paid wages that are 30-40% lower than the national average. As such, the formal economy remains closed off to PwD due to physical barriers to accessing public spaces and transportation, employer discrimination and the inability of the government to provide adequate support to PwD.

This exclusion operates through what Nussbaum calls ‘adaptive preferences,’ which leads to PwD internalising their exclusion as natural rather than structural. My own extended family members suggested my father was “wasting resources” on my education because disabled individuals are presumed unable to reciprocate economically. This reflects the prevailing logic of the economy: those who cannot participate on able-bodied terms are effectively excluded from meaningful economic participation. When families make this calculation privately and the State enforces it publicly through criminalisation, capability deprivation becomes systemic.

Nussbaum’s capabilities approach provides the conceptual tools for understanding the consequences of this economic exclusion in human terms. When an individual is deprived of the capabilities of bodily integrity, practical reason, association and control over their environment, they are unable to lead a life of dignity.

Three Laws That Criminalise Survival

The legal architecture of criminalisation operates through three interconnected mechanisms, each of which directly destroys capabilities identified by Nussbaum as fundamental to leading a dignified human life.

First, anti-begging legislation. The Bombay Prevention of Begging Act, 1959 (mirrored in 22 states), imprisons beggars up to 3 years, defining it so broadly that public alms‑seeking triggers arrest. Although the Delhi High Court in Harsh Mander struck down Delhi’s version as “criminalising poverty,” state laws persist, eroding practical reason by turning daily survival into crime.

Second, vagrancy provisions contained in state police acts criminalise the condition of having no permanent place of residence. These provisions convert economic exclusion into criminal status, destroying the capability of affiliation, the ability to live with and for others and to be treated as a person with dignity.

Third, public nuisance provisions contained in Section 270 of the Bharatiya Nyaya Sanhita, 2023 and local ordinances regulating informal vendors effectively criminalise the informal economy, the only economy open to most PwD. A vendor with a visible disability who sells goods on the street is committing a crime that eliminates the capability of control over one’s material environment, the ability to possess property and seek employment on an equal basis with others.

When Dignity Means Nothing: Articles 14, 21, and 39’s Empty Promises

In Maneka Gandhi v. Union of India (1978), the Supreme Court broadened the right to life beyond bare survival under Article 21 of the Constitution, and in Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981), Bhagwati J. held that Article 21 includes within it the right to live with basic human dignity, and to live as a person. The State’s criminalisation of begging, often the sole survival mechanism available to economically excluded PwD, reduces those individuals to the undignified existence that Article 21 seeks to prevent.

Nussbaum’s capability of practical reason also maps directly onto Article 21’s dignity guarantee, in that both require that a person must have the ability to formulate and pursue a conception of their own life. The criminal law, however, eliminates the capability to so act while the Constitution protects it.

Article 14 of the Constitution mandates not only formal equality, but also substantive equality, as held by Chandrachud J. in Navtej Singh Johar v. Union of India (2018), which seeks to remedy structural disadvantages. Laws that apply equally to the able-bodied and disabled, but fail to take into account the structural barriers that force many disabled to beg, cannot satisfy the requirement of substantive equality. The neutral application of a structurally discriminatory law is merely the laundering of inequality through legal form. Harsh Mander exposed this formal-substantive equality gap, yet persistent state laws reveal judicial limits against legislative inertia.

The Rights of Persons with Disabilities Act, 2016 [‘the RPwD Act’] reinforced this by providing for non-discrimination and reasonable accommodations in the realm of employment. Article 39(a) complements this by requiring the State to secure an adequate livelihood for all.

Beyond Decriminalisation: A Capabilities Agenda

Meaningful reform must address structural causes rather than symptomatic manifestations.

Three capabilities-grounded reforms are essential:

1. Immediate decriminalisation. 

As suggested by Harsh Mander, all state anti-begging laws must be repealed. Vagrancy laws must be revised to clearly separate the exploiter from the individual who survives through begging. While decriminalisation may not resolve economic exclusion, it certainly removes the State from exacerbating the exclusion.

2. Structural economic inclusion. 

The Mahatma Gandhi National Rural Employment Guarantee Act [‘MGNREGA’] must be significantly expanded and made accessible to PwD through physical accommodations, transportation assistance and removal of informal barriers to eligibility. Additionally, micro-finance options and disability-inclusive skill development programmes must address the root cause of economic exclusion, the foreclosure of disabled individuals from participation in the formal economy, instead of merely managing the consequences. Convention on the Rights of Persons with Disabilities [‘CRPD’] Article 27‘s guarantee of the right to work on an equal basis provides the international normative framework for this reform.

3. Data collection and criminal justice reform. 

States must be legally mandated to collect disaggregated data concerning the number of PwD in the criminal justice system to fulfil the CRPD Article 31 obligation, which the State is currently failing to meet. Mandatory police training on disability rights and diversion programs for PwD arrested for poverty-related offences must follow.

The pipeline cannot be dismantled until it is rendered visible; that it remains structurally obscured is not incidental to, but constitutive of, the pipeline’s design.

Conclusion

A democratic constitutional regime cannot simultaneously promise dignity to all while criminalising the survival strategies of its most vulnerable members. The poverty-disability-incarceration pipeline is not legally, morally, or economically sustainable. The constitutional framework already provides the tools for its dismantlement; what is required is political will and institutional commitment to enforce obligations that already exist in law.

The reforms proposed such as decriminalisation, structural inclusion, and mandatory data collection, are not merely policy preferences; they are constitutional obligations already encoded in Articles 14, 21, and 39(a), as reinforced by the RPwD Act 2016, and CRPD Articles 27 and 31. The State does not require new legislation to begin; it requires compliance with the legal obligations it already bears. The continued criminalisation of economically excluded PwD is not merely a policy failure; it is a constitutional one.