No casual vacancies
Amba solelkar
Indian express
Supreme Court creatively interprets a statute to expand quotas for the disabled.
There is less than meets the eye when it comes to the recent Supreme Court
decision, said to guarantee a 3 per cent reservation in government jobs for
persons with disabilities. Even a crusading full bench could only do so much
against a loophole riddled statute.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995, introduced the concept of a minimum 3 per cent
reservation in all establishments - that is, corporations established by law;
authorities and bodies owned, controlled or aided by the government; government
companies and all government departments - for certain categories of persons
with disabilities. Section 32 of the act mandates the government to identify
posts in establishments under it, which can be reserved for persons with
disabilities. The confusion was created by section 33, which said that a
minimum of 3 per cent of all vacancies in an establishment would be reserved
for persons with disabilities, of which 1 per cent each would be reserved for
three categories of disability: first, blindness or low vision, second, hearing
impairment and third, locomotor disability or cerebral palsy. These
reservations would be "in the posts identified for each disability".
The Union of India had argued that the 3 per cent figure was to be calculated
on vacancies within the posts identified for reservation by the government
under section 32. This severely limited the number of posts that would
eventually be reserved for persons with the specified disabilities. The court
had two issues to resolve: how the 3 per cent reservation was to be calculated,
and whether this calculation was to be based on the total cadre strength or
only the vacancies available in the cadre.
The government's interpretation was leading to a clearly absurd result, quite
contrary to the aims of the statute concerned. The court proactively and
creatively interpreted statutory provisions to avoid this. It held that in
light of India's constitutional obligation to be a welfare state, and based on
an interpretation of the intent and purposes of the parent statute, the 3 per
cent reservation in section 33 could not be limited only to the posts
identified for reservation under section 32. To determine legislative intent,
the court also relied on the provisions of the draft Rights of Persons with
Disabilities Bill, 2012. In the draft bill, the court found that the intent to
extend the reservation beyond identified posts was very clear.
Relying on a draft legislation to determine the legislative intent of a
provision drafted in 1995 is quite unprecedented. But the court seems to have
been eager to do justice to persons with disabilities and the wording of the
statute left it in no doubt that the reservations were meant to be
vacancy-based and not post-based.
The vacancy-based reservation approach poses a problem, because in order to
reach a stage where 3 per cent of vacancies are even available for reservation,
a substantial number of vacancies must arise in the cadre of each
establishment. It seems difficult to even estimate how long it would take for
the first set of reservations, post this ruling, to actually come into effect.
Be that as it may, and despite working in the disability sector, I cannot find
fault with the plain interpretation of the statute by the court.
Let it not be said, however, that concern regarding vacancy-based reservations
was never raised outside these legal proceedings. In 2010, the ministry of
social justice and empowerment constituted a committee, comprising persons with
disabilities as well as representatives of organisations working with such
persons, under Sudha Kaul. It was meant to draft the bill mentioned above. In
the legal consultations held, it was observed that "the reservation of
vacancies instead of posts needs to be re-examined". The committee draft of
2011 reflected this, with the proposal that, "All establishments shall reserve
not less than 7 percent of all posts. for persons with disabilities". If this
clause had been part of the draft bill finally considered by the court, things
might have been different. Unfortunately, the proposed section 39 of the bill
states, "Every appropriate government shall reserve not less than 5 per cent of
the vacancies meant to be filled by direct recruitment".
We can argue endlessly about what the court should and could have done to
promote inclusion, but it is of the utmost necessity to seek appropriate
changes to the draft bill, which, despite the apprehensions of the disability
sector, is in the final stages prior to introduction in Parliament. The
disability sector needs to pull out its fine-toothed combs to make sure that
nothing is lost in interpretation this time around.
The writer is an advocate, and fellow, Inclusive Planet Centre for Disability
Law and Policy.
With thanks and regards
(Rajesh Asudani)
Assistant General Manager
Reserve Bank of India
Nagpur
(In youth you want things, and then in middle-age you want to want them.)
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