By: Jagrati Maru & Vaishnavi* |
“When competent persons with disabilities are unable to realise their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom.”
- Justice DY Chandrachud, Vikash Kumar v. UPSC
India is not new to the Disability Rights Movement and the movement has evolved in the country since 1970. Significant developments in Disability Rights, particularly in the Service and Employment Sector came with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). The Act reserved 3% of the total government posts for Persons with Disabilities (PWDs). Moreover, the thrust to the Movement was followed by India’s signing and ratifying the Convention on the Rights of Persons with Disabilities in 2007.
In 2016, the Rights of Persons with Disabilities Act, 2016 (RPWD Act) replaced the erstwhile 1995 Act. The RPWD Act covers over 26 million PWDs and stipulates legal protection for the disabled and prohibits any form of discrimination. Along with the Act, the Rights of Persons with Disabilities Rules, 2017 were enacted forming the present legal framework for PWDs. For the first time, even the private sector was mandated to frame policies on Equal Opportunity to be registered with the State and Central Commissioner under sec 21(2) of the RPWD Act.
Our laws have recognized the abilities of disabled persons and provide equal opportunities in the service sector however, prejudice and lack of opportunities bar the disabled from living happy lives. Accordingly, this article tries to understand the Disability Rights jurisprudence in the Service Sector from the lens of reservation policy.
Indian Constitution and Disability Rights
Disability Rights emanate from one of our core constitutional values i.e. the value of human dignity which is enshrined in the Preamble. As explained by the Hon’ble Supreme Court, although Part III of the Constitution does not explicitly include PWDs within its protective fold, the golden triangle consisting of Articles 14, 19, and 21 is very well applicable to them[i]. Further, the RPWD Act aims to pave way for the promise of complete and equal citizenship reflected by the Constitution to disabled persons and to execute our Constitutional ethos of inclusion, dignity, equality, and acceptance. Section 3 of the Act obligates the government to ensure that PWDs enjoy the right to equality, a life with dignity and respect for their integrity equally with others without limiting these rights with the notion of a benchmark disability and thus, reflects “statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution”.[ii]
The Approach of the Legislature towards Disability Rights
According to Sec 2(r) of the RPWD Act, a person with benchmark disability is “a person with not less than 40% of a specified disability where the specified disability has not been defined in measurable terms. It also includes an individual whose disability has been defined in measurable terms, and acknowledged by the certifying authority.” Further, Sec 2(s) states that a person with a disability is “a person with a long term physical, mental, intellectual or sensory impairment which, hinders his full and effective participation in society.”
Some relevant features of the present Disability Law in the context of Service and Employment Law are,
- All establishments including those in the private sector have to mandatorily frame & publish an Equal Opportunity Policy.[iii]
- The onus is on the government to facilitate the rights of disabled persons which includes the right to free education between the age group of 6 and 18 years, reservation in government jobs[iv], education[v], poverty alleviation schemes[vi], allocation of land[vii] etc. for persons with benchmark disabilities.
- Reservation government establishments have been increased from 3% to 4% for certain types of disabilities[viii].
- Private establishments with 20 or more PWD employees are obligated to appoint Liaison Officers who shall govern the recruitment of PWDs and frame necessary provisions for the disabled within the establishment.[ix] Private establishments which receive incentives from the government have to ensure that a minimum of 5% of their workforce comprises of persons with benchmark disabilities.[x]
Section 34 of the RPWD Act makes provision for Reservation and states that in every Government establishment, “the appropriate Government shall appoint, not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, 1% each shall be reserved for persons with benchmark disabilities under clauses,
(a) i.e. blindness and low vision,
(b) i.e. deaf and hard of hearing and,
(c) i.e. locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy,
and 1% for persons with benchmark disabilities under clauses,
(d) i.e. autism, intellectual disability, specific learning disability, and mental illness, and (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disability.” [xi]
The Section stipulates reservation in promotion in accordance with instructions issued by the appropriate Government from time to time. The Section further stipulates a Carry Forward Rule.[xii] This means that in cases wherein any recruitment year if any vacancy is not filled up due to non-availability of a suitable person with benchmark disability or for any other reasons, such vacancy is to be carried forwarded in the succeeding recruitment year. If the same fails, such vacancy may first be filled by interchanging the available categories. It is only when there is no person with disability available for the post in that year, the employer may fill the vacancy by appointing a person other than a PWD candidate.
In its Circular and Office Memorandum, the Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training has explained that Reservation for Persons with Benchmark Disabilities is vacancy based under Section 34 of the RPWD Act. In case of direct recruitment against the posts and services of the Central Government, the rule is that 4% of the total number of vacancies are mandated to be filled up by direct recruitment in the cadre strength in each group of posts namely, Groups A, B and C which are mandatorily reserved for persons with benchmark disabilities.
The Approach of the Judiciary - Disability Rights Jurisprudence in India
The authors will now highlight important case laws which reflect recognition and enforcement of the rights of PWDs. In the National Federation of Blind v. Union Public Service Commission and Ors., Hon’ble Supreme Court settled an important position of law as to whether the visually impaired persons can write the Civil Services Examinations. The Court directed the Government of India and the Union Public Service Commission to permit visually handicapped (blind and partially-blind) eligible candidates to write the civil services examination in Braille-script or with the help of a Scribe.
The celebrated case of Rajeev Kumar Gupta v. Union of India is considered a huge win for the principle of equal opportunity and representation of PWDs in the higher positions of Government. In this case, the apex directed the Government to extend 3% reservation for PWDs in all identified posts in Prasar Bharati Corporation of India including Group A and Group B, irrespective of the mode of filling up of the respective posts i.e. whether by direct recruitment or by promotion. It was further held that there is no prohibition against reservation in promotion for PWDs. Notably, it was observed that “the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to the ‘Persons with disabilities’.”
In All Bengal Special Educators Association and Ors v. the State of West Bengal and Ors, the Calcutta High Court ruled that Special Educators are entitled to be treated at par with regular teachers and directed the State Government to pave way for the regularization of Special Educators for the posts of Assistant Teachers in schools.
The recent Delhi High Court decision in Bhavya Nain v. Delhi High Court Administration speaks volumes on how Courts enforce principles of Dignitary Constitutionalism. The High Court recognised the seriousness of bipolar disorder and its incurability and held that merely for the reason that a candidate suffers from a mental ailment that requires lifelong medication, he/she cannot be denied an opportunity to a post/ job. The Court disagreed with the view of the administration that a person suffering from bipolar affective disorder, which is a psychosocial disability, is ineligible to be appointed as a judge after qualifying the Delhi Judicial Services examination and directed the administration to appoint the petitioner.
The Bench observed that the respondent cannot discriminate against any person with a disability in any matter relating to employment and held that the decision rests with the appropriate Government on the issue as to whether the post of a Judicial Officer should be exempted from Section 20(1) of the RPWD Act, having regard to the type of work carried out in the establishment of the judicial service. Section 20(1) provides that no government establishment can discriminate against any PWD in the matter of employment unless the type of work demands such discrimination.
In Siddaraju v. State of Karnataka & Ors, Hon’ble Supreme Court upheld Rajiv Kumar Gupta, affirming Reservation in Promotion for PWDs in the Public Sector. The Apex Court observed that PWDs are capable of responsibly discharging their duties and functions in their respective posts and reserving posts in case of promotions is in furtherance of Article 16.
In Vikash Kumar v. Union Public Service Commission and Ors, Apex Court held that a person who suffers from writer’s cramp or dysgraphia is entitled to a scribe while appearing for the Civil Services Examination conducted by the Union Public Service Commission. The Court observed that it is a “fundamental fallacy” of the Government that only the people with a specific disability of 40% or more are given a scribe. The court held that this precondition is arbitrary and defeats the objective of the RPWD Act.
Conclusion
The above analysis highlights that the Rule of Law and jurisprudence concerning Disability Rights in India which reflect Inclusive Equality and showcase sensitivity to special needs of PWDs by regarding reasonable accommodation as a means to achieve the ultimate Constitutional goal of Inclusive Equality. In order to enable PWDs to lead a life of equal dignity and quality, we as social beings must ensure that “PWDs receive the additional support and facilities which are vital for them to offset the impact of their disability”[xiii]. The authors would like to end this article with the remarkable holding of RM Lodha, J., “In the matters of providing relief to those who are differently-abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic.”
***
* The authors are students at Gujarat National Law University, Gandhinagar.
[i] Vikash Kumar v UPSC and Ors [2021] MANU 0067 (SC)
[ii] Id. [33]
[iii] The Rights of Persons with Disabilities Rules 2017, Rule 8(2)
[iv] The Rights of Persons with Disabilities Act 2016, s 34
[v] The Rights of Persons with Disabilities Act 2016, s 32
[vi] The Rights of Persons with Disabilities Act 2016, s 37(b)
[vii] The Rights of Persons with Disabilities Act 2016, s 37(c)
[viii] The Rights of Persons with Disabilities Act 2016, s 2(k)
[ix] The Rights of Persons with Disabilities Rules 2017, Rule 8(3)(e)
[x] The Rights of Persons with Disabilities Rules 2017, Rule 8(3)(b)
[xi] The Rights of Persons with Disabilities Act 2016, s 34
[xii] The Rights of Persons with Disabilities Act 2016, s 34(2)
[xiii] Jeeja Ghosh v Union of India [2016] 7 SCC 761 (SC)