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