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.