In the judgment delivered late last year in Ravinder Kumar Dhariwal and Anr. v. Union of India and Ors., the Supreme Court dealt with the initiation of disciplinary proceedings against a mentally-ill CRPF employee. While concluding that the initiation of the proceedings against the employee was indirectly discriminatory, the Court held that it will have to develop, in an appropriate case, the standard of justification for evaluating the government’s decision to exclude any establishment from the nondiscrimination guarantee contained in the Rights of Persons with Disabilities Act, 2016 [RPwD Act].
A case that the SC is currently hearing (National Platform for the Rights of the Disabled v. Department of Empowerment for Persons with Disabilities and Ors.) might just offer it the opportunity to enunciate this standard. The petitioner has challenged a notification issued by the Department of Empowerment for Persons with Disabilities (Department). The impugned notification exempts all categories of posts in the Indian Police Service, the Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Police Service, as well as the Indian Railway Protection Force Service from the mandated 4 per cent reservation for persons with disabilities under the RPwD Act.
This notification is legally and constitutionally untenable. First, on the same day as the issuing of the impugned notification, the Department also issued another notification exempting from the purview of reservation under the RPwD Act posts only of “combatant” nature in the paramilitary police. This classification between combat and non-combat posts was premised on a clear recognition of the fact that persons with disabilities are capable of occupying non-combat posts in the central forces. The Department has offered no justification as to why this classification would not hold good as regards the services covered in the impugned notification.
Second, in an office memorandum issued in January last year, the Ministry of Social Justice and Empowerment had identified a range of ministerial/civilian posts as being suitable for reservation for the disabled. The impugned notification is in the teeth of this identification exercise, by virtue of its blanket character. Further, on November 22, 2021, the Union Ministry of Home Affairs released Draft Accessibility Standards/Guidelines for built infrastructure under its purview (police stations, prisons and disaster mitigation centres) and services associated with them. These Draft Standards state that the police staff on civil duty could be persons with disabilities. Curiously, even as the Centre appears committed to creating a more disabled-friendly police service, it has foreclosed the possibility of the disabled being part of the police force through the impugned notification.
Third, the impugned notification appears to be a colourable exercise of power. This is because, as per the RPwD Act, the grant of any exemption has to be preceded by consultation with the Chief Commissioner for Persons with Disabilities. It is common knowledge that the office of the chief commissioner has been lying vacant for many years, with the secretary in the Department officiating in that role. Further, in the debate in Parliament at the time of the passage of the RPwD Act, an exchange between Sitaram Yechury and the then Minister of Social Justice and Empowerment is revealing. Yechury had feared that the central government would use the power granted to it under the RPwD Act to exempt people with disabilities from seeking reservation for posts that they are perfectly capable of occupying. The minister had assured that this concern would be addressed in the rules. By issuing the Impugned Notification, the Department has belied that assurance
In a heartening development, on March 25, the SC passed an interim order, allowing physically disabled persons who have cleared the civil services (mains) exam to provisionally apply for posts in the IPS, IRPFS and DANIPS, considering this request to be “just and reasonable”. The Court has asked the government to explain its stance on the impugned notification and listed the matter for April 18.
This case presents the SC with the opportunity to rule that the disabled are not a monolithic entity. Every disabled person is different, and it is unfair to paint all disabled people with the same broad brush, based on a stereotypical understanding of what they can do. Let us hope that the Court recognises that the disabled have the right to exist and work in the world just like their able-bodied counterparts.
Written by Rahul Bajaj , Nishtha Gupta
Source: Indian Express, 11/04/22
