Why central services cannot be exempted from booking for the disabled
In the judgment rendered late last year in Ravinder Kumar Dhariwal and Anr. v. Union of India and Ors., the Supreme Court ruled on 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 considered that it will have to develop, if necessary, the criterion of justification to evaluate the decision of the government to exclude any establishment from the guarantee of non-discrimination contained in the Disability Rights Act 2016 [RPwD Act].
A case the SC is currently hearing (National Disability Rights Platform v. Department of Disability Empowerment and others) may well provide an opportunity for it to articulate this standard. The petitioner challenged a notification issued by the Department of Disability Empowerment (Department). The disputed notification exempts all categories of posts in the Indian Police Service, Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Police Service, and the Protection Force Service. Indian Railways from the 4% mandatory threshold. reservation for people with disabilities under the RPwD law.
This notification is legally and constitutionally untenable. First, on the same day as the impugned notice was issued, the Department also issued another notice exempting from the scope of the reservation under the RPwD Act only positions of a “combatant” nature in the paramilitary police. This classification between combat and non-combat positions was based on a clear recognition that people with disabilities are capable of occupying non-combat positions within the central forces. Commerce has provided no justification as to why this classification would not be valid with respect to the services covered in the challenged notification.
Secondly, in a desk memorandum issued in January last year, the Ministry of Social Justice and Empowerment had identified a range of ministerial/civilian positions as suitable for persons with disabilities. The disputed notification is at the teeth of this identification exercise, by virtue of its general nature. In addition, on 22 November 2021, the Union Home Office released draft accessibility standards/guidelines for built infrastructure under its jurisdiction (Police Stations, Prisons and Disaster Mitigation Centers ) and the services associated with them. These draft standards stipulate that police personnel in civilian service may be composed of persons with disabilities. Curiously, even as the Center appears determined to create a more disability-friendly police service, it has ruled out the ability of people with disabilities to serve on the police force through the disputed notification.
Third, the impugned notification appears to be a disguised exercise of power. Indeed, under the RPwD Act, the granting of any exemption must be preceded by consultation with the Chief Commissioner for the Disabled. It is common knowledge that the position of Chief Commissioner has been vacant for many years, with the Secretary to the Ministry assuming this role. Moreover, in the debate in Parliament at the time of the passage of the RPwD law, an exchange between Sitaram Yechury and the Minister of Social Justice and Empowerment at the time is revealing. Yechury had feared that the central government would use its power under the RPwD Act to exempt people with disabilities from applying for reservations for positions they are fully capable of filling. The Minister had assured that this concern would be taken into account in the rules. In issuing the impugned notification, Commerce denied this assurance.
In an encouraging development, on March 25, the SC adopted a provisional order, allowing physically disabled persons who have passed the civil service (sector) examination to apply provisionally for positions in the IPS, IRPFS and the DANIPS, considering this request as “fair and reasonable”. The Court asked the government to explain its position on the disputed notification and scheduled the case for April 18.
This case offers CS 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’s hope the Court recognizes that people with disabilities have the right to exist and work in the world just like their able-bodied counterparts.
Bajaj is a senior resident scholar at Vidhi Center for Legal Policy and Gupta is a student at NALSAR University of Law