Get-hooked February 3, 2020
Siddaraju judgment & how it looks at reservation for disabled people – By Tapas Bharadwaj
Law student Tapas Bharadwaj reflects on a recent judgement regarding reservations for people with disabilities in the guest post this week. Tapas, who is visually impaired, is a NTSE scholar and has won awards from the Ministry of Environment & Forests.
The Supreme Court has made some important observations in its judgment on 14 January 2020. While the matter has been referred to a larger bench, the court reiterated the fact that persons with disabilities are entitled for horizontal reservation. This derives its source from Article 16(1) of the Constitution of India.
Constitutional provisions on jobs for disabled
The Court said that the Indira Sawhney judgment passed in 1992 has to be delinked while understanding the issue of reservation for persons with disabilities.
The judgement said:
The principle laid down in the Sawhney Judgement is applicable only when the State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be of a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for people with disabilities is physical disability and not any of the criteria forbidden..Therefore, the rule of no reservation in promotions as laid down in the Sawhney judgement has clearly and normatively no application to PWD.”
The Court also emphasised that there has to be a balance achieved between the requirements of administration and the imperative to provide greater opportunities to disabled people. The identification of jobs for disabled people was termed by the court as a crucial exercise.
Explaining the significance of this the court said,
“Once a job is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 of PWD Act, 1995 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”
We can thus understand that the Court by its various judgments over a period of time has held the government liable for not providing the equal opportunities to people with disabilities. A new act is in place since 2016.
What is required is the implementation and review of identified jobs for people with disabilities from time to time.