• The Supreme Court reiterated that persons with disabilities (PwD) cannot be denied reservation in promotions in government jobs as it upheld a Kerala High Court order granting the benefit to a woman last year. 

• The top court said that identification of posts for the purpose of reservation had to take place immediately after the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 but a resistance to this is obvious from the “delaying tactics” adopted by most of the government authorities in truly implementing the intent. 

• It said that sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset which would seek to defeat the intent of the law. 

• A bench of Justices upheld the Kerala High Court order of March 9, 2020, by which it had held reservation in promotion to a woman with disability. 

Main points observed by the SC:

• Kerala has not implemented the SC judgments in the Rajeev Kumar Gupta and others versus the Union of India case (2016), and in the Siddaraju versus State of Karnataka case (2020), in which it was held that reservation to PwD would be applicable even in promotion in government jobs. 

• The top court considers it appropriate to issue directions to the state of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. 

• The court also made it time bound so that the mandate of the Act  — The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — is not again frustrated by making Section 32 as an excuse for not having identified the post. 

• It dealt with the question of whether reservation under provisions of the 1995 Act is dependent upon identification of posts as stipulated by the law. 

• The 1995 Act does not make a distinction between a person who may have entered service on account of disability and one who may have acquired disability after having entered the service.  

• Similarly, the same position would be with the person who may have entered service on a claim of a compassionate appointment.

• The mode of entry in service cannot be a ground to make out a case of discriminatory promotion.

• The woman was appointed in 1996 to the post of typist/clerk in the police department on compassionate grounds after her brother had passed away during service. 

Equality of opportunity for all citizens

• Disability is an umbrella term, covering impairments and activity limitations. Impairments are problems in body functions or structures while activity limitations are difficulties encountered by an individual in executing tasks or actions. 

• According to the 2011 Census, there are 2.68 crore persons with disabilities (PwDs) in India (2.21 per cent of the total population).

• The Constitution secures to the citizens including the disabled, a right of justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and for the promotion of fraternity.

• Article 15(1) enjoins on the government not to discriminate against any citizen of India (including disabled) on the ground of religion, race, caste, sex or place of birth.

• Article 15(2) states that no citizen shall be subjected to any disability, liability, restriction or condition on any of the above grounds in the matter of their access to shops, public restaurants, hotels and places of public entertainment or in the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of government funds or dedicated to the use of the general public. 

• There shall be equality of opportunity for all citizens (including the disabled) in matters relating to employment or appointment to any office under the State.

• No person including the disabled irrespective of his belonging can be treated as an untouchable. It would be an offence punishable in accordance with law as provided by Article 17 of the Constitution.

• Every person including the disabled has his life and liberty guaranteed under Article 21 of the Constitution.

• There can be no traffic in human beings (including the disabled), and beggar and other forms of forced labour is prohibited and the same is made punishable in accordance with law (Article 23).

• Article 24 prohibits employment of children (including the disabled) below the age of 14 years to work in any factory or mine or to be engaged in any other hazardous employment. Even a private contractor acting for the government cannot engage children below 14 years of age in such employment.

• Article 25 guarantees to every citizen (including the disabled) the right to freedom of religion. Every disabled person (like the non-disabled) has the freedom of conscience to practice and propagate his religion subject to proper order, morality and health.

• No disabled person owning property can be deprived of his/her property except by authority of law though right to property is not a fundamental right. Any unauthorised deprivation of property can be challenged by suit and for relief by way of damages.

• Every citizen can move the Supreme Court of India to enforce his fundamental rights and the right to move the Supreme Court is itself guaranteed by Article 32.

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