Jeeja Ghosh & Anr. Vs. Union of India & Ors, on 12th May, 2016; Supreme Court of India - Read Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 98 OF 2012
JEEJA GHOSH & ANR. …..PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. ….RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.

In the book on the rights of differently abled persons
authored by Joseph P. Shapiro, which is titled “NO PITY”[1], the first
chapter, ‘Introduction’ has the sub-title ‘You Just Don’t Understand’ and
the very first sentence of the said book is : ‘Nondisabled Americans do
not understand disabled ones’.

The present PIL, spearheaded by Jeeja Ghosh, who is herself a disabled
person, with the support of the NGO ADAPT (Able Disable All People
Together), bears testimony to the statement of Shapiro. Irony is that
though the aforesaid remarks were made by Shapiro way back in the year 1993
and notwithstanding the fact that there have been significant movements in
recognising the rights of differently abled persons, much is yet to be
achieved. India also has come out with various legislations and schemes for
the upliftment of such differently abled persons, but gap between the laws
and reality still remains. Even though human rights activists have made
their best efforts to create awareness that people with disabilities have
also right to enjoy their life and spend the same not only with the sense
of fulfilment but also to make them contribute in the growth of the
society, yet mindset of large section of the people who claim themselves to
be ‘able’ persons still needs to be changed towards differently abled
persons. It is this mindset of the other class which is still preventing,
in a great measure, differently abled persons from enjoying their human
rights which are otherwise recognised in their favour. Present case,
though a PIL, got triggered by an incident which proves aforesaid
introductory statement made by us.

Petitioner no. 1, Ms. Jeeja Ghosh is an Indian citizen with cerebral palsy.
She is an eminent activist involved in disability rights. She is, inter
alia, a Board member of the National Trust, an organization of the
Government of India, set up under the “National Trust for the Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities” Act (Act 4 of 1999). Ms. Ghosh has been felicitated by the
West Bengal Commission for Women on the occasion of International Women’s
Day in the year 2004, and is the recipient of the Shri N.D. Diwan Memorial
Award for Outstanding Professional Services in Rehabilitation of Persons
with Disabilities by the National Society for Equal Opportunities of the
Handicapped (NASEOH) in the year 2007. Ms. Jeeja Ghosh is also the
recipient of the ‘Role Model Award’ from the Office of the Disability
Commissioner, Government of West Bengal, for the year 2009, and was also an
elected Board Member of the National Trust for Persons with Autism,
Cerebral Palsy, Multiple Disabilities and Mental Retardation from 14th
August, 2008 to 19th July, 2011. This Curriculum Vitae of petitioner no. 1
amply demonstrates how a person suffering from cerebral palsy, can overcome
the disability and achieve such distinctions in her life, notwithstanding
various kinds of retardation and the negative attitudes which such persons
has to face from the society.

It so happened that Ms. Ghosh was invited to an International Conference,
North South Dialogue IV, in Goa, from the 19th to the 23rd of February,
2012, hosted by ADAPT (Petitioner no. 2). The conference was intended to
put a special focus on people with disabilities and their families,
countries in the global South facing huge systemic and institutional
barriers, and the tools for change that would make a difference in their
lives in these countries. Additionally, Ms. Jeeja Ghosh was invited as one
of 15 international individuals to review an Indo-German project which was
being show-cased at the conference. ADAPT purchased return plane tickets
for Ms. Jeeja Ghosh, including a seat on flight SG 803, operated by
SpiceJet Ltd. (Respondent no. 3) scheduled to fly from Kolkata to Goa on
the morning of 19th February, 2012. The conference was to begin in the
afternoon of the 19th February, 2012.

After being seated on the flight, Ms. Jeeja Ghosh was approached by members
of the flight crew who requested to see her boarding pass, which she gave
them. Then they proceeded to order her off the plane. Despite her tearful
protestations and informing them that she needed to reach Goa for the
conference, they insisted that she de-board. After returning to the
airport and arguing with airlines officials, she later discovered that the
Captain had insisted that she be removed due to her disability.

It is averred in the petition that as a result of the shock and trauma of
this even,t she had trouble sleeping and eating, so she was taken to a
doctor the following day where she was prescribed medication. Because of
this, she was unable to fly to Goa on 20th February, 2012, and, thus,
missed the conference all together. Not only did this humiliate and
traumatize her, but it also deprived the conference organizer, ADAPT
(petitioner no. 2) and all of the attendees of the opportunity to hear her
thoughts and experiences, and prevented her from providing her analysis of
the Indo-German project under review.

Petitioner no. 1 grudges that even after four years of the said incident
whenever she has a flashback, she feels haunted with that scene when she
was pulled out of the plane, like a criminal. She continues to have
nightmares. The petitioners, in these circumstances, have preferred the
instant petition under Article 32 of the Constitution of India for putting
the system in place so that other such differently abled persons do not
suffer this kind of agony, humiliation and emotional trauma which amount to
doing violence to their human dignity and infringes, to the hilt, their
fundamental rights under Articles 14 and 21 of the Constitution.

We may mention, at this stage, that SpiceJet had sent a letter to
petitioner no. 1 apologizing for the incident. However, according to the
petitioners, the SpiceJet tried to trivialize the incident by just
mentioning that ‘inconvenience caused’ was ‘inadvertent’. It is also
mentioned in the petition that before approaching this Court she had
submitted a compliant to the Ministry of Social Justice and Empowerment
about the incident as well as to the Commissioner for Persons with
Disabilities, West Bengal and the Chief Commissioner for Persons with
Disabilities, Government of India. Both had issued show cause notices to
SpiceJet in response to which petitioner no. 2 was informed that a refund
for flight, less ?1,500/- as a cancellation fee from the airlines on which
the return luggage had been booked through Jet Konnect, will be made. The
petitioners perceive it as sprinkling salt on their wounds.

It is claimed that such behaviour by airlines Crew is as outrageous as it
is illegal. SpiceJet’s staff clearly violated ‘Civil Aviation
Requirements’ dated 1st May, 2008 (for short, ‘CAR, 2008’)with regard to
‘Carriage by Air of Persons with Disability and/or Persons with Reduced
Mobility’ issued by the respondent No.2 – Directorate General of Civil
Aviation (for short, ‘DGCA’) as authorized by Rule 133A of the Aircraft
Rules, 1937, which states:
“4.1 No airline shall refuse to carry persons with disability or persons
with reduced mobility and their assistive aids/devices, escorts and guide
dogs including their presence in the cabin, provided such persons or their
representatives, at the time of booking and/or check-in for travel, inform
the airlines or their requirement. The airlines shall incorporate
appropriate provisions in the online form for booking tickets so that all
the required facilities are made available to the passengers with
disabilities at the time of check-in.

[…]

4.4. All airlines and airport management shall run program for their staff
engaged in passenger handling e.g. cabin crew/commercial staff including
floor walkers and counter staff etc. for sensitization and developing
awareness for assisting passengers with disabilities. The training program
shall be conducted at the time of initial training and a refresher shall
be conducted every three years on the subject. Only such persons who have
current course shall be assigned to handling disabled persons. The
training program should, inter alia, include assisting disabled persons in
filing up travel documents as may be required while providing assistance in
flight.

[…]

4.6. Many persons with disabilities do not require constant assistance for
their activities. Therefore, if the passenger declares independence in
feeding, communication with reasonable accommodation, toileting and
personal needs, the airlines shall not insist for the presence of an
escort.

[…]

4.8. All airlines shall provide necessary assistance to persons with
disabilities/impairment who wish to travel alone without an escort.

[…]

4.10(b) Once a passenger has bought a ticket for travel, it is
obligatory on part of the airline that he reaches the aircraft from the
departure lounge, and at the end of the journey from the aircraft to the
arrival lounge exit, without incurring any further expenditure.

[…]

4.13 Airlines shall provide assistance to meet the particular needs of the
persons with disabilities and persons with reduced mobility, from the
departing airport terminal to the destination airport terminal.

[…]

4.14 Persons with disabilities and persons with reduced mobility have
equal choice of seat allocation as others, subject to safety requirements
and physical limitations of the aircraft – like seats near the emergency
exits and seats with more leg-room.

[…]

5.1 No Medical clearance or special forms shall be insisted from persons
with disabilities or persons with reduced mobility who only require special
assistance at the airport for assistance in embarking/disembarking and a
reasonable accommodation in flight, who otherwise do not require additional
assistance.

[…]

10.1 A disabled person or person with reduced mobility who considers that
this regulation has been infringed may bring the matter to the attention of
the managing body of airlines, airport or other concerned authorities, as
the case may be.

10.2 The managing body of the airlines and the airport shall ensure speedy
and proper redressal of these complaints.”
It is submitted by the petitioner that the Union of India (respondent No.1)
has an obligation to ensure that its citizens are not subject to such
arbitrary and humiliating discrimination. It is a violation of their
fundamental rights, including the right to life, right to equality, right
to move freely throughout the territory of India, and right to practice
their profession. The State has an obligation to ensure these rights are
protected – particularly for those who are disabled. More specifically,
the Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (for short, ‘Act, 1995’) encapsulates the
Government’s obligations to ensure that those with disabilities can achieve
their full potential free from such discrimination and harassment. The Act
specifically deals with transportation systems, including airports and
aircrafts.

Further, various international legal instruments also guarantee these
rights for the disabled, including the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD), which India ratified in 2007.
Specifically, the UNCRPD requires in Article 5:
“2. State Parties shall prohibit all discrimination on the basis of
disability and guarantee to persons with disabilities equal and effective
legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, State
Parties shall take all appropriate steps to ensure that reasonable
accommodation is provided.”
The UNCRPD specifically targets transportation systems such as airlines
when it states in Article 9:
“1. To enable persons with disabilities to live independently and
participate fully in all aspects of life, State Parties shall take
appropriate measures to ensure persons with disabilities access, on an
equal basis with others, to the physical environment, to transportation, to
information and communications, including information and communications
technologies and system, and to other facilities and services open or
provided to the public.”

And the UNCRPD makes clear that private carriers are covered as well in
Article 9(2):
“2. State Parties shall also take appropriate measures:

[…]

(b) To ensure that private entities that offer facilities and services
which are open to or provided to the public take into account all aspects
of accessibility of persons with disabilities;”
The Vienna Convention on the Law of Treaties, 1963 requires India’s
internal legislation to comply with international commitments. Article 27
states that a “State party… may not invoke the provisions of its internal
law as justification for its failure to perform a treaty.”

Further, the Biwako Millenium Framework for Action Towards an Inclusive,
Barrier-Free and Rights-Based Society for Persons With Disabilities in Asia
and the Pacific, published in 2002 and signed by India as well, states that
“existing land, water and air public transport systems (vehicles, stops and
terminals) should be made accessible and usable as soon as practicable.”

According to the petitioners, filing of this petition was necessitated
because of the reason that petitioner no. 1 is not the only disabled
passenger to suffer such discrimination and humiliation. There have been
many others who have undergone same kind of maltreatment and trauma while
undertaking such air flights. In the petition some such instances are
narrated. It is pointed out that one, Mr. Tony Kurian was repeatedly
denied the right to purchase tickets on an Indigo flight because he is
visually impaired. Ms. Anilee Agarwal was recently forced to sing an
indemnity bond before she could fly from Delhi to Raipur on Jet Connect,
threatened with being “body-lifted” by four male flight crew members, and
finally “thrown down the steps” in an aisle chair when she refused to be
carried by hand. Mr. Nilesh Singit was told by a SpiceJet captain that he
was not allowed to fly with his crutches, and has been asked to sign
indemnity bonds on numerous occasions. Ms. Shivani Gupta recently reported
that she has also been asked to sign indemnity bonds on numerous occasions.
Thus, according to the petitioners, such problems exist across airlines
and across the country and requires clear national direction. It is further
alleged that despite the existing constitutional, statutory and
international law on the issue, situations continue where these differently
abled persons face discrimination and harassment while traveling.

In this backdrop, the petitioners seek the following relief:
“(a) Issue a writ in the nature of Mandamus or any other appropriate Writ,
order or direction to the respondents directing them to follow ‘Civil
Aviation Requirements’ dated 1st May, 2008 with regard to ‘Carriage by Air
of Persons with Disability and/or Persons with Reduced Mobility’ as issued
by the office of the Director General of Civil Aviation.

(b) Issue an order directing respondent nos. 1 and 2 to monitor the
compliance of all Indian airlines with respect to ‘Civil Aviation
Requirements’ dated 1st May, 2008 with regards to ‘Carriage by Air of
Persons with Disability and/or Persons with Reduced Mobility’, and to
investigate any apparent violations and provide penalties to airlines that
fail to implement these requirements, updating the Civil Aviation
Requirements to include these penalties if appropriate.

(c) Issue an order directing respondent nos. 1 and 2 to investigate the
written complaint dated 21st February, 2012 by petitioner no. 1 and
forwarded by the Indian Institute of Cerebral Palsy, and to take action in
accordance with law against SpiceJet (respondent no. 3) and any and all
officials responsible for the above stated violations.

(d) Issue an order directing SpiceJet (respondent no. 3) authorities,
their men, agents and persons acting on their behalf to adequately
compensate the petitions for lost money, wasted time, and the humiliation
and trauma suffered during the above-mentioned incident;

(e) Issue a writ, order or direction or pass any other or further order
or orders in the interest of justice, as it may deem fit, in the facts and
circumstances of the present case.”
Notice in this petition was issued to the respondents, who are Union of
India (respondent no. 1), DGCA (respondent no. 2) and SpiceJet Ltd.
(respondent no. 3). They filed their responses to the petition. Insofar as
respondent no. 3 – SpiceJet Ltd. airline is concerned, it has given its own
version to the episode occurred on 19th February, 2012 and has denied any
maltreatment to petitioner no. 1, giving their own version of the entire
incident and justifying the action they had taken, in the process. We
shall advert to that aspect in detail later while considering prayer (d) of
this petition.

We have already taken note of some of the international covenants and
instruments guaranteeing rights to persons with disabilities. Insofar as
obligation to fulfill these rights are concerned, the same is not limited
to the Government or government agencies/State but even the private
entities (which shall include private carriers as well) are fastened with
such an obligation which they are supposed to carry out. We have also
mentioned that in the year 2000, respondent no. 2, i.e. DGCA had issued CAR
with regard to ‘carriage’ by persons with disabilities and/or persons with
reduced mobility.

The very fact that such requirements were issued by the Directorate General
of Civil Aviation reflects that the authorities are not oblivious of the
problems that persons with disabilities suffer while undertaking air
travel. At the same time, it was found that these instructions did not
adequately take care of all the hassles which such people have to undergo.
Thankfully, the Government realised the shortcomings in the CAR, 2008 and
agreed to revise the same, which shows positive stance of the Government
and also reflects that the authorities did not treat the present petition
as adversarial and accepted that such causes require ‘social context
adjudication’ approach. To this end in mind, the Ministry of Civil
Aviation appointed an expert committee known as ‘Ashok Kumar Committee’
(hereinafter referred to as the ‘Committee’) under the Chairmanship of Mr.
G. Ashok Kumar, Joint Secretary. The said Committee consisted of as many
as 21 members, including members from the cross-section, i.e. the Ministry,
Airport Authority of India, DGCA, different NGOs working for the benefit of
persons with disabilities, representative of airline, etc. This Committee
did stupendous task by taking care of all the nuances of the issue involved
and submitted its fabulous report, after reviewing the existing CAR for
persons with disabilities.

A perusal of CAR, 2014 discloses the tremendous efforts made by the
Committee taking care of most of the problems which such people face. As
the Executive Summary of the said report shows, the Committee recommended
that allocation of responsibility between airports and airlines should be
clearly defined to avoid delays and inconveniences/hardships to Persons
with Reduced Mobility (for short, ‘PRM’) arising due to lack of
communication between service providers. It has also been suggested that
the equipment and other facilities should be standardised in consultation
with Department of Disabilities Affairs. Internal audits should be
introduced to ensure that assistive devices are available in good condition
and handling persons are properly trained in their use. This aspect should
also be overseen by DGCA. Responsibilities also need to be clearly defined
for each stakeholder, namely, responsibility of the airlines, their agents
and ticketing website for ticketing, airport operator for providing a
helpdesk and assisting the passenger on arrival at the airport,
responsibility of airline for check-in, responsibility of CISF for security
check etc.

The report highlights some important areas which were not covered in the
CAR, 2008. These include accessibility of ticketing system and complaints
and redress mechanism. A ‘Complaints Resolution Officer’ to deal with
issues relating to PRMs has been recommended for each airport. It has also
been suggested that Ombudsman be appointed for settlement of complaints
between complainant and airport/airline through conciliation and mediation.
The report covers the airport facilities and equipment required in an
exhaustive manner. It covers accessible routes and passageways,
wayfinding, signage, automated kiosks, accesible telecommunication
systems/announcements, arrival/departure monitors, seating areas and
guidance for service animals.

The Committee reviewed the CAR, 2008 and made several recommendations for
amendment in the said CAR. It suggested that the definition of persons with
reduced mobility should include such persons who require assistance in air
travel, for example, persons with hearing and vision impairment, persons
with autism etc., who have no visible impairment but still require
facilitation at the airport and in the aircraft. The Committee also
suggested standardisation of training, standard operating procedures, need
for sufficient oversight by authorities, need for clarity on requirement of
medical clearance by passengers, standardisation of equipment at airports
and on aircraft, proper training of security checking personnel and need
for more clarity on seating arrangement to PRMs. It was also suggested
that curbside assistance kiosks should be mandated and guidelines should be
issued on provision of priority tags for passengers on wheelchairs.
Recommendation was made mandating location of dedicated parking space at
airports and for the accessibility of in-flight entertainment system.
Safety briefings in aircraft should also be made in sign language for
persons who are hard of hearing/deaf. It should also cover emergency
evacuation of blind passengers.

The report highlights international best practices on interaction with
persons with disabilities, covering separately the interaction with the
blind, the deaf and persons with mobility disability etc. It also covers
in detail the training procedure, including initial and recurrent training.
Significant recommendations include the following:
Revision of CAR on Carriage by Air of Persons with Disabilities in a time
bound manner.

Ensure compliance of recommendations within 3 years at major airports and
then at other airports in a phased manner.

Address a suggested funding mechanism for meeting cost of implementation.

Define allocation of responsibilities for airlines, airports and others for
their respective roles in providing facilities to persons with
disabilities.

Standardisation of equipment like wheelchairs and facilities designed for
PRMs.

Establishment of Standard Operating Procedures for all service providers
and adequate training of their staff.

Web enabled booking, in-flight briefing and evacuation of such persons.

Implement a mechanism for grievance redressal.

Airlines and airports declare their policy on facilities provided to PRMs
by publishing on their respective websites.
On the filing of the aforesaid report in this Court, the learned Additional
Solicitor General appearing on behalf of the Union of India was asked about
the action which the Government intended to take on those recommendations.
Taking this report as the basis the Ministry has issued amended CAR dated
28th February 2014 (hereinafter referred to as CAR, 2014). Though most of
the recommendations are accepted, there is some tweeking done by the
Government and some of the suggestions of the Committee are not
incorporated in the revised CAR, 2014. This prompted the petitioners to
give their comments pointing out that some of the suggestions given by the
Committee are not incorporated and therefore CAR, 2014 needed further
modification and fine-tuning. The Government had taken time to respond to
the same.

The reply/comments which is given by the official respondents to the
suggestions given by the petitioners, and as encapsulated in the tabulated
form above, takes care of many of the apprehensions expressed by the
petitioners. However, notwithstanding the same, in certain respects the
guidelines can be further fine-tuned by the official respondents, keeping
in view the recommendations of the Committee, where they have not been
fully implemented. We, therefore, are of the opinion that the following
aspects may be reconsidered by the DGCA/Government to see whether they can
be incorporated in CAR 2014 by proper amendments:
(1) In spite of procurement of standardised assistive devices,
which is mentioned at S.No. 2 above, it is pointed out by the learned
counsel for the petitioners that all airports should procure all assistive
equipments based on the schedule of standardised equipments and this
standardisation should be done in consultation with the Department of
Disability Affairs in a suitable time frame. It is pointed out that the
same is not reflected in the CAR, 2014. The explanation given by the
respondents is that the standardised processes are normally better achieved
through deliberation with stakeholders ensuring economic viability and
Department of Disability Affairs is a separate authority which is not under
the purview of DGCA. However, that could not be the reason for not making
a joint effort or involving the Department of Disability Affairs. We,
therefore, direct that the concerned officers of the DGCA as well as
officers from the Department of Disability Affairs, which is under the
Ministry of Social Justice and Empowerment, shall have a joint discussion
on this aspect to consider the recommendation given by the Committee.

(2) On ‘Help Desk’ (mentioned at S.No.4), the Committee had
recommended a telephonic help desk which would be fully accessible, to be
set up to receive assistance requests in advance from passengers with
disability. In response, it is stated by the respondents that concern
regarding help desk would be addressed through compliance of various sub-
paras of para 4 of draft CAR. In spite of complying the same in an
indirect manner through the said provisions, it may be considered to
specifically provide for a separate help desk to take care of the
complaints, queries etc. of all passengers with disability.

(3) Regarding wheelchair usage (S.No.6), though the Committee had
recommended that the passengers with disabilities should be allowed to
retain the use of their wheelchair, this has not been accepted keeping in
view the safety of aircraft operations. The concern of the respondents may
be justified to some extent, but we still feel that this aspect be
reconsidered, viz. whether it would be feasible to allow such passengers to
use their wheelchairs, at the same time imposing conditions which may take
care of safety. We say so because of the reason that in the Committee
there were representatives from security agencies as well and still such a
recommendation is made which implies that the members of the Committee
would have kept in view the safety norms and yet made this recommendation
as it appeared to be feasible to them.

(4) In spite of security check of such disabled passengers, the
Committee has suggested, in Annexure 4, in detail the manner in which
security check should be handled by the Central Industrial Security Force
(CISF). Admittedly, in the CAR this has not been incorporated. The issue
is skirted by merely stating that security check and their training is
under the purview of Bureau of Civil Aviation Security (BCAS). BCAS can be
involved and in consultation with the officers of BCAS this aspect can be
reconsidered.

(5) Insofar as facilities to passengers with disability while on
board the aircraft is concerned (S.No.11), the suggestion of the Committee
was that the communication of essential information concerning a flight
should be in accessible formats. Likewise, flight entertainment should
also be in accessible formats and the cabin crew should assist the
passenger to access toilet if requested using on-board aisle chair. We
find that para 4.1.5 of the CAR does not cover all the aspects of the
recommendations given by the Committee. It would be more appropriate to
incorporate the same in the CAR so that it becomes a bounden duty of the
airlines to ensure that passengers with disability are taken care of more
appropriately while they are on-board.

(6) Insofar as complaint mechanism is concerned (S.No. 13), the
Committee has given detailed procedure to address such complaints, which
begins from the Complaints Resolution Officer (CRO) who is placed at the
airport itself. The response of the official respondents is that it may
not be feasible in small airports. Even if that be so, to begin with, such
a mechanism can be introduced at big/major airports. This aspect,
therefore, needs to be reconsidered.

(7) At S.No. 17, the aspect of training and sensitisation is dealt
with. This is one aspect which needs serious attention. No doubt, some
provisions are made in CAR, 2014 with regard to training that is to be
provided to the staff and security personnel dealing with persons with
disability or reduced mobility. We impress upon the official respondents
to draft a suitable module for such training which ensures that the staff
and security personnel, who are trained in this behalf, are suitably
sensitised. It hardly needs to be emphasised that unless such staff is
sensitive to the needs of persons with disability or reduced mobility and
is properly equipped to take care of such passengers with the empathy that
is required, whatever mechanism is put in place is not going to be
successful. Therefore, we urge upon the respondents to prepare such
training modules, the manner in which training is to be provided and ensure
that the airlines as well as airports conduct such training programmes, at
regular intervals, for the concerned officials who are supposed to deal
with these passengers.

(8) Equally important is the issue of offloading of passengers
(S.No.19) which needs to be taken care of with all seriousness it deserves.
We are of the view that suitable provision in the training module itself
be provided in this behalf as well.

We direct that the official respondents, in consultation with
other departments as mentioned above, shall consider the aforesaid aspects,
and even other aspects which deserve such attention but may not have been
specified by us, within a period of three months and on that basis whatever
further provisions are to be incorporated should be inserted.

With this, we address ourselves to the relief claimed by Jeeja Ghosh
against respondent No.3 – SpiceJet Ltd., i.e. prayer (d) of the writ
petition.

The petitioners have stated in detail the treatment which was meted out to
Jeeja Ghosh on February 19, 2012 when she was forcibly de-boarded by the
flight crew due to the insistence of the Captain of the aircraft, because
of her disability. It is stated that she was going from Kolkata to Goa to
attend a conference which was organised by petitioner No.2, which she had
to miss. She has also narrated the trauma, shock and mental pain which she
has suffered as a result of this event.

We have already mentioned the gist of the event as narrated by the
petitioners. We may mention at this stage that Jeeja Ghosh has also filed
a claim before the State Consumer Dispute Redressal Commission, Kolkata,
which is pending adjudication. We were informed that the State Commission
has been adjourning the matter from time to time because of the pendency of
the instant writ petition. Both the sides agreed that the claim of Jeeja
Ghosh be decided by this Court in the present writ petition itself. For
this reason, we had heard the petitioners as well as learned counsel for
respondent No.3, on this issue.

Respondent No.3 has filed an affidavit stating its own version in respect
of the incident. The allegation of respondent No.3 is that it is Jeeja
Ghosh who failed to follow the procedure laid down in Article 4.1 of CAR,
2008 by not informing respondent No.3, at the time of booking of tickets as
well as at the time of check-in, about her disability. It is the say of
respondent No.3 that this led to confusion and subsequent de-boarding of
Jeeja Ghosh occasioned by the lack of knowledge of her condition among the
crew members present there and her visible disability and poor health
condition, as according to the respondents her condition had taken a turn
for the worse as soon as she boarded the aircraft and it was not possible
to take risk by allowing her to take five hour long flight journey without
being escorted by any person who could have taken care of her. It is
stated that had she informed about her sickness, the airlines would have
made proper escort arrangements. It is further stated that by not
disclosing her disability, it is Jeeja Ghosh who was jeopardising her own
safety and the safety of other persons on board the aircraft. It was also
argued that the crew of respondent No.3 in fact complied with Rules 22 and
141 of the Aircraft Rules, 1937 (for short, ‘Rules, 1937’) by de-boarding
Jeeja Ghosh and that in the circumstances that existed, it was a bona fide
act on the part of the officials of respondent No.3. According to them,
the action was in the larger interest of other persons in the aircraft as
their safety was also paramount and had to be taken care of.

Referring to Article 5.2 of CAR, 2008 it is argued that a medical clearance
may be required by the airlines when the airline, inter alia, receives
information that there exists a possibility of medical condition getting
aggravated during or because of the flight, of a passenger. Refuting the
claim of the petitioners that medical condition of Jeeja Ghosh was not a
disability stricto sensu, it is the say of respondent No.3 that as per the
medical literacy, cerebral palsy affects body movement, muscle control,
muscle coordination, muscle tone, reflex, posture and balance. It can also
impact fine motor skills, gross motor skills and oral motor functioning.
Therefore, Jeeja Ghosh could have faced serious consequences during the
long air journey which would have been much serious.

Learned counsel for the petitioners, on the other hand, refuted the
aforesaid contentions of the counsel for respondent No.3. It was
vehemently denied that Jeeja Ghosh had failed to follow the procedure laid
down in Article 4.1 of CAR, 2008. Article 4.1 reads as follows:
“No airline shall refuse to carry persons with disability or persons with
reduced mobility and their assistive aids/devices, escorts and guide dogs
including their presence in the cabin, provided such persons or their
representatives, at the time of booking and/or check-in for travel, inform
the airlines of their requirement. The airlines shall incorporate
appropriate provisions in the online form of booking tickets so that all
the required facilities are made available to the passengers with
disabilities at the time of check-in.”

Learned counsel argued that the aforesaid provision is in two parts: one
applies to persons with disability and the second party applies to persons
with disability who require assistant devices or aids. It was argued that
the proviso applies to the latter category only whereas Jeeja Ghosh is
merely a person with cerebral palsy and did not require any assistant
device or aid. The only assistance she required was regarding her baggage
which she asked for at the time of security check-in. Thus, there was no
reason as to why she was asked to de-board the aircraft when there was no
assistant device or aids about which she ought to have informed the
airlines. It is claimed that so far as requirement of assistance regarding
baggage is concerned, she had duly informed the officials of the airlines.
Refuting the argument of learned counsel appearing for respondent No.3
predicated on Rules 22 and 141 of the Rules, 1937, it was submitted that
the Operations Manual of the airline places an obligation on the Pilot in-
charge not to commence the flight until he/she is sure of the safety of all
the passengers. In the present case, there was no evidence to prove that
Jeeja Ghosh had posed any hazard to the safety of the Pilot in-charge or
other passengers. Moreover, the decision to de-board her was taken without
even interacting with her. The claim of respondent No.3 that blood and
froth was oozing out of the sides of her mouth is denied with the
submission that there is no evidence to prove the same. On the contrary,
it is claimed, she was completely fine and it was only the conduct of the
respondent airline which became a cause of her subsequent sickness.
Referring to the offer given by the airline to fly Jeeja Ghosh on the very
next day, it is submitted that this act on the part of the airlines itself
shows that Jeeja Ghosh was alright and there was no medical condition which
would have been prevented her from flying. Mocking the stand of the
airline that the person having cerebral palsy would, in emergency
situation, not be able to respond to the safety instructions and she is a
risk to herself and potential danger to the lives of co-passengers also,
the submission of the petitioners is that it is in complete contravention
of CAR, 2008 which prohibits the airlines from refusing to carry a person
with disability or person with reduced mobility. The relevant provisions
in this regard have already been extracted above.

After considering the respective arguments of the counsel for the parties
and going through the relevant provisions of Rules and CAR, 2008 brought to
our notice, we arrive at the irresistible conclusion that Jeeja Ghosh was
not given appropriate, fair and caring treatment which she required with
due sensitivity, and the decision to de-board her, in the given
circumstances, was uncalled for. More than that, the manner in which she
was treated while de-boarding from the aircraft, depicts total lack of
sensitivity on the part of the officials of the airlines. The manner in
which she was dealt with proves the assertion of Shapiro as correct and
justified that ‘non-disabled do not understand disabled ones’.

It is not in dispute that the Pilot as well as the Crew members of the
airlines are supposed to ensure the safety of all the passengers and a
decision can be taken to de-board a particular passenger in the larger
interest and safety of other co-passengers. The question is, whether such
a situation existed when Jeeja Ghosh was de-boarded? Whether this decision
was taken by the airlines after taking due deliberations and with medical
advise? Unfortunately, the answer is a big ‘NO’. Jeeja Ghosh is a
disabled person who suffers from cerebral palsy. But her condition was not
such which required any assistive devices or aids. She had demanded
assistance regarding her baggage at the time of security check-in, from the
check-in counter. For boarding of the aircraft, she came of her own. This
was noticed not only by the persons at the check-in counter but also by
security personnel who frisked her and the attendant who assisted her in
carrying her baggage up to the aircraft. Even if we assume that there was
some blood or froth that was noticed to be oozing out from the sides of her
mouth when she was seated in the aircraft (though vehemently denied by
her), nobody even cared to interact with her and asked her the reason for
the same. No doctor was summoned to examine her condition. Abruptly and
without any justification, decision was taken to de-board her without
ascertaining as to whether her condition was such which prevented her from
flying. This clearly amounts to violation of Rule 133-A of Rules, 1937 and
the CAR, 2008 guidelines.

The rights that are guaranteed to differently abled persons under the Act,
1995 are founded on the sound principle of human dignity which is the core
value of human right and is treated as a significant facet of right to life
and liberty. Such a right, now treated as human right of the persons who
are disabled, has it roots in Article 21 of the Constitution.
Jurisprudentially, three types of models for determining the content of the
constitutional value of human dignity are recognised. These are: (i)
Theological Models, (ii) Philosophical Models, and (iii) Constitutional
Models. Legal scholars were called upon to determine the theological basis
of human dignity as a constitutional value and as a constitutional right.
Philosophers also came out with their views justifying human dignity as
core human value. Legal understanding is influenced by theological and
philosophical views, though these two are not identical. Aquinas and Kant
discussed the jurisprudential aspects of human dignity based on the
aforesaid philosophies. Over a period of time, human dignity has found its
way through constitutionalism, whether written or unwritten. Even right to
equality is interpreted based on the value of human dignity. Insofar as
India is concerned, we are not even required to take shelter under
theological or philosophical theories. We have a written Constitution
which guarantees human rights that are contained in Part III with the
caption “Fundamental Rights”. One such right enshrined in Article 21 is
right to life and liberty. Right to life is given a purposeful meaning by
this Court to include right to live with dignity. It is the purposive
interpretation which has been adopted by this Court to give a content of
the right to human dignity as the fulfillment of the constitutional value
enshrined in Article 21. Thus, human dignity is a constitutional value and
a constitutional goal. What are the dimensions of constitutional value of
human dignity? It is beautifully illustrated by Aharon Barak[2] (former
Chief Justice of the Supreme Court of Israel) in the following manner:
“The constitutional value of human dignity has a central normative role.
Human dignity as a constitutional value is the factor that unites the human
rights into one whole. It ensures the normative unity of human rights.
This normative unity is expressed in the three ways: first, the value of
human dignity serves as a normative basis for constitutional rights set out
in the constitution; second, it serves as an interpretative principle for
determining the scope of constitutional rights, including the right to
human dignity; third, the value of human dignity has an important role in
determining the proportionality of a statute limiting a constitutional
right.”

All the three goals of human dignity as a constitutional value are expanded
by the author in a scholarly manner. Some of the excerpts thereof, are
reproduced below which give a glimpse of these goals:
“The first role of human dignity as a constitutional value is expressed in
the approach that it comprises the foundation for all of the constitutional
rights. Human dignity is the central argument for the existence of human
rights. It is the rationale for them all. It is the justification for the
existence of rights. According to Christoph Enders, it is the
constitutional value that determines that every person has the right to
have rights…

The second role of human dignity as a constitutional value is to provide
meaning to the norms of the legal system. According to purposive
interpretation, all of the provisions of the constitution, and particularly
all of the rights in the constitutional bill of rights, are interpreted in
light of human dignity…

Lastly, human dignity as a constitutional value influences the development
of the common law. Indeed, where common law is recognized, judges have the
duty to develop it, and if necessary modify it, so that it expresses
constitutional values, including the constitutional value of human dignity.
To the extent that common law determines rights and duties between
individuals, it might limit the human dignity of one individual and protect
the human dignity of the other.”

We should, therefore, keep in mind that CAR instructions have also been
issued keeping in view the spirit of human dignity enshrined in Article 21
and the right that are to be ensured to such persons. The underlying
message in all these provisions is the acknowledgment that human rights are
individual and have a definite linkage to human development, both sharing
common vision and with a common purpose. Respect for human rights is the
root for human development and realisation of full potential of each
individual, which in turn leads to the augmentation of human resources with
progress of the nation. Empowerment of the people through human
development is the aim of human rights.

In international human rights law, equality is founded upon two
complementary principles: non-discrimination and reasonable
differentiation. The principle of non-discrimination seeks to ensure that
all persons can equally enjoy and exercise all their rights and freedoms.
Discrimination occurs due to arbitrary denial of opportunities for equal
participation. For example, when public facilities and services are set on
standards out of the reach of persons with disabilities, it leads to
exclusion and denial of rights. Equality not only implies preventing
discrimination (example, the protection of individuals against unfavourable
treatment by introducing anti-discrimination laws), but goes beyond in
remedying discrimination against groups suffering systematic discrimination
in society. In concrete terms, it means embracing the notion of positive
rights, affirmative action and reasonable accommodation. The move from
the patronising and paternalistic approach to persons with disabilities
represented by the medical model to viewing them as members of the
community with equal rights has also been reflected in the evolution of
international standards relating specifically to disabilities, as well as
in moves to place the rights of persons with disabilities within the
category of universal human rights. {See – Report of United Nations
Consultative Expert Group Meeting on International Norms and Standards
Relating to Disability 10-2-2001}.

Earlier the traditional approaches to disability have depicted it as health
and welfare issue, to be addressed through care provided to persons with
disabilities, from a charitable point of view. The disabled persons are
viewed as abnormal, deserving of pity and are, and not as individuals who
are entitled to enjoy the same opportunities to live a full and satisfying
life as other members of society. This resulted in marginalising the
disabled persons and their exclusion both from the mainstream of the
society and enjoyment of their fundamental rights and freedoms. Disability
tends to be couched within a medical and welfare framework, identifying
people with disabilities as ill, different from their non-disabled peers,
and in need of care. Because the emphasis is on the medical needs of
people with disabilities, there is a corresponding neglect of their wider
social needs, which has resulted in severe isolation for people with
disabilities and their families.

However, the nations have come a long way from that stage. Real awareness
has dawned on the society at large that the problems of differently abled
are to be viewed from human rights perspective. This thinking is reflected
in two major declarations on the disability adopted by the General Assembly
of the United Nations on December 20, 1971 and thereafter in the year 1975.
The position was reiterated in the Beijing Conclave by the Government of
Asian and Pacific Countries that was held from December 01-05, 1992 and in
order to convert the resolutions adopted therein into reality, the Indian
Parliament also passed the enactment, i.e. Act, 1995.

All these rights conferred upon such persons send an eloquent message that
there is no question of sympathising with such persons and extending them
medical or other help. What is to be borne in mind is that they are also
human beings and they have to grow as normal persons and are to be extended
all facilities in this behalf. The subject of the rights of persons with
disabilities should be approached from human rights perspective, which
recognised that persons with disabilities were entitled to enjoy the full
range of internationally guaranteed rights and freedoms without
discrimination on the ground of disability. This creates an obligation on
the part of the State to take positive measures to ensure that in reality
persons with disabilities get enabled to exercise those rights. There
should be insistence on the full measure of general human rights guarantees
in the case of persons with disabilities, as well as developing specific
instruments that refine and given detailed contextual content of those
general guarantees. There should be a full recognition of the fact that
persons with disability were integral part of the community, equal in
dignity and entitled to enjoy the same human rights and freedoms as others.
It is a sad commentary that this perceptions has not sunk in the mind and
souls of those who are not concerned with the enforcement of these rights.
The persons suffering from mental or physical disability experience and
encounter nonpareil form of discrimination.They are not looked down by
people. However, they are not accepted in the main stream either even when
people sympathies with them. Most common, their lives are handicapped by
social, cultural and attitudinal barriers which hamper their full
participation and enjoyment of equal rights and opportunities. This is the
worst form of discrimination which disabled feel as their grievance is that
others do not understand them.

As pointed out in the beginning, the very first sentence of the book “NO
PITY” authored by Joseph P.Shapiro reads:
“Non disabled Americans do not understand disabled ones.”

The only error in the aforesaid sentence is that it is
attributed to Americans only whereas the harsh reality is that this
statement has universal application. The sentence should have read:
“Non disabled people do not understand disabled ones.”

For, non-disabled people generally look upon disabled ones with
pity. The general feeling is that these `invalid people’ are incapable of
doing anything in life. They are burden on the society which the society
bear. Of course, they sympathize with disabled persons. They may even
want to willingly bear the burden. They may help them financially or
otherwise. However, what they do not understand is the feeling of the
people with disabilities. Disabled people no longer see their physical or
mental limitations as a source of shame or as something to overcome in
order to inspire others. What non-disabled people do not understand is
that people with disabilities also have some rights, hopes and aspirations
as everyone else. They do not want to depend on others. They want to
brave their disabilities. They want to prove to the world at large that
notwithstanding their disabilities they can be the master of their own
lives. They can be independent. They can be self-reliant. They do not
want sympathies of non-disabled. They want to be trusted. They want to be
treated as valued member of the society who can contribute to the
development and progress of the society. For this they want the proper
environment to grow. Our society automatically under-estimates the
capabilities of people with disabilities. People with disabilities want
this change in the thinking of non-disabled. It is the thinking of
Disability Rights Movement, USA that it is not so much the disabled
individual who needs to change, but the society. Says disability rights
activist Judy Heumann:
“disability only becomes a tragedy for me when society fails to provide the
things we need to lead our lives-job opportunities, or barrier-free
buildings, for example. It is not a tragedy to me that I am living in a
wheel chair.”
Helen Keller represents the mind of such disabled persons when she says “I
am only one; but still I am one. I cannot do everything, but still I can do
something; I will not refuse to do something I can do”.

It is the common experience of several persons with disabilities that they
are unable to lead a full life due to societal barriers and discrimination
faced by them in employment, access to public spaces, transportation etc.
Persons with disability are most neglected lot not only in the society but
also in the family. More often they are an object of pity. There are
hardly any meaningful attempts to assimilate them in the mainstream of the
nation’s life. The apathy towards their problems is so pervasive that even
the number of disabled persons existing in the country is not well
documented.

Jeeja Ghosh herself is a living example who has, notwithstanding her
disability, achieved so much in life by her sheer determination to overcome
her disability and become a responsible and valuable citizen of this
country. A little care, a little sensitivity and a little positive
attitude on the part of the officials of the airlines would not have
resulted in the trauma, pain and suffering that Jeeja Ghosh had to undergo.
This has resulted in violation of her human dignity and, thus, her
fundamental right, though by a private enterprise (respondent No.3).

On our finding that respondent No.3 acted in a callous manner, and in the
process violated Rules, 1937 and CAR, 2008 guidelines resulting in mental
and physical suffering experienced by Jeeja Ghosh and also unreasonable
discrimination against her, we award a sum of ?10,00,000 as damages to be
payable to her by respondent No.3 within a period of two months from today.
This petition stands allowed and disposed of in the
aforesaid terms.

We would like to conclude this judgment by observing that to most disabled
persons, the society they live in is a closed door which has been locked
and the key to which has been thrown away by the others. Helen Keller has
described this phenomena in the following words:
“Some people see a closed door and turn away. Others see a closed door,
try the knob and if it doesn’t open, they turn away. Still others see a
closed door, try the knob and if it doesn’t work, they find a key and if
the key doesn’t fit, they turn way. A rare few see a closed door, try the
knob, if it doesn’t open and they find a key and if it doesn’t fit, they
make one!”

These rare persons we have to find out.

……………………….J.(A.K. SIKRI)
…………………………J.(R.K. AGRAWAL)
NEW DELHI;
MAY 12, 2016.
———————–

[1] `NO PITY’: People with Disabilities Forging a New Civil Rights
Movement’ [Indian reprint by Universal Book Traders]
[2] Aharon Barak “Human Dignity – The Constitutional Value and the
Constitutional Right” Cambridge University Press (2015)