2016 (5) TMI 1550 - SC - Indian Laws

Violation of Fundamental Human Rights - rights of differently abled persons - petitioner was forcefully made to de-board the flight for her physical disability - 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 - HELD THAT - The irresistible conclusion is 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 133A of Rules, 1937 and the CAR, 2008 guidelines. 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. 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) - 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. Petition allowed.

Summary

Issues Involved:
1. Violation of rights of persons with disabilities.
2. Compliance with Civil Aviation Requirements (CAR) by airlines.
3. Compensation for humiliation and trauma caused to a disabled passenger.
4. Implementation of international norms and standards relating to disability.
5. Training and sensitization of airline and airport staff.
6. Complaint and redressal mechanisms for disabled passengers.
7. Offloading of passengers with disabilities.

Issue-wise Detailed Analysis:

1. Violation of rights of persons with disabilities:
The judgment highlights the unfortunate incident where Ms. Jeeja Ghosh, a person with cerebral palsy, was forcibly de-boarded from a Spice Jet flight. The court emphasized that this act violated her fundamental rights under Articles 14 and 21 of the Constitution, which guarantee the right to equality and the right to life with dignity. The court noted that the treatment meted out to Ms. Ghosh depicted a total lack of sensitivity and understanding of the needs of disabled persons, reinforcing the assertion that "non-disabled do not understand disabled ones."

2. Compliance with Civil Aviation Requirements (CAR) by airlines:
The court examined the compliance of Spice Jet with the Civil Aviation Requirements (CAR) dated 1st May 2008, which mandate that no airline shall refuse to carry persons with disabilities. The court found that Spice Jet violated several provisions of CAR, including the requirement to provide necessary assistance to disabled passengers and ensuring their seamless travel. The court directed that the CAR be revised to incorporate more comprehensive guidelines to protect the rights of disabled passengers.

3. Compensation for humiliation and trauma caused to a disabled passenger:
The court awarded a sum of ?10,00,000 as damages to Ms. Jeeja Ghosh for the mental and physical suffering she endured due to the callous actions of Spice Jet. The court noted that the incident resulted in a violation of her human dignity and fundamental rights, and the compensation was deemed necessary to address the trauma and humiliation she experienced.

4. Implementation of international norms and standards relating to disability:
The judgment referenced various international legal instruments, including the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which India ratified in 2007. The court emphasized that these international norms obligate the state and private entities to ensure that disabled persons can enjoy their rights without discrimination. The court also highlighted the need for India's internal legislation to comply with these international commitments, as mandated by the Vienna Convention on the Law of Treaties, 1963.

5. Training and sensitization of airline and airport staff:
The court underscored the importance of training and sensitizing airline and airport staff to the needs of disabled passengers. It directed the Directorate General of Civil Aviation (DGCA) to draft a suitable training module to ensure that staff are properly equipped to assist disabled passengers with empathy and understanding. The court emphasized that without proper training and sensitization, the mechanisms put in place to protect the rights of disabled passengers would not be effective.

6. Complaint and redressal mechanisms for disabled passengers:
The court highlighted the need for a robust complaint and redressal mechanism to address grievances of disabled passengers. It noted that the existing CAR provisions were inadequate and directed the DGCA to reconsider and incorporate a detailed procedure for handling complaints, starting with a Complaints Resolution Officer (CRO) at major airports. The court stressed that such a mechanism is essential to ensure that disabled passengers can seek redressal for any violations of their rights.

7. Offloading of passengers with disabilities:
The court addressed the issue of offloading passengers with disabilities, emphasizing that such decisions should be taken with utmost care and sensitivity. It directed that the training module for airline staff should include specific provisions on handling situations where a disabled passenger may need to be offloaded. The court stressed that the safety of all passengers is paramount, but decisions should not be taken arbitrarily or without proper medical advice.

Conclusion:
The court allowed the petition and directed the DGCA and other relevant authorities to reconsider and incorporate the recommendations of the Ashok Kumar Committee to ensure that the rights of disabled passengers are protected. The court's judgment serves as a significant step towards ensuring that disabled persons can travel with dignity and without discrimination.