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TMI Blog2016 (5) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 justificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulesh Kumar, Kiran Bhardwaj, Snidha Mehra and B. Krishna Prasad, Advs. JUDGMENT A.K. Sikri, J. 1. In the book on the rights of differently abled persons authored by Joseph P. Shapiro, which is titled NO PITY 1'NO PITY': People with Disabilities Forging a New Civil Rights Movement' [Indian reprint by Universal Book Traders], the first chapter, 'Introduction' has the sub-title 'You Just Don't Understand' and the very first sentence of the said book is: 'Non-disabled Americans do not understand disabled ones'. 2. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isabilities 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 Spice Jet 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. 5. 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. 6. It is averred in the petition that as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 11. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 Spice Jet 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. 16. 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 Aviatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had issued CAR with regard to 'carriage' by persons with disabilities and/or persons with reduced mobility. 19. 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, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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. 23. The report highlights international best practices on interaction with persons with disabilities, cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its entirety: S. No. Suggestion Reply 1. Definition/Scope of the CAR While the Ashok Kumar Committee Report's proposed definition was accepted, the draft CAR also incorporates the category of incapacitated persons which should be removed and substituted with persons with additional/specific Support requirements . The term physical or mental impairment is defined to include such diseases and conditions as orthopaedic, visual, speech and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction and alcoholism -and it is to be noted that autism has been excluded from this. This must be rectified to include autism, and in the alternative, the definition proposed by the Committee must be accepted in its entirety. The term 'Person with Disability' has been retained in the CAR to keep the terminology in line with ICAO Annex 9 and Circular 274 on and Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices are available and are in good condition and assistance and training are provided in adequate and proper manner. The Committee recommended that the DGCA would oversee as the regulator. The draft CAR mandates surveillance of the operators by the DGCA as part of Annual Surveillance Programme. The audit system must be an internal one, on the lines of the Ashok Kumar Committee recommendations, which can be more frequent and detailed. Para 4.3.1 to 4.3.7 of the CAR deals with the training of personnel for staff engaged in passenger handling for sensitisation and developing awareness for assisting persons with disability or reduced mobility. Para 4.4.2 of the CAR mentions that stakeholders develop an in-house document on handling persons with disability or reduced mobility and the proof of its compliance shall be made available to DGCA and other enforcement agencies. In place of internal audit on regular interval, the assistive devices require maintenance as per OEM instruction and checks by operators. The effectiveness of their maintenance can be ensured through annual surveillance stated at 4.4.9 of the CAR. 4. Help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility. Similarly, for persons who are blind/are visually impaired, getting from the drop-off point to the entry to the departure gate is extremely difficult. The draft CAR eliminates the curbside kiosk facility. The draft CAR states that Once persons with disability or reduced mobility report at the airport with valid booking and intention to travel, the airline shall provide assistance to meet their particular needs and ensure their seamless travel from the departure terminal of the departing airport upto the aircraft and at the end of the journey from the aircraft to the arrival terminal exit, without any additional expenses . This seems to indicate that the CAR does not cover entry into and exit from the larger airport premises, which is severely problematic and must be amended to reflect the intention of the Committee. The suggestion made is addressed under Paras 4.2.9 and 4.2.10 of the CAR which states that airport operator shall ensure that persons with disability or reduced mobility are transported within the airport in the same condition, comfort and safety as those available for other passengers and that the facilities at the airport are accessible t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious stages such as storage, loading, unloading and transportation. Hence the CAR says that acceptance of automated wheelchair/assistive devices using batteries shall be subject to the application of relevant regulations concerning dangerous goods. 7. Checking in assistive aids While airlines should never insist on assistive aids and devices being checked in, in the event that assistive aids are to be checked in, the Committee recommended that certain safeguards be in place e.g. the use of Priority tags, barring the transport of assistive aids/equipment by conveyor belt, prioritizing the loading and unloading of assistive aids/equipment. These guidelines are completely missing from the draft CAR. Security check is under the purview of BCAS and not under the airline purview. Para 4.1.23 states that airlines shall make suitable arrangements for assisting persons with disability or reduced mobility for their quick clearance and baggage deliver and that their checked-in baggage should be given Assistive Device tags to ensure early identification and assistance by the airline ground staff. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isabilities being treated in a manner that is against their dignity and self respect. This must be removed. Airports must be responsible for procuring assistive aids and devices to ensure hassle free boarding and disembarking from the aircraft. The term subject to limitations of the aircraft was included in the CAR as some small sector flights use smaller aircrafts, whose aisle width may not allow movement of aisle wheelchair. However, issue has been addressed through Para 4.1.34 which stated that airlines shall ensure that aircraft coming newly into service or after major refurbishment shall be fitted with special equipment to cater for the needs of persons with disability or reduced mobility commensurate with the size of aircraft. Para 4.1.9 For embarkation/disembarkation and in-flight use, airlines shall have provision of onboard aisle wheelchairs for persons with disability or reduced mobility not carried on stretchers, wherever possible subject to limitations of aircraft. The onboard aisle wheelchair shall conform to specifications as laid down by Disabled Persons Transport Advisory Committee (DPTAC), UK. 10. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability or reduced mobility in any of the form of passenger briefing card, individualized verbal briefing, video display (in aircraft with In-flight Entertainment System), etc. 12. Ticketing System and Website The draft CAR does not, unlike the Committee Report, mandate that airline, airport and ticketing websites have to adhere specifically to W3C web accessibility standards (available at http://www.w3.org/WAI/intro/wcag.php). The same must be mandated as it is the global standard in accessibility. The W3C web accessibility standards are not recognised by Indian Govt. However, procedures similar to the mentioned standards are incorporated in the CAR at point nos. 4.1.1, 4.1.2, 4.1.3 and 4.4.1. 13. Complaint Mechanism In case of deficiency of service relating to persons with disabilities, the Committee Report details a procedure which begins from the Complaints Resolution Officer (CRO), who is placed at the Airport itself, who will make attempts to resolve the grievance, and if the same fails, he is mandated to assist the passenger in making a complaint to the Ombudsman ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical conditions could lie down and rest/stretch/straighten themselves. There is no such emphasis in the Draft CAR, which is silent on the specific issue of seating. Para 4.2.2 and 4.2.3 of the CAR is with regard to special reservations in the terminal building and parking of the airport for persons with disability or reduced mobility. 16. Service Animals While the general concerns relating to service animals and their ability to travel with the person they are assisting have been addressed in the document, the question of relieving areas for the Service Animals, which has been detailed in the Committee Report, has not been dealt with in the Draft CAR. The carriage of animals guide dogs for persons with disability or reduced mobility is as mentioned in Para 4.1.16 of the CAR. Further, carriage of animals by air is governed by Aeronautical Information Circular (AIC) 9 of 1985, wherein the concerns mentioned in the suggestion are addressed. 17. Training and Sensitization Annexure 2 of the Committee Report has detailed provisions relating to training and sensitizatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation is not desirable. 19. Offloading of Passengers While the Draft CAR seems to be clear on the question of medical papers, the exact grounds on which medical clearance is required by passengers and the medical grounds on which a passenger can be refused travel or offloaded is not clarified. Under no circumstances can persons with disabilities be asked to provide medical clearance papers if they have no other ailment or medical condition which would hinder their ability to fly. The Government Issued Disability Card is sufficient documentation for all purposes. There is some ambiguity with regard to pilot's discretion in offloading passengers which requires to be clarified as well and this discretion cannot extend to evicting persons with disabilities off a flight. In order to discourage airlines form offloading passengers on basis of disability, airlines have been asked to specify in writing the basis of such refusal indicating its opinion that transportation of such persons would or might be inimical to the safety of flight. The same has been mentioned in Para 4.1.35 of the CAR. Passengers having an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maximum permissible weight and dimensions of assistive aids/equipment to carried The Committee Report specifically deals with this issue and prescribes that irrespective of the weight and dimensions of assistive aids/equipment they should be allowed to be checked in free of cost. It is important that the permissible weight is high enough such that motorized wheel chairs and mobility scooters can be checked-in free of cost. All assistive aids/equipment that can fit in the internal storage space shall be allowed to be taken on board. Other than for takeoff and landing, the assistive aids shall be made available for the passenger on request. The Draft CAR does not deal with this issue at all. Para 4.1.8 of the CAR lays down the condition for usage of own wheel chair till embarkation. Assistive devices weighing up to 15 Kg free of charge as additional baggage have been allowed subject to the limitation of the aircraft. The same is addressed in Para 4.1.24 of the CAR. 23. Priority in using toilet facilities in aircraft The Committee Report specifies that persons with disabilities must be given priority to access toil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 31. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 34. After considering the respective arguments of the counsel for the parties and going through the relevant provisions of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 38. 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. 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th disabilities and their families. 41. 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. 42. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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, f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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