# JEEJA GHOSH & ANR v. UNION OF INDIA & ORS

- **Citation:** [2016] 4 S.C.R. 638
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Bench:** A.K. Sikri, R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jeeja-ghosh-anr-v-union-of-india-ors-31223
- **Pages:** 47

## Headnote

Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 - Public Interest
Litigation - By a differently abled person - Alleging that she was
de-boarded from aircraft (of private airlines) due to her disability -
Plea that the act resulted in agony, humiliation and emotional trauma
- And it amounted to violence to her human dignity and infringed
her fundamental rights guaranteed u/Art. 14 and 21 of the
Constitution - Held: The problems of the differently a bled are to be
viewed from human rights perspective - Persons with disabilities
do not need sympathy but are entitled to enjoy the full range of
internationally guaranteed rights and freedom without discrimination
on the ground of disability - It is obligatory on the part of the State
to ensure that persons with disabilities get enabled to exercise those
rights - There should be a full recognition of the fact that persons
with disability are integral part of the community, equal in dignity
and entitled to enjoy the same human rights and freedoms as others
- The Act encapsulates the Governments obligation to ensure that
those with disabilities can achieve their full potential free from any
discrimination and harassment - The Act specifically deals with
transportation system, including airports and aircrafts - Various
international legal instruments also guarantee the rights of the
disabled - The obligation to fulfill the right of the disabled not
limited to the Government, but even the private entities m:e fastened
with such obligation - The rights guaranteed under the Act and the
instructions under Civil Aviation Requirements are founded on the
sound principles of human dignity which is the core value of human
rights enshrined u/Art. 21 - In the present case, the decision to deboard_the petitioner amounts to violation of r.133-A of Aircraft Rules,
1937 and Civil Aviation Requirements, 2008 guidelines and is also
in violation of her human dignity and thus her fundamental rights,
though by a private enterprise - The erring airlines is directed to
638
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
award Rs. I 0 lakhs to the petitioner as damages - Constitution of
India - Arts. 14 and 21 - Human Rights - Aircraft Rules, 1937 -
United Nations Convention on the Rights of Persons with Disabilities
-Arts. 5 and 9 - Vienna Convention on the Law of Treaties, 1963 -
Art. 27 - Biwako Millenium Framework for Action Towards an
Inclusive, Barrier-Free and Rights-Based Society for Persons With
Disabilities in Asia and the Pacific - Beijing Conclave by the
Governments of Asian and Pacific Countries.
Human Rights - Human dignity - Constitution of India
guarantees human rights through its Fundamental Rights - One
such right is enshrined u/Art. 21 i.e. right to life and liberty which
includes right to live with dignity - Thus human dignity is a
constitutional value and a constitutional goal - Even right to equality
is based on the value of human dignity - Jn international human
rights law. equality is founded upon two complementary principles:
non-discrimination and reasonable differentiation - Constitution
of India - Arts. 14 and 21.
Allowing the petition, the Court
HELD: 1.1 The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) 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.
[Para 10] [649-A-B]
1.2 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. The UNCRPD
specifically targets transportation systems. And the UNCRPD
makes clear that private carriers are covered as well in Article
9(2). The Vienna Convention on the Law of Treaties, 19

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[2016] 4 S.C.R. 638
JEEJA GHOSH & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 98 of2012)
MAY 12,2016
[A.K. SIKRI AND R.K. AGRAWAL, JJ.]
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 - Public Interest
Litigation - By a differently abled person - Alleging that she was
de-boarded from aircraft (of private airlines) due to her disability -
Plea that the act resulted in agony, humiliation and emotional trauma
- And it amounted to violence to her human dignity and infringed
her fundamental rights guaranteed u/Art. 14 and 21 of the
Constitution - Held: The problems of the differently a bled are to be
viewed from human rights perspective - Persons with disabilities
do not need sympathy but are entitled to enjoy the full range of
internationally guaranteed rights and freedom without discrimination
on the ground of disability - It is obligatory on the part of the State
to ensure that persons with disabilities get enabled to exercise those
rights - There should be a full recognition of the fact that persons
with disability are integral part of the community, equal in dignity
and entitled to enjoy the same human rights and freedoms as others
- The Act encapsulates the Governments obligation to ensure that
those with disabilities can achieve their full potential free from any
discrimination and harassment - The Act specifically deals with
transportation system, including airports and aircrafts - Various
international legal instruments also guarantee the rights of the
disabled - The obligation to fulfill the right of the disabled not
limited to the Government, but even the private entities m:e fastened
with such obligation - The rights guaranteed under the Act and the
instructions under Civil Aviation Requirements are founded on the
sound principles of human dignity which is the core value of human
rights enshrined u/Art. 21 - In the present case, the decision to deboard_the petitioner amounts to violation of r.133-A of Aircraft Rules,
1937 and Civil Aviation Requirements, 2008 guidelines and is also
in violation of her human dignity and thus her fundamental rights,
though by a private enterprise - The erring airlines is directed to
638
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
award Rs. I 0 lakhs to the petitioner as damages - Constitution of
India - Arts. 14 and 21 - Human Rights - Aircraft Rules, 1937 -
United Nations Convention on the Rights of Persons with Disabilities
-Arts. 5 and 9 - Vienna Convention on the Law of Treaties, 1963 -
Art. 27 - Biwako Millenium Framework for Action Towards an
Inclusive, Barrier-Free and Rights-Based Society for Persons With
Disabilities in Asia and the Pacific - Beijing Conclave by the
Governments of Asian and Pacific Countries.
Human Rights - Human dignity - Constitution of India
guarantees human rights through its Fundamental Rights - One
such right is enshrined u/Art. 21 i.e. right to life and liberty which
includes right to live with dignity - Thus human dignity is a
constitutional value and a constitutional goal - Even right to equality
is based on the value of human dignity - Jn international human
rights law. equality is founded upon two complementary principles:
non-discrimination and reasonable differentiation - Constitution
of India - Arts. 14 and 21.
Allowing the petition, the Court
HELD: 1.1 The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) 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.
[Para 10] [649-A-B]
1.2 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. The UNCRPD
specifically targets transportation systems. And the UNCRPD
makes clear that private carriers are covered as well in Article
9(2). The Vienna Convention on the Law of Treaties, 1963
requires India's internal legislation to comply with international
commitments. 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
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terminals) should be made accessible and usable as soon as
practicable." [Paras 11, 12, 13, 14) [649-B-C, D, F, H; 650-A-B)
1.3 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
B
private carriers as well) are fastened with such an obligation
·which they are supposed to carry out. [Para 18) (651-G)
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1.4 In the year 2008, respondent No. 2, i.e. Directorate
General of Civil Aviation had issued Civil Aviation Requirements
(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. The Government realised the shortcomings
in the CAR, 2008 and agreed to revise the same. The Ministry
of Civil Aviation appointed an expert commit~e. The report of
the Committee highlights some important areas whiCh were not
· covered in the CAR, 2008. The Committee made several
recommendations for amendment in the said CAR. Taking this
report as the basis the Ministry has issued amended CAR dated
28th February (CAR, 2014).
Though
most
of the
recommendations by the Committee 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. [Paras 18, 19, 21, 22, 24) [651-H; 652-A-C;
653-A, C; 654-E-F]
1.5 In certain respects the guidelines in CAR, 2014 can
be further fine-tuned by the official respondents, keeping in
view the recommendations of the Committee, where they have
not been fully implemented. These aspects may be reconsidered
by the DGCA/Government to see whether they can be
incorporated in CAR 2014 by proper amendments. [Para 26)
(672-E-F]
2.1 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
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
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.
l:fara 3~1 I 678-Gl
2.2 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. The Constitution of India 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. [Para 36) (679B-D]
2.3 CAR ipstructions have 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. [Para 38) (680-E-F)
2.4 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. Equality
not only implies preventing discrimination, 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
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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. [Para 39] [680-G-H; 681-A-B]
Consultative Expert Group Meeting on International
Norms and Standards Relating to Disability 10-2-2001
- referred to.
2.5 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.
[Paras 41-42) [681-F-H; 682-A-B)
2.6 It is obligatory 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
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
rights and freedoms as others. 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 sympathise 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. [Para 42] [682-B-E]
2.7 The petitioner 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 deboarding from the aircraft, depicts total lack of sensitivity on
the part of the officials of the airlines. [Para 34] [678-A-B]
2.8 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. Such a situation did not exist when the petitioner.
was de-boarded. Neither was the decision to de-board taken by
the airlines after taking due deliberations and with medical advise.
Petitioner 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. Even
if it is assumed 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 Aircraft Rules, 1937 and the CAR,
2008 guidelines. [Para 35] [678-C-F]
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2.9 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 the petitioner
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). [Para 46) [684-A-B)
2.10 Since respondent No.3 acted in a callous manner, and
in the process violated Aircraft Rules, 1937 and CAR, 2008
guidelines resulting in mental and physical suffering experienced
by the petitioner and also unreasonable discrimination against
her, a sum of Rs.10,00,000 is awarded as damages to be payable
to her by respondent No.3. [Para 47) [684-C]
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 98
of2012.
Colin Gonsalves, Sr. Adv., Divya Jyoti J aipuriar, Ms. Karuna Nundy,
Ms. Jyoti Mendiratta, Advs. for the Petitioners.
P.S. Patwalia, ASG, Milanka Chaudhary, Abhishek Sharma, M.R.
Shamshad, Ms. Binu Tamta, Atulesh Kumar, Ms. Kiran Bhardwaj, Ms.
Snidha Mehra, B. Krishna Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by
A.K. SIKRI, J. I. 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'.
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 ab led 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
1 'NO PITY': People with Disabilities Forging a New Civil Rights Movement' [Indian
reprint by Universal Book Traders)
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
r A. K. SIKRT, J.l
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.
3. Petitioner no. I, 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
oflnternational 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. I 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.
4. 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 ~nd 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
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[2016] 4 S.C.R.
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 deboard. 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 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-Gernrnn project under review.
7. Petitioner no. I 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 oflndia 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.
8. We may mention, at this stage, that SpiceJet had sent a letter to
petitioner no. I 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
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
rA. K. SIKRI, J.l
return luggage had been booked through Jet Konnect, will be made.
The petitioners perceive it as sprinkling salt on their wounds.
9. 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 I st 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 ! 33A of the
Aircraft Rules, 193 7, 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.
[ ... ]
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4.8. All airlines shall provide necessary assistance to persons
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SUPREME COURT REPORTS
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with disabilities/impairment who wish to travel alone without an
escort.
[ ... ]
4.1 O(b) Once a passenger has bought a ticket for travel, it is
obligatory on part of the airline that he reaches the aircraft from
B
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,
c
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
D
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
E
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.
F
G
H
[ ... ]
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.
I 0.2 The managing body of the airlines and the airport shall ensure
speedy and proper redressal of these complaints."
I 0. It is submitted by the petitioner that the Union of India
(respondent No. I) 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 oflndia, 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,
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
[A. K. SIKRI, J.]
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:
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"2. State Parties shall prohibit all discrimination on the basis of c
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."
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12. The UNCRPD specifically targets transportation systems suclr
as airlines when it states in Article 9:
"l. 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,
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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
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as well in Article 9(2):
"2. State Parties shall also take appropriate measures:
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(b) To ensure that private entities that offer facilities and services
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which are open to or provided to the public take into account all
aspects of accessibility of persons with disabilities;"
13. The Vienna Convention on the Law ofTreaties, 1963 requires
India's internal legislation to comply with international commitments.
Article 27 states that a "State party ... may not invoke the provisions of
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its internal law as justification for its failure to perform a treaty."
14. 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
B · (vehicles, stops and terminals) should be made accessible and usable as
soon as practicable."
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15. According to the petitioners, filing of this petition was
necessitated because of the reason that petitioner no. I 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.
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 I st 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. I and 2 to monitor
the compliance ofall Indian airlines with respect to 'Civil Aviation
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
rA. K. SIKRI, J.]
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 suffe~ed 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."
17. Notice in this petition was issued to the respondents, who are
Union oflndia (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. I, 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.
18. 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
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persons with reduced mobility.
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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 2 I 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.
20. 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 Summa1y 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 ofairline for check-in, responsibility ofCISF
for security check etc.
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
[A. K. SIKRI, J.]
21. 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 Resolljtion
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.
22. 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 Committe·e 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, covering separately the interaction with
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the blind, the deaf and persons with mobility disability etc. It also covers
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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.
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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 ofresponsibilities 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 pol icy on facilities provided
to PRMs by publishing on their respective websites.
24. On the filing of the aforesaid repo1t in this Comt, the learned
Additional Solicitor General appearing on behalf of the Union oflndia
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.