TaxTMI 
TaxTMI 
2016 (5) TMI 1550
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.... (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 introduc....
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.... 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 result of the shock and trauma of this event 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. 7. Petitioner No. 1 grudges that even after four years of the said incident whenever she has a flashback, she f....
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....ets 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 assistanc....
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....uch 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 promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 12. 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 communication....
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....on. 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 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 directin....
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....ent 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. 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 Summary of the said report shows, the Committee recommended....
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.... 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 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 mecha....
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...., 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 Participation) Act, 1995 published in Part II, Section 1 of the Extraordinary Gazette of India, Ministry of Law, Justice And Company Affairs. However, every effort has been made to include all concerned terminology within the ambit of the definition to cater the needs of affected persons. The term "incapacitated" has been adopted from 14 CFR Pt 382 with addition of definition on "physical or mental impairment" for added clarification. The term "autism" has been included in CAR as per the recommendation. 2. Procurement of standardised assistive devi....
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....bility. 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 Desk The Committee recommended a telephonic help desk, which would be fully accessible, to be set up to receive assistance requests in advance from passengers with disabilities. Any request for on board assistance would be communicated to the airline. This is a necessity as this would ensure a failsafe fully accessible means of communication for persons with disabilities and also communicate specific needs to airlines which may be unstated at the time of booking. The draft CAR removes this requirement completely and the same must be incorporated in the final CAR. The proviso to 4.1.1 seems to keep some leave so that in a event a travel agent or a representative or on account ....
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....rt 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 to persons with disability or reduced mobility during their transit through the airport. 6. Wheelchair usage While the Committee Report retains the right of passengers with disabilities to use their mode of assistance throughout their journey, the CAR places several restrictions on the same. Passengers who intend to check-in with their own wheelchair are to be given an option of using a station/airport wheelchair. If the passenger prefers to use their own wheelchair, they shall be permitted to use it provided the wheelchair to specifications as laid down by Disable Person Transport Advisory Committee (DPTAC), UK. The CAR also says that the acceptance of automated wheelchair/assistive devices using batteries shall be subject to the ....
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..... 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. Security Check - Responsibility of CISF The Committee Report, in Annexure 4, details the manner in which security checks should be handled by the CISF, from the training of screeners to the protocols they should employ. The manner in which passengers on wheelchairs, passengers who are blind/have low vision, passengers with hearing impairments and those with hidden disabilities are to be managed is detained. This detail is lacking in the draft CAR, and it is quite surprising because it is at the stage of security checks that most trouble is caused to persons with disabilities and there are violations of their dignity. Manner of security check and their training is under the purview of BCAS. However, issue has been addressed in respect of airline and airport staff at Para 4.3.1, 4.3.2 and 4.3.6 of CAR all airlines and airport operators shall conduc....
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....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. Ambulift: Presently, ambulifts are procured by airports and airlines are asked to pay ambulift charges every time they use it, and so it is advisable that they be charged a sum amount for a month whether they use it or not. By this every airline will be made to use the service for its disabled passengers rather than not use it for want of extra payment for each use. Also the ambulift and other equipment shall be maintained in good condition with periodic monitoring and it should be registered in record about maintenance details, repair details, duration under maintenance/repair, dates, duration and number of times for which service was unavailable to passenger. The Complaints Resolution Officer should also monitor the register. The suggestion is with regard to commercial arrangement between airline and airport. DGCA would take up the matter for resolution with airline and airport as and when difficulty reported. However, the provision of ambulift is covered ....
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....s mandated to assist the passenger in making a complaint to the Ombudsman appointed under the DGCA. In the draft CAR, the complaint mechanism places the sole burden on the passenger to file the Complaint before the Nodal Officer, and there is no accessible means of complaint mechanism and neither is there any obligation on any authority to try and resolve the matter at the first stage. The draft CAR must incorporate the Complaint redressal mechanism as suggested under the Committee Report. The concern regarding appointment of ombudsman under DGCA at more than 70 airports with a staff strength of nearly 400 is not available solution. The Grievance Redressal Mechanism is covered under point 4.5 of the CAR. DGCA has issued Air Transport Circular 01 of 2014 which addresses the issue. The effectiveness of grievance redressal mechanised would be monitored through surveillance. In addition to basic training, operators are required to provide specific training for personnel who may be required to provide direct assistance to disabled persons and persons with reduced mobility. 14. Accessibility, way finding and signage The Committee Report has detailed ....
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....disability sensitivity extended to needs of all types of disabilities, especially those which are not given much importance in the mainstream, like psychosocial disabilities and autism. However, the Draft CAR restricts this extensive training programme to staff of Airlines and airport Operating staff only, and not to Governmental Agencies who come into contracts with passengers - like Security personnel, Immigration Officers, and Customs Officers, to name a few. Best practices shall also include training of all officials at airport and airlines functioning within the airport to undergo periodical orientation on perspective to disability rights and dignified ways of handling persons with disabilities and not just the security personnel alone. The orientation can be part of their periodic internal review meetings. Para 4.3.1 to 4.3.7 of the CAR is with regard to trainings that needs to be provided to staff and security personnel dealing with persons with disability or reduced mobility. Para 4.3.6: It shall be the responsibility of airport operator to ensure that security staff positioned at airport undergoes disability-related training. However, Immigration and Security are ....
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....ssengers for any reason have to be offloaded, highest possible priority for transportation shall be given to persons with disability or reduced mobility, including their escorts, if any. 20. Seating versus Safety The Committee Report has dealt with this issue in detail, and laid down the important guidelines in seating of persons with disabilities to ensure the greatest emphasis on safety of the person with disabilities to ensure the greatest emphasis on safety of the person with disability as also the fellow passengers. The Draft CAR does not reflect the importance of this issue. The placing of the escort/companion of the person with disability and the person with disability should be mandated and not give the loophole of "all reasonable efforts". There should also be a mandate of reserving front seats for persons with disabilities. The additional priority to not discomforting persons with disability or reduced mobility while considering decisions relating to offloading passengers is appreciated. Concern was accepted. The CAR has specifically made provision for passengers with disability or reduced mobility to be given preferential seating for better evacuation proc....
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....ers for those persons with disabilities who require quick check-in. The Draft CAR is silent on this. Para 4.1.22 and 4.1.23 addresses the concern. 26. 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 ....
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....strial 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 procedur....
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....ht 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. 29. 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. 30. 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 info....
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....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. 33. 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....
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....f 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'. 35. 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 wa....
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.... constitutional value and a constitutional goal. What are the dimensions of constitutional value of human dignity? It is beautifully illustrated by Aharon Barak Aharon Barak "Human Dignity - The Constitutional Value and the Constitutional Right" Cambridge University Press (2015) (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. 37. 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 be....
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.... 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}. 40. Earlier the traditional approaches to disability have depicted it as health and welfare issue, to be addressed through care provided to per....
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....h 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. 43. 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 di....