TaxTMI 
TaxTMI 
2016 (5) TMI 1550
X X X X Extracts X X X X
X X X X Extracts X X X X
....stimony to the statement of Shapiro. Irony is that though the aforesaid remarks were made by Shapiro way back in the year 1993 and notwithstanding the fact that there have been significant movements in recognising the rights of differently abled persons, much is yet to be achieved. India also has come out with various legislations and schemes for the upliftment of such differently abled persons, but gap between the laws and reality still remains. Even though human rights activists have made their best efforts to create awareness that people with disabilities have also right to enjoy their life and spend the same not only with the sense of fulfilment but also to make them contribute in the growth of the society, yet mindset of large Section of the people who claim themselves to be 'able' persons still needs to be changed towards differently abled persons. It is this mindset of the other class which is still preventing, in a great measure, differently abled persons from enjoying their human rights which are otherwise recognised in their favour. Present case, though a PIL, got triggered by an incident which proves aforesaid introductory statement made by us. 3. Petitioner No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....light 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 feels haunted with that scene when she was pulled out of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....passengers with disabilities at the time of check-in. [...] 4.4. All airlines and airport management shall run program for their staff engaged in passenger handling e.g. cabin crew/commercial staff including floor walkers and counter staff etc. for sensitization and developing awareness for assisting passengers with disabilities. The training program shall be conducted at the time of initial training and a refresher shall be conducted every three years on the subject. Only such persons who have current course shall be assigned to handling disabled persons. The training program should, inter alia, include assisting disabled persons in filing up travel documents as may be required while providing assistance in flight. [...] 4.6. Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of an escort. [...] 4.8. All airlines shall provide necessary assistance to persons with disabilities/impairment who wish to travel alone without an escort. [...] 4.10(b) Once....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rantee 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 communications, including information and communications technologies and system, and to other facilities and services open or provided to the public. And the UNCRPD makes clear that private carriers are covered as well in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Petitioners seek the following relief: (a) Issue a writ in the nature of Mandamus or any other appropriate Writ, order or direction to the Respondents directing them to follow 'Civil Aviation Requirements' dated 1st May, 2008 with regard to 'Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility' as issued by the office of the Director General of Civil Aviation. (b) Issue an order directing Respondent Nos. 1 and 2 to monitor the compliance of all Indian airlines with respect to 'Civil Aviation Requirements' dated 1st May, 2008 with regards to 'Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility', and to investigate any apparent violations and provide penalties to airlines that fail to implement these requirements, updating the Civil Aviation Requirements to include these penalties if appropriate. (c) Issue an order directing Respondent Nos. 1 and 2 to investigate the written complaint dated 21st February, 2012 by Petitioner No. 1 and forwarded by the Indian Institute of Cerebral Palsy, and to take action in accordance with law against Spice Jet (Respondent No. 3) and any and all official....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing 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 mechanism for meeting cost of implementation. * Define allocation of responsibilities for airlines, airports and others for their respective roles in providing facilities to persons with disabilities. * Standardisation of equipment like wheelchairs and facilities designed for PRMs. * Establishment of Standard Operat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 devices The Committee recommended that all airports should procure all assistive equipment based on a schedule of standardised equipments. The Committee recommended that the standardisation should be done in consultation with the Department of Disability Affairs in a suitable time frame. This is not reflected in the draft CAR, which poses a problem because then there will be no obligation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 of any communication failure, the airline does not have a record of such a request, the person with disability may be denied permission to board the aircraft. This cannot be the case. 4.1.5 applies only to the "emergency travel". Airlines must be always prepared to take a person with disability on board and so the 48 hours of requirement seems to indicate that airlines will not be prepared otherwise - if there ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....port 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 application of relevant regulations concerning dangerous goods, which will inconvenience passengers. Instead, the CAR must lay down the protocol for travelling with wheelchairs and storage of the same, with batteries being removed/kept safely depending upon whether they are dry or wet cell batteries. The BCAS website must include the rules concerning carrying of battery-operated personal wheel-chairs or other assistive devices/aids ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ks 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 conduct training program for their staff engaged in passenger handling for sensitization and developing awareness for assisting persons with disability or reduced mobility and to ensure that the staff is well briefed on their legal responsibilities. The contents and duration of the training program shall be in accordance with the guidelines issued by the Department of Disability Affairs, Ministry of Social Justice & Empowerment. It shall be the responsibility....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 under point No. 4.2.12 of the CAR. 11. On Board the Aircraft The Committee Report mandates that for the benefit of passengers with disabilities. Communication of essential information concerning a flight should be in accessible formats. Safety videos should be available in sign language and with subtitles. In flight entertainment must be in accessible formats, and cabin crew should assist passenger to access toilet if requested using onboard aisle chair. Further, Aisle cha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 the manner and extent to which Universal Design must be adopted by Airports in their infrastructure. It is important that the same be designed in accordance with the principles of Universal Design which have been detailed in Annexure 3 of the Committee Report. While the same has been mentioned in the draft CAR, the provisions are not as comprehensive as that of the Committee Report. The draft CAR must expand the same. Concern on accessibility, way finding and signage, seating area, accessible airport infrastructure ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ines 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 under different public authorities. The issue is required to be addressed by themselvs separately. 18. Accessible Airport Infrastructure It is essential that the needs for accessible and universally designed Airport Infrastructure are met by Airport Operators. To this end, the Committee Report detailed an extensive Annexure viz. Annexure 3 with each and every requirement. Not only is this not reflected in the Draft CAR, but no standards of any sort are mentioned. Nor is there any requirement specified that persons with disabilities or universa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce 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 procedures, in case of an emergency. Para 4.1.13 of the CAR deals with the reservation of seats for such passengers. 21. Temporary replace of damaged wheelchairs While the Committee Report categorically states that temporary replacement wheelchairs must be provided to passengers on a like-for-like basis as far as possible, free of cost, in the Draft CAR the provision is modified to state that in the event a passenger's wheelchair is damaged, temporary substitute be provided on request. The term 'on request' needs to be removed. Also, the mandate for this replacemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are of the opinion that the following aspects may be reconsidered by the DGCA/Government to see whether they can be incorporated in CAR 2014 by proper amendments: (1) In spite of procurement of standardised assistive devices, which is mentioned at S. No. 2 above, it is pointed out by the learned Counsel for the Petitioners that all airports should procure all assistive equipments based on the Schedule of standardised equipments and this standardisation should be done in consultation with the Department of Disability Affairs in a suitable time frame. It is pointed out that the same is not reflected in the CAR, 2014. The explanation given by the Respondents is that the standardised processes are normally better achieved through deliberation with stakeholders ensuring economic viability and Department of Disability Affairs is a separate authority which is not under the purview of DGCA. However, that could not be the reason for not making a joint effort or involving the Department of Disability Affairs. We, therefore, direct that the concerned officers of the DGCA as well as officers from the Department of Disability Affairs, which is under the Ministry of Social Justice and Empower....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the cabin crew should assist the passenger to access toilet if requested using on-board aisle chair. We find that para 4.1.5 of the CAR does not cover all the aspects of the recommendations given by the Committee. It would be more appropriate to incorporate the same in the CAR so that it becomes a bounden duty of the airlines to ensure that passengers with disability are taken care of more appropriately while they are on-board. (6) Insofar as complaint mechanism is concerned (S. No. 13), the Committee has given detailed procedure to address such complaints, which begins from the Complaints Resolution Officer (CRO) who is placed at the airport itself. The response of the official Respondents is that it may not be feasible in small airports. Even if that be so, to begin with, such a mechanism can be introduced at big/major airports. This aspect, therefore, needs to be reconsidered. (7) At S. No. 17, the aspect of training and sensitisation is dealt with. This is one aspect which needs serious attention. No doubt, some provisions are made in CAR, 2014 with regard to training that is to be provided to the staff and security personnel dealing with persons with disability or reduce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 informing Respondent No. 3, at the time of booking of tickets as well as at the time of check-in, about her disability. It is the say of Respondent No. 3 that this led to confusion and subsequent de-boarding of Jeeja Ghosh occasioned by the lack of knowledge of her condition among the crew members present there and her visible disability and poor health condition, as according to the Respondents her condition had taken a turn for the worse as soon as she boarded the aircraft and it was not possible to take risk by allowing her to take five hour long flight journey without being escorted by any person who could have taken care of her. It is stated that had she informed about her sickness....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the second party applies to persons with disability who require assistant devices or aids. It was argued that the proviso applies to the latter category only whereas Jeeja Ghosh is merely a person with cerebral palsy and did not require any assistant device or aid. The only assistance she required was regarding her baggage which she asked for at the time of security check-in. Thus, there was no reason as to why she was asked to de-board the aircraft when there was no assistant device or aids about which she ought to have informed the airlines. It is claimed that so far as requirement of assistance regarding baggage is concerned, she had duly informed the officials of the airlines. Refuting the argument of learned Counsel appearing for Respondent No. 3 predicated on Rules 22 and 141 of the Rules, 1937, it was submitted that the Operations Manual of the airline places an obligation on the Pilot in-charge not to commence the flight until he/she is sure of the safety of all the passengers. In the present case, there was no evidence to prove that Jeeja Ghosh had posed any hazard to the safety of the Pilot in-charge or other passengers. Moreover, the decision to de-board her was tak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o suffers from cerebral palsy. But her condition was not such which required any assistive devices or aids. She had demanded assistance regarding her baggage at the time of security check-in, from the check-in counter. For boarding of the aircraft, she came of her own. This was noticed not only by the persons at the check-in counter but also by security personnel who frisked her and the attendant who assisted her in carrying her baggage up to the aircraft. Even if we assume that there was some blood or froth that was noticed to be oozing out from the sides of her mouth when she was seated in the aircraft (though vehemently denied by her), nobody even cared to interact with her and asked her the reason for the same. No doctor was summoned to examine her condition. Abruptly and without any justification, decision was taken to de-board her without ascertaining as to whether her condition was such which prevented her from flying. This clearly amounts to violation of Rule 133A of Rules, 1937 and the CAR, 2008 guidelines. 36. 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 huma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal 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 below which give a glimpse of these goals: The first role of human dignity as a constitutional value is expressed in the approach that it comprises the foundation for all of the constitutional rights. Human dignity is the central argument for the existence of human rights. It is the rationale for them all. It is the justification for the existence of rights. According to Christoph Enders, it is the constitutional value that determines that every person has the right to have rights... The second role of human dignity as a constitutional value is to provide meaning to the norms of the legal system. According to purposive interpretation, all of the provisions of the constitution, and particularly all of the rig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tional 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 persons with disabilities, from a charitable point of view. The disabled persons are viewed as abnormal, deserving of pity and are, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalising the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 disabled ones. The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read: Non disabled people do not understand disabled ones. For, non-disabled people generally look upon disabled ones with pity. The general feeling is that these 'invalid people' are incapable of doing anything in life. They are burden on the society which the society bear. Of course, they sympathize with disabled persons. They may even want to willingly bear the burden. They may help them financially or otherwise. However, what they do not understand is the feeling of the people with disabilities. Disabled people no longer see their physical....