Disability; Jeeja Ghosh Vs. Union of India [Supreme Court of India, 12-05-2016]

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities” Act, 1999 – 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.

Rights of Persons with Disability


IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

(A.K. SIKRI) AND (R.K. AGRAWAL) JJ.

MAY 12, 2016

WRIT PETITION (C) NO. 98 OF 2012

JEEJA GHOSH & ANR. …..PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

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 1 `NO PITY’: People with Disabilities Forging a New Civil Rights Movement’ [Indian reprint by Universal Book Traders] 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. 1, 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 of International 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. 1 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 and institutional barriers, and the tools for change that would make a difference in their lives in these countries. Additionally, Ms. Jeeja Ghosh was invited as one of 15 international individuals to review an Indo-German project which was being show-cased at the conference. ADAPT purchased return plane tickets for Ms. Jeeja Ghosh, including a seat on flight SG 803, operated by SpiceJet Ltd. (Respondent no. 3) scheduled to fly from Kolkata to Goa on the morning of 19th February, 2012. The conference was to begin in the afternoon of the 19th February, 2012.

5) After being seated on the flight, Ms. Jeeja Ghosh was approached by members of the flight crew who requested to see her boarding pass, which she gave them. Then they proceeded to order her off the plane. Despite her tearful protestations and informing them that she needed to reach Goa for the conference, they insisted that she de-board. After returning to the airport and arguing with airlines officials, she later discovered that the Captain had insisted that she be removed due to her disability.

6) It is averred in the petition that as a 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-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 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 of India 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. 1 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 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 1st 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 133A of the Aircraft Rules, 1937, which states:

“4.1 No airline shall refuse to carry persons with disability or persons with reduced mobility and their assistive aids/devices, escorts and guide dogs including their presence in the cabin, provided such persons or their representatives, at the time of booking and/or check-in for travel, inform the airlines or their requirement. The airlines shall incorporate appropriate provisions in the online form for booking tickets so that all the required facilities are made available to the passengers with disabilities at the time of check-in.

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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.

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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 with disabilities/impairment who wish to travel alone without an escort.

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4.10(b) Once a passenger has bought a ticket for travel, it is obligatory on part of the airline that he reaches the aircraft from the departure lounge, and at the end of the journey from the aircraft to the arrival lounge exit, without incurring any further expenditure.

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4.13 Airlines shall provide assistance to meet the particular needs of the persons with disabilities and persons with reduced mobility, from the departing airport terminal to the destination airport terminal.

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4.14 Persons with disabilities and persons with reduced mobility have equal choice of seat allocation as others, subject to safety requirements and physical limitations of the aircraft – like seats near the emergency exits and seats with more leg-room.

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5.1 No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who 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.

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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. 10.2 The managing body of the airlines and the airport shall ensure speedy and proper redressal of these complaints.”

10) It is submitted by the petitioner that the Union of India (respondent No.1) has an obligation to ensure that its citizens are not subject to such arbitrary and humiliating discrimination. It is a violation of their fundamental rights, including the right to life, right to equality, right to move freely throughout the territory of India, and right to practice their profession. The State has an obligation to ensure these rights are protected – particularly for those who are disabled. More specifically, the