Jeeja Ghosh & Anr. v. Union of India & Ors.
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
645
646
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-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.
[ ... ]
647
4.8. All airlines shall provide necessary assistance to persons H
A 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.
[ ... ]
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:
649
"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." D
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, E
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 F
as well in Article 9(2):
"2. State Parties shall also take appropriate measures:
[ ... ]
(b) To ensure that private entities that offer facilities and services G
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 H
A 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."
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
651
A persons with reduced mobility.
19. The very fact that such requirements were issued by the
Directorate General of Civil Aviation reflects that the authorities are not
oblivious of the problems that persons with disabilities suffer while
undertaking air travel. At the same time, it was found that these
instructions did not adequately take care of all the hassles which such
people have to undergo. Thankfully, the Government realised the·
shortcomings in the CAR, 2008 and agreed to revise the same, which
shows positive stance of the Government and also reflects that the
authorities did not treat the present petition as adversarial and accepted
that such causes require 'social context adjudication' approach. To this
end in mind, the Ministry of Civil Aviation appointed an expert committee
known as 'Ashok Kumar Committee' (hereinafter referred to as the
'Committee') under the Chairmanship of Mr. G. Ashok Kumar, Joint
Secretary. The said Committee consisted of as many as 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
653
the blind, the deaf and persons with mobility disability etc. It also covers G
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.
654
SUPREME COURT REPORTS [2016) 4 S.C.R.
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. This prompted the petitioners to give their comments pointing out
that some of the suggestions given by the Committee are not incorporated
and therefore CAR, 2014 needed fmiher modification and fine-tuning.
The Government had taken time to respond to the same.
25. Mr. Roh it Thakur, who is working as Assistant Director in the
Office of DGCA, has filed an affidavit on behalf of the Union of India
stating that the Government has no objection in the Court going into the
necessity of implementation of specific terms of the recommendations
of the said Committee without any formal amendment. The response to
the suggestions is given in a tabulated form and it is necessary to reproduce
the same in its entirety:
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 655
S.No.
!.
2.
r A. K. SIKRI, J .l
Suvl'estion
Definition/Scope of the
CAR
While the Ashok Kumar
Committee Report's
proposed definition was
accepted, the draft CAR
also incorporates the
category of
"incapacitated persons"
which should be removed
and substituted with
"persons with
additional/specific
Support requirements".
The term physical or
mental impairment is
defined to include "such
diseases and conditions as
orthopaedic, visual,
speech and hearing
impairments; cerebral
palsy, epilepsy, muscular
dystrophy, multiple ·
sclerosis, cancer, heart
disease, diabetes, mental
retardation, emotional
illness, drug addiction
and alcoholism" - and it
is to be noted that autism
has been excluded from
this. This must be
rectified to include
autism, and in the
alternative, the definition
proposed by the
Committee must be
accented in its entirety.
Replv
The term 'Person with
Disability' has been
retained in the CAR to keep
the terminology in line with
!CAO Annex 9 and Circular
274 on and Penons wiili
Disabilities (Equal
Opportunities, Protection of
Rights and Full
Participation) Act, 1995
published in Part 11, Section
I of the Extraordinary
Gazette of India, Min is try
of Law, Justice And
Company Affairs.
How ever, 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 CF R
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.
,_P_._ro"'c""u"'r""e,..m.._,e,,,n,_,t ____ _,o"-'f With regard to airport
~st=a=n=d=a~rd=i=s=ed~--a=s=s~is=t~iv~e in frastru ctu re and
devices facilitation for person with
The Committee disabilities, Chapter 9.11 of
recommended that all !CAO document 9184
airports should procure Airport Planning Manual
all ass1st1ve equipment and Annex 9 provides the
based on a schedule standards which are
of standardised guidelines for !CAO
656
3.
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 to standardise
assistive devices and ensure
a minimum quality for the
. same. Therefore,, the
Committee
rec om rn endations with
regard to procurement of
standardised assistive
devices must be accepted.
Internal Audit Systems
The Committee
recommended that Airlines
and airport operators must
have an internal audit
5ystem in place to ensure
that assistive devices are
available and are in good
condition and assistance and
training are provided in
adequate and proper
manner. The Committee
recommended that the
DGCA would oversee as the
regulator. The draft CAR
mandates surveillance of the
operators by the DG CA as
part of Annual Surveillance
Programme. The audit
system must be an internal
one, on the lines of the
Ashok Kumar Committee
recommendations, which
can be more frequent and
detailed.
Contracting States. The
standardisation processes are
normally better achieved through
deliberations with stakeholders
ensuring economic viability and
their implementation in a
feasible manner. Department of
Disability A ff airs is a separate
Authority under Ministry of
Social Justice and
Empowerment, which is not
under this office purview.
Organisations perfonn ing
functions under the provisions of
Aircraft Rules, 1937 can only be
brought under the am bit of CAR
issued by this office.
In view of the above, matter
cannot be resolved by issuance
of direction for standardisation
within stipulated time frame to
the Department of Disability
Affairs. However, concern has
been addressed in the CAR
through training requirement of
personnel in consultation with
the department.
Para 4.3.1 to 4.3.7 of the CAR
deals with the training of
personnel for staff engaged in
passenger handling for
sensitisation and developing
awareness for assisting persons
with disability or reduced
mobility.
Pam 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 ass1st1ve devices
require maintenance as per OEM
instruction and checks by
operators. The effectiveness of
their maintenance c'an" be
ensured through annual
surveillance stated at 4.4.9 of the
CAR.
4.
5.
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 657
r A. K. SlKRl, J.l
Help Desk
The Committee rec om mended 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
com rnuni cation 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 represen ta tivc or on
account of any communication
failure, the airline docs 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". A irlincs
must be always prepared to take
a person with disability on
board and so the 48 hours of
requ irem en! seems to ind icatc
that airlines will not be
prepared otherwise - if there is
a time limit at all, it needs to be
reduced.
Curbside Assistance Kiosks
The Committee mandates that
curbside assistance kiosks at the
airport are to be set up by the
airport authority, providing live
assistance and intermediaries.
including guiders, readers and
Concern regarding help
desk wou Id be addressed
through compliance of
CAR Para 4. I, Para 4.2 and
4.4 and more specifically
through 4.1.1, 4.1.7, 4.1.17,
4.1 .23,"4.2.10, 4.4.1, 4.4.2
and 4.4.3.
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
658
professional sign language safety as those available for
interpreters must be made other passengers and that the
the the curbside kiosks. facilities at the airport are
These kiosks should be at accessible to persons with
the first point of contact of disability or reduced mobility
the passenger and the during their transit through the
airport premises. This may airport.
be at parking, in case the
passenger has his own
transport, or at the drop-off
points at the airport in case
of hired transportation.
The airport must facilitate
movement of persons
with disabilities from these
areas to check-in
counters by providing
qualified/properly trained
personnel and necessaiy
assistive aids/equipment.
For this purpose the
passenger will be required
to call the assistance kiosk
in advance. This also
provides for special
provisions for entering
airp01ts, for example,
allowing auto rickshaws
inside the airport where
barred, if plying a person
with a disability. Similarly,
for persons who are
blind/are visually impaired,
getting from the drop-off
point to the entty to the
departure gate is extremely
difficult. TI1e draft CAR
eliminates the curbside
kiosk facility. The draft
CAR states that "Once
persons with disability or
reduced mobility report at
6.
JEEJA GHOSH & ANR. v. UNION OF !NOIA & ORS.
f A. K. SIKRI, J.l
the airport with valid booking
and intention to travel, the
airline shall provide
assistance to meet their
particular needs and ensure
their seamless travel from the
departure terminal of the
departing airport upto the
aircraft and at the end of the
journey from the aircraft to
the arrival terminal exit,
without any additional
expenses". This seems to
indicate that the CAR does
not cover entry into and exit
from the larger airport
premises, which is severely
problematic and must be
amended to reflect the
intention of the Committee.
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
sha II be pennitted to use it
provided the wheelchair to
specifications as laid down by
Disable Person Transport
Advisory
The Aircraft (Carriage of
Dangerous Goods) Rules,
2003 have been framed to
give effect to the provisions
of Annex 18 to the Chicago
Convention and the Technical
Instructions for the Safe
Transport of Dangerous
Goods by Air issued by
ICAO. Since the carriage of
dangerous goods by air has a
direct bearing on the safety of
aircraft operations, strict
compliance with these
provisions is of paramount
importance. The caITiage of
dangerous goods is a highly
skilled job, which requires
proper packing, labelling and
handling etc. during various
stages such as storage,
.__~'--~~~~~~~~~~-'-l_o_a_d1_·n~g~,~~~--~~~---'
659
660
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SUPREME COURT REPORTS [2016) 4 S.C.R.
Committee (DPT AC), UK. unloading and transportation.
The CAR also says that the Hence the CAR says that
acceptance of automated acceptance of automated
wheelchair/assistive devices wheelchair/assistive devices
using batteries shall be using batteries shall be
subject to the application of subject to the application of
relevant regulations relevant regulations
concerning dangerous goods, 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 to
avoid ambiguity in any event.
If passengers are made/opt to
use the airport provided
wheelchair, they should be
allowed to keep wheelchairs
till the point of boarding the
aircraft and not be forced to
shift between the wheelchair
and chairs to accommodate
other passengers. To that
end, an adequate number of
wheelchairs must be
produced. Also it should not
be the case that the person
who is using a wheelchair,
who is accompanied by an
7.
8.
JEEJA GHOSH & ANR. v. UNION OF INDJA & ORS. 661
fA. K. SIKRI, J.]
escort, cannot use airport
assistance to push his or her
wheelchair. It should not be
obligatory on the part of the
escort to take over the
responsibility of the airport
assistance staff.
Checking in assi stive aids
While airlines should never insist
on assistive aids and devices
being checked in, in the event that
assisti ve aids are to be checked in,
the Committee recommended that
certain safeguards be in place e.g.
the use of Priority tags, barring
the transport of assistive
aids/equipment by conveyor belt,
prioritizing the loading and
unloading of ass1st1ve
aids/equipment. These guidelines
are completely missing from the
draft CAR.
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
trammg 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
Security check is under
the purview of BCAS and
not under the air! ine
purview.
Para 4.1.23 states that
air! in es sha 11 make
suitable arrangements for
ass is ting 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
air! ine ground staff.
Manner of security check
and their training is under
the purview of BCAS.
However, issue has been
addressed m respect of
air! ine and airport staff at
Para4.3.l,4.3.2and4.3.6
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
662
9.
at the stage of security mobility and to ensure that
checks that most trouble is the staff is well briefed on
caused to persons with
disabilities and
there are violations of their
dignity.
Transfer to aircraft
The Committee clearly
demarcates the separation
of responsibilities between
the Airport and the
Airlines, and that the
Airport is responsible for
placing the passenger in the
aircraft and disembarking
the passenger as well. On
board, the responsibility is
solely with the airline.
With regard to boarding
and disembarking, the
Committee Rep01i
mandates that airports
have appropriate boarding
ramps, am bu lifts,
aerobridge, boarding-aisle
chair, wheelchairs or other
assistance needed. as
appropriate. The
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
of airport operator to ensure
that security staff positioned
at airport undergoes
disability-related training.
The term "subject to
limitations of the aircraft"
was included in the CAR as
some small sector flights use
smaller aircrafts, whose aisle
width may not allow
movement of aisle
wheelchair.
However, issue has been
addressed through Para 4.1.34
which stated that airlines shall
ensure that aircraft coming
newly into service or after
major refurbishment shall be
fitted with special equipment
to cater for the needs of
persons with disability or
reduced mobility
commensurate with• the size
of aircraft.
Committee Report stresses Para 4.1.9 For embarkation/
that no passenger shall be disembarkation and in-flight
manually lifted. In the draft use, airlines shall have
CAR, the onus is on provision of onboard
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JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 663
[A. K. SIKRI, J.]
airlines and they are only aisle wheelchairs for persons
required to have provision of with disability or reduced
onboard aisle wheelchairs for mobility not carried on
persons with disabi.lity or stretchers, wherever possible
reduced mobility not carried subject to limitations of
on stretchers, "wherever aircraft. The onboard aisle B
possible subject to limitations wheelchair shall conform to
of aircraft''. This leaves specifications as laid down by
scope for passengers with Disabled Persons Transport
disabilities being treated in a A d v i s o r y C o m mi t t e e
manner that is against their (DPT AC), UK. c
dignity and self respect. This
must be removed. Airports
must be responsible for
procuring assistive aids and
devices to ensure hassle free
boarding and disembarking D
from the aircraft.
I 0. Ambulift: Presently, The suggestion is with regard
ambulifts are procured by to commercial arrangement
airports and airlines are asked between airline and airport.
to pay ambulift charges every DGCA would take up the E
time they use it, and so it is matter for resolution with
advisable that they be airline and airport as and
charged a sum amount for a when difficulty reported.
month whether they use it or However, the provision of
not. By this eve1y airline will ambulift is covered under
bemadetousethese1vicefor point No. 4.2.12 of the F
its disabled passengers rather CAR.
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, reoair details,
664
11.
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.
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 chairs should
be mandated to be carried on
· board for flights longer than 3
hours. These provisions do
not find mention in the CAR,
and they are most essential to
ensure the safety and comfmt
of passengers with
disabilities.
On board airlines which serve
meals, or where paid meals
have been requested for in
advance by a passenger with
a disability, the same will be
served with cutlery
The concern is covered
under Para 4.1.5 of the
CAR.
The concern has been
addressed by Para 4.1.20
which states "Airlines
should provide safety
briefing and procedure for
emergency evacuation in
respect of person with
disability or reduced
mobility in any of the form
of passenger briefing card,
individualized verbal
briefing, video display (in
aircraft with In-flight
Entertainment System), etc.
12.
13.
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 665
[A. K. SIKRI, J.]
which is universally
designed so as to allow for
the passenger to eat
unassisted as far as
possible. In cases where
the passenger IB unable to
eat on his own, the crew
will assist in feeding the
passenger in a manner
which does not impinge
upon his diJwitv.;
Ticketing System and
Website
The draft CAR does not,
unlike the Committee
Report, mandate that
airline, airport and ticketing
websites have to adhere
specifically to W3C web
accessibility standards
(available at
http://www.w3.org/W AI/int
ro/wcag.php). The same
must be mandated as it is
the global standard in
accessibilitv.
Complaint Mechanism
In case of deficiency of
service relating to persons
with disabilities, the
Committee Report details a
procedure which begins
from the Complaints
Resolution Officer (CRO),
who is placed at the Airport
itself, who will make
attempts to resolve the
grievance, and if the same
fails, he is mandated to
assist the passenger in
making a complaint to the
Ombudsman appointed
under the DGCA. In the
draft CAR, the complaint
mechanism places the
.The W3C web accessibility
standards are not recognised
by Indian Govt. However,
procedures similar to the
mentioned st and ard s are
incorporated in the CAR at
point nos. 4. I. I, 4.1.2,
4.1 .3 and 4 .4.1.
The concern regarding
appointment of ombudsman
under DGCA at more than 70
airports with a staff strength
of nearly 400 is not aviable
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
smveillance.
In addition to basic
training, operators are
666
14.
15.
so I e burden o n the required to provide specific
passenger to file the training for personnel who
Complaint before the Nodal may be required to provide
Officer, and there is no direct assistance to disabled
accessible means of persons and persons with
complaint mechanism and reduced mobility.
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.
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 1s
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.
Seating Areas
The C9mmittee deals with
the importance of
designated seating areas
and their positioning and
signage for the benefit
of passengers with
disabilities. Aircraft and
Concern on accessibility, way
finding and signage, seating
area, accessible airport
infrastructure has been
addressed in para 4.2.1, 4.2.2,
4.2.3, 4.2.5 and 4.2.6 which
are in line with !CAO
documents. The inclusion of
the same in detail would
be repetition.
Para 4.2.2 and 4.2.3 of the
CAR is with regard to special
reservations in the terminal
building and parking of the
airport for persons with
disability or reduced mobility.
16.
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JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
f A. K. SIKRI, J.l
airport staff should be able
to identify these areas and
provide regular updates to
persons with disabilities
seated in these areas on the
status of their flights and
enquire about their needs.
Further, seating areas
should allow for resting
accommodation, where
persons with severe
dysfunction/dis ab Ii ng
medical conditions could
lie down and
rest/ stretch/straighten
themselves. There is no
such emphasis in the Draft
CAR, which is silent on the
soeci fie issue of seatim>.
Service Animals
While the general concerns
relating to service animals
and their ability to travel
with the person they are
assisting have been
addressed in the document,
the question of relieving
are as for the Ser vice
Animals, which has been
detailed in the Committee
Report, has not been dealt
with in the Draft CAR.
Training and Sensitization
Annexure 2 of the
Committee Report has
detailed provisions relating
to training and sensitization
of all personnel working
dealing with the
travelling public at
The carriage ofanimals guide
dogs for persons with
disability or reduced mobility
is as mentioned in Para 4.1 .16
of the CAR. Further, carriage
of animals by air is governed
by Aeronautical Information
Circular (AIC) 9 of 1985,
wherein the concerns
mentioned in the
suggestion are addressed.
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
667
668
G 18.
various levels in the responsibility of airport
airports and airlines. The operator to ensure that
disability sensitivity security staff positioned at
extended to needs of all a i r p o r t u n d e r g o e s
types of disabilities, disability-related training.
especially those which are
not given much importance However, Immigration and
in the mainstream, like Security are under different
psychosocial disabilities public authorities. The issue
and autism. However, the is required to be addressed by
Draft CAR restricts this themselves separately.
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.
Accessible Airport With regard to construction
Infrastructure and other design related
It is essential that the needs queries relating to the airport,
for a cc es s i b I e and issue is address.ed through
universally designed ICAO Annex 9 and
Airport Infrastructure are ICAO Airport Manual.
met bv Airport Operators. 1 Aimort ooerators are 1
19.
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 669
[A. K. SIKRI, J.]
To this end, the Committee required to demonstrate
Report detailed an extensive compliance to those
Annexure viz. Annexure 3 guidelines. The international
with each and every standards are being complied
requirement. Not only is this by the Airport Operators. In
not reflected in the Draft view of the above,
CAR, but no standards of any redundancy in the regulation
sort are mentioned. Nor is is not desirable.
there any requirement
specified that persons with
disabilities or universal
design experts would be
consulted in the design
aspects of Airports. This is a
major shortcoming of
the Draft CAR.
Offloading of Passengers
While the Draft CAR seems
to be clear on the question of
medical papers, the exact
grounds on which medical
clearance is required by
passengers and the medical
grounds on which a passenger
can be refused travel or
offloaded is not clarified.
Under no circumstances can
persons with disabilities be
asked to provide medical
clearance papers if they have
no other ailment or medical
condition which would hinder
their ability to fly. The
Government Issued Disability
Card is sufficient
documentation for all
purposes. There is some
ambiguity with regard to
pilot's discretion in
offloading passengers which
Jn order to discourage airlines
form offloading passengers
on basis of disability, airlines
have been asked to specify in
writing the basis of such
refusal indicating its opinion
that transportation of such
persons would or might be
inimical to the safety of
flight. The same has been
mentioned in Para
4.1.35 of the CAR.
Passengers having any of the
conditions mentioned in Para
4.1.26 (a) through (f) are
required to produce medical
certificate. Other cases, it
does not require such
certificate. The concern has
been addressed through para
4.1.15 which stated "if
passengers for any reason
have to be offloaded,
highest possible priority
for transportation sh al 1
be given to persons
670
20.
G 21.
SUPREME COURT REPORTS (2016] 4 S.C.R.
requires to be clarified as m:ll
and this discretion cannot
extend to evicting persons
with disabilities off a flight.
Seating versus Safuty
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.
Temporary replace of
damaged wheelchairs
While the Committee
Report categorically states
that temporary
with disability or reduced
mobility, including their
escorts, if any.
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.l .13 of the CAR deals with
the reservation of seats for
such passengers.
.-.....
Concern was accepted.
Para 4.4.8 of the CAR states
that a passenger shall be
compensated in case
22.
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 671
f A. K. SIKRI, J.l
replacement wheelchairs wheelchair or other assistive
must be provided to device is damaged during travel
passengers on a like-for- by air.
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
replacement to be
'free of cost' is missing.
Guidelines relating to the
maximum permissible
wej~ht and djmensjons of
assistive aids/equipment to
carried
The Committee Report
specifically deals with this
issue and prescribes that
irrespective of the weight
and dimensions of assistive
aids/equipment they should
be allowed to be checked
in free of cost. It is
important that the
permissible weight is high
enough such that motorized
wheel chairs and mobility
scooters can be checked-in
free of cost. All assistive
aids/equipment that can fit
in the internal storage space
shall be allowed to be taken
on board. Other than for
takeoff and landing, the
assistive aids shall be made
available for the passenger
on reauest. The Draft CAR
Para 4.1.8 of the CAR lays
down the condition for usage
of own wheel chair . till
embarlrntion.
Assistive devices weighing up
to 15 Kg free of charge as
additional baggage have been
allowed subject to the limitation
of the aircraft. The same is
addressed in Para 4.1.24 of the
CAR.
672
does not deal with this issue
at all.
,2J. Priority in using toilet The term "Priority to access
facilities in aircraft toilets of the aircrafts" is
The Committee Report discriminatory as for as equal
specifies that persons with opportunity, protection or
disabilities must be given rights of citizen is concerned.
priority to access toilets on However, new aircrafts are
the aircraft. The mandated with separate
Draft CAR is silent on this. toilet for person with
disabilitv.
24. Priority check-in counters Para 4.1.22 and 4.1.23
The Committee Report addresses the concern.
specifies that airlines shall
operate priority check-in
counters for those persons
with disabilities who
require quick check-in.
The Draft CAR is silent on
this.
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 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
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
f A. K. SIKRI, J.l
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
Empowerment, shall have a joint discussion on this aspect to
consider the recommendation given by the Committee.
(2) On 'Help Desk' (mentioned at S.No.4), the Committee had
recommended a telephonic help desk which would be fully
accessible, to be set up to receive assistance requests in advance
from passengers with disability. In response, it is stated by the
respondents that concern regarding help desk would be addressed
thrqugh compliance of various sub-paras of para 4 of draft CAR.
In spite of complying the same in an indirect manner through the
said provisions, it may be considered to specifically provide for a
separate help desk to take care of the complaints, queries etc. of
all passengers with disability.
(3) Regarding wheelchair usage (S.No.6), though the Committee
had recommended that the passengers with disabilities should be
allowed to retain the use of their wheelchair, this has not been
accepted keeping in view the safety of aircraft operations. The
concern of the respondents may be justified to some extent, but
we still feel that this aspect be reconsidered, viz. whether it would
be feasible to allow such passengers to use their wheelchairs, at
the same time imposing conditions which may take care of safety.
We say so because of the reason that in the Committee there
were representatives from security agencies as well and still such
a recommendation is made which implies that the members of the
Committee would have kept in view the safety norms and yet
made this recommendation as it appeared to be feasible to them.
(4) In spite of security check of such disabled passengers, the
Committee has suggested, in Annexure 4, in detail the manner in
which security check should be ,handled by the Central Industrial
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
673
674
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 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 reduced mobility. We impress upon
the official respondents to draft a suitable module for such training
which ensures that the staff and security personnel, who are trained
in this behalf, are suitably sensitised. It hardly needs to be
emphasised that unless such staff is sensitive to the needs of
persons with disability or reduced mobility and is properly equipped
to take care of such passengers with the empathy that is required,
whatever mechanism is put in place is not going to be successful.
Therefore, we urge upon the respondents to prepare such training
modules, the manner in which training is to be provided and ensure
that the airlines as well as airports conduct such training
programmes, at regular intervals, forthe concerned officials who
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
f A. K. SIKRI, J.l
are supposed to deal with these passengers.
(8) Equally important is the issue of offloading of passengers
(S.No.19) which needs to be taken care of with all seriousness it
deserves. We are of the view that suitable provision in the training
module itself be provided in this behalf as well.
We direct that the official respondents, in consultation with
other departments as mentioned above, shat I consider the aforesaid
aspects, and even other aspects which deserve such attention but
may not have been specified by us, within a period of three months
and on that basis whatever further provisions are to be incorporated
should be inserted.
27. With this, we address ourselves to the relief claimed by Jeeja
Ghosh against respondent No.3 - SpiceJet Ltd., i.e. prayer (d) of the
writ petition.
28. The petitioners have stated in detail the treatment which was
meted out to Jeeja Ghosh on February 19, 2012 when she was forcibly
de-boarded by the flight 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 ofrespondent 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
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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, the
airlines would have made proper escort arrangements. It is further stated
that by not disclosing her disability, it is Jeeja Ghosh who was jeopardising
her own safety and the safety of other persons on· board the aircraft. It
was also argued that the crew of respondent No.3 in fact complied with
Rules 22 and 141 of the Aircraft Rules, 1937 (for short, 'Rules, 1937')
by de-boarding Jeeja Ghosh and that in the circumstances that existed, it
was a bona fide act on the part of the officials of respondent No.3.
According to them, the action was in the larger interest of other persons
in the aircraft as their safety was also paramount and had to be taken
care of.
31. Referring to Article 5.2 of CAR, 2008 it is argued that a medical
clearance may be required by the airlines when the airline, inter alia,
receives information that there exists a possibility of medical condition
getting aggravated during or because of the flight, of a passenger. Refuting
the claim of the petitioners that medical condition of Jeeja Ghosh was
not a disability stricto sensu, it is the say ofrespondent No.3 that as per
the medical literacy, cerebral palsy affects body movement, muscle
control, muscle coordination, muscle tone, reflex, posture and balance.
It can also impact fine motor skills, gross motor skills and oral motor
functioning. Therefore, Jeeja Ghosh could have faced serious
consequences during the long air journey which would have been much
serious.
32. Learned counsel for the petitioners, on the other hand, refuted
the aforesaid contentions of the counsel for respondent No.3. It was
vehemently denied that Jeeja Ghosh had failed to follow the procedure
laid down in Article 4.1 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
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS. 677
[A. K. SIKRI, J.]
of booking tickets so that all the required facilities are made available A
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 B
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 C
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 thatthe Operations Manual of the airline
places an obligation on the Pilot in-charge not to commence the flight D
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 taken without even interacting with
her. The claim ofrespondent No.3 that blood and froth was oozing out
of the sides of her mouth is denied with the submission that there is no E
evidence to prove the same. On the contrary, it is claimed, she was
completely fine and it was only the conduct of the respondent airline
which became a cause of her subsequent sickness. Referring to the
offer given by the airline to fly Jeeja Ghosh on the very next day, it is
submitted that this act on the part of the airlines itself shows that Jeeja F
Ghosh was alright and there was no medical condition which would
have been prevented her from flying. Mocking the stand of the airline
that the person having cerebral palsy would, in emergency situation, not
be able to respond to the safety instructions and she is a risk to herself
and potential danger to the lives of co-passengers also, the submission
of the petitioners is that it is in complete contravention of CAR, 2008 G
which prohibits the airlines from refusing to carry a person with disability
or person with reduced mobility. The relevant provisions in this regard
have already been extracted above.
34. After considering the respective arguments of the counsel for
the parties and going through the relevant provisions of Rules and CAR, H
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SUPREME COURT REPORTS [2016) 4 S.C.R.
2008 brought to our notice, we arrive at the irresistible conclusion that
Jeeja Ghosh 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 de-boarding from the aircraft, depicts total
lack of sensitivity on the part of the officials of 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 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 Rules, 193 7 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 human right and is 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. Jurisprudentially, three types of models for determining
the content of the constitutional value of human dignity are recognised.
These are: (i) Theological Models, (ii) Philosophical Models, and (iii)
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
rA. K. SIKRI, J.l
Constitutional Models. Legal scholars were called upon to determine
the theological basis of human dignity as a constitutional value and as a
constitutional right. Philosophers also came out with their views justifying
human dignity as core human value. Legal understanding is influenced
by theological and philosophical views, though these two are not identical.
Aquinas and Kant discussed the jurisprudential aspects of human dignity
based on the aforesaid philosophies. Over a period of time, human dignity
has found its way through constitutionalism, whether written or unwritten.
Even right to equality is interpreted based on the value of human dignity.
Insofar as India is concerned, we are not even required to take shelter
under theological or philosophical theories. We have a written Constitution
which guarantees human rights that are contained in Part Ill 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 constitution~! value and a
constitutional goal. What are the dimensions of constitutional value of
human dignity? It is beautifully illustrated by Aharon Barak1 (former
Chief Justice of the Supreme Court oflsrael) 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 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
2 Aharon Barak "Human Dignity - The Constitutional Value and the Constitutional
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Right" Cambridge University Press (2015) H
680
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 rights in the constitutional bill of rights,
are interpreted in light of human dignity ...
Lastly, human dignity as a constitutional value influences the
development of the common law. Indeed, where common law is
recognized, judges have the duty to develop it, and if necessary
modify it, so that it expresses constitutional values, including the
constitutional value of human dignity. To the extent that common
law determines rights and duties between individuals, it might limit
the human dignity of one individual and protect the human dignity
of the other."
38. We should, therefore, keep in mind that CAR instructions have
also been issued keeping in view the spirit of human dignity enshrined in
Article 21 and the right that are to be ensured to such persons. The
underlying message in all these provisions is the acknowledgment that
human rights are individual and have a definite linkage to human
development, both sharing common vision and with a common purpose.
Respect for human rights is the root for human development and
realisation of full potential of each individual, which in turn leads to the
augmentation of human resources with progress of the nation.
Empowerment of the people through human development is the aim of
human rights.
39. 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. For example, when public facilities and 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 ofindividuals against unfavourable
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
f A. K. SIKRI, J.l
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
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, which has resulted in severe isolation
for people with disabilities and their families.
4 I. However, the nations have come a long way from that stage.
Real awareness has dawned on the society at large that the problems of
differently abled are to be viewed from human rights perspective. This
thinking is reflected in two major declarations on the disability adopted
by the General Assembly of the United Nations on December 20, 1971
and thereafter in the year 1975. The position was reiterated in the Beijing
Conclave by the Government of Asian and Pacific Countries that was
held from December 01-05, 1992 and in order to convert the resolutions
adopted therein into reality, the Indian Parliament also passed the
enactment, i.e. Act, 1995.
. ,. ,
42. All these rights conferred upon such persons send an eloquent
message that there is no question of sympathising with such persons and
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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. This creates
an obligation 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 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 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
JEEJA GHOSH & ANR. v. UNION OF INDIA & ORS.
rA. K. SIKRI, J.l
or otherwise. However, what they do not understand is the feeling of
the people with disabilities. Disabled people no longer see their physical
or mental limitations as a source of shame or as something to overcome
in order to inspire others. What non-disabled people do not understand
is that people with disabilities also have some rights, hopes and aspirations
as everyone else. They do not want to depend on others. They want to
brave their disabilities. They want to prove to the world at large that
notwithstanding their disabilities they can be the master of their own
lives. They can be independent. They can be self-reliant. They do not
want sympathies of non-disabled. They want to be trusted. They want
to be treated as valued member of the society who can contribute to the
developmei1t and progress of the society. For this they want the proper
environment to grow. Our society automatically under-estimates the
capabilities of people with disabilities. People with disabilities want this
change in the thinking of non-disabled. It is the thinking of Disability
Rights Movement, USA that it is not so much the disabled individual
who needs to change, but the society. Says disability rights activist Judy
Heumann:
"disability only becomes a tragedy for me when society fails to
provide the things we need to lead our lives-job opportunities, or
barrier-free buildings, for example. It is not a tragedy to me that
I am living in a wheel chair."
44. Helen Keller represents the mind of such disabled persons
when she says "I am only one; but still I am one. I cannot do
everything, but still I can do something; I will not refuse to do
something I can do".
45. It is the common experience of several persons with disabilities
that they are unable to lead a full life due to societal barriers and
discrimination faced by them in employment, access to public spaces,
transportation etc. Persons with disability are most neglected lot not
only in the society but also in the family. More often they are an object
of pity. There are hardly any meaningful attempts to assimilate them in
the mainstream of the nation's life. The apathy towards their problems
is so pervasive that even the number of disabled persons existing in the
country is not well documented.
46. Jeeja Ghosh herselfis a living example who has, notwithstanding
her disability, achieved so much in life by her sheer determination to
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overcome her disability and become a responsible and valuable citizen
of this country. 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 Jeeja Ghosh 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).
4 7. On our finding that respondent No.3 acted in a callous manner,
and in the process violated Rules, 1937 and CAR, 2008 guidelines resulting
in mental and physical suffering experienced by Jeeja Ghosh and also
unreasonable discrimination against her, we award a sum of' I 0,00,000
as damages to be payable to her by respondent No.3 within a period of
two months from today.
This petition stands allowed and disposed of in the aforesaid terms.
48. We would like to conclude this judgment by observing that to
most disabled persons, the society they live in is a closed door which has
D been locked and the key to which has been thrown away by the others.
Helen Keller has described this phenomena in the following words:
"Some people see a closed door and turn away. Others see a
closed door, try the knob and if it doesn't open, they turn away.
Still others see a closed door, try the knob and if it doesn't work,
E they find a key and ifthe key doesn't fit, they turn way. A rare
few see a closed door, try the knob, if it doesn't open and they
find a key and if it doesn't fit, they make one!"
These rare persons we have to find out.
Kalpana K. Tripathy Petition allO\Yed.