Supreme court granted compensation of Rs ten lakh to disabled passenger who was de-boarded from plane?

Learned counsel argued that the aforesaid provision is in two
parts: one applies to persons with disability and the second party
applies to persons with disability who require assistant devices or
aids. It was argued that the proviso applies to the latter category
only whereas Jeeja Ghosh is merely a person with cerebral palsy
and did not require any assistant device or aid. The only
assistance she required was regarding her baggage which she
asked for at the time of security check-in. Thus, there was no
reason as to why she was asked to de-board the aircraft when
there was no assistant device or aids about which she ought to
have informed the airlines. It is claimed that so far as requirement
of assistance regarding baggage is concerned, she had duly
informed the officials of the airlines. Refuting the argument of
learned counsel appearing for respondent No.3 predicated on
Rules 22 and 141 of the Rules, 1937, it was submitted that the
Operations Manual of the airline places an obligation on the Pilot
in-charge not to commence the flight until he/she is sure of the
safety of all the passengers. In the present case, there was no
evidence to prove that Jeeja Ghosh had posed any hazard to the
safety of the Pilot in-charge or other passengers. Moreover, the
decision to de-board her was taken without even interacting with
her. The claim of respondent No.3 that blood and froth was
oozing out of the sides of her mouth is denied with the submission
that there is no 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 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 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, 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, 1937 and the CAR, 2008 guidelines.
Jeeja Ghosh herself is a living example who has, notwithstanding
her disability, achieved so much in life by her sheer determination
to 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).
47) 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 ₹10,00,000 as damages to be payable to her
by respondent No.3 within a period of two months from today.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 98 OF 2012
JEEJA GHOSH & ANR.
VERSUS
UNION OF INDIA & ORS.
Dated:MAY 12, 2016.
A.K. SIKRI, J.
Citation:AIR 2016 SC 2393,(2016) 7 SCC 761

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
Writ Petition (C) No. 98 of 2012 Page 2 of 54rights. 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.
Writ Petition (C) No. 98 of 2012 Page 3 of 544) 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
Writ Petition (C) No. 98 of 2012 Page 5 of 54agony, 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.
[…]
4.4. All airlines and airport management shall
run program for their staff engaged in passenger
handling e.g. cabin crew/commercial staff including
floor walkers and counter staff etc. for sensitization
and developing awareness for assisting
passengers with disabilities. The training program
shall be conducted at the time of initial training and
a refresher shall be conducted every three years
on the subject. Only such persons who have
current course shall be assigned to handling
disabled persons. The training program should,
inter alia, include assisting disabled persons in
filing up travel documents as may be required while
providing assistance in flight.
[…]
4.6. Many persons with disabilities do not
require constant assistance for their activities.
Therefore, if the passenger declares independence
in feeding, communication with reasonable
accommodation, toileting and personal needs, the
airlines shall not insist for the presence of an
escort.
[…]
4.8. All airlines shall provide necessary
assistance to persons with disabilities/impairment
who wish to travel alone without an escort.
[…]
4.10(b) Once 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.
[…]
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.
[…]
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.
[…]
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.
[…]
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 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.
Writ Petition (C) No. 98 of 2012 Page 9 of 5411) Further, various international legal instruments also guarantee
these rights for the disabled, including the United Nations
Convention on the Rights of Persons with Disabilities (UNCRPD),
which India ratified in 2007. Specifically, the UNCRPD requires in
Article 5:
“2. State Parties shall prohibit all discrimination on
the basis of disability and guarantee to persons
with disabilities equal and effective legal protection
against discrimination on all grounds.
3. In order to promote equality and eliminate
discrimination, State Parties shall take all
appropriate steps to ensure that reasonable
accommodation is provided.”
12) The UNCRPD specifically targets transportation systems such as
airlines when it states in Article 9:
“1. To enable persons with disabilities to live
independently and participate fully in all aspects of
life, State Parties shall take appropriate measures
to ensure persons with disabilities access, on an
equal basis with others, to the physical
environment, to transportation, to information and
communications, including information and
communications technologies and system, and to
other facilities and services open or provided to the
public.”
And the UNCRPD makes clear that private carriers are covered as well
in Article 9(2):
“2. State Parties shall also take appropriate
measures:
[…]
(b) To ensure that private entities that offer
facilities and services 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 of Treaties, 1963 requires
India's internal legislation to comply with international
commitments. Article 27 states that a “State party... may not
invoke the provisions of 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 (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. 1 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 1st May, 2008 with regard to
'Carriage by Air of Persons with Disability and/or
Persons with Reduced Mobility' as issued by the
office of the Director General of Civil Aviation.
(b) Issue an order directing respondent nos. 1
and 2 to monitor the compliance of all Indian
airlines with respect to 'Civil Aviation Requirements'
dated 1st May, 2008 with regards to 'Carriage by Air
of Persons with Disability and/or Persons with
Reduced Mobility', and to investigate any apparent
violations and provide penalties to airlines that fail
to implement these requirements, updating the Civil
Aviation Requirements to include these penalties if
appropriate.
(c) Issue an order directing respondent nos. 1
and 2 to investigate the written complaint dated 21st
February, 2012 by petitioner no. 1 and forwarded
by the Indian Institute of Cerebral Palsy, and to
take action in accordance with law against
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 suffered
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 of India (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
Writ Petition (C) No. 98 of 2012 Page 13 of 54concerned, it has given its own version to the episode occurred
on 19th February, 2012 and has denied any maltreatment to
petitioner no. 1, 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 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
Writ Petition (C) No. 98 of 2012 Page 14 of 54that 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 21
members, including members from the cross-section, i.e. the
Ministry, Airport Authority of India, DGCA, different NGOs working
for the benefit of persons with disabilities, representative of airline,
etc. This Committee did stupendous task by taking care of all the
nuances of the issue involved and submitted its fabulous report,
after reviewing the existing CAR for persons with disabilities.
20) A perusal of CAR, 2014 discloses the tremendous efforts made
by the Committee taking care of most of the problems which such
people face. As the Executive Summary of the said report shows,
Writ Petition (C) No. 98 of 2012 Page 15 of 54the 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 of airline for check-in, responsibility of CISF for
security check etc.
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
Resolution 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 Committee 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 the blind, the deaf and persons with mobility disability etc. It
also covers in detail the training procedure, including initial and
recurrent training. Significant recommendations include the
following:
• Revision of CAR on Carriage by Air of Persons with
Disabilities in a time bound manner.
• Ensure compliance of recommendations within 3 years
at major airports and then at other airports in a phased
manner.
• Address a suggested funding mechanism for meeting
cost of implementation.
• Define allocation of responsibilities for airlines, airports
and others for their respective roles in providing facilities
to persons with disabilities.
• Standardisation of equipment like wheelchairs and
facilities designed for PRMs.
• Establishment of Standard 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 policy on facilities
provided to PRMs by publishing on their respective
websites.
24) On the filing of the aforesaid report in this Court, the learned
Additional Solicitor General appearing on behalf of the Union of
India 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 further modification and fine-tuning.
The Government had taken time to respond to the same.
25) Mr. Rohit 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:
S.No. Suggestion Reply
1. 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 accepted in its
entirety.
The term 'Person with Disability' has
been retained in the CAR to keep the
terminology in line with ICAO Annex 9
and Circular 274 on and Persons with
Disabilities (Equal Opportunities,
Protection of Rights and Full
Participation) Act, 1995 published in
Part II, Section 1 of the Extraordinary
Gazette of India, Ministry of Law, Justice
And Company Affairs.
However, every effort has been made to
include all concerned terminology within
the ambit of the definition to cater the
needs of affected persons. The term
“incapacitated” has been adopted from
14 CFR Pt 382 with addition of definition
on “physical or mental impairment” for
added clarification.
The term “autism” has been included in
CAR as per the recommendation.
2. Procurement of standardised assistive
devices
The Committee recommended that all
airports should procure all assistive
With regard to airport infrastructure and
facilitation for person with disabilities,
Chapter 9.11 of ICAO document 9184
Airport Planning Manual and Annex 9
equipment based on a schedule of
standardised equipments. The
Committee recommended that the
standardisation should be done in
consultation with the Department of
Disability Affairs in a suitable time frame.
This is not reflected in the draft CAR,
which poses a problem because then
there will be no obligation to standardise
assistive devices and ensure a minimum
quality for the same. Therefore, the
Committee recommendations with
regard to procurement of standardised
assistive devices must be accepted.
provides the standards which are
guidelines for ICAO 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 Affairs is a
separate Authority under Ministry of
Social Justice and Empowerment, which
is not under this office purview.
Organisations performing functions
under the provisions of Aircraft Rules,
1937 can only be brought under the
ambit 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.
3. Internal Audit Systems
The Committee recommended that
Airlines and airport operators must have
an internal audit system 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 DGCA 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.
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.
Para 4.4.2 of the CAR mentions that
stakeholders develop an in-house
document on handling persons with
disability or reduced mobility and the
proof of its compliance shall be made
available to DGCA and other
enforcement agencies. In place of
internal audit on regular interval, the
assistive devices require maintenance
as per OEM instruction and checks by
operators. The effectiveness of their
maintenance can be ensured through
annual surveillance stated at 4.4.9 of the
CAR.
4. Help Desk
The Committee recommended a
telephonic help desk, which would be
fully accessible, to be set up to receive
assistance requests in advance from
passengers with disabilities. Any request
for on board assistance would be
communicated to the airline. This is a
necessity as this would ensure a failsafe
Concern regarding help desk would be
addressed through compliance of CAR
Para 4.1, 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.
fully accessible means of communication
for persons with disabilities and also
communicate specific needs to airlines
which may be unstated at the time of
booking. The draft CAR removes this
requirement completely and the same
must be incorporated in the final CAR.
The proviso to 4.1.1 seems to keep
some leave so that in a event a travel
agent or a representative or on account
of any communication failure, the airline
does not have a record of such a
request, the person with disability may
be denied permission to board the
aircraft. This cannot be the case. 4.1.5
applies only to the “emergency travel”.
Airlines must be always prepared to take
a person with disability on board and so
the 48 hours of requirement seems to
indicate that airlines will not be prepared
otherwise – if there is a time limit at all, it
needs to be reduced.
5. 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
professional sign language interpreters
must be made the the curbside kiosks.
These kiosks should be at the first point
of contact of the passenger and the
airport premises. This may 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
necessary 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 airports, 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 entry to the departure gate is
extremely difficult. The draft CAR
eliminates the curbside kiosk facility.
The draft CAR states that “Once persons
The suggestion made is addressed
under Paras 4.2.9 and 4.2.10 of the
CAR which states that airport operator
shall ensure that persons with disability
or reduced mobility are transported
within the airport in the same condition,
comfort and safety as those available for
other passengers and that the facilities
at the airport are accessible to persons
with disability or reduced mobility during
their transit through the airport.
with disability or reduced mobility report
at 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.
6. Wheelchair usage
While the Committee Report retains the
right of passengers with disabilities to
use their mode of assistance throughout
their journey, the CAR places several
restrictions on the same. Passengers
who intend to check-in with their own
wheelchair are to be given an option of
using a station/airport wheelchair. If the
passenger prefers to use their own
wheelchair , they shall be permitted to
use it provided the wheelchair to
specifications as laid down by Disable
Person Transport Advisory Committee
(DPTAC), UK. The CAR also says that
the acceptance of automated
wheelchair/assistive devices using
batteries shall be subject to the
application of relevant regulations
concerning dangerous goods, which will
inconvenience passengers. Instead, the
CAR must lay down the protocol for
travelling with wheelchairs and storage
of the same, with batteries being
removed/kept safely depending upon
whether they are dry or wet cell
batteries. The BCAS website must
include the rules concerning carrying of
battery-operated personal wheel-chairs
or other assistive devices/aids 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
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 carriage of dangerous goods is a
highly skilled job, which requires proper
packing, labelling and handling etc.
during various stages such as storage,
loading, unloading and transportation.
Hence the CAR says that acceptance of
automated wheelchair/assistive devices
using batteries shall be subject to the
application of relevant regulations
concerning dangerous goods.
wheelchairs must be produced. Also it
should not be the case that the person
who is using a wheelchair, who is
accompanied by an 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.
7. Checking in assistive aids
While airlines should never insist on
assistive aids and devices being
checked in, in the event that assistive
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
assistive aids/equipment. These
guidelines are completely missing from
the draft CAR.
Security check is under the purview of
BCAS and not under the airline purview.
Para 4.1.23 states that airlines shall
make suitable arrangements for
assisting persons with disability or
reduced mobility for their quick
clearance and baggage deliver and that
their checked-in baggage should be
given “Assistive Device” tags to ensure
early identification and assistance by the
airline ground staff.
8. Security Check – Responsibility of CISF
The Committee Report, in Annexure 4,
details the manner in which security
checks should be handled by the CISF,
from the training of screeners to the
protocols they should employ. The
manner in which passengers on
wheelchairs, passengers who are
blind/have low vision, passengers with
hearing impairments and those with
hidden disabilities are to be managed is
detained. This detail is lacking in the
draft CAR, and it is quite surprising
because it is at the stage of security
checks that most trouble is caused to
persons with disabilities and there are
violations of their dignity.
Manner of security check and their
training is under the purview of BCAS.
However, issue has been addressed in
respect of airline and airport staff at
Para 4.3.1, 4.3.2 and 4.3.6 of CAR all
airlines and airport operators shall
conduct training program for their staff
engaged in passenger handling for
sensitization and developing awareness
for assisting persons with disability or
reduced mobility and to ensure that the
staff is well briefed on their legal
responsibilities. The contents and
duration of the training program shall be
in accordance with the guidelines issued
by the Department of Disability Affairs,
Ministry of Social Justice &
Empowerment.
It shall be the responsibility of airport
operator to ensure that security staff
positioned at airport undergoes
disability-related training.
9. 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
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
board, the responsibility is solely with the
airline. With regard to boarding and
disembarking, the Committee Report
mandates that airports have appropriate
boarding ramps, ambulifts, aerobridge,
boarding-aisle chair, wheelchairs or other
assistance needed, as appropriate. The
Committee Report stresses that no
passenger shall be manually lifted. In
the draft CAR, the onus is on airlines and
they are only required to have provision
of onboard aisle wheelchairs for persons
with disability or reduced mobility not
carried on stretchers, “wherever possible
subject to limitations of aircraft”. This
leaves scope for passengers with
disabilities being treated in a manner that
is against their 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 from the
aircraft.
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.
Para 4.1.9 For embarkation/
disembarkation and in-flight use, airlines
shall have provision of onboard aisle
wheelchairs for persons with disability or
reduced mobility not carried on
stretchers, wherever possible subject to
limitations of aircraft. The onboard aisle
wheelchair shall conform to
specifications as laid down by Disabled
Persons Transport Advisory Committee
(DPTAC), UK.
10. Ambulift: Presently, ambulifts are
procured by airports and airlines are
asked to pay ambulift charges every time
they use it, and so it is advisable that
they be charged a sum amount for a
month whether they use it or not. By this
every airline will be made to use the
service for its disabled passengers rather
than not use it for want of extra payment
for each use. Also the ambulift and other
equipment shall be maintained in good
condition with periodic monitoring and it
should be registered in record about
maintenance details, repair details,
duration under maintenance/repair,
dates, duration and number of times for
which service was unavailable to
passenger. The Complaints Resolution
Officer should also monitor the register.
The suggestion is with regard to
commercial arrangement between
airline and airport. DGCA would take up
the matter for resolution with airline and
airport as and when difficulty reported.
However, the provision of ambulift is
covered under point No. 4.2.12 of the
CAR.
11. On Board the Aircraft
The Committee Report mandates that for
the benefit of passengers with
disabilities. Communication of essential
information concerning a flight should be
in accessible formats. Safety videos
should be available in sign language and
with subtitles. In flight entertainment
must be in accessible formats, and cabin
crew should assist passenger to access
toilet if requested using onboard aisle
chair. Further, Aisle chairs should be
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.
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 comfort 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 which is universally designed so
as to allow for the passenger to eat
unassisted as far as possible. In cases
where the passenger is unable to eat on
his own, the crew will assist in feeding
the passenger in a manner which does
not impinge upon his dignity.;
12. 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/WAI/intro/wcag.php).
The same must be mandated as it is the
global standard in accessibility.
The W3C web accessibility standards
are not recognised by Indian Govt.
However, procedures similar to the
mentioned standards are incorporated in
the CAR at point nos. 4.1.1, 4.1.2, 4.1.3
and 4.4.1.
13. 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 sole burden on
the passenger to file the Complaint
before the Nodal Officer, and there is no
accessible means of complaint
mechanism and neither is there any
obligation on any authority to try and
resolve the matter at the first stage. The
draft CAR must incorporate the
Complaint redressal mechanism as
suggested under the Committee Report.
The concern regarding appointment of
ombudsman under DGCA at more than
70 airports with a staff strength of nearly
400 is not 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 surveillance.
In addition to basic training, operators
are required to provide specific training
for personnel who may be required to
provide direct assistance to disabled
persons and persons with reduced
mobility.
14. Accessibility, way finding and signage
The Committee Report has detailed the
manner and extent to which Universal
Design must be adopted by Airports in
their infrastructure. It is important that
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
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.
ICAO documents. The inclusion of the
same in detail would be repetition.
15. Seating Areas
The Committee deals with the
importance of designated seating areas
and their positioning and signage for the
benefit of passengers with disabilities.
Aircraft and 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/disabling medical conditions
could lie down and rest/stretch/straighten
themselves. There is no such emphasis
in the Draft CAR, which is silent on the
specific issue of seating.
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. 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 areas for the
Service Animals, which has been
detailed in the Committee Report, has
not been dealt with in the Draft CAR.
The carriage of animals 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.
17. 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
various levels in the airports and airlines.
The disability sensitivity extended to
needs of all types of disabilities,
especially those which are not given
much importance in the mainstream, like
psychosocial disabilities and autism.
However, the Draft CAR restricts this
extensive training programme to staff of
Airlines and airport Operating staff only,
and not to Governmental Agencies who
come into contracts with passengers –
like Security personnel, Immigration
Para 4.3.1 to 4.3.7 of the CAR is with
regard to trainings that needs to be
provided to staff and security personnel
dealing with persons with disability or
reduced mobility.
Para 4.3.6: It shall be the responsibility
of airport operator to ensure that
security staff positioned at airport
undergoes disability-related training.
However, Immigration and Security are
under different public authorities. The
issue is required to be addressed by
themselves separately.
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.
18. Accessible Airport Infrastructure
It is essential that the needs for
accessible and universally designed
Airport Infrastructure are met by Airport
Operators. To this end, the Committee
Report detailed an extensive Annexure
viz. Annexure 3 with each and every
requirement. Not only is this not
reflected in the Draft CAR, but no
standards of any sort are mentioned.
Nor is there any requirement specified
that persons with disabilities or universal
design experts would be consulted in the
design aspects of Airports. This is a
major shortcoming of the Draft CAR.
With regard to construction and other
design related queries relating to the
airport, issue is addressed through
ICAO Annex 9 and ICAO Airport
Manual. Airport operators are required
to demonstrate compliance to to those
guidelines. The international standards
are being complied by the Airport
Operators. In view of the above,
redundancy in the regulation is not
desirable.
19. 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 requires to be clarified as well and
this discretion cannot extend to evicting
persons with disabilities off a flight.
In 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 shall be given to persons
with disability or reduced mobility,
including their escorts, if any.
20. Seating versus Safety
The Committee Report has dealt with
this issue in detail, and laid down the
important guidelines in seating of
persons with disabilities to ensure the
Concern was accepted.
The CAR has specifically made
provision for passengers with disability
or reduced mobility to be given
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.
preferential seating for better evacuation
procedures, in case of an emergency.
Para 4.1.13 of the CAR deals with the
reservation of seats for such
passengers.
21. Temporary replace of damaged
wheelchairs
While the Committee Report
categorically states that temporary
replacement wheelchairs must be
provided to passengers on a like-for-like
basis as far as possible, free of cost, in
the Draft CAR the provision is modified
to state that in the event a passenger's
wheelchair is damaged, temporary
substitute be provided on request. The
term 'on request' needs to be removed.
Also, the mandate for this replacement to
be 'free of cost' is missing.
Concern was accepted.
Para 4.4.8 of the CAR states that a
passenger shall be compensated in
case wheelchair or other assistive
device is damaged during travel by air.
22. Guidelines relating to the maximum
permissible weight and dimensions 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 request. The Draft CAR
does not deal with this issue at all.
Para 4.1.8 of the CAR lays down the
condition for usage of own wheel chair
till embarkation.
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.
23. Priority in using toilet facilities in aircraft
The Committee Report specifies that
persons with disabilities must be given
The term “Priority to access toilets of the
aircrafts” is discriminatory as for as
equal opportunity, protection or rights of
priority to access toilets on the aircraft.
The Draft CAR is silent on this.
citizen is concerned. However, new
aircrafts are mandated with separate
toilet for person with disability.
24. Priority check-in counters
The Committee Report 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.
Para 4.1.22 and 4.1.23 addresses the
concern.
26) The reply/comments which is given by the official respondents to
the suggestions given by the petitioners, and as encapsulated in
the tabulated form above, takes care of many of the
apprehensions expressed by the petitioners. However,
notwithstanding the same, in certain respects the guidelines can
be further fine-tuned by the official respondents, keeping in view
the recommendations of the Committee, where they have not
been fully implemented. We, therefore, are of the opinion that the
following aspects may be reconsidered by the DGCA/Government
to see whether they can be incorporated in CAR 2014 by proper
amendments:
(1) In spite of procurement of standardised assistive devices,
which is mentioned at S.No. 2 above, it is pointed out by the
learned counsel for the petitioners that all airports should procure
all assistive equipments based on the schedule of standardised
equipments and this standardisation should be done in
consultation with the Department of Disability Affairs in a suitable
time frame. It is pointed out that the same is not reflected in the
CAR, 2014. The explanation given by the respondents is that the
standardised processes are normally better achieved through
deliberation with stakeholders ensuring economic viability and
Department of Disability Affairs is a separate authority which is
not under the purview of DGCA. However, that could not be the
reason for not making a joint effort or involving the Department of
Disability Affairs. We, therefore, direct that the concerned officers
of the DGCA as well as officers from the Department of Disability
Affairs, which is under the Ministry of Social Justice and
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 through compliance of various sub-paras of para 4 of
draft CAR. In spite of complying the same in an indirect manner
Writ Petition (C) No. 98 of 2012 Page 31 of 54through 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
Writ Petition (C) No. 98 of 2012 Page 32 of 54Security Force (CISF). Admittedly, in the CAR this has not been
incorporated. The issue is skirted by merely stating that security
check and their training is under the purview of Bureau of Civil
Aviation Security (BCAS). BCAS can be involved and in
consultation with the officers of BCAS this aspect can be
reconsidered.
(5) Insofar as facilities to passengers with disability while on
board the aircraft is concerned (S.No.11), the suggestion of the
Committee was that the communication of essential information
concerning a flight should be in accessible formats. Likewise,
flight entertainment should also be in accessible formats and the
cabin crew should assist the passenger to access toilet if
requested using on-board aisle chair. We find that para 4.1.5 of
the CAR does not cover all the aspects of the recommendations
given by the Committee. It would be more appropriate to
incorporate the same in the CAR so that it becomes a bounden
duty of the airlines to ensure that passengers with disability are
taken care of more appropriately while they are on-board.
(6) Insofar as complaint mechanism is concerned (S.No. 13),
the Committee has given detailed 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, for the concerned officials who 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, shall 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 of respondent No.3 is that
it is Jeeja Ghosh who failed to follow the procedure laid down in
Article 4.1 of CAR, 2008 by not informing respondent No.3, at the
time of booking of tickets as well as at the time of check-in, about
her disability. It is the say of respondent No.3 that this led to
confusion and subsequent de-boarding of Jeeja Ghosh
occasioned by the lack of knowledge of her condition among the
crew members present there and her visible disability and poor
health condition, as according to the respondents her condition
had taken a turn for the worse as soon as she boarded the aircraft
and it was not possible to take risk by allowing her to take five
hour long flight journey without being escorted by any person who
could have taken care of her. It is stated that had she informed
about her sickness, 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 of respondent 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 of booking tickets so that all the required
facilities are made available to the passengers with
disabilities at the time of check-in.”
33) Learned counsel argued that the aforesaid provision is in two
parts: one applies to persons with disability and the second party
applies to persons with disability who require assistant devices or
aids. It was argued that the proviso applies to the latter category
only whereas Jeeja Ghosh is merely a person with cerebral palsy
and did not require any assistant device or aid. The only
assistance she required was regarding her baggage which she
asked for at the time of security check-in. Thus, there was no
reason as to why she was asked to de-board the aircraft when
there was no assistant device or aids about which she ought to
have informed the airlines. It is claimed that so far as requirement
of assistance regarding baggage is concerned, she had duly
informed the officials of the airlines. Refuting the argument of
learned counsel appearing for respondent No.3 predicated on
Rules 22 and 141 of the Rules, 1937, it was submitted that the
Operations Manual of the airline places an obligation on the Pilot
in-charge not to commence the flight until he/she is sure of the
safety of all the passengers. In the present case, there was no
evidence to prove that Jeeja Ghosh had posed any hazard to the
safety of the Pilot in-charge or other passengers. Moreover, the
decision to de-board her was taken without even interacting with
her. The claim of respondent No.3 that blood and froth was
oozing out of the sides of her mouth is denied with the submission
that there is no 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 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 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, 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, 1937 and the CAR, 2008 guidelines.
36) The rights that are guaranteed to differently abled persons under
the Act, 1995 are founded on the sound principle of human dignity
which is the core value of 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) 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 III with the caption
“Fundamental Rights”. One such right enshrined in Article 21 is
right to life and liberty. Right to life is given a purposeful meaning
by this Court to include right to live with dignity. It is the purposive
interpretation which has been adopted by this Court to give a
content of the right to human dignity as the fulfillment of the
constitutional value enshrined in Article 21. Thus, human dignity
is a constitutional value and a constitutional goal. What are the
dimensions of constitutional value of human dignity? It is
beautifully illustrated by Aharon Barak2
 (former Chief Justice of
the Supreme Court of Israel) in the following manner:
“The constitutional value of human dignity has a
central normative role. Human dignity as a
constitutional value is the factor that unites the
human rights into one whole. It ensures the
normative unity of human rights. This normative
unity is expressed in the three ways: first, the value
of human dignity serves as a normative basis for
constitutional rights set out in the constitution;
second, it serves as an interpretative principle for
determining the scope of constitutional rights,
including the right to human dignity; third, the value
of human dignity has an important role in
determining the proportionality of a statute limiting
a constitutional right.”
37) All the three goals of human dignity as a constitutional value are
expanded by the author in a scholarly manner. Some of the
excerpts thereof, are reproduced below which give a glimpse of
these goals:
2 Aharon Barak “Human Dignity – The Constitutional Value and the Constitutional Right”
Cambridge University Press (2015)
“The first role of human dignity as a constitutional
value is expressed in the approach that it
comprises the foundation for all of the constitutional
rights. Human dignity is the central argument for
the existence of human rights. It is the rationale for
them all. It is the justification for the existence of
rights. According to Christoph Enders, it is the
constitutional value that determines that every
person has the right to have rights...
The second role of human dignity as a
constitutional value is to provide meaning to the
norms of the legal system. According to purposive
interpretation, all of the provisions of the
constitution, and particularly all of the 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 of individuals against unfavourable treatment by
introducing anti-discrimination laws), but goes beyond in
remedying discrimination against groups suffering systematic
discrimination in society. In concrete terms, it means embracing
the notion of positive rights, affirmative action and reasonable
accommodation. The move from the patronising and paternalistic
approach to persons with disabilities represented by the medical
model to viewing them as members of the community with equal
rights has also been reflected in the evolution of international
standards relating specifically to disabilities, as well as in moves
to place the rights of persons with disabilities within the category
of universal human rights. {See – Report of United Nations
Consultative Expert Group Meeting on International Norms and
Standards Relating to Disability 10-2-2001}.
40) Earlier the traditional approaches to disability have depicted it as
health and welfare issue, to be addressed through care provided
to 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.
41) 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 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 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 development 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 herself is a living example who has, notwithstanding
her disability, achieved so much in life by her sheer determination
to 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).
47) 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 ₹10,00,000 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 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, they
find a key and if the 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.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 12, 2016.

Print Page