1998 JTR(SC) 1249
1999 AIR(SC) 512 ; 1999 AIR(SCW) 111 ; 1998 8 JT 632 ; 1999 1 RSJ 230 ; 1998 6 Scale 597 ; 1999 1 SCC 467 ; 1998 Supp3 SCR 610 ; 1999 1 SCT 308 ; 1999 1 UJ 143 ; 1999 KHC 911 ; 1998 9 Supreme 446
1998(9) Supreme 446
Supreme Court of India
(Under Article 32 of Constitution)
K. Venkataswami & G.B. Pattanaik, JJ.
Javed Abidi -Petitioner
versus
Union of India & Ors. -Respondents
Writ Petition (C) No. 326 of 1997
Decided on 17-12-1998
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabjee, Attorney General, K.N. Rawal, Additional Solicitor General, Dr. A.M. Singhvi, P.N. Mishra, Sr. Advocates, Anis Dayal, Indra Makwana, V.G. Pragasam, Aruneshwar Gupta, R.S. Sodhi, Lokesh Kumar, Ms. S.A. Chitale, Ashok K. Srivastava, Ms. Sushma Suri, K.R. Nagaraja, Arvind Verma, Pradeep Misra, B.S. Chahar, Ms. Jyoti Chahar, Ashok Mathur, S.K. Agnihotri, K.K. Rai, Ms. Samitha Inna, Ms. Anil Katiyar, D.S. Mehra, Ms. Hemantika Wahi, Ms. Amita V. Duggal, Rajiv Mehta, Sunil Jain, G. Prakash, Ms. Beena Prakash. Ms. A. Subhashini, Sudhir Walia, Prem Malhotra, Ranjan Mukherjee, R.S. Jena, Anil Srivastava, K.B. Rohtagi, Ms. Aparna Rohtagi Jain, M.A. Krishnamurthy, Bankey Bihari, Advocates.
Important Point
Orthopaedically impaired persons who are suffering from locomotor disability to the extent of 80% and above would be entitled to benefit of concession for travelling by air in view of Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Act
Referred
:CONSTITUTION OF INDIA : Art.32, Art.21, Art.19(1)
PERSONS WITH DISABILITIES EQUAL OPPORTUNITIES,PROTECTION OF RIGHTS AND FULL PARTICIPATION ACT : S.20(i), .
(A) The Writ Petition is framed under Article 32 of the Constitution for enforcement of rights under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read with Article 21 (right to life), Article 19(1) (freedom of movement), and provisions ensuring equal opportunity and non-discrimination. The Act mandates barrier-free environments, prohibits discrimination, and requires creation of central and state coordination and executive committees for implementation. The petitioner, an orthopaedically disabled person within Section 2(i)(v), seeks directions to enforce these structural mechanisms and also seeks travel concessions from air carriers. The Court examines whether the Central and State Coordination Committees have been constituted as required under Sections 3 and 13, and whether the economic constraints faced by the airline can be overridden in light of the object of full participation and non-discrimination, especially for persons with locomotor disabilities.
(B) Key legal principles include: statutory obligations under disability law to create institutional structures for implementation; non-discrimination and equal opportunity mandates; the duty to make reasonable accommodations; and the hierarchy of constitutional remedies under Article 32. The Court balances economic feasibility against the substantive right to accessibility and inclusion, emphasizing that concession in air travel must be extended to persons with significant locomotor disability proportionate to that granted to the blind.
Facts of the case:
The petitioner filed a Writ Petition under Article 32 alleging non-implementation of the Persons with Disabilities Act, 1995, and specifically lack of aisle chairs and ambulift in Indian Airlines, absence of concession for orthopaedically disabled passengers, and failure to constitute Central and State Coordination Committees. The Court issued notices to Union and State Governments, received affidavits showing committees have been or are being constituted, and heard submissions on economic constraints and discrimination.
Findings of Court:
The Court found that the Central and State Coordination Committees have been constituted and expressed hope they will discharge obligations. It was satisfied that Indian Airlines has taken effective steps for aisle chairs and ambulift. However, the Court directed Indian Airlines to grant concession for air travel to persons with locomotor disability of 80% and above, at par with concessions for the blind, based on the degree of immobility and the object of the Act.
Issues:
Whether the structural bodies under the Act have been properly constituted; whether Indian Airlines is obligated to provide travel concessions to persons with disabilities other than the blind; and whether such concession can be justified economically without violating the right to equality.
Ratio Decidendi:
The Court held that the objectives of the Act require non-discriminatory access and reasonable accommodation, and that concession in air travel must be extended to persons with significant locomotor disability (80% and above) to achieve full participation and integration, subject to certification of disability. Economic constraints of the airline were considered but did not override the substantive right to equal opportunity.
Result:
The Writ Petition is disposed of with directions to Indian Airlines to grant air travel concession at the same rate as for the blind to disabled persons with locomotor disability of 80% and above on production of a certificate from a designated medical board, while acknowledging the constitution of coordination committees and satisfactory steps taken for other infrastructural accommodations.
(A) The Writ Petition is framed under Article 32 of the Constitution for enforcement of rights under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read with Article 21 (right to life), Article 19(1) (freedom of movement), and provisions ensuring equal opportunity and non-discrimination. The Act mandates barrier-free environments, prohibits discrimination, and requires creation of central and state coordination and executive committees for implementation. The petitioner, an orthopaedically disabled person within Section 2(i)(v), seeks directions to enforce these structural mechanisms and also seeks travel concessions from air carriers. The Court examines whether the Central and State Coordination Committees have been constituted as required under Sections 3 and 13, and whether the economic constraints faced by the airline can be overridden in light of the object of full participation and non-discrimination, especially for persons with locomotor disabilities.
(B) Key legal principles include: statutory obligations under disability law to create institutional structures for implementation; non-discrimination and equal opportunity mandates; the duty to make reasonable accommodations; and the hierarchy of constitutional remedies under Article 32. The Court balances economic feasibility against the substantive right to accessibility and inclusion, emphasizing that concession in air travel must be extended to persons with significant locomotor disability proportionate to that granted to the blind.
Facts of the case:
The petitioner filed a Writ Petition under Article 32 alleging non-implementation of the Persons with Disabilities Act, 1995, and specifically lack of aisle chairs and ambulift in Indian Airlines, absence of concession for orthopaedically disabled passengers, and failure to constitute Central and State Coordination Committees. The Court issued notices to Union and State Governments, received affidavits showing committees have been or are being constituted, and heard submissions on economic constraints and discrimination.
Findings of Court:
The Court found that the Central and State Coordination Committees have been constituted and expressed hope they will discharge obligations. It was satisfied that Indian Airlines has taken effective steps for aisle chairs and ambulift. However, the Court directed Indian Airlines to grant concession for air travel to persons with locomotor disability of 80% and above, at par with concessions for the blind, based on the degree of immobility and the object of the Act.
Issues:
Whether the structural bodies under the Act have been properly constituted; whether Indian Airlines is obligated to provide travel concessions to persons with disabilities other than the blind; and whether such concession can be justified economically without violating the right to equality.
Ratio Decidendi:
The Court held that the objectives of the Act require non-discriminatory access and reasonable accommodation, and that concession in air travel must be extended to persons with significant locomotor disability (80% and above) to achieve full participation and integration, subject to certification of disability. Economic constraints of the airline were considered but did not override the substantive right to equal opportunity.
Result:
The Writ Petition is disposed of with directions to Indian Airlines to grant air travel concession at the same rate as for the blind to disabled persons with locomotor disability of 80% and above on production of a certificate from a designated medical board, while acknowledging the constitution of coordination committees and satisfactory steps taken for other infrastructural accommodations.
Judgment
Pattanaik, J.-Shri Javed Abidi has filed the present Writ Petition under Article 32 of the Constitution seeking direction to the Union of India to implement the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, alleging inter alia that though the Act is intended to grant opportunities to the people with disabilities for their full participation and the Act has come into operation with effect from 7.2.1996 but no effective steps are being taken for implementation of the provisions of the Act. The petitioner himself is an Orthopaedically impaired person and has incurred the disability within the meaning of Section 2(i)(v) of the Act. He appeared in person in this Court and successfully presented his case indicating several infirmities as well as callousness of the different organisations of the State in Implementing the provisions of the Act. In the Writ Petition the petitioner prayed for the following reliefs:-
“(a) Direct the Indian Airlines to immediately provide for aisle chairs in every aircraft;
(b) Direct the Indian Airlines to provide ambulift on all the Airports of the country;
(c) Direct the Indian Airlines to provide 50% concession to all the disabled persons as defined in Section 2(I) of the Act because to provide this concession only to visually impaired persons in discriminatory and directly violative of the fundamental rights of the other disabled, as guaranteed under Article 14 of the Constitution of India;
(d) Direct the Central Government to appoint only disabled persons defined under Section 2(I) of the Act as per the provisions of Section 3(2)(I) and not to include any other person who is not a disabled person under the Act;
(e) Direct the Union of India to immediately appoint the Chief Commissioner and Commissioners as per Section 57 of the Act;
(f) Direct the Central Government to immediately constitute the Central Executive Committee as defined under Section 9 of the Act;
(g) Direct all the State of the country to form their own State Coordination Committee as defined under Section 13 of the Act;
(h) Direct all the State Government to immediately constitute their respective State Executive Committee for the implementation of the Act;
(i) Direct the State Government to appoint a Commissioner for their States for proper implementation of the Act in the States of the Country;”
As one of the grievance of the petitioner was that the Central Government has not constituted the Central Co-ordination Committee under Section 3 of the Act and States also have not constituted the State Co-ordination Committees as required under Section 13 of the Act, this Court issued notice to all the State Governments and the Union Territories by order dated 20th October, 1997 to get responses from them. Pursuant to the aforesaid notice the Union of India through its Secretary in the Ministry of Welfare Department filed an affidavit on 30th September, 1997, indicating the steps taken by the Union Government for implementation of the provisions of the Act including the Constitution of the Central Committee under Section 3 thereof. Different States also filed their respective affidavits indicating the constitution of the State co-ordination Committees under Section 13. In view of the constitution of the Central Co-ordination Committee as well as the State Co-ordination Committees in most of the States we do not think any further direction is necessary in that regard, but, we hope and trust that the respective Committees will discharge their obligation under the Act so as to achieve the objectives for which the Act has been enacted. It may be borne in mind that the Economic and Social Commission for Asian and Pacific Region held a meeting at Beijing on 1st to 5th December, 1992 and adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Region and India is a signatory to the said Proclamation. The Act in question was passed by the Parliament which intends to provide for the following an apparent from the Statements of Objects and Reasons:
“(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of persons with disabilities into the social mainstream.”
The Committees constituted by the Central Government as well as by the respective State Governments must, therefore, make earnest endeavour to achieve the objectives, as indicated above, in exercise of their powers conferred under the Act.
2. The petitioner also made a specific grievance in the Writ Petition alleging the lack of facilities like providing aisle chair and ambulift by the Indian Airlines which according to the petitioner is a social obligation of the Airlines and the said Airlines must provide these minimum facilities to permit easy excess to the disabled persons particularly those who are orthopaedically impaired and suffer from locomotor disability. The Indian Airlines in course of the hearing of this Writ Petition indicated the steps taken by it in relation to providing of aisle chair in the aircraft and providing ambulift at different airports. Initially Indian Airlines had indicated that providing ambulift at major airports would be a costly affair but in its last affidavit filed in this Court it has been indicated that the major airports are going to be provided with ambulift and aisle chairs are now available in aircrafts to be used by disabled persons. Having considered the affidavits filed by the Indian Airlines we are satisfied that effective steps have been taken in that regard and it is not necessary for issuing any further direction on that aspect.
3. One of the major grievance of the petitioner is that the Indian Airlines is not giving any concession to such disabled persons for their movement by air even though such concessions are being given to only blind persons, who are also disabled persons under the Act. According to Mr. Abidi, the petitioner in this case, the orthopaedically handicapped persons with Locomotor disability require the relief of concession for their travel by air more as it becomes an impossible task for them to travel from one corner to the other corner of the country by train and there is no justification for the airlines not to grant such concession to such people when the concession is made available to the blind people. Mr. Soli J. Sorabjee, the learned Attorney General appearing for the Indian Airlines on the other hand impressed upon the Court that the concession to the blind people was being given much prior to the commencement of the Act. According to Mr. Sorabjee, the learned Attorney General the economic condition of the Indian Airlines is such that it is not feasible to grant any further concession to any other category of disabled people and the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity. Detailed affidavits have been filed indicating the present economic position of the Indian Airlines. It has also been indicated in the said affidavits that the airlines is now re-considering the question to withdraw such facilities to several group of citizens or to move the respective departments of the Government to get the re-imbursement.
4. According to Mr. Sorabjee granting such concession to only disabled persons suffering from locomotor disability may be construed to be a discriminatory attitude towards them and, therefore, the Court should not issue such direction, but he does not dispute the fact that blindness is one of the disability under Section 2(i) of the Act and the Airlines is granting concession for travelling by Air to those suffering from the disability of blindness. While we agree with Mr. Sorabjee, learned Attorney General that the economic capacity is a germane consideration while deciding the question as to whether all persons suffering from disability as defined under Section 2(i) of the Act should be granted concession like blind persons for travelling by Air, at the same time we cannot ignore the true spirit and object with which the Act was enacted. To create barrier free environment for persons with disability and to make special provision for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation are some of the prime objectives of the Act. In this context the question that arises for consideration is whether atleast persons suffering from locomotor disability to a particular extent can be granted the facility of concession while travelling by Air which facility is already being given to those suffering from the disability of blindness. When we consider the different types of disabilities mentioned in Section 2(i) of the Act and examine the same in relation to the difficulties one may face by travelling by train to far off places, say from Delhi to Trivandrum, those who are suffering from locomotor disability would stand by a separate class itself because of their imobility and the restriction of the limbs. It may not be difficult for a person with low vision or a person with hearing impairment or mental retardation or a person suffering from leprosy to travel by train even to far off places whereas a person suffering from locomotor disability above certain percentage of the same will find enormous difficulty in travelling by train or bus. We are considering the question of such disabled persons in the context of granting them the facility of concession for travelling by Air. Having considered the affidavits filed by different parties and having considered the submissions made by Mr. Sorabjee appearing for Indian Airlines as well as Mr. Abidi, petitioner in person and bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while travelling by train particularly to far of places we are inclined to issue direction to the Indian Airlines to grant them the same concession which the Airlines is giving to those suffering from blindness. But each and every person suffering from such disability would not be entitled to get the concession in question as it would depend upon the degree of disability. We think it appropriate to direct that those suffering from the aforesaid locomotor disability to the extent of 80% and above would be entitled to the concession from the Indian Airlines for travelling by Air within the country at the same rate as has been given to those suffering from blindness on their furnishing the necessary certificate from the Chief District Medical Officer to the effect that the person concerned is suffering the disability to the extent of 80%. Such District Medical Officer wherein the disabled ordinarily reside will constitute a Board with Specialist in Orthopaedic and one other Specialist whom he thinks suitable for the purpose and examine the person and would grant necessary certificate for that purpose. We are quite conscious of the financial position of the Indian Airlines but yet we are issuing the aforesaid direction keeping in view the broad objectives of the Act, as already narrated, and keeping in view the fact that concession is already being granted by the Airlines to the persons suffering from blindness. With these directions and observations the Writ Petition is disposed of.
5. Before we conclude the matter we cannot but thank the petitioner who appeared in person and brought this matter to the notice of the Court which resulted in acceleration of the implementation of different provisions of the Act not only by the Union Government but also by the State Governments.
(C.R.)
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