In the Supreme Court of India Civil Original Jurisdiction Case No. Writ Petition No. 98 of 2012 Petitioner Jeeja Ghosh & anr. Respondent Union Of India & Ors. Date of Judgment Decided on 12th March, 2016 Bench A K Sikri, Justice, R K Agrawal, Justice.
Background
Political Background
Jeeja Ghosh was born with cerebral palsy, a condition caused by lack of oxygen to the brain either during pregnancy or at the time of delivery. She completed her school from Indian Institute of Cerebral Palsy and La Martiniere for Girls, Kolkata, India. Ghosh has been involved in the social sector for more than two decades. She believes in the right based approach and dignity of all human beings. She has been a part of the disabled people’s movement and is connected to other disability right activities across India. Her special interest is women disability. The film “I am Jeeja” has also received National Film Award in 2016 from the Government of India as the best film on the social issues. She has also received the Role Model Award from the Office of the Disability Commissioner. She also has interest in writing and creative arts. She has also conducted various Sminar and Conferences in India as well as in abroad on Rights of Disabled Person.
International Background
There are international forums and conventions which regulates various sensitive issues like Human Rights, Rights of Children, Child Trafficking, Crime Against Women including the Rights of the Disabled Person.
All the Human Rights instruments protect the rights of the disabled person also as they are applicable to all the human beings. In these instruments Principle of Equality and Non Discrimination are also included. Human Rights Conventions are as follows-
1. United Nation’s Declaration on Human Rights.
2. International Covenant on Civil and Political Rights.
3. International Covenant on Economic, Social and Cultural Rights.
4. Convention against Torture, other Cruel Forms, Inhumane and Degrading Treatment or Punishment.
Specific Legislation on Rights of Disabled Person-
1. Declaration on the Rights of the Disabled Person.
2. ILO Convention on Vocational Rehabilitation and Employment (Disabled Person).
3. Inter-American Convention on the Elimination of All Forms of Discrimination against Person with Disabilities.
4. Article 15 of European Social Charter.
5. Article 23 of Convention on Rights of Child.
6. Article 18(4) of African Charter on Human and People’s Rights.
Judicial Background
Judiciary has played a very important role in declaring the rights of the disabled persons. Article 21, Article 14 and Article 15(2) of the Constitution have played a very important role in recognizing the rights of the Disabled Person. Article 21 states about Right to Life and Liberty means every person has this right to live their lives with dignity. Article 21 also provides the same right to the disabled persons. These implementations have been made even to ratifying some international conventions about Human Rights. Such steps by the judiciary have been taken in the limb of International Laws and Fundamental Rights enshrined in the Constitution. Although there is no such specific Article which talks about the Rights of the Disabled Person but interpretation of Article 21 has made it available to the disabled persons. Legislation has also passed a specific legislation as Person with Disabilities Act, 1995. This legislation ensures equal opportunities for people with disabilities and their full participation in the nation building.
In various landmark cases like Jared Abiding v. Union of India, National Federation of Blind v. UPSC and Government of NCT of Delhi v. Bharath Lalmeena, the Supreme Court has recognized the rights of the disabled persons including travelling by train, appearing the examination for Indian administration and allied services and appointment of disabled persons as physical education teacher etc.
Facts
1. Jeeja Ghosh who is an Indian citizen suffering from cerebral palsy. She is a very famous personality with a very high qualification.
2. She was invited to an international conference in Goa, North South Dialogue Ⅳ and it was hosted by ADAPT. She was invited as one of the 15 international individual for reviewing an Indo- German Project which was being show case at the conference. This conference was intended to put a special focus on people with disabilities and their families and social or institutional barriers.
3. The second Petition purchased a return ticket for Ms. Jeeja Ghosh from the Respondent no. 3 Spice Jet Ltd.
4. The incident happened when she was travelling from Kolkata to Goa.
5. When Ms. Jeeja sat on the fight and she was approached by a member of a flight, asked to see her boarding pass. The crew member basically feared that her disability might pose health risk during pregnancy or during the time of delivery. She was ordered to off the plane, even after she tearfully protected and informed the fight crew members that she needed to reach Goa for the conference.
6. She was de-board. After returning to the airport and arguing with airlines officials.
7. She later discovered that the Caption has insisted that she be removed due to her disability. She is the one woman who has never who did not let anything come in her road. She’s never chose to fight instead of succumbing to her condition.
8. After this incident, Ms. Jeeja went into shock and trauma of this event, she had trouble sleeping and eating, so she was taken to a doctor the following day where she was prescribed medication. Because of this, she was unable to fly Goa on 20th February and thus missed the conference all together. It did humiliate and traumatize her but also to the organizers and to all the attendee of the opportunity to hear her and her experiences and her analysis of Indo- German under review.
9. Petitioner No. 1 grudges that even after 4 years of this incident whenever she has a flashback, she feels haunted with that scene when she was pulled out of the plane like a criminal. She continued to have nighmares about that incident.
10. The Respondent has sent the apology letter to the Petitioner for trivializing the incident by just mentioning that ‘inconvenience caused’ was ‘in advent’.
11. Before approaching to the court, the Petitioner has also submitted the complaint to the Chief Commissioner for Persons with Disabilities and to the Ministry of Social Justice.
12. The Petitioner has filed a petition under Article 32 of the Constitution. She claimed in her Petition that airlines crew members such behaviour is as outrageous as it is illegal and discriminatory. She also claimed that third Respondent’s staff clearly violated Civil Aviation Requirements.
Issues
1. The said act of flight member was violation of Article 21 of the Constitution.
2. The Respondent is not following the guidelines mentioned under CAR, 2008 and the PWD Act, 1995.
Arguments
Petitioner’s Argument
- It was stated that such acts are in violation of the Petitioner’s Fundamental Right to life and liberty, to move freely across the country, and to practice trade and protestation.
- The Petitioners refused the contentions of the Respondent no. 3 and denied any kind of procedural negligence on the part of Ms. Ghosh.
- Airlines’ denial of carrying her was in violation of CAR 2008 and other relevant provisions of the PWD Act and UNCRPD.
- The Court should impose penalty on the Respondents for not following such guidelines.
- The Court should order to the Respondent SpiceJet 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.
- It was also stated that it is the obligation of the government to see that rights of persons with disabilities are being taken care of because such arbitrary is violation of Fundamental Rights mentioned under Article 14, 21and Article 19.
- It is the duty of the Government to eliminate discrimination and promote equality.
- It was also stated that 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.”
Respondent’s Argument
- Respondent 2-DGCA: It was rather unusual, that a Governmental body itself came out in support of the present petition, so far it helps in implementation of the Guidelines prescribed.
- Respondent 3-the Airlines: It was Ms Jeeja Ghosh who failed to disclose her disability at the time of booking of her flight tickets and at the time check-in and the Respondent could not risk of taking the Appellant for 5 hours journey.
- It was also stated that medical clearance was required. 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.
Judgment
After considering the respective arguments of the counsel for the parties and going through the relevant provisions and CAR, 2008 brought to our notice, we arrive at this conclusion that Jejja Ghosh was not given appropriate, fair and caring treatment which she was required by due sensitivity and the decision to de-board her in the given circumstances was an example of total lack of sensitivity.
It is further stated that in this case the question is not whether a member of crew or flight can de-board any disabled person or Whether the decision was taken in favour of larger benefit but the question is whether such situation existed in this case to make such decision or not. The Court said the answer is 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. However, the nation has come a very long way from the stage where such disabilities were considered as a evil affect.Now we should take it as a human rights considering various international laws. It is said that 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.”
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.
It is also stated by the Hon’ble Court that these people don’t need sympathy but only want to be trusted. People don’t understand this fact that disabled persons also have some rights. Such people don’t want to be dependent on others. Non disabled person always under- estimate the capabilities of the disabled person but these people want to be self- relient. The Hon’ble Court also stated in the judgment that the Petitioner Jeeja Ghosh is one of the examples of the spirit, courage of such disabled person. She has achieved so much in her life and has overcome her disabilities. Irrespective of her disabilities, she has become a responsible citizen of this country. A little car and sensitivity on the part of the airlines would not have resulted into such a pain, suffering and trauma that the Petitioner has undergone.
The Hon’ble Court concluded the Judgment by saying to most of the disabled person, the society has closed the doors and the key to such doors has been thrown by non-disabled persons. Still some non-disabled person knock these doors or try to open these doors fron different keys or some of them make themselves the one which can open these doors.
Held
They found that the Respondent No. 3 acted in callous manner and in the process violated the rules of 1937 and Car, 2008 which was also experienced by Ms. Jeeja Ghosh. It was an unreasonable discrimination against her. The Hon’ble Court awarded 10,00,000 as damages which were supposed to be paid by Respondent No. 3 within a period of 2 month from today.
Significance of the Judgment-
- The Hon’ble Supreme Court directed to 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.
- Supreme Court directed to have a separate Help Desk for the disabled Persons.
- Supreme Court also did Harmonious Construction between the rights of the disabled persons and safety of the other passengers. It was recommended by the committee that disabled person with wheelchair should be allowed with their wheelchair but it was not good for the safety of other passengers. Therefore, the Hon’ble Supreme Court refused to take such risk.
- It was last stated that various facts are not covered under CAR like helping the disabled person to go for the toilet. These should be included in CAR. So, that the members of flight will be bound to take care of disabled persons.
- Hon’ble Court also stated that a special training programme of the staff member has to be there. They need to be more specialized to take care of such passengers and sensitive enough.
- Hon’ble Court tried to reflect the feelings of the disabled persons. It has been stated by the Hon’ble Court that the disabled persons don’t need the sympathy but to be trusted by others. They want to get all reasonable opportunity as any other non-disabled person.
- Hon’ble Court also discussed the rights of the disabled person under Article 14, 19 and 21. All the disabled person has this fundamental right to live their life with human dignity.
- It has also been stated that non-disabled person has closed the doors of all opportunities to disabled persons but still disabled persons always try to get the opportunity and prove every single time when they have given the opportunities.
Case comment
In this case the facts clearly show that Ms. Jeeja Ghosh is a disabled person but she is a responsible citizen of this country. She is an honoured lady and a social activist. She was travelling by airlines to attend a conference. The staff member of that airlines did a very bad behaviour with the Petitioner. She was forced to come out of that plane and treated like a criminal for her disabilities. There was no such medical officer first to see her conditions. They just found her to be disabled person and misbehaved with her. This incident was a tragic incident of her life. According to me, the behaviour of staff member was extremely insensitive and uncivilized. It was a clear violation of the basic fundamental rights of right of life and dignity. She was being discriminated without any reasonable ground. She was again and again trying to explain them her condition and the urgency but they were insensitive. One side we are recognizing the fundamental rights of the animal in various landmark cases like Jallikattu on the other hand people are not even treating disabled persons with sensitivity. A very strict laws should be made for the misbehaviour with disabled person because the person who is disabled suffers every single second physically and mentally. Such treatment made them very weak and more suffere. Many disabled persons with so much capabilities don’t even try to do something in their lives because people always misbehaved with them and make them realised that they are not normal. We should change our mindset and support such people and respect their intetnion to do something in their lives. The people should treat them like a normal human being and all the doors of opportunities shol open for them.
The study shows that the construction of buildings in our country is such which makes disbled persons even more disabled and suffers. In buildings, there is no such way through which they can enter on their own but in various other countries the buildings are constructs in such a manner which makes it easy for them to enter in that building on their own without anyone’s help. So we should also take the fact into consideration that these disabled person do exist in this country and every facilities should be made even available to them.
One more aspect is that there are various schools and colleges where the admission of disabled persons are prohibited completely which make them feels very bad and discriminatory. It should be upto them whether they want to take admission in any normal school or in any school of disabled persons. It makes them believe that they are different from other students and they are not normal. The school is the base of any child, from the base the discrimination is taking a start.
Therefore, I conclude it by saying that disabled persons just want to be treated like a human beings and want equal opportunities. Therefore, we should trust their intentions and capabilities and should treat them equally in this world.
Edited by Shuvneek Hayer
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
