The Right to Fly is a Fundamental Right

Case Title: Jeeja Ghosh and Ors. Vs. Union of India (UOI) and Ors., MANU/SC/0574/2016

In this 2016 case, petitioner activist Jeeja Ghosh was forced to deboard a Spicejet flight due to her cerebral palsy, when she was on her way to attend a disability rights conference. The Supreme Court ruled in her favour as the conduct of the airlines was against basic rights of human dignity enshrined in Article 21 of the Constitution, contrary to India’s international obligations and also in violation of Persons with Disability Act, 1995, Civil Aviation Requirements’ (CAR) with regard to Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility and awarded damages for mental and physical suffering.

Edited excerpts from the judgement are provided herein under:

Facts

Brief facts as provided in the judgement are edited and provided below:

“3. Petitioner No. 1, Ms. Jeeja Ghosh is an Indian citizen with cerebral palsy. She is an eminent activist involved in disability rights.

4. It so happened that Ms. Ghosh was invited to an International Conference, North South Dialogue IV, in Goa, from the 19^th to the 23^rd of February, 2012, hosted by ADAPT (Petitioner No. 2). 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.
5. It is averred in the petition that as a result of the 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 to Goa on 20^th 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.
6. We may mention, at this stage, that Spice Jet had sent a letter to Petitioner No. 1 apologizing for the incident. However, according to the Petitioners, the Spice Jet 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 complaint 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 Spice Jet 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.
7. It is claimed that such behaviour by airlines Crew is as outrageous as it is illegal. Spice Jet’s staff clearly violated ‘Civil Aviation Requirements’ dated 1^st May, 2008 (for short, ‘CAR, 2008’) with regard to ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’ issued by the Respondent No. 2 – Directorate General of Civil Aviation (for short, ‘DGCA’) as authorized by Rule 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.

[…]

4.8. 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.

[…]

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. 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.
11. Further, various international legal instruments also guarantee these rights for the disabled, including the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which India ratified in 2007. Specifically, the UNCRPD requires in Article 5:
12. 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.
13. In order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
14. The UNCRPD specifically targets transportation systems such as airlines when it states in Article 9:
15. 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.
16. 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 Spice Jet 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.

Relief sought by the Petitioners:

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 1^st May, 2008 with regard to ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’ as issued by the office of the Director General of Civil Aviation.

(b) Issue an order directing Respondent Nos. 1 and 2 to monitor the compliance of all Indian airlines with respect to ‘Civil Aviation Requirements’ dated 1^st 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 21^st February, 2012 by Petitioner No. 1 and forwarded by the Indian Institute of Cerebral Palsy, and to take action in accordance with law against Spice Jet (Respondent No. 3) and any and all officials responsible for the above stated violations.

(d) Issue an order directing Spice Jet (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 Spice Jet Ltd. (Respondent No. 3). They filed their responses to the petition. Insofar as Respondent No. 3 – Spice Jet Ltd. airline is concerned, it has given its own version to the episode occurred on 19^th 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.
18. At this stage, the petitioner has also filed a claim before the State Consumer Dispute Redressal Commission, Kolkata, which is pending adjudication.
19. 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 jeopardizing 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.
20. 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.

Directions/Order

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 arose whether such a situation existed when Jeeja Ghosh was de-boarded. The court strongly felt it did not. 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 133A 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.

Further held, while allowing the appeal:

(iii) 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. [38]

(iv) All the rights conferred upon such persons send an eloquent message that there is no question of sympathizing with such persons and extending them medical or other help. 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 recognized that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. [42]

(v) The Petitioner herself was 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 the Petitioner had to undergo. This had resulted in violation of her human dignity and, thus, her fundamental right, though by a private enterprise/Respondent No. 3. [46]

(vi) Respondent No. 3 acted in a callous manner, and in the process violated Rules and CAR guidelines resulting in mental and physical suffering experienced by the Petitioner 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.