Supreme Court on Accessibility for Persons with Visual Disabilities – Part I

India has a  long way to go before the country is considered as accessible for persons with  blindness and other disabilities. Some steps have been taken by the  Central Government and some State Governments after the enactment of the Rights of Persons with Disabilities Act, 2016, and much  needs to be done. In a  2017  decision, the Supreme Court has nicely outlined the law with respect to accessibility and has laid down some guidelines and timelines for improving accessibility in the country. We are hereby reproducing important paras from the decision  for benefit of our readers.

Case Title: RAJIVE RATURI V. UNION OF INDIA AND OTHERS, WRIT PETITION (CIVIL) NO. 243 OF 2005, Decided on 15^th January, 2017. 

1. Factual Background

1) The petitioner herein, who is a visually disabled person, is resident of Gurgaon (now ‘Gurugram’) and works in Delhi with a human rights organisation. He has filed this petition in public interest on behalf of the disabled persons (though better expression to describe these persons is ‘differently-abled persons’) for proper and adequate access to public places. In particular, this petition seeks providing all accessibility requirements to meet the needs of visually disabled persons in respect of safe access to roads and transport facilities. It is stated in the petition that there are sixty to seventy million disabled persons in India and almost 50% thereof suffer from visual disability. The fundamental concern of these visually impaired persons is safe accessibility to movements on footpaths and accessibility to roads and transport. It is stated in the petition that internationally acceptable mandatory components of physical accessibility are the following:

a) Safety: the environment must be such where disabled people can move around safely.

b) Independence: the environment must be such where disabled persons can use the facilities independently.

c) Affordability: the barrier free or accessible environment should not come with a premium.

d) Logical layout: the environment must be such where disabled persons are able to navigate without too much physical exertion i.e. not having to move to the length and breadth of the building to access information or make use of the facilities.

2) As per the petitioner, physical accessibility when translated vis-a-vis road and transportation facilities for the benefit of visually disabled persons would imply the following features:

MEASURES IN RESPECT OF ROADS:

1. Installation of auditory signals at every red light so as to aid visually disabled persons to cross the roads safely. This signal emits a series of sounds, which would indicate the opportune time to cross the road.
2. Construct zebra crossings at a slight incline so as to aid in guidance to visually disabled persons and to enable them to navigate along this raised safe passage of zebra crossings. This slightly raised level wo9uld indicate the course of the zebra crossing to visually disabled persons, who would be able to sense the slight level difference with the aid of their walking stick.
3. Insert guiding blocks in zebra crossings so as to aid in guidance to visually disabled persons and to enable them to navigate along with safe passage of zebra crossings.
4. Placing warning blocks along the edges of the pavement or footpath so as to denote a level difference between the road and the pathway and to ensure the continuity of the pathway. Warning blocks refers to a standard cement block, such as is used on pavements and footpaths, consisting of a series of small blisters on them so as to warn visually disabled persons wherever there is a gap in the pavement, a level difference or to indicate the point where the pavement or footpath ends and a road or a zebra crossing starts.
5. Providing for unobstructed footpaths with minimum hindrances in such manner so as to leave obstacle-free walking areas in a straight line on the footpath at either left or right edges of the footpath.
6. Placing guiding blocks on pavements and footpaths so as to aid visually disabled persons in directional guidance. Guiding blocks are constructed on the same lines as warning blocks, the only difference being that while warning blocks consist of blisters made on a block, guiding blocks comprise of lines engraved on a block. These engraved lines on the cement block, which the visually disabled persons can sense with the aid of their walking stick, serve as an orientation tool to guide visually disabled persons along a certain direction.
7. Colouring the nosing of stairs in subways/overhead bridges/ escalators. Colouring the edges of the stairs would be of immense guidance to persons with low vision so as to enable such persons to negotiate each step with ease and orientation.
8. Providing for specially designated parking areas, which do not obstruct pathways. This feature would ensure that visually disabled persons could negotiate pathways without the apprehension of colliding with parked vehicles.
9. Construction of a protective fencing around obstacles on footpaths an pavements so as to serve as a warning of the obstacle ahead.
10. Providing for signboards/advertisement boards and hoardings to be placed above head levels. This feature would ensure that there is no probability of visually disabled persons suffering head injuries owing to collision with signboards/advertisement boards.
11. Erecting a temporary barricade around places where construction work is in progress so as to serve as a timely warning to visually disabled persons.
12. Constructing highlands in the middle of main roads, so as to make crossing roads safer for the visually disabled. A highland would divide the main road in to two separate traffic zones of traffic moving in opposite directions, wherein a visually disabled person, through the aid of his ears, can concentrate on the traffic sounds coming from one particular direction whilst crossing over.

MEASURES FOR TRANSPORT FACILITIES:

1. Providing an efficient audio announcement system in all modes of mass public transport, using Delhi Metro, which has incorporated this feature with great success, as a model.
2. Providing an efficient audio announcement system in all modes of mass public transport, using Delhi Metro, which has incorporated this feature with great success, as a model.
3. Providing for a standardized texture of flooring in front of bus stops.
4. Providing for easily accessible entry and exit points at bus stops, railway stations and airports.
5. Providing for an exclusive and designated ticketing area and assistance/information counter for visually disabled persons at the point which is nearest possible to the entry point and at every platform.
6. Providing for a designated place for disabled friendly coaches by placing guiding blocks for disabled-friendly coaches at railway stations, till the time the entire transport system becomes disabled friendly entirely.
7. Constructing warning blocks along with edges of platforms at all railway stations.
8. Modifying the footboard of public transport vehicles so as to make it more accessible for the visually disabled with sufficient and uniform width of steps and between steps.
9. As per the petitioner, though there are few instances where some of these measures are being implemented, but the authorities have moved with a slow pace and in sporadic manner. To illustrate the same, the petitioner has tabulated these measures in Anneuxre P-4 to the writ petition to show that in most of the cases no action is taken by various States and Union Territories.

1. RIGHT OF VISUALLY DISABLED PERSONS TO GET THESE FACILITIES

• At International Level

4. 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 unfavorable 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. ”

5) 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 care, 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 had resulted in marginalizing 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). However, Real awareness of the problems of disabled and their human rights perspective came to fore, in international thinking, in the 1970s when United Nations took number of initiatives, which embrace the growing international concept of the human rights of persons with disabilities and equalization of opportunities to them.

6) Two major declarations on the disabled were adopted by the General Assembly in that decade. First is the declaration on the rights of mentally retarded persons dated December 20,1971 which provided that the mentally retarded person should enjoy the same rights as other human beings, including the right to proper medical care, economic security, the right to training and rehabilitation, and the right to live with his own family or with foster parents. Furthermore, the Assembly declared that there should be proper legal safeguards to protect the mentally retarded person against every form of abuse if it should become necessary to restrict or deny his or her rights. In 1975, the General Assembly of the UN adopted the Declaration on the Rights of Disabled Persons, which proclaimed that “disabled persons have the same civil and political rights as other human beings.” The Declaration states, “Disabled persons should receive equal treatment and services, which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.” This Declaration is a comprehensive instrument with a clear focus on the rights of persons with disabilities. Thereafter, the year 1981 was observed as International Year of the Disabled Persons with its central theme as “Full Participation and Equality”.

7) In the very next year the UN General Assembly adopted the World Programme of Action which placed “Equalization of Opportunities” as a central theme. The Committee on Economic, Social and Cultural Rights under International Covenant on Economic Social and Cultural Rights (ICESCR) in 1994 assumed the responsibility for disability rights by issuing a General Comment No.5, in which the Committee makes an analysis of disability as a human rights issue. Article 6 of the Covenant emphasizes “Right to Work”; Article 7 refers to “the Right of everyone to the enjoyment of just and favourable conditions of work which ensures adequate remuneration”; Article 11 recognizes that everyone has the “Right to an adequate standard of living for himself and his family, including adequate food, clothing and housing”; Article 15 recognizes the “Right of everyone to take part in cultural life”.

8) Even at Asian level, significant development took place when the Government of Asian and Pacific countries (ESCAP Region) in their meeting held in Beijing on 1st to 5th December, 1992 called “Meet to Launch the Asian and Pacific Decades of Disabled Persons” adopted to the proclamation on “Full Participation and Equality of People with Disabilities in the Asia and the Pacific regions, with this ending view, it year marked 1993-2002 as the decade of disabled persons. This paved the way for enactment of the “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which was enacted in the year 1996.

9) The underlined message in the aforesaid documents 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 realization 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.

(ii) Rights under the Indian Constitution

10) This right not only flows from various international covenants referred to above to which India is a signatory, it is recognised as Constitutional right as well. There cannot be any dispute about the rights of the differently- abled persons, particularly those who have visual impairment with which category we are concerned in the present case, to provide them adequate access to all the facilities on the road as well as convenient access to transport facilities etc. Without these facilities, movement of such persons gets impaired and this can even be treated as infringement of their fundamental rights under Article 19(1)(c) of the Constitution, which is guaranteed to each and every citizen of this country. In order to ensure that this right is exercised by visually disabled persons as well, it becomes the duty of the State and public authorities to lay down proper norms in respect of the built environment and public facilities i.e. roads, buildings, public places, transport (air, land and water) carriages etc. It is a well known fact that persons with visually impaired disability, with which we are concerned, represent far more ‘vulnerable section of society’ and ‘at-risk cases’ vis-a-vis their present surroundings which also becomes evident from the well known fact that insurance companies charge a higher premium on insurance policies extended to the visually disabled as compared to the other persons.

11) Article 21 of the Constitution gives right to life, mandates that every citizen has right to live with dignity. It is an umbrella right which subsumes several other rights that enable life to be led meaningfully. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors., this Court has held that:

“The fundamental right to life which is the most precious human right and which forms the ark of all other rights must, therefore, be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of human person.”

Right to dignity has been particularly recognized in this judgment as one of the facets of right to life:

“every act which offends against or impairs human indignity would constitute deprivation pro tanto of this right to live.”

This expansive understanding of right to life assumes greater proportions in respect of persons with visual impairments, who need a higher number of compensative skill enhancing facilities in order to go about their daily lives without suffering the indignity of being generally perceived as being dependent and helpless.

12) The vitality of the issue of ‘Accessibility’ vis-a-vis visually disabled persons’ right to life can be gauged clearly by this Court’s judgment in State of Himachal Pradesh & Anr. v. Umed Ram Sharma & Ors., where the right to life under Article 21 has been held broad enough to incorporate the right to accessibility. Relevant paragraphs of this judgment have been reproduced below:

“Read in the background of Article 38(2) every person has right under Article 19(1)(d) to move freely throughout the territory of India. He has also the right under Article 21 to his life which embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. Therefore, to the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication in reasonable conditions. Denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution.

It appears to us that in the facts of this case, the controversy lies within a short compass. It is well settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) of the Constitution and in the background of Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication.”

13) Right to dignity, which is ensured in our Constitutional set up for every citizen applies with much more vigour in case of persons suffering from disability and, therefore, it becomes imperative to provide such facilities so that these persons also are ensured level playing field and not only they are able to enjoy life meaningfully, they contribute to the progress of the nation as well. In a recent judgment in Jeeja Ghosh & Anr. v. Union of India & Ors.., these aspects were highlighted by this Court in the following form:

“37. The rights that are guaranteed to differently-abled persons under the 1995 Act, 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 recognized. 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 Barak [Aharon Barak, Human Dignity — The Constitutional Value and the Constitutional Right (Cambridge University Press, 2015)] (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.”

40. 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 unfavorable 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.)
41. 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 give 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 perception 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 mainstream either even when people sympathise 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 the disabled feel as their grievance is that others do not understand them.
42. 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 the 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.

Continued: Supreme Court on Accessibility for Persons with Visual Disabilities – Part II