The rights that are guaranteed to differently abled persons under the Equal Opportunities, Protection of Rights and Full Participation 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 its roots in Article 21 of the Constitution. Article 21 provides for right to life and liberty. Right to life include right to live with dignity. Human dignity is a constitutional value and a constitutional goal.
The present petition made Supreme Court to observe that 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. The application of “National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities” Act (Act 4 of 1999) also was taken up within discuss purview of the Court.
In the present matter, the Petitioner, a disabled person who suffering from cerebral palsy was asked to de-board the Spice Jet flight. The petition complained of shock and trauma caused due to the said incident. She had to attend an important conference which she had to miss. She averred that the incident has left haunting memories to her mind as if she is some criminal who was not allowed to board the flight. She preferred the instant petition with the hope of putting the system in place so that other such differently abled persons do not suffer this kind of agony, 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.
The petition alleged violation of ‘Civil Aviation Requirements’ dated 1st May, 2008 (‘CAR, 2008’) with regard to ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’ issued by the Directorate General of Civil Aviation as authorized by Rule 133A of the Aircraft Rules, 1937.
The Court observed that her condition though 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 could be assumed 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, as held, amounted to violation of Rule 133-A of Rules, 1937 and the CAR, 2008 guidelines.
The rights that are guaranteed to differently abled persons under the Equal Opportunities, Protection of Rights and Full Participation 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 its 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.
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. In case of India, there is a written Constitution which guarantees human rights in form of “Fundamental Rights”. Article 21 provides for right to life and liberty. Right to life include right to live with dignity. Human dignity is a constitutional value and a constitutional goal.
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.
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. 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.
It was held that the airlines concerned acted in a callous manner, and in the process violated Aircraft Rules, 1937 and CAR, 2008 guidelines resulting in mental and physical suffering experienced by Petitioner and also unreasonable discrimination against her. Court awarded compensation as damages to be paid by the airlines.
Jeeja Ghosh vs. Union of India and Anr.
Writ Petition (C) No. 98 of 2012