Javedc
Abidi Vs. Union of India & Ors [1998] INSC 617
(17 December 1998)
K.Venkataswami,
G.B. Pattanaik. Pattanaik.J
ACT:
HEAD NOTE:
Shri Javed
Abidi has filed the present Writ Petition under Article 32 of the Constitution
seeking direction to the Union of India 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 Orthopedically 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 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(1) of the Act because to provide this
concession only to visually impaired persons in discriminatory 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(1) 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 ford the implementation of the Act;
(i)
Direct the State Government to appoint a Commissioner for their States for
proper implementation of their States for proper implementation of the Act in
the States of the Country;"
As one
of the grievance of the petitioner was 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
Proclamation. The Act in question was passed by the Parliament which intends to
provide for the following as 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 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 strategics 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 Government must, therefore, make carnest
endeavour to achieve the objectives, as indicated above, in exercises of their
powers conferred under the Act.
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 orthopedically
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 aircraft 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.
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 orthopedically 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 concessions to such people
when the concession is made available to the blind people. Mr. Soli J. Sorabjec,
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 reconsidering the question to withdraw such facilities to
several group of citizens or to move the respective departments of the
Government to get the reimbursement.
According
to Mr. Sorabjec granting such concession to only disabled persons suffering
from locomotor disability may be constructed 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 deeding 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 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, provisions 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 immobility 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 direction and observations the
Writ Petition is disposed of.
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.
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