'Must Look At India's Remote Corners': Madras HC Satisfied With Stakeholder Consultation Process For Draft Universal Accessibility Guidelines

The Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu, while pronouncing the order, also made a suggestion regarding the consultative procedure that could be adopted in future.

The bench was of the conviction that, taking into account the linguistic diversity in the country, public consultation can be made more participative if the draft legislations are circulated in all official languages including in the printed form.

"….considering the linguistic diversity amongst the people of the country, it would be more appropriate if efforts are taken to ensure that draft legislations, like the present one, are circulated in all the official languages across the country including in printed form so that there could be wider consultation with the public at large for achieving better and broader perspectives to all issues involved before taking final decision", the court noted in its order.

The petitioner, a disability rights advocate, had also requested to make the draft guidelines available in user-friendly HTML format instead of the currently available PDF format.

Regarding this aspect, the Court asked Additional Solicitor General R. Shankaranarayanan to ascertain the feasibility for such conversion.

The petitioner presented his case before the bench by pointing out that the 2014 pre-legislative consultation policy of Central Government has not been complied with while publicising the draft guidelines in question.

The State on the other hand filed a counter-affidavit explaining various steps that had been taken for wide public consultation before preparing the relevant draft guidelines.

ASG Shankaranarayanan submitted that the draft guidelines were put up in public domain on August 12 and public comments were received till 13th October, which is well beyond the minimum 30 days period as sought for by the Petitioner.

In response, the counsel for petitioner, Advocate A. Yogeshwaran, made an additional submission that merely placing the soft copy of the draft in the website of the Centre For Public Works Department (CPWD), that too in English, excludes illiterates and persons not familiar with computers and technology. He also submitted that since the modified guidelines directly affect persons with disabilities, the same may be documented and disclosed through print or electronic media.

The ASG then shared with the court details about a perception survey conducted after consulting with Persons With Disabilities (PWDs), concerned organisations and domain experts. Elaborate social media campaign to enhance the outreach along with survey forms sent via emails (300) to concerned stakeholders and the level of their participation (40 replies) was also shared with the court.

ASG also drew the court's attention to two subsequent virtual consultations involving 28 disability rights groups and organisations. National Institute Of Urban Affairs (NIUA) has also carried out social media campaigns to attract participation from all over the country, ASG said.

ASG also submitted that the consultation report is available on the National Institute of Urban Affairs (NIUA) website in the public domain. The said consultation is reported to have received substantial press coverage in national and local newspapers for which links have also been provided.

The draft framework and recommendations of the guidelines were presented to a group of national and international experts from the domains of Universal Accessibility and Disability Rights, ASG informed the court.

The petitioner vehemently argued that none of this pertains to the final draft guidelines since the consultation process and outreach mentioned by ASG has happened in the pre-preparation stage of Guidelines.

"Please see my rejoinder to counter affidavit; perception survey, stakeholder consultation, focus group discussions, these were made for preparing the draft guidelines, not a substitute for publicising the draft."

ASG tried to convey that since it's a set of guidelines on accessibility standards relating to the physical environment of persons with disabilities, even if it pertains to a specific section of people directly affected, Rule 15 (c) conclusively mentions the ICT accessibility standards to be followed and that the said rule only specifies that the documents must be published, and it must be uploaded in OCR based PDF format or ePUB.

The petitioner, on the other hand, stood firm on his argument.

"Rule 15 lays down standards of practice, it does not mention how when a draft is revised, how it must be given in public domain. Rule15(c) regulates how website standards must be, not how drafts of guidelines must be communicated. Newspaper links being referred to are not regarding the publication of the draft."

Justice PD Audikesavalu inquired from the petitioner's counsel as to what would have been the appropriate course of action as per his client. To this, the petitioner replied that the draft guidelines must have been published in newspapers and public comments must have been invited more proactively.

"In August 2021, when they uploaded the draft, people didn't know, not one newspaper article was published about it, nobody knew this was happening, non-English speaking people have been excluded automatically. Because there are objections to draft prepared. If these guidelines are revised in a manner that is completely opaque, it defeats the purpose of the Act. We have merely 30 per cent internet penetration in this country, what will the rest of the people do?"

The Chief Justice considered the submissions made by both parties and noted before pronouncing the order: "Has the draft been finalised? If it hasn't been finalised, will the respondents let it float for a week before it is finalised?"

The ASG replied that the respondents can keep it open for next week and all objections will be received.

The Chief Justice again enquired how the people would come to know about the draft guidelines uploaded on the website.

On a lighter vein, ASG noted that even though the laws are published in the official gazette periodically, no one endeavours to read them.

The Chief Justice while noting that it is completely different from the consultative process envisaged, commented: "There are two aspects; one is that the people must know. Secondly, the language in which the draft guidelines are published."

Regarding the petitioner's additional submission to direct the respondents to publish the final draft in regional languages or newspapers, the Chief Justice replied that the bench will make some observations about it in the order.

"You cannot decide all of these things based on active participation in cities. Connectivity is certainly an issue. We must look at India in its most remote corners. Not all citizens live in the cities. And about how your client goes about its policies, we don't intend to be overcritical, but if we are making certain facilities, it must be made available for all", the court told ASG.

The ASG finally submitted that the finalized guidelines would be made available on the official website in public domain for a period of atleast ten days from today so that all interested persons would have the opportunity to make any other suggestions or objections concerning the same.

Accordingly, the court recorded in its order:

"Having regard to the aforesaid submissions made, this Court is satisfied that there has been substantial compliance by the Respondents in carrying out the prescribed procedure for publishing the draft guidelines and inviting the views of the public. As a matter of fact, even most of the suggestions for the manner of carrying out the exercise as sought in the Writ Petition, have already been given effect by the Respondents."

On the subsequent grievances of the petitioner, the court noted:

"In any event, the guidelines even after their publication, are always subject to any change, if required, following the due process, or to any challenge before the appropriate forum in the manner recognised by law."

During the hearing, when the ASG mentioned the practical difficulties in translating the documents and developing the appropriate software, the Chief Justice remarked:

"President Ram Nath Kovind had personally requested to me to make sure that the trial court judgments are translated in Tamil." The Chief Justice then acknowledged the technological difficulties in realising that object.

Accordingly, the PIL was disposed off.

Case Title: Vaishnavi Jayakumar v. The Central Public Works Department & Ors.

Case No: W.P.No.21830 of 2021

Click Here To Read/ Download Order