'Supreme Court Opened Doors Of Accessibility For Persons With Disabilities' : Prof Amita Dhanda | Interview

In a significant ruling [Rajive Raturi v. Union of India 2024 LiveLaw (SC) 875] boosting disability rights, the Supreme Court on 8th November directed the Central Government to frame mandatory rules as required under Section 40 of the Rights of Persons with Disabilities Act, 2016 (RPDA) for ensuring that public places and services accessible to persons with disabilities. The Court further held that Rule 15 of the Rights of Persons with Disabilities Rules, 2017 is ultra vires the parent Act, since it does not provide mandatory guidelines on accessibility. The judgment was passed in the light of the report titled 'Finding Sizes for All: A Report on the Right to Accessibility in India' submitted by Centre for Disability Studies, NALSAR University of Law (CDS), headed by Professor Amita Dhanda.

Professor Amita Dhanda is the Head and Professor of the Centre for Disability Studies NALSAR. The report to the Supreme Court is the most recent foray of CDS into the realm of law reform. Earlier the Centre was legal consultant to the Joint Committee drafting the new law on disability rights to meet India's international obligations after the ratification of the UN Convention on the Rights of Persons with Disabilities (hereinafter UNCRPD) in October 2007.

Professor Amita Dhanda, in conversation with Udit Singh, a doctoral fellow at NALSAR, on the intricacies of the above-mentioned study report and apprehensions with regard to Rajive Raturi's judgement.

1. What is the Rajive Raturi's case? And how did CDS get involved?

Rajive Raturi was a case filed by a disability rights activist in 2005 under the Persons with Disabilities Act of 1995 to compel the government to fulfil its accessibility obligation under that statute especially for persons with visual impairments. The first major judgement in the case came from the bench of Justice Sikri and Justice Bhushan in 2017. This judgement acknowledged that the Rights of Persons with Disabilities Act 2016 had enhanced the nature of the governments obligation in the matter. However, the 2017 case only focussed on the matter of retrofitting and how it was being undertaken and with what priority in different parts of the country. All the proceedings after 2017 revolved around the filing of compliance reports by the States and the Union. The States either failed to file or filed only incomplete compliance reports before the Court. In November 2023, both the Court and the petitioner felt frustrated with this state of affairs and it was decided to ask the Centre for Disability Studies (CDS) NALSAR to enquire into the matter and report what is the status of the right to accessibility in the country and why it is so?

2. What was the process followed by CDS in preparing the report and what were your major recommendations?

The report has been put together by relying on both the versions of the States and the people. The States' version was obtained by writing to the Union, state governments, union territories generally and to the prisons more particularly. The status of access in courts was created by seeking information from the High Courts. The people's version was put together by conducting surveys on the impact of accessibility on the various rights guaranteed to persons with disabilities as also obtaining first-person accounts from persons with disabilities. In order to understand why the right to accessibility has not gained ground CDS interviewed acknowledged accessibility experts in the country.

To obtain Accessibility, two kinds of steps were needed -one for fresh ventures and the other for retrofitting of the already existing built environment, transport, communication or services. The fresh ventures would need to be accessible for the entire country rural or urban, plains or hills across all facilities and for all persons with disabilities. The question of prioritization is of no relevance here. The second is the task of retrofitting which was accepted as staggered allowing for some prioritization.

All the reports we received from 14 State Governments 3 Union Territories and the Union Government only restricted accessibility initiatives to retrofitting. There was no information provided on initiatives/ sanctions to ensure that fresh ventures would only be permitted if r they fulfilled Accessibility Rules.

Our first major finding is that the two ventures of planning for the future and rectifying the past have been conflated and the Union and State Government are only concentrating on retrofitting. And the second is that the Rules do not specify when creating new facilities which standards if breached could result in the refusal of a completion certificate or the imposition of fines. This compulsion was required by the statute but the rules through which it was to be executed were not incorporated in the statute. We recommended that the Court should rectify this situation.

3. In your first reactions to the judgment, you have stated that with this judgement, the Supreme Court has not just provided symptomatic relief but opened the door for structural change. What did you mean by making this statement, could you elaborate?

All the orders which have come from the Court in the Rajive Raturi and other accessibility matters have primarily asked for an enhancement in the number of accessible establishments or shortened the time periods within which accessibility has to be ensured within existing infrastructure, transportation or services. However, the Government did not look at the matter of fresh creation and the incorporation of accessibility requirements in the design from the start. It is also an accepted fact that the requirements would be observed if non-observance would hurt. The Court in asking the government to segregate standards which must be followed from standards which may be followed have made the observance of accessibility norms a non-negotiable obligation for all. Since failure to observe the 'must be followed' standards could result in denial of permission to build or obtaining a completion certificate or continuous fines, the system will perforce have to observe the accessibility standards. Observance of accessibility will thus become an integral part of the regulatory regime and not an after the fact incorporation. In insisting upon ensuring the incorporation of the demands of accessibility in the original design and making it a non-negotiable right the Court has moved from symptomatic relief to structural change. This structural change is also be brought about by the Court by insisting that the accessibility standards have to include both visible and invisible disabilities

4. The Government of India in its submissions before the Court insisted that the Rules incorporated in Rule 15 were mandatory and describing them as Guidelines was only a nomenclature glitch. In the face of this submission, why did the Court not rule that the Rules incorporated under Rule 15 were not Guidelines but Rules?

The Court did not accept this submission for several reasons. They quoted the objectives of the Harmonised Guidelines of 2021 (HG 2021) to demonstrate that the idea of the document was not to lay down rules, which are non-negotiable and have tangible consequences in case of non-compliance, but rather to merely “sensitize”, “recommend” and “guide”. The Court pointed out that over 400 pages long, the HG 2021 contains guidelines which are couched in the language of a policy document. It uses discretionary terms, such as “recommend”, “may”, “it is desirable for…” and so on while laying down the standards of accessibility. It is impractical, as to how guidelines framed in such terms, can be understood as “non-negotiable”, failing which certain consequences follow under the RPWD Act, including no permission to build holding back of completion certificates or penal fines”. (para 69). In addition, the Court found that the standards specified in the guidelines were in contradiction with each other which necessarily raises the question which of the two guidelines is mandatory. For example, there is a contradiction on accessible toilets between the guidelines contained in HG 2021 and the Civil Aviation Guidelines. It is for these reasons that the Court could not accept the submission of the government.

5. Even as you describe the judgement as revolutionary, there are many disability rights lawyers who feel that the judgment by striking down the rules formulated under Rule 15 may jeopardise the many cases they have filed to enforce the Accessibility India campaign and provide the government an excuse to unilaterally extend the timelines provided in sections 45 and 46 of the RPD Act 2016. How would you respond to this apprehension of the lawyers?

The court has found that in failing to specify the standards whose non-observance could have adverse consequences, the government has not acted in accordance with the Act and to that extent the Rules are ultra vires the Act. They have asked for this segregation to be undertaken and the standards whose non-observance will have adverse consequences to be clearly specified. They have not struck down Rule 15. In fact, they have clearly said and I quote “It is clarified that progressive compliance with the standards listed in the existing Rule 15(1) and the progress towards the targets of the Accessible India Campaign must continue unabated. However, in addition, a baseline of non-negotiable rules must be prescribed in Rule 15”. (para 76)

The lawyers who are seeking to obtain the observance of the standards can continue their efforts, the Court has not stopped them. It has only stated that in addition a baseline of non-negotiable rules must be prescribed in Rule 15. This the Court has done so because they have recognised the fact that unless such rules are explicitly prescribed, the sanctions under sections 44, 45, 46, and 89 cannot be enforced. They have therefore firstly asked for segregation and then asked that the sanctions under the aforesaid sections must be used against all those who do not follow the mandatory rules.

6. The Court has given the government three months to implement its directions, a number of people feel that the timeline may not be observed and this could create a legal vacuum which further slows down the realisation of the right to accessibility. What is your view in the matter?

I have already told you that the Court has not created a vacuum, it has only lent its power to enhance the enforceability of the accessibility norms. It is saying that everything cannot be a matter of choice and persuasion, somethings just have to be done. And the government has been asked to spell out those must-do things. Since the government is not working on a blank slate, even if some additions have to be made, the time is realistic. The stakeholders that is disabled people and their organisations have been made an integral part of the process and with their persistent push and the government basic stand that accessibility standards have to be mandatory, I expect the time line to be met.

7. The Court judgment has explicitly required the Union Government to involve CDS in the implementation of the directions, what role is CDS planning to play in this rule-building exercise?

CDS sees itself as a facilitator in the entire process. We have proactively held online meetings with disabled people and their organizations, firstly to explain the judgment and then to plan for the future. We plan to work with the sector and the government to make truly inclusive, outcome oriented, enforceable rules. I would like to use this opportunity to invite disabled people and their organisations as also persons with knowledge and experience in accessibility to write to us at sac@nalsar.ac.in. and become a part of the process.

Views are personal.

The study report can be accessed here.