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2019 DIGILAW 330 (GAU)

Arman Ali v. Union of India

2019-03-11

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Ms. R.S. Choudhury, learned counsel for the petitioner and Mr. R. Dhar, learned Govt. Advocate, Assam. Mr. R. Saloi, learned counsel has appeared on behalf of respondent Nos. 5 and 6. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents, more particularly, the State respondents to ensure that petitioner can avail the right of access and equal participation guaranteed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and further seeks imposition of exemplary cost upon respondent Nos. 5 and 6 for violating petitioner's right to access and equal opportunity under the aforesaid Act. 3. From the pleadings it is seen that petitioner is a person with cerebral palsy. Notwithstanding such disability, petitioner has overcome physical and mental barriers in his personal capacity and by virtue of his commitment and participation, he has become a leading disability rights activist of the country. At the time of filing of the writ petition, he was the Executive Director of Shishu Sarothi, a centre established at Guwahati for rehabilitation and training for multiple disability. He is also associated with various organizations connected with welfare of children and differently abled persons. In the course of the hearing, Ms. Choudhury, learned counsel for the petitioner informed the Court that petitioner is now the Executive Director of National Centre for Promotion of Employment for Disabled People (NCPEDP). 4. According to the petitioner, because of cerebral palsy, his lower limbs have reduced mobility which has led to increase in his body weight. As per medical advice to reduce weight and to enhance stamina, he visited the Gold's Gym, Ganeshguri, GS Road, Guwahati (respondent No. 6) to avail the facilities therein for weight loss as well as for enhancement of stamina of upper limbs. When the petitioner went to the office of respondent No. 6 he found the approach of the staff unfriendly. Petitioner was advised to e-mail a brief sketch of his medical condition to be examined by officials of respondent No. 5 of which respondent No. 6 is the franchisee. Petitioner e-mailed the same further mentioning that he had availed the facilities of Gold's Gym at Bengaluru earlier. 5. Petitioner was advised to e-mail a brief sketch of his medical condition to be examined by officials of respondent No. 5 of which respondent No. 6 is the franchisee. Petitioner e-mailed the same further mentioning that he had availed the facilities of Gold's Gym at Bengaluru earlier. 5. On receipt of his e-mail, petitioner was asked to re-visit the gym premises and on such re-visit he was subjected to certain unrelated questions on the pretext of having a better understanding of his physique and disability. Initially, petitioner was allowed to go through a workout whereafter he was asked to visit the gym again on a subsequent date. When the petitioner again visited the gym, he was subjected to a gruelling session of about 30 minutes work out without any break. On completion of the session, petitioner was told that he would be informed about the program that would be specially designed for him in due course. After a long gap, petitioner received a call from the office of respondent No. 6 and was informed that he would be able to avail the gym facilities for a month but some additional amount would be charged as a personal trainer would have to be exclusively provided to him. Aggrieved by the discriminatory treatment meted out to him, petitioner had submitted representation dated 10.06.2011 to respondent No. 6. In his reply dated 14.07.2011 respondent No. 6 denied any such conduct on its part. 6. It is in such circumstances that the present writ petition came to be filed. 7. Notice in this case was issued on 14.12.2011. 8. One Smt. Leena Das, Deputy Secretary to the Govt. of Assam, Social Welfare Department has filed an affidavit on 31.1.2013 on behalf of State of Assam, Social Welfare Department. Stand taken in the said affidavit is that it is respondent Nos. 5 and 6 which are the competent authorities to disclose as to why petitioner was not allowed to have equal access to the gym and as to why respondent No. 5 had refused to acknowledge the grievance or issues raised by the petitioner further stating that Social Welfare Department has no further comments to make. 9. Respondent No. 6 in its affidavit filed through Sri Sanjib Jain has stated that respondent No. 6 is a private limited company and is a franchisee of Gold's Gym which has its corporate office at Mumbai. 9. Respondent No. 6 in its affidavit filed through Sri Sanjib Jain has stated that respondent No. 6 is a private limited company and is a franchisee of Gold's Gym which has its corporate office at Mumbai. Respondent No. 6 provides facilities for exercise and working out (gymnasium facilities) to interested clients at its own premises known as Gold's Gym situated at GS Road, Guwahati. Basic stand taken in this affidavit is that respondent No. 6 is not a "State" or "other authority" within the meaning of Article 12 of the Constitution of India. It is purely a private entity and does not discharge any public duty or function. Therefore, writ petition as against respondent Nos. 5 and 6 would not be maintainable. While denying allegations made by the petitioner against respondent No. 6, it is contended that if the petitioner is aggrieved by any act or omission on the part of respondent No. 6 the remedy is not by way of writ petition. 10. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 11. When this writ petition was filed, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the 1995 Act, hereinafter) was in force. The Economic and Social Commission for Asian and Pacific Region had convened a meeting at Beijing in December, 1992 and in that meeting the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region was adopted. India was a signatory to the aforesaid proclamation. Therefore, it was obligatory on the part of India to enact a suitable legislation. Accordingly, the 1995 Act was enacted by the Indian Parliament to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region. The fundamental thrust of the 1995 Act was to take affirmative action to provide equal opportunities to persons with disabilities and to ensure non-discrimination, while providing employment opportunities by identifying deserving posts to persons with disabilities was only one of the many areas covered by the 1995 Act. 12. Over a period of time, the conceptual understanding of the rights of persons with disabilities has become more and more clear and there has been worldwide change in approach to handle issues concerning persons with disabilities. 12. Over a period of time, the conceptual understanding of the rights of persons with disabilities has become more and more clear and there has been worldwide change in approach to handle issues concerning persons with disabilities. United Nations General Assembly adopted its convention on the rights of persons with disabilities on 13.12.2006. Amongst the various principles laid down by the convention for empowerment of persons with disabilities, full and effective participation and inclusion in society as well as accessibility of persons with disabilities were the leading ones. India was a signatory to the said convention and India ratified the convention on 01.10.2007. 13. To give effect to the United Nations Convention on the rights of persons with disabilities and for matters connected therewith or incidental thereto, the Rights of Persons with Disabilities Act, 2016 (2016 Act) was enacted which has replaced the 1995 Act. The 2016 Act not only defines person with disability but also defines person with benchmark disability and person with disability having high support needs. Basic thrust of the 2016 Act is equality and non-discrimination. The appropriate Government is mandated under the 2016 Act to ensure that persons with disabilities enjoy the right to equality, live with dignity and respect for his or her integrity equally with others. As a matter of fact, the appropriate Government is under a legal obligation to take measures to protect persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment. Like the 1995 Act, in the 2016 Act also, there is provision for identification of posts in Government establishments and reservation of vacancies for persons with disabilities, the only difference being that under the 2016 Act, the reservation percentage has been increased from 3 to 4 and the disability net being made much wider by including a wide range of disabilities. 14. But that is only one aspect of the entire scheme of the 2016 Act. Under chapter VIII of the 2016 Act, particularly in terms of Section 39, duty is cast upon the appropriate Government to conduct, encourage, support or promote awareness campaigns and sensitization programmes to ensure that rights of persons with disabilities are protected. 15. 14. But that is only one aspect of the entire scheme of the 2016 Act. Under chapter VIII of the 2016 Act, particularly in terms of Section 39, duty is cast upon the appropriate Government to conduct, encourage, support or promote awareness campaigns and sensitization programmes to ensure that rights of persons with disabilities are protected. 15. The 2016 Act (chapter v) provides for social security, health, rehabilitation and recreation for the persons with disabilities to be provided by the appropriate Government to enable them to live independently or in the community having adequate standard of living. 16. A careful analysis of the scheme of the 2016 Act would go to show that provisions of the said Act permeates not only Government facilities but private space as well. In fact in the definition clause, private establishment has been defined so also public building. As per Section 2 (w), "public building" means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways, bus stands or terminus, airports or waterways. Similarly, "public facilities and services" have also been defined under Section 2(x). 17. In Jeeja Ghosh Vs. Union of India reported in (2016) 7 SCC 761 , petitioner Jeeja Ghosh was deplaned from the aircraft on instruction of the pilot due to her disability despite having a valid boarding pass. After surveying the law relating to rights of persons with disabilities in the context of the harrowing experience faced by Jeeja Ghosh and the general apathy of the society towards people who are otherwise differently abled, Supreme Court referred to the book on the rights of differently abled persons authored by Joseph P. Shapiro, which is titled "NO PITY". The first chapter, 'Introduction' has the sub-title 'You Just Don't Understand' and the very first sentence of the said book is: 'Non-disabled Americans do not understand disabled ones'. The first chapter, 'Introduction' has the sub-title 'You Just Don't Understand' and the very first sentence of the said book is: 'Non-disabled Americans do not understand disabled ones'. At the end of the judgment, Supreme Court explained the above sentence and pointed out that the only error in the said sentence was attribution to Americans only because the harsh reality is that this statement has universal application and observed that this statement should be read in the following manner: "Non-disabled people do not understand disabled ones." 17.1. Thereafter, Supreme Court observed as under:- "For, non-disabled people generally look upon disabled ones with pity. The general feeling is that these 'invalid people' are incapable of doing anything in life. They are burden on the society which the society bear. Of course, they sympathise with disabled persons. They may even want to willingly bear the burden. They may help them financially or otherwise. However, what they do not understand is the feeling of the people with disabilities. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self-reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically under-estimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non-disabled. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society. Says disability rights activist Judy Heumann: "disability only becomes a tragedy for me when society fails to provide the things we need to lead our lives-job opportunities, or barrier-free buildings, for example. It is not a tragedy to me that I am living in a wheel chair." 45. Says disability rights activist Judy Heumann: "disability only becomes a tragedy for me when society fails to provide the things we need to lead our lives-job opportunities, or barrier-free buildings, for example. It is not a tragedy to me that I am living in a wheel chair." 45. Helen Keller represents the mind of such disabled persons when she says "I am only one; but still I am one. I cannot do everything, but still I can do something; I will not refuse to do something I can do". 46. 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 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." 18. In the Indian context, such attitude has taken the form of crass insensitivity or apath with latent prejudice against persons having different kinds of disabilities. Our popular culture is replete with instances where so-called "normal" people make fun of persons having different kinds of disabilities. Without much elaboration, it can be said that such prejudices are deep rooted and manifests itself at different times, in different forms and in different manner. It is not uncommon to find people making fun of people with various disabilities, like, stammering, squint eyed, short of hearing, dwarfism, obesity, excessive height, colour blindness, etc. 19. Adverting to the case of Jeeja Ghosh (supra), Supreme Court held that the rights that are guaranteed to differently abled persons under the 1995 Act are founded on the sound principles of human dignity which is the core value of human rights and is treated as a significant facet of right to life and liberty which has its roots in Article 21 of the constitution. Holding that action of the airlines had violated her human dignity Supreme Court awarded a sum of Rs. 10,00,000.00 as damages to be paid by the airlines to Jeeja Ghosh. 20. Holding that action of the airlines had violated her human dignity Supreme Court awarded a sum of Rs. 10,00,000.00 as damages to be paid by the airlines to Jeeja Ghosh. 20. Reverting to the facts of the present case, respondent No. 6 in its reply dated 14.07.2011 stated that precautions are mandatorily required to be taken in case of specially abled person which is in the best interest of such person to avoid injuries and other medical complexities. Allegation of discrimination was denied. It was stated that Gold's Gym tried to accommodate the petitioner under one of its expert trainers and therefore an assessment of his physical condition was made. It was further stated that petitioner's attending doctor was consulted and thereafter it was decided to admit the petitioner in the Gym under the guidance of the expert trainer. While any act of bad behaviour on the part of the staff was denied, it was however stated that the staff were cautioned to be more polite and sensitive. 21. The affidavit of respondent No. 6 is quite pathetic. Respondent No. 6 could have and ought to have filed a better affidavit rather than highlighting only its private character and contending that writ petition is not maintainable. 22. Affidavit on behalf of the State is still more pathetic. While merely saying that allegation of the petitioner does not pertain to the Social Welfare Department as it concerns respondent Nos. 5 and 6, respondent No. 3 has tried to evade responsibility. 23. From the above, what transpires is that respondent No. 3 has not understood the importance or significance of the 2016 Act or the previous 1995 Act. There seems to be a total lack of understanding on the part of the State in appreciating the provisions of the 1995 Act or its successor 2016 Act which incidentally imposes a duty on the appropriate Government to conduct public awareness and sensitization programmes. Appropriate Government can conduct public awareness or sensitization programmes only if it and its officials understand the full meaning of the said acts. From the affidavit filed, it is quite evident that the officers and staff of the Social Welfare Department are not at all aware of the importance and significance of the aforesaid acts, not to speak of sensitivity to the cause of the differently abled. From the affidavit filed, it is quite evident that the officers and staff of the Social Welfare Department are not at all aware of the importance and significance of the aforesaid acts, not to speak of sensitivity to the cause of the differently abled. The case highlighted by the petitioner is not only confined to him but similar or far worse situations are faced by people with disability. It is only the proverbial tip of the ice-berg. 24. That being the position and considering the issue in its entirety, Court is of the view that the following directions may meet the ends of justice and are accordingly issued:- 1. All the officers and employees serving in the Social Welfare Department, Govt. of Assam including in the directorate and at the grass-root level should be undergo training and awareness programmes to sensitise them about the rights of persons with disabilities. 2. Commissioner and Secretary to the Govt. of Assam, Social Welfare Department shall immediately chalk out a detailed programme to give effect to direction No. 1 above and in this regard he may also take the assistance of the Commissioner for Persons with Disabilities, Assam and the Assam State Legal Services Authority. 3. The departmental Commissioner and Secretary shall also organise awareness and sensitization programmes and campaigns in terms of Section 39 of the 2016 Act in consultation with the Commissioner for Persons with Disabilities, Assam and Assam State Legal Services Authority to ensure that people become aware of the rights of persons with disability and that those rights are protected. 4. Commissioner and Secretary of the Social Welfare Department, Govt. of Assam shall issue general circulars to all Government and private establishments highlighting the salient features of the 2016 Act and to ensure that public buildings and public facilities and services are accessible by persons with disabilities. Such directions or guidelines may be issued within a period of 2 (two) months from the date of receipt of a certified copy of this order. 25. Before closing the litigation, Court is of the view that some cost may be imposed both on the State as well as on respondent No. 6. Respondent No. 6 though a private entity has also a duty to ensure that its facilities are friendly to the differently abled. Accordingly, both respondent Nos. 3 and 6 are directed to pay Rs. Before closing the litigation, Court is of the view that some cost may be imposed both on the State as well as on respondent No. 6. Respondent No. 6 though a private entity has also a duty to ensure that its facilities are friendly to the differently abled. Accordingly, both respondent Nos. 3 and 6 are directed to pay Rs. 50,000.00 each to the Shishu Sarothi which will be used for the benefit of the specially abled children who are attending classes in the said centre. Let the deposit of Rs. 50,000.00 each be made by respondent No. 3 and respondent No. 6 within a period of 2 (two) months from the date of receipt of a certified copy of this order. 26. Writ petition is accordingly disposed of.