JAVED ABIDIversusUNION OF INDIA AND ORS.

A                               JAVED ABIDI
                                     v.
                          UNION OF INDIA AND ORS.

                               DECEMBER 17, 1998

B             [K. VENKATASWAMI AND G.B. PATTANAIK, JJ.]


          Persons with Disabilities (Equal Opportunities, Protection of Rights
     and Full Participation) Act 1995-lmplementation of-Section 2(i)-
    Constitution of India-Article 14-Held, persons suffering from locomotor
C   disability to the extent of 80 per cent and above entitled to concession from
    Indian Airlines at the rate given to persons suffering from blindness on
    furnishing certificate from the Chief District Medical Officer-Persons with
    locomotor disability would be a separate class by themselves because of their
     immobility and the restriction of the limbs-Held, further, Central and State ·
D   Coordination Committees to en(ieavour to achieve objectives of the Act-
    Also Indian Airlines assuring that aisle chairs in aircrafts and ambulifts at
    major airports are to be provided, no further directions on that aspect
    needed-Proclamation on the Full Participation and Equality of People
    with Disabilities in the Region adopted at the Beijing meeting of the Economic
    and Social Commission for Asian and Pacific Region held between 1 and 5
E   December 1992.
           The petitioner approached the Supreme Court in a writ petition seeking
    directions for the implementation of the Persons with Disabilities (Equal
    Opportunities, Protection of Rights and Full Participation) Act 1995. He
    sought the provision of aisle chairs in every aircraft and ambulifts in all
F   airports; 50 per cent concession to disabled persons as defined in Section
    2(i) of the Act as was provided to visually impaired persons; appointment to
    the Central Coordination Committee only of disabled persons as defined in
    the Act; the appointment of Chief Commissioner and Commissioners under
    the Act; the constitution of the Central and State Executive Committees and
G   of the Central and State Coordination Committees for implementing the Act.

          The Union of India and most States reported to the Court that they had
    constituted three Central and State Coordination Committees. Indian Airlines
    indicated that aisle chairs and ambulifts were being provided. It was, however,
    contended that concession to persons with blindness preceded the Act, and
H   that given the economic condition of Indian Airlines, it was not feasible to
                                         610
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                                      JAVED ABIDI v. U.0.1.                          611

     grant any further concessions, and that the Act is to be implemented to the             A
   · extent of economic capacity.

                 Allowing the petition, this Court

               HELD: 1. While economic capacity is a germane consideration, the
         true spirit and object with which the Protection Act was enacted cannot be          B
         ignored. In the different types of disabilities mentioned in Section 2(i) of the
         Act, those suffering from locomotor disability would stand in a separate
         class by themselves because of their immobility and the restriction of their
         limbs. Bearing in mind the discomfort and harassment a person with locomotor
         disability would face while travelling by train, those suffering from locomotor
         disability to the extent of 80 per cent and above would be entitled to the          C
         concession from 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
         certifying the extent of the disability. Such District Medical Officer wherein
         the disabled ordinarily resides will constitute a Board with a Specialist in        D
         Orthopaedics and one other Specialist who he thinks suitable for the purpose
         and would grltnnecessaey certificate for that purpose. (615-E-F; 616-A-E)               /   ./

               2. The Committees constituted by the Central Government and the
         State Governments must make earnest endeavour to achieve the objectives
         of the Act. The Proclamation on the Full Participation and Equality of People       E
         with Disabilities in the Region adopted at the Beijing meeting of the Economic
         and Social C_ommission for Asian and Pacific Region held between 1 and S
         December 1992 too must be borne in mind. [6B-D-FJ

               3. Indian Airlines having indicated that aisle chairs in aircrafts and
         ambulifts at major airports are to be provided, no further direction is necessary   F
         on this aspect. (614-F-G)

                 CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 326 of
         1997.

                 (Under Article 32 of the Constitution of India.)                            G
               Soli J. Sorabjee, Attorney General, K.N. Rawal, Additional Solicitor
         General, Dr. A.M. Singhvi, P.N. Mishra, Anis Dayal, Indra Makwana,
         V.G.Pragasam, Aruneshwar Gupta, R.S. Sodhi, Lokesh Kumar, Ms. S.A.Chitale,
         Ashok K. Srivasta, Ms. Sushma Suri, K.R. Nagaraja, Arvind Verma, Pradeep
         Misra, B.S. Chahar, Ms. Jyoti Chaim, Ashok Mathur, S.K. Agnihotri, K.K. Rai,        H
    612                        SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.               I
A   Ms. Smitha Inna, Ms. Anil Katiyar, D.S. Mehra, Ms. Hemantika Wahi, Ms.
    Arnita. V. Duggal, Rajiv Mehta, Sunil Jain, G. Prakash, Ms. Beena Prakash, Ms.
    A. Subhashini, Sudhir Walia, Prem Malhotra, Ranjan Mukherjee, R.S.Jena,
    Anil Srivastava, K.B.Rohtagi, Ms. Aparna Rohtagi Jain, M.A. Krishnamurthy
    and Bankey Bihari for the appearing parites.

B         The Judgment of the Court was delivered by

          PATTANAIK, J. Shri Javed Abidi has filed the present Writ Petition
    under Article 32 of the Constitution seeking direction to the Union of India
    to implement the provisions of the Persons with Disabilities (Equal
C   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
    Orthopaedically impaired person and has incurred the disability within the
D   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 Petition the petitioner prayed for the
    following reliefs:-

E           "(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
F                  disabled persons as defined in Section 2(1) of the Act because
                   to provide this concession only to visually impaired persons is
                   discriminatory and directly violative of the fundamental rights of
                   the other disabled, as guaranteed under Article 14 of the
                   Constitution of India;
G           (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)(1) and not to include any other person who is not
                   a disabled person under the Act;
             (e)   Direct th~ Union of India to immediately appoint the Chief
H                  Commissioner and Commissioners as per Section 57 of the Act;
                   JAVED ABIDI v. U.O.l. [PATTANAIK, J.]                   613
        (f)   Direct the Central Government to immediately constitute the          A
              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      B
              respective State Executive Committee for the implementation of
              the Act;
        (i)   Direct the State Government to appoint a Commissioner for their
              States for proper implementation of the Act in the States of the
              Country;"                                                            c
As one of the grievance of the petitioner was that 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 I 3 of the Act, this Court issued, notice to all the
State Governments and the Union Territories by order dated 20th October,           D
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   E
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      p
for which the Act has been enacted. It may be borne in mind that the
E.conomic and Social Commission for Asian and Pacific Region held a meeting
at Beijing on !st 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 Parliament which intends to provide for the following as apparent from      G
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 of persons
             with disabilities;                                                    H
    614                         SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A           (ii)   to create barrier free environment for persons with disabilities;
             (ill) to remove any discrimination against persons with disabilities in
                   1he &lari1g of ciell&pnent l:Enefits, vis-a-vis, non-disabled
                   persons;·
            (iv) to counteract any situation of the abuse and the exploitation of
B                persons with disabilities;
            (v) to lay down a strategie_s for comprehensive development of             ~-
                programmes and services and equalisation of opportunities for
                persons with disabilities; and

c           (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 Governmen!S must, therefore, make earnest endeavour to
  achieve the objectives, as indicated above, in exercise of their powers conferred
D under the Act.
                                                                              '
         The petitioner also made a specific grievance in the Writ Petition alleging
  th.e lack Qf 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
E excess to the disabled persons particularly those who are orthopaedically-
  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
F 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 aircrafts 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.
G
         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 orthopaedically handicapped persons with Locomotor
H disability require the relief of concession for their travel by air more as it
                   JAVEDABID!v. U.0.1. [PATTANAIK,J.]                       615
becomes an impossible task for them to travel from one corner to the other          A
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. Sorabjee, 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       B
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.    C
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. Sorabjee granting such concession to only disabled D
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 E
blindness. While we agree with Mr. Sorabjee, learned Attorney General that
the economic capacity is a germane consideration while deciding 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 F
and to make special provision for the integration of persons with disabilities
into the social mainstream apart from the protection of rights, provision 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 G
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 H
    616                        SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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
B   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
C   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
D   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 beert 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%.
E   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,
F   and keeping in view the fact that concession is already being granted by the
    Airlines to the persons suffering from blindness. With these directions 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
G   resulted in acceleration of the implementation of different provisions of the
    Act not only by the Union Government but also by the State Governments.

    U.R                                                             Petition allowed.