(2016) 7 SCC 761

Court: Hon’ble Supreme Court of India

Bench: Justice A.K. Sikri and Justice R.K. Agrawal

FACTS

The present Public Interest Litigation, spearheaded by Jeeja Ghosh, who is herself a disabled person, with the support of the NGO ADAPT (Able Disable All People Together), bears testimony to the statement of Shapiro. Irony is that though the aforesaid remarks were made by Shapiro way back in the year 1993 and notwithstanding the fact that there have been significant movements in recognising the rights of differently abled persons, much is yet to be achieved. India also has come out with various legislations and schemes for the upliftment of such differently abled persons, but lacunae between the laws and reality still remains. Even though human rights activists have made their best efforts to create awareness that people with disabilities have also right to enjoy their life and spend the same not only with the sense of fulfilment but also to make them contribute to the growth of the society, yet the mind-set of large section of the people who claim themselves to be ‘able’ persons still needs to be changed regarding their attitude towards differently abled persons. It is this mind-set of the other class which is still preventing, in a great measure, differently abled persons from enjoying their human rights which are otherwise recognised in their favour.

Jeeja Ghosh was born with cerebral palsy, a condition caused by lack of oxygen to the brain either during pregnancy or at the time of delivery. Ghosh has been involved in the social sector for more than two decades. She believes in the right based approach and dignity of all human beings. She has been a part of the disabled people’s movement and is connected to other disability right activities across India.

The present case is in regard to certain events happened during a flight journey from Kolkata to Goa. The 2nd Petitioner purchased a return flight ticket for Ms. Jeeja Ghosh from the Respondent No. 3, Spice Jet Ltd. During the journey, Jeeja was approached by a crew member of the flight and was asked to see her boarding pass. The crew member basically feared that her disability might pose health risk during pregnancy or during the time of delivery. She was ordered to get off the plane, even after she informed the flight crew members that she needed to reach Goa for the conference and it was important.

She was de-boarded. After arguing with the airlines and their authorities. Later she discovered that the Captain had insisted that she be removed due to her disability and will be threat. After this incident, Ms. Jeeja went into shock and trauma because of the event. She had trouble sleeping and eating properly, as a result she was taken to a doctor where she was prescribed medication. Due to the above incidents she was unable to fly to Goa on 20th February and thus missed the conference all together. It did humiliate and traumatize her but also to the organizers and to all the attendee of the opportunity to hear her and her experiences and her analysis of Indo- German under review.

Petitioner No. 1 grudges that even after 4 years of this incident whenever she has a flashback, she feels haunted with that particular scene where she was pulled out of the plane like a criminal. She still have nightmares and traumas because of the incident.

The Respondent in regard to the incident has sent an apology letter to Jeeja for trivializing the incident by just mentioning that ‘inconvenience caused’ was ‘in advent’. Before approaching the court, the Petitioner has also submitted the complaint to the Chief Commissioner for Persons with Disabilities and to the Ministry of Social Justice.

The Petitioner has filed a Writ Petition under Article 32 of the Constitution of India. She claimed in her Petition that airlines crew members’ behaviour was outrageous as it is both illegal and discriminatory. She also claimed that third Respondent’s staff clearly violated Civil Aviation Requirements 2008 with regard to ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’ issued by the Respondent No.2  Directorate General of Civil Aviation as authorized by Rule 133A of the Aircraft Rules, 1937.

ISSUES

1.      Whether there was a violation of Article 21 of the Constitution of India?

2.      Whether the Respondent is liable under the provisions of CAR, 2008 and the PWD Act, 1995?

ARGUMENTS

Petitioners:

1. It was stated that there is clear violation of Fundamental Rights of the petitioner. There is a violation of Article 21 of the Constitution of India which provides for Right to Life and Personal Liberty and also Articles 19 (1) (d) and 19 (1) (g) which provides to move freely throughout the territory of India and to practice any profession, or to carry on any occupation, trade or business.

2.  The Petitioners refused the contentions stating there was procedural negligence on the part of Ms. Ghosh.

3.  Spice Jet Airlines’ denial of carrying her was in violation of the provisions of CAR 2008 and the PWD Act and UNCRPD.

4. The Court should order the Spice Jet authorities, their men, agents and persons acting on their behalf to adequately compensate the Petitioners for lost money, wasted time, and the humiliation and trauma suffered during the above mentioned incident.

5.  It is humbly stated that it is the obligation of the government to see that rights of persons with disabilities are being taken care of and promote equality otherwise arbitrary practices against them is a violation of Fundamental Rights mentioned under Articles 14, 19 and 21 of the Constitution of India.

6. It was also stated that the all airlines shall incorporate appropriate provisions in the online form for booking tickets so that all the required facilities are made available to the passengers with disabilities at the time of check-in.

Respondent:

1.      Respondent No. 2 DGCA stated, It was rather unusual, that a Governmental body itself came out in support of the present petition, so far it helps in implementation of the guidelines prescribed.

2.      Respondent No. 3 Spice Jet claimed, it was Ms. Jeeja Ghosh who failed to disclose her disability at the time of booking of her flight ticket and at the time of check-in and the Respondent could not risk taking the Appellant for a 5 hour journey.

3.      Spice Jet Airlines also stated, medical clearance was required and as per the medical literacy, cerebral palsy affects body movement, muscle control, muscle coordination, muscle tone, reflex, posture and balance. It can also impact fine motor skills, gross motor skills and oral motor functioning. Therefore, Jeeja Ghosh could have faced grave consequences during the long air journey which would have been a serious issue.

JUDGMENT AND REASONS FOR JUDGMENT

After considering the respective arguments of the counsel for both the parties and going through the relevant provisions and CAR, 2008 we arrive at the conclusion that Jeeja Ghosh was not given appropriate, fair and reasonable treatment which she was required by due sensitivity and the decision to de-board her in the given circumstances was an example of total lack of sensitivity.

Jeeja Ghosh is a disabled person who suffers from cerebral palsy. Her condition was not such which required any assistive devices or aids. She had demanded assistance regarding her baggage at the time of security check-in, from the check-in counter. She boarded the flight without anyone’s help. This was noticed not only by the persons at the check-in counter but also by security personnel who frisked her and the attendant who assisted her in carrying her baggage up to the aircraft. Even if we assume that there was some blood or froth that was noticed to be oozing out from the sides of her mouth when she was seated in the aircraft (though vehemently denied by her), nobody even cared to interact with her and asked her the reason for the same. No doctor was summoned to examine her condition. Abruptly and without any justification, the decision was taken to de-board her without ascertaining as to whether her condition was such which prevented her from flying. This clearly amounts to violation of Rule 133-A of Aircraft Rules, 1937 and the CAR, 2008 guidelines. However, now we should take it as a human rights considering various international laws.  It is said that “Non-disabled Americans do not understand disabled ones.” The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read: “Non-disabled people do not understand disabled ones.”

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 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. The indifference towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.

It is also stated by the Hon’ble Court that these people don’t need sympathy but only want to be trusted. People don’t understand this fact that disabled persons also have some rights. Such people don’t want to be dependent on others. Non-disabled person always under- estimate the capabilities of the disabled person but these people want to be self-reliant. The Hon’ble Court also stated in the judgment that the Ms. Jeeja Ghosh is one of the examples of the spirit, courage of such disabled person. She has achieved so much in her life and has overcome her disabilities. Irrespective of her disabilities, she has become a responsible citizen of this country. A little care and sensitivity on the part of the airlines would not have resulted into such a pain, suffering and trauma that Ms. Ghosh has undergone.

The Hon’ble Court concluded the Judgment by saying to most of the disabled person, the society has closed the doors and the key to such doors has been thrown by non-disabled persons. Still some non-disabled person knock these doors or try to open these doors. Helen Keller has described this phenomena in the following words: “Some people see a closed door and turn away. Others see a closed door, try the knob and if it doesn’t open, they turn away. Still others see a closed door, try the knob and if it doesn’t work, they find a key and if the key doesn’t fit, they turn way. A rare few see a closed door, try the knob, if it doesn’t open and they find a key and if it doesn’t fit, they make one!” These rare persons we have to find out.

The Hon’ble Court found that the Respondent No. 3 acted in an insensitive manner and in the process violated the Aircraft rules of 1937 and CAR, 2008 which was also experienced by Ms. Ghosh. It was an unreasonable discrimination against her. The Hon’ble Supreme Court awarded Rs.10, 00, 000 as damages which were supposed to be paid by Respondent No. 3 within a period of 2 month from the date of judgment.

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He inspired the Dalit Buddhist movement and campaigned against social discrimination towards the untouchables that is the Dalits, while also supporting the rights of women and labour. B.R. Ambedkar was independent India’s first law and justice minister, the principal architect of the Constitution of India, and a founding father of the Republic of India.

Ambedkar was a creative student earning Doctorates in Economics from both Columbia University and the London School of Economics and attained a reputation as a scholar for his exploration in Law, Economics, and Political Science. In his initial career he was an economist, professor, and lawyer. Ambedkar’s later life was notable by his political exercise; he became embroiled in campaigning for India’s Independence, publishing journals, justify political rights and social freedom for Dalits, and devoting significantly to the formation of India. Later in 1956, Ambedkar converted to Buddhism inducting mass conversions of Dalits to the same.

He died on 6^th December 1956 due to illness. In 1990, India’s highest civilian award the Bharat Ratna was posthumously conferred upon B.R. Ambedkar for his contributions to the country.

INTERESTING FACTS

There are some interesting facts regarding Ambedkar. Some of them are as follows:

1. Ambedkar was born into a poor low Mahar, (dalit) caste in the town and military cantonment of Mhow in the Central Provinces (now in Madhya Pradesh). Ambedkar was the last child (14^th) of Ramji Maloji Sakpal and Bhimabai Murbadkar Sankpal. He and his family was of Marathi background from the town of Ambavade (Mandangad taluka) in Ratnagiri district (modern-day Maharashtra). His family belonged to the Mahar caste, who were treated as untouchables and was subjected to socio-economic discrimination. Ambedkar’s ancestors had long been in the employment of the army of the British East India Company, and his father served in the British Indian Army at the Mhow cantonment.
2. Although able to attend school, Ambedkar and other untouchable children were segregated and given little attention or assistance by the teachers. They were not allowed to attend inside the class. If the untouchables needed to drink water, someone from the higher caste would have to pour water from a height as they were refrained to touch either the water or the vessel that contains water. This was usually performed for the young Ambedkar by the school peon, and if the peon was not available then he had to go without water; the situation he later in his writings described as “No peon, No Water”. He was to sit on a gunny sack which he had to take home with him everytime.
3. Among his brothers and sisters, only Ambedkar succeeded in passing his examinations and graduating to a high school. His authentic surname Ambavadekar is derived from his native village ‘Ambavade’. Mahadev Ambedkar his Brahmin teacher, who was fond of Ambedkar, changed his surname from ‘Ambavadekar’ to his own surname ‘Ambedkar’ in school records.
4. In the year 1897, his family moved to Bombay where Ambedkar became the only untouchable enrolled and attended at Elphinstone High School.
5. In 1913, he moved to the United States as he had been awarded a Baroda State Scholarship of £11.50 (Sterling) per month for three years under a scheme established by the Gaekwar of Baroda to provide opportunities for postgraduate education at the Columbia University in New York City. Soon after arriving there he settled in the rooms at Livingston Hall with Naval Bhathena, a Parsi who was to be Ambedkar’s lifelong friend. He passed his M.A. majoring in Economics, with Sociology, History, Philosophy and Anthropology as other subjects of study in June, 1915; he presented a thesis, Ancient Indian Commerce. B.R. Ambedkar was the first Indian to pursue a doctorate in economics from foreign university.
6. In 1916 he completed his second thesis, National Dividend of India-A Historic and Analytical Study and finally he received his PhD in Economics in 1927 for his third thesis, after he left for London.
7. In 1923 he took his D.Sc.in Economics, and the same year he was called to the Bar by Gray’s Inn. His 3^rd and 4^th Doctorates that is in (Ll.D, Columbia, 1952 and Ll.D., Osmania, 1953) were conferred upon him honoris causa. Incidentally, in 1917 he travelled separately from his collection of books, which were lost when the ship that the collection on which they were dispatched was torpedoed and sunk by a German submarine.
8. Ambedkar was bound to serve the Princely State of Baroda as he was educated by the Princely State of Baroda. Ambedkar in turn was appointed as the Military Secretary to the Gaikwad but he had to quit within a short period of time. He described the incident in his autobiography called “Waiting for a Visa”. After quitting, he tried to find ways to make a living for his growing family. Ambedkar worked as a private tutor, as an accountant, and in turn established an investment consulting business. It failed when his clients found that he was an untouchable. In 1918 he became a Professor of Political Economy in the Sydenham College of Commerce and Economics in Bombay. Even though he was successful with the students of the institution, other professors objected to his sharing the same drinking-water jug that they all used.
9. Ambedkar had been invited to testify before the Southborough Committee, which was preparing the Government of India Act of 1919. Before the committee, Ambedkar argued for creating separate electorates and reservations for untouchables and other religious communities.
10. While practicing law in the Bombay High Court, he tried to uplift the untouchables in order to educate them. He firstly organised an attempt to achieve this by forming the Bahishkrit Hitakarini Sabha, which was designed to promote education and socio-economic improvement, as well as the welfare of “outcastes”, also referred as the depressed classes. To protect the Dalits and protection of such rights he started many periodicals like Mook Nayak, Bahishkrit Bharat, and Equality Janta.
11. The Mahad Satyagraha of 1927 was one of the defining moments in Ambedkar’s political thought and action. It was held in the small town of Mahad in Maharashtra. The Mahad Satyagraha was held 3 years prior to Mahatma Gandhi’s Dandi March. Ambedkar’s crusade was concentrating on Drinking Water while salt was the centre of Gandhi’s campaign. By leading a group of Dalits to drink water from Chavadar Lake in Mahad, Ambedkar didn’t just assert the right of Dalits to take water from public water sources, he sowed the seeds of Dalit emancipation.
12. Ambedkar played a key role in establishment of Reserve Bank of India in 1935 that he presented to the Hilton Young Commission.
13. As the member for Labour in the Viceroy’s Council from 1942 to 1946, Dr Ambedkar was instrumental in bringing several labour reforms. The change of working hours from 12 hours to 8 hours was initiated by him in the 7th session of Indian Labour Conference in New Delhi in November 1942.
14. Upon India’s Transfer of Power to leaders of High Cast on 15 August 1947, the new Congress-led government invited B.R Ambedkar to serve as the nation’s first Law Minister, which he accepted. On 29^th August, he was appointed as the Chairman of the Drafting Committee, charged by the Assembly to write India’s new Constitution. Granville Austin has described the Indian Constitution as the ‘first and foremost a social document’.
15. It took Ambedkar 2 years & 11 months’ time to prepare the Constitution of the World’s Largest Democracy and came to be known as the Father of the Indian Constitution. Ambedkar has made research on different constitutions which were available at that time but preparing the Constitution under 3 years is a huge achievement.
16. Ambedkar resigned from the cabinet in 1951 following the hindrance in parliament regarding his draft of the Hindu Code Bill, which sought to expound gender equality in the laws of inheritance and marriage. Ambedkar later, independently contested to an election in 1952 to the Lok Sabha, but was defeated in the Bombay (North Central) constituency by a little-known Narayan Sadoba Kajrolkar by 14561 votes. He was appointed to the Rajya Sabha (Upper House) in March 1952 and remained as member till death.
17. Article 370 in the Constitution was greatly opposed by Ambedkar, which gives a special status to the State of Jammu and Kashmir, and it was added against his wishes.
18. According to Ambedkar the industrialization and agricultural industry growth could enhance the economy of the nation. He stressed on the idea of investing money in the agricultural sector as the primary industry of India.
19. Ambedkar married twice, first to Ramabai and next to Dr. Sharada Kabir.
20. He framed many laws for Woman Labors of India. Which includes Mines Maternity Benefit, Woman Labour Welfare Fund, Woman & Child, and Labour Protection Act.
21. He studied Buddhism all his life, and around 1950, he turned his attention fully to Buddhism and travelled to Ceylon (now Sri Lanka) to attend a meeting of the World Fellowship of Buddhists. While dedicating a new Buddhist Vihara near Pune, Ambedkar revealed that he was writing a book on Buddhism, and that as soon as it was finished, he planned to make a conversion to Buddhism.
22. Bhimayana: Experiences of Untouchability is a graphic novel narrates episodes from the life of Ambedkar using Pardhan-Gond style by Durgabai Vyam and Subhash Vyam. The book published was identified as one of the top 5 political graphic novel by the CNN. Author Prabhakar Joshi, began writing a biography on Ambedkar in Sanskrit in 2004. Prabhakar Joshi completed the work, Bhimayan, comprises 1577 shlokas and is intended as an atonement for the injustice done to the young B.R. Ambedkar by some teachers.
23. A 20-page autobiographical story written by Ambedkar in 1935-36 (after his return from America and Europe), Waiting for a Visa is a book thatdraws from his experiences with untouchability, starting from his childhood. This book is used as a textbook in Columbia University, New York (USA).
24. In Ambedkar’s book “Thoughts on Linguistic States” (published in the year 1995), he suggested splitting Madhya Pradesh and Bihar. After 45 years from the date of finishing the book, the split finally came with the formation of Jharkhand out of Bihar and Chhattisgarh out of Madhya Pradesh.
25. Ambedkar was the pioneer of multipurpose river valley projects in India. He initiated the Damodar Valley project, the Bhakra Nangal Dam project, the Son River Valley project and Hirakud dam project. Ambedkar established the Central Water Commission to promote the development of irrigation projects at both the Central and the State level.
26. India’s power sector development was because of the spark ignited by Ambedkar. Ambedkar established the Central Technical Power Board (CTPB) and Central Electricity Authority to explore the potential of and establish hydel and thermal power stations. He also emphasized on the need for a grid system (which India still relies on) and well-trained electrical engineers in India.

B.R. Ambedkar is one of the major reformist who paved way for further development and his vision for better India still lives on. Dr B.R. Ambedkar is the messiah of Dalits and downtrodden in India. In spite of childhood hardships and poverty Ambedkar with his hard work and dedication went on to become the highest educated Indian of his generation.He is one of the greatest leaders of India who always stood for the equality of Untouchables and other lower castes. He was an activist who demanded social equality and justice. He was the forefather of Republic India. Thus, Dr B.R. Ambedkar was a leader who throughout his life fought for justice and equality.

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The issue regarding criminal MLA’s and MP’s contesting in election has been brought before the Supreme Court of India. The Supreme Court had declined to bar election candidates with charge-sheets in criminal cases from running for office, and issued directions with a view to curb the criminalisation of politics. The Five-Judge Constitution bench, headed by Chief Justice Dipak Misra, had reserved its verdict on August 28, 2018.

The Court said candidates must declare their criminal antecedents, and that political parties must put these up on their websites. The Supreme Court also stated Parliament should make a law to ensure candidates with criminal antecedents don’t enter public life and take part in law-making. The court also said parties should issue declarations and give the antecedent’s wide publicity in the electronic media.

The Supreme Court thereby refused to debar politicians facing criminal charges from contesting elections. The Supreme Court, however, left it to Parliament to frame laws to keep criminals away from politics and law making process. Under the Representation of Peoples Act, lawmakers are barred from running for office only after being convicted in criminal cases.

PARTY-WISE SCENARIO

Members of Parliament

The Association for Democratic Reforms has analysed the Members of Parliament and sorted the number of members with criminal and serious criminal charges. The Association for Democratic Reforms has analysed a total of 770 Members of Parliament and it was found that 30% of the Members of Parliaments are charged with criminal offences. It is also found that 17% of the Members of Parliament are charged with serious criminal offences. This is a mind-blowing factor that some of the elected representatives are faced with criminal charges.

Now coming into detail: The Bharatiya Janata Party (BJP) accounts for 32% (107) of the list of party wise MPs with declared criminal cases. Secondly, Shivsena (SHS) accounts for 86% (18). Thirdly, Indian National Congress (INC) accounts for around 15% (15).

The Members of Parliament are also charged with serious criminal offences. As per the report a total of 134 Members of Parliament are serious offenders. The Bharatiya Janata Party (BJP) accounts for 19% (64) of the list of party wise MP’s with declared serious criminal cases. Secondly, Shivsena (SHS) accounts for 48% (10). Thirdly, Indian National Congress (INC) accounts for around 8% (8).

This analysis shows how much elected Members of Parliament are charged with criminal offences and serious criminal offences. It is seen that as per the report the section “Others” does not have any criminal records as per the findings of the Association for Democratic Reforms.

Members of Legislative Assembly

The Members of Legislative Assembly was also analysed by the Association for Democratic Reforms. The Association for Democratic Reforms has analysed a total of 4083 Members of Legislative Assembly and it was found that 33% of the Members of Legislative Assembly are charged with criminal offences. It is also found that 22% of the Members of Legislative Assembly are charged with serious criminal offences.

Now coming into detail: The Bharatiya Janata Party (BJP) accounts for 31% (451) of the list of party wise MLAs with declared criminal cases. Secondly, Indian National Congress (INC) accounts for 26% (203). Thirdly, Communist Party of India (Marxist) accounts for around 67% (68).

The Members of Legislative Assembly are also charged with serious criminal offences. As per the report a total of 891 Members of Legislative Assembly are serious offenders. The Bharatiya Janata Party (BJP) accounts for 20% (295) of the list of party wise MLA’s with declared serious criminal cases. Secondly, Indian National Congress (INC) accounts for 17% (134). Thirdly, Communist Party of India (Marxist) accounts for around 31% (32).

This analysis shows how much elected Members of Legislative Assembly are charged with criminal offences and serious criminal offences. It is seen that as per the report the section “Others” does not have any criminal records as per the findings of the Association for Democratic Reforms.

STATE-WISE SCENARIO

Now as per the analysis in the state-wise manner it is seen that out of 4083, 1355 (33%) are charged with criminal offences. Maharashtra has the most number of representatives charged with criminal offences which accounts for 160 (57%). Secondly, comes Uttar Pradesh which accounts for 144 (36%). Thirdly, Bihar accounts for 140 (58%).

When looking into proportion of the percentage of MLA’s that are charged with criminal offences Jharkhand, Kerala and Bihar tops the list. Jharkhand accounts for 63% (50 out of 80), Kerala accounts for 62% (86 out of 139) and finally Bihar accounts for 58% (140 out of 243).

Regarding serious criminal offences it is noticed that 891 (22%) of the Members of Legislative Assembly are charged with such offences. In terms of percentage, Jharkhand has the most number of Members of Legislative Assembly 49% (39). Secondly, comes Bihar with 40% (96). Thirdly, Maharashtra and Telangana accounts for 39% each (111 & 47).

When looking at the numbers of MLA’s that are charged with serious criminal offences Maharashtra, Uttar Pradesh and Bihar tops the list. Maharashtra accounts for 111 (39%), Uttar Pradesh accounts for 108 (27%) and Bihar accounts for 96 (40%).

It is to be noted that Sikkim has no Members of Legislative Assembly being charged with serious criminal offences. Mizoram is the only state where there are criminal free Members of Legislative Assembly.

CONCLUSION

The fact that the Member of Parliament and Member of Legislative Assembly should be elected properly is deniable. The power to make laws is vested upon them and when a law is passed with other intentions it would not only lead to internal crisis but also how the world sees our country. India has a lot of potential, let us pave way for the good governance, for better leaders to come forward and choose the best representatives to run the country for the benefit of our people. Remember individual voters we are the power, we choose our representatives and without us they are nothing.

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