The apex court recently asked SpiceJet to pay a compensation of Rs 10 lakh to a disabled passenger it had de-boarded. Will this pave the way for a more humane treatment of the differently abled?
By Nayantara Roy
In a shocking incident on February 19, 2012, Jeeja Ghosh, a passenger on SpiceJet flight SG 803 from Kolkata to Goa, was summarily de-boarded as the pilot of the flight deemed her a risk to the safety of other passengers. Why? She had cerebral palsy.
She is not the first disabled passenger to be treated thus. This, when she had checked in at the airline counter without any assistance and had gone through the security procedures and walked into the aircraft on her own. This head of Advocacy and Disability Studies at the Indian Institute of Cerebral Palsy in Kolkata (IICP) was physically removed from the plane in a humiliating manner. Ironically, the conference she was supposed to attend in Goa—North-South Dialogue IV—had a special focus on people with disabilities and their families. Needless to say, Ghosh missed the conference. For the “inconvenience” caused, the airline offered to refund the fare, after deducting Rs 1,500 as cancellation fee. How is that for sensitivity?
PAY DAMAGES
But spunky Ghosh along with NGO ADAPT (Able Disable All People Together) filed a PIL in the Supreme Court. And on May 12, 2016, the apex court gave a judgment that would gladden the hearts of many. In the Jeeja Ghosh and Ors vs Union of India and Ors, the judges ordered SpiceJet to pay damages of Rs10 lakh to Ghosh for the trauma inflicted on her. The Court went into a detailed reexamination of the Directorate General of Civil Aviation’s Civil Aviation Requirements (CAR) in respect of Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility.
The judges emphasized the need to change how disability should be perceived as opposed to how it is perceived. It said that in traditional societies, disability has been perceived as a health and welfare issue. “The disabled persons are viewed as abnormal, deserving of pity, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalizing the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms… Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted in severe isolation for people with disabilities and their families.”
The judgment cited instances of other differently abled persons who were mistreated when flying—“Mr Tony Kurian was repeatedly denied the right to purchase tickets on an Indigo flight because he is visually impaired. Ms Anilee Agarwal was recently forced to sign an indemnity bond before she could fly from Delhi to Raipur on Jet Connect, threatened with being ‘body-lifted’ by four male flight crew members, and finally ‘thrown down the steps’ in an aisle chair when she refused to be carried by hand. Mr Nilesh Singit was told by a SpiceJet captain that he was not allowed to fly with his crutches, and has been asked to sign indemnity bonds on numerous occasions.”
INSENSITIVE LOT
There have been other similar instances elsewhere in the world. According to news reports, in August 2015, a 32-year-old disabled British passenger was asked to get off a British Airways flight from Heathrow to the US for “health and safety reasons”. Emily Ladau was flying from New York to Minnesota to attend a conference on disability. Her wheelchair had been checked in, but when the flight landed, the wheelchair couldn’t be found. Blissfully unaware of the absurdity, airline personnel actually asked her to walk to the baggage claim to locate it! Worse still, another passenger, D’Arcee Neal, suffering from cerebral palsy, had to crawl off his flight because United Airlines personnel delayed bringing him a wheelchair.
Airline staff is fully cognizant of the pilot’s authority to de-board a passenger he may consider a hazard. However, CAR 4.1 categorically states: “No airline shall refuse to carry persons with disability or persons with reduced mobility and their assistive aids/devices, escorts and guide dogs including their presence in the cabin.” CAR 4.6 which says that many persons with disabilities do not require constant assistance for their activities and therefore, if the passenger “declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of an escort” appears to have been forgotten that day.
Ghosh did not require assistance, apart from some help with her baggage. She did not have any aids/devices, escorts or guide dogs. As a young student staying in a hostel in Delhi University, she had travelled all over the city in DTC buses. Therefore, nothing would have prepared her for the reaction of airline staff. Cerebral palsy only makes her speech unclear and her movements strained.
In fact, cerebral palsy is defined in the Persons With Disabilities Act, 1995 as “a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, perinatal or infant period of development”. Lack of knowledge on the part of airline staff and their fear of the unknown caused them to deny a passenger her fundamental right to equality under Article 14 and her right to live with dignity.
An old school teacher of Jeeja who did not want to be identified, explains that cerebral palsy conditions vary from person to person. One person may lurch a little while walking, another may not be able to walk at all. There can be lack of clarity in speech which could be accompanied by uncontrolled motor movements. She said: “All of us have our peculiarities, who is to say we’re normal?” Incidentally, Ghosh has yet to receive the compensation from SpiceJet, though the airline has two months to comply.
ASHOK KUMAR COMMITTEE
In an attempt to close the “gap between the law and reality”, at least in the carriage by air of disabled passengers during the course of the litigation, a committee was appointed by the government to examine and amend CARs. The “Ashok Kumar Committee” made several suggestions to improve the CARs such as widening the definition of persons with reduced mobility, establishment of Standard Operating Procedures for all service providers and adequate training and sensitization of not only airline staff but also security personnel. Many problems also occur during security checks especially with assistive devices, battery operated wheelchairs, web-enabled booking, in-flight briefing and evacuation of such persons. The Committee suggested that a mechanism for grievance redressal be implemented.
Some of the Committee’s suggestions, not addressed in the amended CAR 2014, were brought to the notice of the Court. Eventually, it directed the respondents to make changes to accommodate some of these.
The Court had the last word on this issue. It said: “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 underestimates 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.”
