Petitioners in the Delhi High Court have highlighted the challenges faced by such persons in accessing audio-visual content in traditional theatres and online streaming platforms. The issue underlines the broader question of the right of individuals with disabilities to enjoy public and private spaces without discrimination
The Delhi High Court recently ordered the Union Ministry of Information and Broadcasting (MIB) to finalise and notify on or before July 15 the guidelines for making cinema more accessible for visually and hearing-impaired individuals, so that hearing and visually impaired persons can enjoy films, web series and similar content in movie theatres and on Over-The-Top (OTT) platforms. A single bench of Justice Prathiba M Singh passed this order while hearing a petition filed by a law student, two lawyers and a disability rights activist. The petitioners are visually impaired and hearing impaired.
The issue in the petition underscores the broader question of disability rights, particularly the right of individuals with disabilities to enjoy public and private spaces without discrimination. It was highlighted by the petitioners that the existing physical and virtual spaces predominantly cater to able-bodied individuals, thereby excluding persons with disabilities from enjoying equal access. The exclusion arises from a systemic oversight by planners and providers who design and distribute services assuming a predominantly able-bodied audience. The petitioners said that persons with disabilities are denied their fundamental rights and freedoms guaranteed under the Constitution and other international treaties. Special measures are thus required to be taken to enable the specially-abled people to enjoy products and services available to all. Such an approach, according to the petitioners, would be in tune with the constitutionally guaranteed right to equality as laid down in the Preamble as also in Article 14 of the Constitution.
It was also highlighted by the petitioners that the United Nations Convention on the Rights of Persons with Disabilities (CRPD) serves as a crucial framework in this regard, emphasizing the equal enjoyment of human rights and fundamental freedoms by all individuals, regardless of disability. CRPD defines disability broadly and mandates the states to ensure accessibility across various domains, including transportation, information and communication technologies. Reliance is placed on laws in foreign jurisdictions such as the Americans with Disabilities Act, 1990 (ADA) which mandates accessibility in public spaces, including digital platforms. Legal actions against entities like Netflix, Harvard and MIT underscore the importance of digital accessibility, resulting in settlement agreements requiring these entities to improve accessibility features.
The petitioners also said that the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG), particularly version 2.1, serves as an international standard for digital accessibility. Many jurisdictions, including Europe with the European Accessibility Act, 2019, base their digital accessibility legislation on WCAG principles. In India, in line with CRPD, the Rights of Persons with Disabilities Act, 2016 (RPWD Act) was enacted, which addresses accessibility concerns, affirming the state’s obligation to formulate rules ensuring accessibility standards in both physical and digital environments.
Through the petition, the petitioners sought to enforce their rights under the RPWD Act for ensuring equal access to audio-visual content for persons with disabilities, both in physical and digital spaces, in accordance with national and international legal frameworks and standards. The petitioners stated that various rights have been recognized for “persons with disabilities” under the RPWD Act and most films which are released in India are not catering to disabled persons, despite the said RPWD Act having been enacted more than 5-6 years ago.
The petition was filed seeking directions against Yash Raj Films which is the producer of the film Pathaan, the two ministries—MIB and Department of Empowerment of Persons with Disabilities, and Amazon Seller Services Private Limited, which operates an OTT platform namely, Amazon Prime Video, on which the said film was released on April 28, 2023.
After hearing the parties on January 16, 2023, the Court observed that the petition raised important issues as to accessibility to various modes of entertainment for the hearing and visually impaired persons. The Court had considered Section 42 of the RPWD Act 2016 which obliged the government to take measures to ensure that content is available in all formats which are accessible to persons with disabilities. The Court was told that various measures could be taken by film producers to make the film accessible to hearing and visually impaired persons. Some of them are:
Audio description: This is a verbal depiction of key visual elements in media and live productions. This involves description of the visuals on screen to enable imagination by the hearing impaired.
Subtitling: This provides a text alternative for the dialogue of video footage—the spoken words of characters, narrators and other vocal participants, in the original language itself, as also, in the dubbed language in case of dubbed movies.
Closed Captions: This not only supplements dialogue, but other relevant parts of the soundtrack—describing background noises, phones ringing, and other audio cues that need describing. These features would be integral to the enjoyment of films for persons with disabilities.
In view of the fact that special measures were required to be taken to enable the disabled persons to experience watching a film in a movie theatre, the Court opined that persons with disabilities ought not to be denied such an experience. The Court said that even private parties have to ensure that “reasonable accommodation” measures are taken in order to enable greater accessibility for the hearing and visually impaired persons. A hearing or visually impaired person may get easy physical access to a film theatre, but may not be able to enjoy the film at all, if measures to make it enjoyable are not taken by the other stakeholders, including producers, theatre managers, OTT platforms, etc. The State has a positive obligation to ensure that all steps, that are reasonably possible, are taken in this direction.
In terms of the judgments of the Supreme Court, the Court noted that the RPWD Act was itself enacted in 2016 and almost eight years have passed since then. As per the Act, non-provision of accessibility features would, in fact, constitute an offence under the Act. The Court observed that the current position wherein the producers and technology providers need to coordinate with each other and the MIB has also sought further time to notify the guidelines. Therefore, the Court issued the following directions:
(i) The guidelines shall now be finalised by the MIB and shall be notified on or before July 15, 2024. It is made clear that the said guidelines shall make the provision of accessibility features mandatory and provide a reasonable period for compliance by all stakeholders, in an expeditious manner.
(ii) In the meantime, insofar as any representation received by the MIB for inclusion of accessibility features in films is concerned, one Under Secretary from the MIB shall be nominated as the designated officer for receipt of such representations. The representations, if received, shall be responded to within three working days and attempt shall be made that even in the interregnum, while the guidelines are to be notified, such features are included in feature films, including on OTT platforms. The contact details of the said Under Secretary shall be published on the website by April 10, 2024, by the MIB. The guidelines have been left open, as this Court has not examined the validity or legality of the said guidelines which are yet to be notified and are only in draft form.
The Rights of Persons with Disabilities Act, 2016 is a disability law passed by Parliament to fulfil its obligations under the United Nations Convention on the Rights of Persons with Disabilities, ratified by India in 2007. The Act replaces the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Act lays stress on non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of disabilities as part of human diversity and humanity, equality of opportunity, accessibility, equality between men and women, respect for the evolving capacities of children with disabilities, and respect for the right of children with disabilities to preserve their identities.
The principle reflects a paradigm shift in thinking about disability from a social welfare concern to a human rights issue. In the RPWD Act, 2016, the list has been expanded from 7 to 21 conditions and it now also includes cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, hard of hearing, speech and language disability, specific learning disabilities, autism spectrum disorders, chronic neurological disorders such as multiple sclerosis and Parkinson’s disease, blood disorders such as haemophilia, thalassemia, and sickle cell anaemia, and multiple disabilities.
—By Adarsh Kumar and India Legal Bureau