By Shashank Pandey

In November 2024, a Supreme Court (SC) bench led by former Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Mishra delivered an order in Rajive Raturi vs Union of India. The case had begun in 2005 as a petition advocating accessibility for visually impaired individuals, but it has since evolved into a pivotal matter addressing various aspects of accessibility. In its ruling, the SC emphasised three critical elements that will have substantial implications for inclusivity across sectors like technology, transport, health, and social services, moving beyond the persons with disabilities (PwD) classification and encompassing all vulnerable communities.

Enhanced understanding of accessibility as a right

The SC articulated the concept of accessibility as a factor that perpetuates inequalities, as it constrains the capacity of PwDs to participate in community life. This often leads to a reliance on others, limiting their autonomy and opportunities for self-determination. Thus, the SC has interpreted the accessibility mandate as a part of a broader human rights framework. Article 9 of the United Nations Convention on Rights of Persons with Disabilities also obligates State parties to promote accessibility as an essential right.

Accessibility ensures the enjoyment of other forms of fundamental rights. For instance, digital accessibility is a prerequisite for enjoying the right to form opinions and express oneself. Therefore, it’s imperative to remove the inaccessibility that can be in the form of built-in environment, transport systems, and communication channels to ensure equality, freedom, and human dignity.

The SC reiterated that the accessibility component is not restricted to PwDs but has been envisioned as a universal design to create products, services, and environments that all people use regardless of ability, age, and gender. A two-pronged approach of accessibility will be required for this: accessibility in existing establishments (public and private) and transforming new structures, i.e. new infrastructure and services. This categorisation was imperative in allowing better governance of accessibility mandate in existing and future products, services, or infrastructure.

Differentiating groups

PwDs are not homogeneous. Intra- and inter-disability differentiation require different degrees of accommodation. This means every disabled person has unique requirements and accommodations that can’t be termed universal. The Rights of Persons with Disabilities (RPwD) Act, 2016, conceptualises reasonable accommodation as necessary, and appropriate modification and adjustments in a “specific case” to allow a disabled person to enjoy equal rights. The SC has given the jurisprudential authority to this differentiation by explaining that accessibility is related to groups, meaning that the duty to provide accessibility is an ex-ante State duty. Reasonable accommodation is related to individuals, and providing reasonable accommodation is an ex nunc duty — enforceable from the moment an individual with an impairment needs it in a given situation (workplace, school, etc.) This differentiation will help determine what actions would be qualified as accessibility and reasonable accommodation and the corresponding liabilities for failure to provide either of them.

Mandatory guidelines

Section 40 of the RPwD Act provides that the Centre will lay down the rules for the standard of accessibility for the physical environment, transportation, information, and communications. The accessibility guidelines have been notified under Rule 15 of the Rights of Persons with Disabilities Rules, 2017, by 17 ministries and departments like urban affairs, home, sports, culture, ports, etc. A point of contention was whether the guidelines are mandatory or directory. The SC clarified that Section 40 is a mandatory provision, and hence all the guidelines that are notified giving effect to the accessibility right under the Section can’t be directory as it will violate the fundamental rights.

This is significant as all establishments, including private bodies, now have to comply with the basic accessibility guidelines that will be delineated by the central government based on an existing set of guidelines or additions to them, within three months of the judgment. The order also clarified that other progressive accessibility goal realisations, as enumerated in existing guidelines, are long-term and cannot be a substitute for the basic mandate, which is the legislative intent of the RPwD Act.

The judgment is anticipated to instigate a substantial revision of the accessibility mandate for PwDs as well as other demographic groups, including the elderly, children, and other vulnerable sections. The current framework on accessibility has functioned as a directory, with compliance predominantly enforced through adversarial litigation. However, the SC’s characterisation of accessibility as a fundamental right, distinct from reasonable accommodation, elucidates the scope of obligations imposed on governing and private bodies. The Centre is now mandated to ensure the establishment of a baseline of non-negotiable accessibility standards for all establishments.

The writer is lawyer and founder of Politics and Disability Forum.

Disclaimer: Views expressed are personal and do not reflect the official position or policy of FinancialExpress.com. Reproducing this content without permission is prohibited.