In an important judgment delivered last month, the Gauhati High Court held that even a private entity has also a duty to ensure that its facilities are friendly to the differently abled.
Justice Ujjal Bhuyan also directed the Government to issue General circulars to all Government and private establishments highlighting the salient features of the Rights of Persons with Disabilities Act, and to ensure that public buildings and public facilities and services are accessible by persons with disabilities.
The court was disposing a writ petition filed by Arman Ali, Executive Director, Shishu Sarothi, a Center for Rehabilitation and Training for Multiple Disability. Ali, who himself suffers from Cerebral Palsy, narrated in the petition, his experience, when he tried to avail the facilities in a private Gym named Gold's Gym. The Gym informed him that he would be able to avail the gym facilities but some additional amount would be charged as a personal trainer would have to be exclusively provided to him.
When he filed writ petition in 2011, the Gym contended that it is not a "State" or "other authority" within the meaning of Article 12 of the Constitution of India and that it is purely a private entity and does not discharge any public duty or function.
When this petition was taken up for hearing, the Judge noted that the provisions of the new (2016) Act permeate not only Government facilities but private space as well. The court observed:
"In fact in the definition clause, private establishment has been defined so also public building. As per Section 2 (w), "public building" means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways, bus stands or terminus, airports or waterways. Similarly, "public facilities and services" have also been defined under Section 2(x)."
Justice Bhuyan also explained the prejudices faced by differently abled persons in India. He said:
In the Indian context, such attitude has taken the form of crass insensitivity or apathy with latent prejudice against persons having different kinds of disabilities. Our popular culture is replete with instances where so-called "normal" people make fun of persons having different kinds of disabilities. Without much elaboration, it can be said that such prejudices are deep rooted and manifests itself at different times, in different forms and in different manner. It is not uncommon to find people making fun of people with various disabilities, like, stammering, squint eyed, short of hearing, dwarfism, obesity, excessive height, colour blindness, etc.
The court, referring to the affidavit filed by the Gym, said that it ought to have filed a better affidavit rather than highlighting only its private character and contending that writ petition is not maintainable. It also criticized the way the Social Welfare Department of the state responded to this plea. The court said:
"Affidavit on behalf of the State is still more pathetic. While merely saying that allegation of the petitioner does not pertain to the Social Welfare Department as it concerns respondent Nos. 5 and 6, respondent No. 3 has tried to evade responsibility.. From the above, what transpires is that respondent No. 3 has not understood the importance or significance of the 2016 Act or the previous 1995 Act. There seems to be a total lack of understanding on the part of the State in appreciating the provisions of the 1995 Act or its successor 2016 Act which incidentally imposes a duty on the appropriate Government to conduct public awareness and sensitization programmes. Appropriate Government can conduct public awareness or sensitization programmes only if it and its officials understand the full meaning of the said acts. From the affidavit filed, it is quite evident that the officers and staff of the Social Welfare Department are not at all aware of the importance and significance of the aforesaid acts, not to speak of sensitivity to the cause of the differently abled. The case highlighted by the petitioner is not only confined to him but similar or far worse situations are faced by people with disability. It is only the proverbial tip of the ice-berg."
The court, thereafter issued the following directions, while directing the state as well as the Gold Gym, to pay Rs. 50,000 each to Shishu Sarothi.
All the officers and employees serving in the Social Welfare Department, Govt. of Assam including in the directorate and at the grass-root level should be undergo training and awareness programmes to sensitise them about the rights of persons with disabilities.Commissioner and Secretary to the Govt. of Assam, Social Welfare Department shall immediately chalk out a detailed programme to give effect to direction No. 1 above and in this regard he may also take the assistance of the Commissioner for Persons with Disabilities, Assam and the Assam State Legal Services Authority. The departmental Commissioner and Secretary shall also organise awareness and sensitization programmes and campaigns in terms of Section 39 of the 2016 Act in consultation with the Commissioner for Persons with Disabilities, Assam and Assam State Legal Services Authority to ensure that people become aware of the rights of persons with disability and that those rights are protected.Commissioner and Secretary of the Social Welfare Department, Govt. of Assam shall issue general circulars to all Government and private establishments highlighting the salient features of the 2016 Act and to ensure that public buildings and public facilities and services are accessible by persons with disabilities. Such directions or guidelines may be issued within a period of 2 (two) months from the date of receipt of a certified copy of this order.