The enactment of Rights of Persons with Disabilities Act, 2016 (‘RPwD Act’) was a watershed moment for the disabled community in India. Principles such as reasonable accommodation and the need for time-bound compliance with accessibility norms were incorporated into the foremost legislation on the rights of persons with disabilities in this jurisdiction. However, the enactment is not the final victory for the stakeholders of the disabled community. The RPwD Act has rather primed us with a strong legal mandate to now kickstart our long-pending journey of getting both government and private establishments to comply with RPwD Act to ensure accessibility.
On 5th June 2023, the Project RPwD Generation was founded by my colleague Rahul Bajaj and me at Mission Accessibility. This project is housed in the Grievance Redressal and Strategic Litigation Vertical of Mission Accessibility [MA]. MA is a not-for-profit company that works towards enhancing digital accessibility and ensuring greater compliance with the Rights of Persons with Disabilities Act, 2016. It does so through a three-pronged approach, what we like to call a three-legged stool: capacity building, sensitisation and grievance redressal.
A necessary—and slightly ambitious—intervention that needs to be made is strategic litigation for compliance with the RPwD Act. We view litigation as being strategic when we litigate with a strategy in mind to convince the honourable courts to issue relevant directions that not just benefit the litigants in that case but the community in question more broadly. At the individual level, such directions can be in the form of courts directing that a particular offering that is inaccessible be made accessible. At the systemic level, they entail the Court stepping beyond the narrow confines of the given case and recommending the government to formulate guidelines, policies or to initiate the process to introduce amendments. Our uniform experience teaches us that one of the most impactful forms of judicial intervention is where the Court issues directions to a particular entity with respect to a particular inaccessible offering which creates a precedent that the whole industry must follow. We find that broadly issued directions by Courts are not just unhelpful, they are positively harmful, as they create a false pretense of progress [we are grateful to Professor Tarunabh Khaitan for this formulation]. Instead, a step-by-step, incremental approach is much more effective. MA’s single point agenda after its founding was digital accessibility. This still continues to remain our primary focus, but we would also like to pursue some well thought out and carefully crafted and executed strategic litigations in the areas of accessibility [broadly construed], discrimination and institutional remedies.
Why is strategic litigation needed? There are multiple needs for strategic litigation in the disability sector. One, the RPwD Act has empowered persons with disabilities with both overarching and specific rights. Corresponding to these rights are clear and implicit duties that the RPwD Act has placed on private and government establishments. These provisions get violated either when the rights are denied to the disabled or when duties are not performed by duty-bearers. Here’s the problem: establishments do not, in many instances, accept that they do owe a duty to the disabled under the Act. That’s where strategic litigation is needed to take help from the courts to ensure compliance with the law not only in that specific instance but also at the sectoral and even systemic level. That is how we can translate the law from principle to practice.
Two, in some instances, the law requires different agencies to perform a gap-filling role which they have failed to do. The overarching duties and rights do not have adequate details available, leaving room for rules/guidelines/policies formulated under the Act to operationalise relevant provisions. Illustratively, Section 40 of the Act empowers the appropriate government to formulate standards of accessibility with respect to different life domains. Sectoral standards in a whole range of areas, from police stations to insurance; from sports to railways, are currently in different stages of finalization.
At present, Mr. Bajaj is spearheading an ongoing litigation in the Delhi High Court for the formulation and signing into law of such standards with respect to media accessibility.
Husain Aanis Khan is Vertical Lead (Grievance Redressal and Strategic Litigation) at Mission Accessibility. He is leading the Project RPwD Generation.