Travelling by Air: A Persistent Problem for Persons with Disabilities
Sakshi Komal Dubey*
Introduction
In November 2023, the Chief Commissioner of Persons with Disabilities (CCPD), in a suo-moto case, categorically held that all airlines operating in India, including those operated by foreign companies, are responsible for implementing the provision of the Rights of Persons with Disabilities Act, 2016 (RPwDA). However, this order was passed almost six months after the incident, and no direct remedy was awarded to the aggrieved person with disability. Even though this order emphasises the importance of adhering to the letter and spirit of the law to ensure that the rights and dignity of persons with disabilities are protected, this instance is only one of many occurrences of discrimination against persons with disabilities by airlines. These issues faced by persons with disabilities travelling by air arise due to the non-compliance of airlines with the applicable accessibility requirements, poor implementation of such requirements and inadequate monitoring and grievance redressal.
Poor compliance with civil aviation requirements by airlines
In 2012, Mr. Asok Kumar, Joint Secretary of the Ministry of Civil Aviation, led a crucial committee to examine Civil Aviation Requirements (CAR) for Persons with Disabilities, shedding light on accessibility challenges (Ashok Kumar Committee). The Ashok Kumar Committee Report called for redefining ‘disabled persons’, staff training, enhanced accountability, reshuffling responsibilities, and airport infrastructure overhaul. It scrutinised global benchmarks and included recommendations for improved schematics. Detailed improvement recommendations and schematics. It provided a comprehensive training manual for personnel and set a three-year execution timeline. Pursuant to this, the Ministry of Civil Aviation issued the Civil Aviation Requirements (CAR) on 28 February 2014 (and later amended in July 2022). The CAR lays down regulations for the carriage of persons with disabilities and reduced mobility by air in order to protect them against any form of discrimination and ensure that they receive all possible assistance during their travel.
The CAR was introduced to protect the rights and dignity of persons with disabilities and reduced mobility, in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the provisions of the RPwDA. Article 9 of the UNCRPD, which guarantees accessible transportation for persons with disabilities, was incorporated as Section 40 and 41 of the RPwDA, cementing the right of persons with disabilities to be provided with accessible air transport in India.
Even after the CAR were issued to protect persons with disabilities, in May 2023 the staff of IndiGo Airlines refused to take an adolescent on board because he did not seem ‘normal’ to them. This resulted in the Directorate General of Civil Aviation (DGCA) imposing a fine of INR 5 lakh on the airline and amending Section 3, Series M, Part I of the CAR, which now states, “Airline shall not refuse carriage of any person on the basis of disability. However, in case, an airline perceives that the health of such a passenger may deteriorate in-flight, the said passenger will have to be examined by a doctor- who shall categorically state the medical condition and whether the passenger is fit to fly or not. After obtaining the medical opinion, the Airline shall take the appropriate call.” Such distressing incidents have exposed the insensitivity of airport operators, airlines, and security agencies toward individuals with disabilities, resulting in discrimination and humiliation.
Other than providing general guarantees that no airlines can refuse to carry persons with disabilities or reduced mobility, the CAR also provides specific reliefs for persons with disabilities and reduced mobility, such as the responsibility of airlines to provide assistive devices without any extra cost. Despite this clear mandate for airlines, in March 2022, the US Bangla Airline charged INR 2,500 for providing a wheelchair to a person with disability at the Chennai Airport. Similarly, Vistara Airlines staff refused to register the request for a wheelchair and an aisle seat in the first instance, violating Para 4.1.1, 4.1.4, and 4.1.13 of the CAR. Each such occurrence is invariably accompanied by an apology from the airlines, yet regrettably, substantive changes seem elusive. In February 2024, an 80 year old passenger with reduced mobility was not provided a wheelchair at the Mumbai airport, and he subsequently died from a cardiac arrest. The DGCA imposed a penalty of INR 30 lakh on Air India for violating Para 4.4.4 of the CAR; however, this was a mere slap on the wrist for the airline’s non-compliance, and no long-term solution seems to be in sight.
Further, the CAR was amended in July 2022 by the DGCA to specify that a disability cannot be grounds for an airline to deny boarding to a passenger. This was added with the caveat that if the airline ‘perceives’ that the passenger’s health may deteriorate mid-air, they would have to seek a doctor’s opinion in writing, categorically mentioning the medical condition to determine if the passenger is fit to fly. The amendment to the CAR was the pursuant to outrage sparked by IndiGo’s refusal to board a child with special needs in May 2022. According to the airline, the passenger was in a state of panic and considered a safety risk. The DGCA found IndiGo deficient handling the situation and imposed a fine of INR 5 lakh. However, disability rights groups have opposed this move because asking passengers for a fitness certificate unfairly targets and discriminates against persons with disability, especially since such a requirement is not imposed on members of the general population who may be sick.
Despite additional requirement to take a doctor’s written opinion when determining whether a person with a disability can travel by air, the amended CAR does not specify the standards of ‘perceiving’ by the airline staff. This indicates that the CAR imposes consequences on individuals with unconventional appearances or communication styles. It mandates screening by individuals who lack familiarity or sensitivity.
Further, while the CAR declare that the airlines had to incorporate the appropriate provisions through which persons with disabilities can inform the airline of their requirements necessitated during the journey, they fail to provide alternatives for accessibility requirements, such as giving options for the type of wheelchair access required for the passenger. The note to Para 4.1.8 of the CAR states, “Acceptance of automated wheelchairs/assistive devices using batteries shall be subject to the application of relevant regulations concerning dangerous goods.”. The directives issued by the DGCA are unclear and deficient in specific details, as the categorization of batteries as “dangerous goods” has caused significant inconvenience to persons using battery-operated wheelchairs. A person with 85% locomotor disability was deboarded twice because of the categorization.
Accessibility standards for civil aviation: a lost opportunity
In addition to the CAR, the Ministry of Civil Aviation notified the Accessibility Standards and Guidelines for Civil Aviation(Aviation Accessibility Guidelines) in July 2023. The initiative was undertaken in line with the mandate under Section 40 of the RPwDA, which specifies that the Central Government needs to establish accessibility standard guidelines for transportation in the country. The Aviation Accessibility Guidelines aim is to standardise the conditions for travel for persons with disabilities and reduced mobility to facilitate their acceptance and handling of their carriage by airlines, airport operators, ground handling agencies. The Aviation Accessibility Guidelines are to be read with the CAR and built upon the universal design principles and accessibility requirements espoused in the CAR. Even though the Aviation Accessibility Guidelines and the CAR are a meticulous and comprehensive effort to enhance the accessibility of air travel for persons with disabilities, their implementation remains partial and inadequate.
The Aviation Accessibility Guidelines mark a significant advancement in airport accessibility standards, offering clarity and precision through specific definitions, accessibility features and comprehensive directions for accessible air travel and affiliated services. They mandate accessible websites with a section for assistance requests, provision of wheelchairs, and a system for registering personal mobility aids. Further, staff training is emphasised to cater to diverse needs, and periodic audits ensure continued commitment to accessibility and inclusion. They also provide specific instructions tailored to various disabilities, recognizing diverse needs and challenges and encouraging flexibility in accommodating individual requests. They have also introduced a section on evacuation protocols, prioritising the safety of individuals with disabilities during emergencies, aiming to create a secure and accommodating environment in such situations.
Even though the Aviation Accessibility Guidelines are a meticulous and comprehensive effort to enhance the accessibility of air travel for persons with disabilities, their implementation remains partial and inadequate. Despite the directions in the Aviation Accessibility Guidelines, in January 2024, the CCPD had to order the DGCA to ensure that the airline websites are accessible to all and to levy fines in case of non-compliance. These issues have arisen because the Aviation Accessibility Guidelines lack a specified deadline for compliance, which is a recurring issue regarding adaptations for accessibility requirements. They also pose logistical difficulties in executing the extensive infrastructure upgrades they mandate. Addressing practical challenges, such as defining deadlines, infrastructure development, and training, is essential for realising the transformative potential of the Aviation Accessibility Guidelines and upholding the rights and dignity of individuals with disabilities.
Lack of monitoring of accessibility standards
The issues of non-compliance with applicable accessibility guidelines in the civil aviation sector are compounded by the lack of robust monitoring and grievance redressal. In an incident at the Port Blair Airport, a person with 100% multiple disabilities was termed “mentally unsound and [in a] not comparable position to travel”. The parents of the aggrieved person with disability approached the CCPD, requesting an accessibility audit as the basic assistance needed for boarding the flight was unavailable. The wheelchair personnel were not trained, which made the aggrieved uncomfortable, the situation was further aggravated when the paramedic tried to inject a sedative. The CCPD held that the airline should conduct counselling and training of the ground staff to sensitise them towards the rights of persons with disabilities. The airline was directed to submit a compliance report within three months. However, no penalty was imposed on the airline. In another case before the CCPD, despite the Complainant making a prior booking for an electric wheelchair at the destination airport, he was shifted and kept on a broken narrow aisle chair for two hours only to hear that the ascertained wheelchair was misplaced. In this case, the CCPD was “not inclined” to impose a penalty on the Respondent.
In contrast, appellate courts have been harsher on airlines to ensure compliance with the CAR. In Jeeja Ghose & Anr. v. Union of India & Ors., the Supreme Court of India held that Spice Jet had violated the Aircraft Rules, 1937 and CAR by denying the petitioner carriage by air and discriminating against her based on her disability. The Petitioner was awarded damages amounting to INR 10 lakh for her mental and physical suffering. Similarly, in The Manager, M/s Air India Ltd. v. Dr. S.J. Rajalakshmi, the Karnataka High Court gave paramount importance to human dignity and awarded compensation to the Petitioner when the airline failed to load her customised wheelchair. Further, in Seema Girija Lal & Anr. v. Union of India & Ors., the Supreme Court noted the extent of non-implementation of the provisions of the RPwDA due to the ineffectiveness of the CCPD and State Commissioners of Persons with Disabilities (SCPDs). The affidavit placed before the Supreme Court indicated a “dismal position” across the country; 13 States and Union Territories had kept the position of the Commissioner under Section 79 of the RPwDA vacant as of May 2023. This has also contributed to the poor compliance with the CAR by the airlines.
While the appellate courts have been taking a hard line on the omissions made by airlines, the problem seems persistent primarily because the courts of first instance, i.e., the CCPD and SCPDs, are often not inclined to impose punitive damageson the non-compliant parties.
Way Forward
Persons with disabilities have suffered exclusion and denial of their rights because air travel services have not been designed to meet their requirements. By not complying with the provisions of the RPwDA, the airlines are violating the fundamental right of free movement guaranteed by Article 19(1)(d) of the Constitution of India. The DGCA should ensure that the CAR is implemented by all the airlines operating throughout the country. Primarily, the CAR fails to demarcate the responsibilities between airports and airlines, and presently entrust the airlines with the responsibility of assisting persons with disabilities till embarkation. This is in contrast to the recommendations of the Asok Kumar Committee that the airport shall provide on-ground services and not the airlines. Therefore, the CAR should be read in conjunction with the Aviation Accessibility Guidelines, and the implementation of both accessibility standards needs to be improved. The Aviation Accessibility Standards distinctly lay down the accessibility features to be provided by airport operators, airlines and security agencies. This would reduce the chances of miscommunication between the airline and the airport, make airport authorities accountable for any violation and ensure that airport staff is trained to assist persons with disabilities.
In order to improve the implementation of accessibility features through better data collection, the CCPD has suggested that the DGCA should take steps to compile data on persons with disabilities who travel frequently. This will enable them to meet the requirements of persons with disabilities promptly through initiatives such as the Frequent Traveler Medical Card. This should be undertaken along with periodic audits of issues faced by airline passengers with disabilities or reduced mobility.
Further, the DGCA should revise Para 4.1.29 and 4.1.30 of the CAR, amending them from mere directives to obligatory regulations. While the Ashok Kumar Committee recommended that a breach of the CAR must result in the imposition of penalty and compensation to the passenger, the DGCA makes the passenger grievance redressal mechanism a toothless tiger. Additionally, the DGCA should tie up loose ends by appointing relevant monitoring authorities and ensuring strict compliance with the CAR.
In May 2023, the Goa SCPD conducted a training session for the employees at the Manohar International Airport to train and sensitise the ground staff and the security agencies to understand the needs of persons with disabilities better. Similarly, the Delhi International Airport Limited (DIAL) has taken an initiative to make the airport premises inclusive of the needs of persons with invisible disability. With the introduction of Sunflower lanyards, pin badges and wristbands, persons with disabilities can communicate with the airport staff for assistance. All SCPDs and airport authorities in the country should follow suit and ensure adequate capacity-building and sensitisation efforts are made to train the staff at airports and airlines.
Conclusion
The issue of accessibility for persons with disabilities in air travel remains a persistent challenge despite legislative frameworks and guidelines in place. The RPwDA and CAR were established to protect the rights and dignity of individuals with disabilities, yet instances of discrimination and non-compliance continue to occur. The implementation of CAR has been marred by poor compliance from airlines, evidenced by various incidents of refusal to provide necessary assistance and accommodations. Despite fines imposed by regulatory bodies like the DGCA, substantive changes are needed. Furthermore, while the Aviation Accessibility Guidelines provide a comprehensive framework for improving accessibility, their partial implementation and lack of specified deadlines hinder progress. The absence of monitoring mechanisms exacerbates the situation, with regulatory bodies often hesitant to impose penalties on non-compliant parties.
To address these challenges, concerted efforts are needed from regulatory bodies, airlines, and airport authorities. Clear demarcation of responsibilities between airlines and airports, along with improved implementation of accessibility standards, is crucial. Initiatives like data compilation on frequent travellers with disabilities and staff training sessions are steps in the right direction but need wider adoption and enforcement. Strengthening CAR provisions to obligatory regulations and appointing monitoring authorities can strengthen compliance mechanisms.
Ultimately, upholding the rights and dignity of persons with disabilities in air travel requires legal frameworks and active enforcement, awareness, and sensitivity from all stakeholders involved. Only through concerted action can the barriers to air travel faced by individuals with disabilities be effectively addressed, ensuring equal access and inclusion for all.
Sakshi Komal Dubey is an intern with the Disability (Inclusion & Access) team at the Vidhi Centre for Legal Policy.