On December 1, 1955, Rosa Parks, a resident of Montgomery, Alabama, in the United States, got on a bus to head home from work. As per the legal seating arrangement then, she went to the back of the bus where black passengers were supposed to be seated. In what was popular practice then, black passengers were also supposed to give up their seats if the white section was filled up. On that day, the driver asked her to give up her seat for a white man, but she refused. She was then humiliated, abused and arrested. This incident ignited protests and boycotts all over the country, the bus company took a financial hit, the authorities made numerous arrests. A year later, the Supreme Court declared segregation illegal in Montgomery. By this time, Martin Luther King Jr had become a household name. The civil rights movement had got just the spark it needed. In the following decade, the American government would pass the historic Civil Rights Act and the Voting Rights Act. Finally, African Americans had political equality.
In September 2017, the Delhi cabinet approved a proposal to procure 2,000 standard-floor buses to strengthen the city’s public transportation. With buses having a life of 15 years, this decision would mean the complete exclusion of persons with disabilities and the elderly from public transport.
I, along with other representatives of the disabled community, wrote to the Delhi government about our concerns and pleaded that they procure the more accessible low-floor buses. When I received no response, I was forced to challenge the government’s decision along with my lawyer, Jai Dehadrai, in the Delhi High Court by filing a public interest litigation. Our case was bolstered by Pretti Singh, who highlighted the challenges women face when public transport is inaccessible.
We were shocked to learn at the first court hearing that the Delhi government had decided to challenge my PIL and make proceedings adversarial. Shock would turn to sadness as the government, at hearing after hearing, came up with flimsy excuses for its decision – such as claims that the “Accessible India” campaign says that at least 10% of a state’s public transport fleet should be accessible (when did “at least” become an upper cap?), the safety of standard-floor buses (the Delhi government had in 2007 told the same court that low-floor buses are safer because of lower driver seats and a wider front screen), poor quality of roads and lack of manufacturers of low-floor buses (Tata and Ashok Leyland would later file affidavits in court refuting this claim). Earlier this year, the Delhi government tried to pull another rabbit out of the hat by attempting to procure standard-floor buses under the “cluster scheme”, where they would be owned by private operators and leased out to the government.
The High Court order
On June 1 this year, the Delhi High Court bench led by Chief Justice Gita Mittal delivered a historic interim judgement that stayed the procurement of the inaccessible standard-floor buses. The court questioned the 10% rationale, wondering if “their [the disabled’s] entire schedules are to be governed by the schedule of the 10% accessible public transport which the DTC [Delhi Transport Corporation] and the respondents are willing to provide”. It declared “that the respondents are bent upon treating the disabled as non-existent, or, in any case not having any rights”.
This is, in many ways, a landmark judgement, perhaps one with the biggest ramifications since the Rights of Persons with Disabilities Act, 2016, came into force. As case law, it will set a precedent for accessible transportation for all states and the Centre.
More importantly, this public interest litigation and the Delhi High Court will set a precedent for activists to use the judiciary in taking up causes and for courts in interpreting the Rights of Persons with Disabilities Act. The legislation is definitely a step forward but has many loopholes that need to be filled. For example, it speaks against discrimination on the grounds of disability “unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim”. In another chapter, it mandates establishments to have an equal opportunity policy and maintenance of records to support it, but stays silent on violations of the same.
Away from the day-to-day bickering that keeps the majority of Indian parliamentarians busy, courts have often led the way in how human rights cases are considered in India. After all, even women did not have any legal protection in the workplace till as late as 1997 when the Supreme Court, while hearing “Vishaka versus State of Rajasthan”, laid down rules on how institutions should prevent and redress cases of sexual harassment in the workplace. These rules, called the Vishaka Guidelines, still stand today.
The father of the Indian Constitution, BR Ambedkar, once said:
“Democracy is not merely a form of government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards fellow men.”
Thank you, Delhi High Court, for reminding us that courts can empower the disabled when governments fail us.
Nipun Malhotra, a wheelchair user, is founder, Wheels For Life (www.wheelsforlife.in), and CEO, Nipman Foundation. His Twitter handle is @nipunmalhotra