Rule 15(1) contravenes legislative intent of RPWD Act; SC directs Union to form mandatory rules to ensure accessibility of public places for disabled

Supreme Court: In a writ petition to make public buildings accessible for persons with disabilities, the three-Judge Bench of then CJI Dr. DY Chandrachud, J.B. Pardiwala and Manoj Misra, JJ. ruled that several guidelines prescribed in Rule 15 of Right of Persons with Disabilities Rules, 2017, appear to be recommendatory guidelines, under the garb of mandatory rules. Hence, the Court held Rule 15(1) to be ultra vires the scheme and legislative intent of the RPWD Act which creates a mechanism for mandatory compliance. Therefore, the Court directed the Union to form mandatory rules, as required by Section 40, within a period of three months from the date of the Judgment.

The Court also directed the Union to consider the recommendations proposed by the Petitioner and NALSAR- CDS with regard to the existing legal framework.

Background

In Rajive Raturi v. Union of India, (2018) 2 SCC 413, the Court rendered a judgement containing directions to all the States and Union Territories with eleven action points pertaining to the accessibility of a range of infrastructure, including government buildings, railways, airports, ICT ecosystem and transport carriers. The Union of India, all States and Union Territories were directed to file their compliance affidavits, and the case was re-listed after three months. Most of the States and Union Territories did not provide the required information and failed to file their compliance affidavits within the period of three months. Considering the slow progress in complying with the judgement, the Court appointed the Centre for Disability Studies, NALSAR University of Law (‘NALSAR- CDS’) to assess the situation on the ground and recommend steps to ensure compliance with accessibility standards for PWDs.

It was further directed that the Department of Empowerment of Persons with Disabilities in the Union Ministry of Social Justice and Empowerment to reimburse the Centre for Disability Studies (CDS) at NALSAR University of Law for all the expenses incurred in preparing the report on the steps required to be taken to make all the State and Central Government buildings, airports, railway stations, public transport carriers, Government websites, public documents disabled friendly.

The NALSAR-CDS submitted its report, “Finding Sizes for All: A Report on the Status of the Right to Accessibility in India.” To prepare its report and document accessibility barriers across various spheres, the NALSAR-CDS conducted surveys, expert interviews, and first-person accounts.

Findings of the NALSAR- CDS Report

Following are the findings of the Report with regard to compliance in various sectors:

1. Accessibility in courts– Out of thirty High Court benches analysed, it was shown that accessibility for locomotor disabilities was relatively better. However, only two courts had tactile guiding strips and interpreters for the hearing impaired. Awareness for intellectual and developmental disabilities is 6.6%.

2. Accessibility in Prisons — the claim by the States that to provide wheelchairs, crutches, Western toilets, prosthetics, and medical referrals to civil hospitals, with some offering special diets and counselling was found to be only limited to central and women’s prisons, while district and sub-jails were less equipped. Many states do not officially recognize all categories of disabilities as defined in the RPWD Act, leading to underreporting and insufficient provision of services. District and Sub Jails are significantly underserved and there is a severe shortage of mental health professionals in prisons.

3. Accessibility in Educational Institutions– A survey highlighted significant educational access challenges. While 56% of children were enrolled in primary classes, enrolment dropped sharply in higher grades. Notably, 4% never attended school despite being enrolled due to reasons like schools asking them not to come or inaccessible transport. Only 2% of students could access school toilets, and many could not participate in assemblies or receive mid-day meals.

4. Accessibility in Employment —A report from Enable India highlights barriers to employment for PWDs, including those with benchmark disabilities and high support needs.

5. Accessibility in Buildings and Transport– In terms of building accessibility, a study by Dr Suman Kalani on Mumbai’s infrastructure found mixed results, such that newer facilities, like Andheri Metro Station, meet accessibility standards, but older buildings, such as the Bombay Art Gallery, lack basic features like accessible restrooms. This disparity affects the ability of disabled individuals to move freely and access opportunities.

6. Right to form relationships — several emotional and relational challenges are faced by PWDs, particularly regarding access to love, desire, and intimacy. A disability activist emphasized that disabled life is often lonely and alienating, with public discourse on accessibility ignoring private, intimate needs like access to sex and relationships. Emotional needs, such as privacy and self-pleasure, are often overlooked, leaving disabled individuals, especially those living with families, without private spaces to express these needs.

7. Right to Health– There are significant barriers for PwDs in accessing healthcare, primarily due to the medical establishment’s pathologizing view of disabled bodies and minds. Disabled individuals still face significant obstacles in becoming healthcare professionals and obtaining necessary accommodations. Studies have revealed that many healthcare services lacks proper accessibility, and healthcare professionals are often untrained in accommodating the needs of disabled individuals.

8. Participation in Sports – In sports, accessibility remains a major issue. Only 21.4% of surveyed sports facilities had fully accessible restrooms, with just 3.6% providing sensory rooms for athletes with sensory processing disorders. 89.3% of these venues lacked assistive listening systems. Additionally, communication accessibility was limited, with only 7.1% of locations offering captioning or sign language interpretation. When it comes to digital access, only 25% of sports websites were fully accessible, and merely 7.1% of apps met accessibility standards.

9. Political Participation – While temporary accessibility measures like ramps are erected during elections, these are removed afterwards, leading to inconsistent access. There should be permanent solutions, such as permanent ramps and facilities, to ensure reliable and ongoing accessibility for PWDs, enabling them to fully exercise their right to vote.

The Court also noted that the NALSAR-CDS report indicated inconsistency in the legal framework, which lies at the root of the slow progress.

Inconsistency between Rule 15 and the RPWD Act

On perusal of the “standards” for accessibility laid down in clauses (a) to (p) of Rule 15(1), in the form of the guidelines issued by the ministries concerned, the Court noted that most of these documents did not contain mandatory or non-negotiable prescriptions. The Court said that the use of the term ‘guidelines’ rather than ‘rules’ is not a mere difference in nomenclature, but is evident in the content of these documents as well. Further, the Court on perusal of the objective for the HG 2021 standards which are prescribed under Rule 15(1)(a), noted that the idea of the document is not to lay down rules, which are non-negotiable and have tangible consequences in case of non-compliance, but rather to merely “sensitize”, “recommend” and “guide”. The Court said that it is difficult to fathom how a document which is only illustrative and contains broad guidelines, can be mandatorily enforced, with consequences such as fines and withholding of completion certificates. The Court also noted that NALSAR-CDS report indicated that even if this nomenclature is ignored, these guidelines cannot be practically enforced as mandatory rules, since, several of these guidelines contain different standards for the same or similar accessibility requirements and allegedly contain technical errors. For instance, for “accessible toilets”, almost all the guidelines contain different requirements — both in terms of requirements and measurements.

Therefore, the Court stated that Rule 15, in its current form, does not provide for non-negotiable compulsory standards, but only persuasive guidelines. While the intention of the RPWD Act to use compulsion is clear, the RPWD Rules have transformed into self-regulation by way of delegated legislation. The absence of compulsion in the Rules is contrary to the intent of the RPWD Act. The Court added that, while Rule 15 creates an aspirational ceiling, through the guidelines prescribed by it, it is unable to perform the function entrusted to it by the RPWD Act, i.e., to create a non-negotiable floor.

Hence, the Court reiterated that –

“It is trite law that the legislature cannot abdicate essential legislative functions to the delegated authority. The legislature can entrust subsidiary or ancillary legislation to the delegate. However, before such delegation, the legislature should enunciate the policy and the principles for the guidance of the delegated authority. As a corollary, the delegated authority must carry out its rule-making functions within the framework of the law. The delegated legislation must be consistent with the law under which it is made and cannot go beyond the limits of policy and standards laid down in the law.”

Conclusive Directions

1. The Union Government to delineate mandatory rules, as required by Section 40, within three months from the date of this Judgment. This exercise may involve segregating the non-negotiable rules from the expansive guidelines already prescribed in Rule 15. The Court also directed that the Union must conduct this exercise in consultation with all stakeholders, and NALSAR-CDS to be involved in the process.

2. The Court clarified that the progressive compliance with the standards listed in the existing Rule 15(1) and the progress towards the targets of the Accessible India Campaign must continue unabated. However, in addition, a baseline of non-negotiable rules must be prescribed in Rule 15. Once these mandatory rules are prescribed, the Union of India, States and Union Territories to ensure that the consequences prescribed in Sections 44, 45, 46 and 89 of the RPWD Act, including the holding back of completion certificates and imposition of fines are implemented in cases of non-compliance with Rule 15.

The following principles of accessibility should be considered while carrying out the above exercise:

a. Universal Design: The rules should prioritize universal design principles, making spaces and services usable by all individuals to the greatest extent possible, without requiring adaptations or specialized design;

b. Comprehensive Inclusion Across Disabilities: Rules should cover a wide range of disabilities including physical, sensory, intellectual, and psychosocial disabilities. This includes provisions for specific conditions such as autism, cerebral palsy, intellectual disabilities, psychosocial disabilities, sickle cell disease, and ichthyosis;

c. Assistive Technology Integration: Mandating the integration of assistive and adaptive technologies, such as screen readers, audio descriptions, and accessible digital interfaces, to ensure digital and informational accessibility across public and private platforms; and

d. Ongoing Stakeholder Consultation: This process should involve continuous consultation with persons with disabilities and advocacy organizations to incorporate lived experiences and practical insights.