Editorial #1 : We need accessibility rules that are based on principles
Context
The recent Supreme Court judgment in Rajive Raturi v. Union of India (2024) emphasized the urgent need for accessibility rules that are clear, practical, and principle-based to ensure effective implementation. The Court’s decision striking down Rule 15 of the Rights of Persons with Disabilities (RPwD) Rules, 2017, underlines the importance of rethinking India’s approach to accessibility.
Key Issues with Rule 15 of RPwD Rules, 2017
- Discretionary vs. Mandatory Language
- Rule 15’s Discretionary Nature: The rule provided ministries and departments with discretion in implementing accessibility guidelines.
- Contradiction with the RPwD Act: Sections 40, 44, 45, 46, and 89 of the Act impose mandatory obligations on the government to ensure accessibility.
- Statutory Nature of Rule 15
- Rule 15 formed the basis for accessibility guidelines issued by various ministries, such as the Ministry of Housing and Urban Affairs’ barrier-free environment standards and the Ministry of Road Transport’s bus body code.
- Striking it down rendered these guidelines devoid of statutory authority.
- Need for Revised Rules
- The Supreme Court mandated the government to establish minimum accessibility standards within three months.
- The judgment highlighted the fragmented approach in existing guidelines and called for a shift toward a universal, intersectional, and principle-based framework.
Understanding Accessibility in the Current Context
- Accessibility vs. Reasonable Accommodation
- Accessibility: Recognized as a universal right under the UN Convention on the Rights of Persons with Disabilities (UNCRPD), it involves creating standardized environments that are accessible from the outset.
- Reasonable Accommodation: A complementary concept addressing specific challenges faced by individuals in specific contexts, ensuring substantive equality.
- Evolving Nature of Accessibility
- Technological advancements such as Artificial Intelligence (AI) and the Internet of Things (IoT) demand continuous updates in digital accessibility standards.
- Guidelines must address both immediate minimum thresholds and long-term goals, as seen in Canada’s phased roadmap for full accessibility by 2040.
- Broad Definition of Barriers
- The RPwD Act defines barriers comprehensively, including tangible (infrastructure) and intangible (attitudinal) barriers.
- Accessibility must evolve alongside changing societal attitudes and the understanding of disability, moving toward a more inclusive universal design.
Challenges in Accessibility Frameworks
- Bureaucratic Complexity
- Existing rules across ministries often overlap or contradict, creating confusion and raising compliance costs.
- For example, a sports complex may face conflicting guidelines from the Ministries of Urban Affairs, Sports, and Transport.
- Lack of Standardized Social Audit Guidelines
- While Section 48 of the RPwD Act mandates regular social audits to assess schemes’ impact on persons with disabilities, there is no clarity on scope or methodology.
- Inconsistencies in audit practices lead to insufficient training for auditors and inadequate assessment of challenges faced by persons with disabilities.
- Compliance and Enforcement Issues
- Ambiguities in departmental jurisdiction delay relief under redressal mechanisms.
- Absence of a nodal authority hampers coordinated implementation.
Way Forward: Building Principle-Based Accessibility Rules
- Establish Clear and Practical Guidelines
- Accessibility rules must be simplified to avoid overlapping mandates and reduce compliance burdens.
- A nodal authority, ideally sector regulators or the Ministry of Social Justice and Empowerment, should adjudicate ambiguities.
- Incorporate Universal Design Principles
- Guidelines must cater to diverse groups, including women, children, elderly, and those with temporary disabilities.
- Accessibility should be viewed as an environmental composition rather than an individual’s incapacity.
- Strengthen Social Audits
- Develop standardized social audit frameworks with trained auditors to assess schemes and identify bottlenecks.
- Periodic reviews should adapt accessibility standards to evolving needs and technological advancements.
- Phased Realization with Sliding Thresholds
- Accessibility thresholds should progressively advance, ensuring immediate implementation of minimum standards while working toward long-term goals.
- Market Incentives for Accessibility
- Businesses must recognize the potential of a large consumer base by offering accessible products and services, aligning social inclusion with economic incentives.
Conclusion
The Supreme Court’s February deadline for new accessibility guidelines presents a pivotal opportunity to overhaul India’s accessibility framework. By adopting a principle-based, universal approach that evolves with societal and technological changes, India can ensure inclusivity across public and private sectors. Beyond being a legislative mandate under the RPwD Act, fostering accessibility reflects the ethos of a society committed to equality and dignity for all.
Editorial #2 Section 152 of BNS should not become a proxy for sedition
Context
The Rajasthan High Court’s judgment in Tejender Pal Singh v. State of Rajasthan (2024) has raised critical concerns regarding the potential misuse of Section 152 of the Bharatiya Nyaya Sanhita (BNS). The absence of a statutory requirement to establish a direct causal linkage between speech and its consequences makes the provision prone to abuse, threatening fundamental freedoms.
Introduction
In 2022, the Supreme Court suspended trials under Section 124A of the Indian Penal Code (IPC), commonly known as the sedition law, until its reconsideration by the government. This was followed by an assurance from the Union Home Minister that sedition would be repealed. However, the enactment of Section 152 of the BNS, criminalizing acts that threaten India’s sovereignty, unity, and integrity, has revived apprehensions of sedition in a new guise.
Section 152 broadly penalizes secessionist activities, armed rebellion, and any speech or acts deemed subversive. Despite omitting the term “sedition,” its vague language and expansive interpretation leave it open to misuse, potentially stifling dissent and free expression.
Issues with Section 152
- Vagueness of Provisions
- Section 152 criminalizes acts “endangering the sovereignty, unity, and integrity of India” but fails to define these terms adequately.
- This vagueness empowers enforcement agencies to interpret it subjectively, enabling them to conflate criticism of political or historical figures with acts of subversion.
- Lowering the Threshold for Offence
- The inclusion of “knowingly” lowers the threshold for liability. Even sharing content on social media that might inadvertently provoke such feelings can lead to arrest.
- Without the requirement to establish a direct causal link between speech and its consequence, individuals may face punitive action merely for expressing opinions, instilling a chilling effect on free speech.
- Potential for Abuse
- Historical data from the National Crime Records Bureau (NCRB) reveals rampant misuse of Section 124A of the IPC. Between 2015 and 2020, only 12 convictions resulted from 548 arrests under sedition laws.
- Section 152, being broader and more ambiguous, risks exacerbating these trends, disproportionately targeting dissenters and activists.
Judiciary’s Role in Safeguarding Freedoms
- Consequentialist Interpretation of Speech Laws
- The judiciary has historically emphasized the consequences of speech over the speech itself:
- In Balwant Singh v. State of Punjab (1995), casual sloganeering without tangible repercussions was not deemed seditious.
- In Javed Ahmad Hazam v. State of Maharashtra (2024), the Supreme Court stated that the impact of speech must be judged by reasonable and strong-minded individuals, not by hypersensitive standards.
- Kedar Nath Singh v. State of Bihar (1962) differentiated between disloyalty to the government and legitimate criticism of policies.
- Need for Guidelines
- As with its guidelines on arrest in D.K. Basu v. State of West Bengal, the Supreme Court must craft detailed directives for enforcement authorities.
- These guidelines should clarify the boundaries of terms like “endangering sovereignty” and “subversive activities,” ensuring the provision is not wielded as a weapon against dissent.
The Way Forward
- Ensuring Safeguards Against Misuse
- Definitional Clarity: Section 152 must be amended to define its terms precisely, reducing scope for subjective interpretation.
- Causal Linkage Requirement: Establishing a prima facie causal nexus between speech and its consequence should be mandated before depriving an individual of personal liberty.
- Balancing National Security and Free Expression
- Enforcement must adopt a calibrated approach, weighing national security concerns against the fundamental right to free expression.
- The judiciary’s approach in requiring tangible repercussions for speech to qualify as an offence should guide law enforcement.
- Promoting a Marketplace of Ideas
- Drawing from Justice Holmes’ vision in Abrams v. United States, democracy thrives when diverse ideas compete in a marketplace of ideas. The best test of truth lies in its acceptance in a free and open society.
- Strengthening Institutional Oversight
- Independent oversight mechanisms should monitor the application of Section 152 to prevent its misuse against political or ideological dissenters.
Conclusion
In an era dominated by social media, protecting free expression is more critical than ever. Section 152 of the BNS, while aimed at safeguarding national integrity, must not be allowed to become a tool for silencing dissent. Striking a balance between security and liberty is essential to uphold the constitutional promise of freedom of speech, ensuring a robust democracy that values diverse voices and ideas.
