New Delhi | 23rd November 2019
If you are a wheelchair user and are thrilled to receive an invitation card to attend your best friend’s marriage, chances are that you may have to handover the ‘Shagun Ka Lifafa’ (an envelope containing some cash as gift) at the main gate of the marriage venue and come back home dejected, not able to see the bride or bridegroom due to inaccessibility of the premises. In other case, frustrated you may end up waiting for someone to come along and help out after noticing you struggle and then you may be picked up by 4 persons to reach the main place which ritual needs to be repeated when you are done with the event, needless to say, compromising your dignity, independence and letting others feel “bechara” about you.
If we look at the legal provisions, this is a blatant non-compliance of the Chapter VIII- Duties and Responsibilities of Appropriate Governments, particularly about the provisions on accessibility in built environment of the Rights of Persons with Disabilities (RPWD) Act, 2016. The Act requires all public buildings to be accessible; however, most public buildings where people gather for leisure, recreation, cultural activities or for community life continue to be inaccessible. Examples of such public buildings/ spaces includes restaurants, hotels, conference halls, banquets, cinema halls, Barat Ghars, Chaupals, Community Centres, Panchayat Bhawans, spaces rented out for public functions like ceremonies for wedding, birthdays, felicitations, public rallies/meetings etc. This causes a great discomfort to persons with disabilities and senior citizens and inhibits their participation in social life and their enjoyment of rights available under the RPWD Act 2016.
To seek more information, Svayam then filed an RTI (Right to Information) application with agencies including the Municipal Corporation of Delhi (MCD) and the Delhi Police (licensing dept.). However, the departments/agencies seemed to wash their hands off the topic and sent vague replies, each agency holding the other agency responsible for accessibility, and as if they were clueless about the Rights of Persons with Disabilities (RPWD) Act, 2016.
Following unsatisfactory replies, Svayam then filed a complaint with the Hon’ble Court of State Commissioner for Persons with Disabilities- Delhi, against nine different respondents including all municipal agencies, Delhi Cantonment Board, Delhi Police-Licensing branch, Delhi Fire Service, Delhi Land & Building Department. Delhi Development Authority etc.
This resulted in some positive actions being taken by agencies like the East Delhi Municipal Corporation (EDMC) and the Delhi Development Authority (DDA), which issued advisories to its officials to ensure accessibility at such event and programme venues.
Respondents & their Submissions:
South Delhi Municipal Corporation (SDMC) & East Delhi Municipal Corporation (EDMC) in their submissions to the court attached a Copy of Chapter 11 of Unified Building Byelaws (UBBL) 2016 and have also issued directions to concerned officers for adherence.
Svayam however expressed that despite the UBBL 2016 amended in March 2019 to incorporate changes as per the requirements of the RPWD Act, 2016 and the National Building Code (NBC), 2016, none of the respondents have created or introduced the procedural mechanisms to ensure adherence to the accessibility requirements as per the UBBL 2016 (revised) and mere issuing advisories will not help achieve accessibility in public events or venues. Thus it prayed to the court to direct the respondents to create mechanisms for the same.
Delhi Cantonment Board (DCB) shared that there are 41 public properties; 12 of them are 95% accessible while work is going on in the others, which is likely to be completed by May 2020. We felt the claim of 95% accessibility was subjective as this was not supported by any report of the independent access auditors and was merely self-declaration.
Arguing on behalf of Svayam, its Director, Shri Subhash Chandra Vashishth raised a concern that none of the staff/ engineers/ architects/ project officials/ contractors working on developing or maintaining public building and built infrastructure have been trained on the requirements of RPWD Act 2016 and the updated accessibility requirements of the National Building Code 2016 and this must be made mandatory of all such officials working on public projects to be aware of the legal & technical requirements of accessibility in built environment.
Delhi Fire Service admitted that it does not check the accessibility of the premises to persons with disabilities as it did not fall under the purview of the Delhi Fire Service Act 2007 and Delhi Fire Service Rules- 2010. Mr. Vashishth, however, contended that the provisions of updated National Building Code 2016 which provide, how needs of persons with disabilities are to be incorporated, designed & thoroughly inspected by the Fire Department such as Refuge Areas /Rescue Assistance for those with disabilities, emergency evacuation of occupants with disabilities and elderly in case of a disaster, are well within the scope of responsibilities of the Fire department. The complainant has thus urged the Hon’ble court to direct the Fire department to amend their Standing Operating Procedures, proforma for inspections and issuance of licences to building owners and operation of business open to public in light of accessibility mandate. If required, the Delhi Fire Service Act 2007 and Rules 2010 that have come before the RPWD Act of 2016 may need to be scrutinized for any incompatibility with the RPWD Act, National Building Code 2016 etc.
The complainant (Svayam) has urged the Court to direct all respondents to:
a. Submit list of Public buildings falling in the categories of restaurants, hotels, conference halls, banquets, cinema halls, Barat Ghars, Chaupals, Community Centres, Panchayat Bhawans, spaces rented out for public functions like ceremonies for wedding, birthdays, felicitations, public rallies/meetings etc. and the status of their accessibility and timeline by which they would be made accessible, name of contact person, email and mobile phone so that it can be ascertained by the Hon’ble Court.
b. Submit to the court the proformas of mandatory requirements to be met for (i) issuance of completion certificate of the building and (ii) for issuance of licences for running the activities for use of public.
c. Submit to the court the proformas for compliance for both above functions to be complied with by the officials and stakeholders, including physical visits and cross verification by the Project Architects/ Accessibility & Universal design professional. (NBC 2016 provides for mandatory addition of Accessibility expert in the building projects). And add in the proformas, the legal implications and penalties for non-compliance of the accessibility provisions prescribed in the RPWD Act 2016.
d. Compulsory training of all officers/engineers/architects deployed for inspection or licensing or monitoring work and a detailed process of frequency and manner in which the respondents shall monitor the access requirements and issue licences,
e. Each Urban Local Body/ Municipal Corporation/ respondent must upload on its website the most updated version of the UBB or applicable Building Byelaws in the E-Text format (Accessible to screen readers) for easy access to all stakeholders and also to remove the obsolete and old bye-laws/ formats from their websites/public domain so as to avoid confusion. The respondents must also submit a copy of the same to this Hon’ble Court and in case of any revision in future, the latest version of the same should be submitted to this Hon’ble Court within 30 days of such notification, without fail.
Observations & directions by the Court
After all concerned parties submitted their submissions, arguments and counter arguments, the Court finally issued a comprehensive Order; some of the salient highlights are as below:
- This Court is of the opinion that ensuring accessibility for all is a shared responsibility and every department has a role in it (Sec 41)
- The respondent organisations/ agencies who are responsible for maintenance and upkeep of the public/ community toilets should upload their exact location and updated status of accessible once, in their respective websites and also create awareness about the accessible facilities among the public (43: VII).
- The Monitoring Committee should also monitor the action plans in respect of the places of worship submitted by the 11 District Magistrates, 429 available Hotels and Restaurants in NCT of Delhi, the list available as on the date of this order (43: XI).
- All the owners/occupiers of ‘public buildings’ and the ‘public facilities and services’ in such areas should be made aware about the mandatory provision and be directed either to make the public buildings owned/ used by them or the public facilities and services being provided by them, accessible or stop the operations from inaccessible place (43: XII).
- Accessibility in the premises and Accessibility in the facilities and services be made an essential requirement/ condition for grant of permission/ licence or NOC for all public premises/functions such as restaurants, hotels, conference halls, banquets, cinema halls, Barat Ghars, Chaupals, Community Centres, Panchayat Bhawans, Open Spaces rented out for public functions like ceremonies for wedding, birthdays, felicitations, public rallies/meetings etc. (43: XVI).
It may be relevant to mention that non-compliance of the provision of the Rights of Persons with Disabilities Act makes it an offence punishable with a fine, which may extend up to Rs. 5 lakh.
To download the Detailed Order of the Court, click here.