- Apprentice Lawyer
In recent years, the digital world has covered almost every sphere of life. Most of our daily routines now revolve around social media and the worldwide web at large. The number of remote workers is increasing while more students are taking online classes.
Nevertheless, digital accessibility and usage, whether private or public, is unequal in society. We can safely say that access to different websites boasts a discriminatory stance. A little-known but more concerning condition is the large population of people with disabilities in India who are excluded from gaining access to websites and social media platforms in relation to the public rulings and international obligations. Below is a comprehensive analysis of the situation.
Within a space of six months (July to December 2018), a branch of the Ministry of Statistics and Program Implementation, known as the NSO performed a survey on disabled people. The research outcome shows that the population of disabled people in India is around 29,700,000, with a prevalence rate of 2.2 percent.
Most people in the country do not fully understand the meaning of accessibility. For the majority, it is believed that accessibility is limited to our immediate physical environment. Contrarily, accessibility should entail the digital world and its various components, including online documents, websites, apps, online broadcasts, and other communication platforms, tools, and devices. Every day, people create new sites, apps, software, news, among others.
However, not everyone can access the unending series of new developments and information. While many programs, such as “Start-up India,” and “Digital India,” serve as flagships to raise the digital economy in the country, a considerable part of the population still lacks access to the digital world, despite being a form of the human right to the populace.
The Rights of Persons with Disabilities Rules (2017) and the Rights of Persons with Disabilities Act (2016) have established conditions to help disabled individuals access websites. In 2019, June 14th was the last day of submission for compliance under the Rules and Act.
The Background of the Law
According to section 42 of the Act, the government is responsible for (i) ensuring that every content in electronic, print and audio media are accessible; (ii) ensuring that electronic media are accessible to the disabled individuals by offering sign language interpretation, close captioning and audio description (iii) ensuring that universal design is used for providing digital equipment and goods that are daily necessities.
Under rule 15 of the Rules, some specific requirements are stated to ensure that information and communication technology (ICT) are accessible in agreement with Section 42. According to rule 15, vis-à-vis ICT, every establishment must act in accordance with the following requirements:
According to the instructions for Indian Government websites, the website standard must follow the standard specified by the Department of Administrative Reforms and Public Grievances, Indian Government – Requirement 1.
Optical Character Reader or Electronic Publication (ePUB) based pdf format is the permissible format for uploading documents on digital sites – Requirement 2.
Under Section 2(i) of the Act, an “establishment” to add both private and government establishments have been defined for the sake of Rule 15.
Convention on the Rights of Persons with Disabilities was ratified by India on 1st October, 2007. The essence of disability law inter-alia is to safeguard people with disabilities from every kind of segregation and discriminatory behavior. Also, it serves to improve the criteria for practical inclusion and effective involvement in the community. In addition, the law will promote proper accessibility and opportunity equality among everyone.
The National Centre for Promotion of Employment for Disabled People and Barrier Break conducted a study on ten government websites in 2012. The outcome showed that not a single site conforms with the basic accessibility requirements.
In addition, the Centre for Internet Society performed a test to assess the accessibility level of 7800 India Government websites and related agencies in relation to the Web Content Accessibility Guidelines (WCAG) 2.0 – the globally acknowledged standard for online sites.
From the result, it can be seen that the web accessibility guidelines are not followed by main and affiliated websites. In other words, although most people can transact online, several millions of disabled individuals do not enjoy the same privilege.
What is a ‘Reasonable Accommodation’ concept?
The theory of substantive equality forms the basis of the concept of reasonable accommodation. The idea means more than treating individuals similarly without overlooking acceptance of differences and special measures.
For this reason, "reasonable accommodation" is not only about respecting differences; it entails accepting and accommodating differences among the populace. Speaking of India's viewpoint, people can easily understand the concept as "positive discrimination" to improve a specific group of vulnerable individuals. Nevertheless, it's important to note that positive measures apply to everyone – not individualized. On the contrary, reasonable accommodation measures are individualized based on each person's needs that require special attention.
More importantly, the Convention on the Rights of Persons with Disabilities says something about Magna Carta for differently-abled individuals, which should be understood. According to Article 5(3) of the Convention, concerning Reasonable Accommodation, the states must perform the following obligation:
State Parties shall make every necessary move to ensure reasonable accommodation to promote equality and curb discrimination.
Furthermore, state parties are mandated to provide guarantees according to the international human rights law whenever an individual with disabilities could not enjoy the liberties that able people do, per Article 14(2). Also, the guarantees shall be provided based on the principles and objectives of the convention and reasonable accommodation provisions.
According to Section 2(v) of the Rights of Persons with Disabilities Act (2016), reasonable accommodation translates to modifications and adjustments, which are necessary and vital, without forcing an unequal or unnecessary burden on a specific case, to provide for individuals with disabilities the privileges, and rights of being equal with others. This ruling is significantly based on the Convention for Rights of Persons with Disabilities.
Section 2(h) fails to express reasonable accommodation as a sort of discrimination. But the practice of reasonable accommodation concept, most especially during the COVID-19 crisis, is yet to be seen. Whether as printed release or video press conference, all notifications have not been made digitally accessible for people with disabilities – the use of text system or automated captioning would have done justice to it.
The Supreme Court in the case of Jeeja Ghosh v. Union of India echoed the contemporary shift in disability discourse from the charity and medical models to a rights-based paradigm. Persons with disabilities are now considered subjects with rights and the Court observed that the rights granted to persons with disabilities under the Rights of Persons with Disabilities Act, 1995 formed human rights in themselves.
Status quo and the way forward
Despite government standing on its ground regarding the use of Aarogya Setu and the NGOs and activists stating that the contact-tracing app for COVID-19 is not usable for the disabled, the app remains inaccessible to people with disabilities.
Considering that section 24(1) of the Act explains that one of the government's crucial economic capacities is to ensure the realization of the disabled's rights, this uncertain fear of the unexpected remains a real thing. According to Section 20(2), the government is responsible for providing reasonable accommodation at workplaces, aside from private bodies.
Nevertheless, Assam has actively and progressively played its role in disseminating information in an accessible format for the disabled, which is a commendable move. After assessing the websites that hold releases about the curfew, it is believed that the adopted interface remains inaccessible for a specific group of people with hearing impairment, low-vision, mental illness, muscular dystrophy, learning disabilities, and leprosy cured individuals.
The state of digital inaccessibility towards people with disability can be changed. However, the first step to achieving the change will be to start using an accessible interface for everyone on all websites.
(The author is a fourth-year law student at Christ (Deemed) University)