What to Read in The Hindu Editorial( Topic and Syllabus wise)

Editorial 1: We need accessibility rules that are based on principles

Context

The new accessibility rules must be direct, understandable, and practical to ensure effective implementation.

 

Introduction

The Supreme Court, in Rajive Raturi v. Union of India (2024), held Rule 15 of the Rights of Persons with Disabilities (RPwD) Rules, 2017, violative of the Rights of Persons with Disabilities Act, 2016.

• Discretionary tone vs. mandatory obligation : The Court reasoned that Rule 15 was drafted in a discretionary tone. The corresponding provisions in the Act (Sections 40, 44, 45, 46, 89) imposed a mandatory obligation for the government.
• Statutory nature of Rule 15 : Rule 15 was a statutory provision under which accessibility guidelines of departments and ministries were notified. Key examples include:
  1. Ministry of Housing and Urban Affairs’ guidelines for creating barrier-free environments.
  2. Ministry of Road Transport and Highways’ bus body code.
  3. Accessibility standards established by the Ministries of Sports, Culture, and Information and Broadcasting.
• Discretion vs. Mandatory Language : The Court observed that the guidelines allowed discretion to ministries and departments. This was contradictory to the mandatory language of the Act.
• Impact of striking down rule 15 : Striking down Rule 15 meant the accessibility guidelines notified under the Rule lost their statutory authority. The Court gave the government three months to develop minimum mandatory accessibility requirements.
• Need for principle-based framework : The judgment highlighted how accessibility guidelines have been created in silos without universal and intersectional principles. Future guidelines should shift towards a principle-based framework on accessibility rules.

 

The Idea of Accessibility

• The Court deliberated in detail on the difference between accessibility and reasonable accommodation. 
• Accessibility and reasonable accommodation both originate within the principles of substantive equality of the Constitution.
• Accessibility vs. reasonable accommodation : Accessibility is now accepted as a right woven throughout the United Nations Convention on the Rights of Persons with Disabilities.
  1. Reasonable accommodation is a facilitator of substantive equality where specific challenges are dealt with in a specific context.
  2. Therefore, both concepts should be understood as interdependent and complementary to each other, where accessibility builds the edifice through standardised accessibility standards from the outset, while reasonable accommodation ensures tailored solutions for those individuals who might still face inaccessibility in a specific context.
• Evolving concept of accessibility : The idea of accessibility is not static, and the conceptual contours and corresponding tools have evolved regularly.
  1. For instance, with the advent of Artificial Intelligence and the Internet of Things and their incorporation into social interactions, the understanding of digital accessibility has evolved simultaneously.
  2. This makes it necessary to modify the nature, extent, and type of digitally accessible tools that can ensure broader inclusivity.
• Phased realisation of accessibility : The shifting threshold also needs to be understood in the context of phased realisation of accessibility.
  1. The Court in Rajive Raturi observed that the existing guidelines are framed in a way that establishes long-term goals of accessibility without setting the minimum standards requiring immediate implementation.
  2. Hence, the minimum accessibility threshold shall be envisaged on a sliding scale wherein the baseline moves forward at periodical intervals.
  3. Canada has developed a comprehensive road map to achieve full accessibility by 2040, focusing on harmonising standards across the country through two work streams, with periodic reviews every five years to adapt to changing needs.
• Definition of barriers : The RPwD Act defines barriers in the broadest form possible, wherein intangible barrierssuch as attitudinal barriers are recognised in addition to tangible barriers such as infrastructure.
  1. This has modified how accessibility is viewed and understood within physical and digital ecosystems.
  2. Thus, it is necessary to evolve accessibility parameters in theory and practice to overcome tangible and intangible barriers.
• Attitudinal barriers and disability understanding : For instance, the evolving understanding of disability is an aspect that informs the attitude of society and, hence, directly relates to the attitudinal barrier.
  1. Thus, accessibility must also align with this evolution of disability understanding to be truly inclusive.
• Evolution of universal design : The understanding of universal design has also evolved over time. It is not just limited to persons with disabilities but also includes every vulnerable community, such as women, children, and the elderly.

1. This reflects a tacit recognition of the universality of disability, which is not identified as an individual’s incapacity to perform but rather the composition of the environment in which one operates.
2. Disability may arise from a high cognitive workload causing an inability to focus and control emotions, temporarily broken limbs, unavailability of ramps to a pregnant mother, age-related complications, etc.
3. Thus, the rules should be applicable across groups, providing accessibility in the general sense and not exclusive to persons with disabilities.

 

Compliance with social audit

• Section 48 of the RPwD Act : Section 48 of the RPwD Act mandates the Central and State governments to regularly undertake social audits of all general schemes and programmes to ensure they do not have an adverse impact on the needs and concerns of persons with disabilities.
• Role of Social Audits : Social audits play a vital role in developing and strengthening the accountability of the government and service providers.
  1. For instance, regular social audits of schemes providing assistance technologies to persons with disabilities can assess the bottlenecks in the delivery of services, identify the changing needs of individuals, and provide better devices.
•  Lack of Standardised Guidelines : However, due to the lack of standardised guidelines under the RPwD Rules, there is no clarity on the scope and methodology of social audits.
  1. This might lead to inconsistencies among the Centre and the States, lack of awareness, and insufficient trainingfor auditors.
• Need for clear guidelines : Therefore, clear guidelines and operationalisation of social audits at a larger scale will help identify the changing nature of disability-related challenges and make targeted interventions to enhance service delivery through concerned schemes and programmes.

 

Rules have to be understandable

• Bureaucratic complexity in earlier accessibility rules : The earlier accessibility rules across departments and ministries suffered from bureaucratic complexity regarding their mandate.
  1. There were too many technicalities and often contradictory accessibility mandates from multiple ministries that confused the complying entities.
  2. For instance, a sporting complex has multiple guidelines for accessibility from the Ministry of Urban Affairs and Housing, Sports, Transport, and others.
  3. This led to not just a failure to provide objective parameters but also increased the compliance cost for such establishments.
  4. During the proceeding under the redressal mechanism, the complex and overlapping guidelines also delayed the relief sought by persons with disabilities.
• Need for new accessibility rules : The new accessibility rules must be direct, understandable, and practical to ensure effective implementation.
  1. The ambiguity in department/ministry jurisdiction that plagued the earlier rules should also be addressed by having a nodal authority, ideally, the sector regulators.
  2. In the absence of it, the Ministry of Social Justice and Empowerment should adjudicate on rules.

 

Conclusion

The deadline for releasing the new accessibility guidelines is February, subject to extension. Thus, there is a necessity for diverse sectors, both private and public, beyond social services such as financial, technological, transport, to deliberate upon the minimum rules of accessibility. This isn’t just warranted by the legislative mandate of the RPwD Act but also a market incentive to tap into the large population base by providing accessible products and services.

Editorial 2 Section 152 of BNS should not become a proxy for sedition

Context

The lack of a statutory requirement to establish a causal linkage between the speech and its actual consequence before depriving the accused of personal liberty renders Section 152 amenable to abuse.

 

Introduction

The Rajasthan High Court, in Tejender Pal Singh v. State of Rajasthan (2024), cautioned against using Section 152 of the Bharatiya Nyaya Sanhita (BNS) as a tool to stifle legitimate dissent. In 2022, before the BNS was enacted, the Supreme Court had suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code (IPC) until the government reconsidered the law.

• This was followed by a verbal proclamation by the Union Home Minister that ‘sedition’ would be repealed as an offence.
• Section 152 of the BNS criminalises any act exciting secession, armed rebellion, and subversive activities.
• It also criminalises acts encouraging feelings of separatism or endangering the sovereignty, unity, and integrity of India.
• While the BNS does not formally use the term ‘sedition’, the Rajasthan High Court’s recent decision hints that the spectre of sedition still looms large in the BNS.

 

Problems with Section 152

• Section 152 BNS and Vagueness : First, Section 152 BNS criminalises ‘acts endangering the sovereignty, unity, and integrity of India.’ However, what constitutes such endangerment under Section 152 has not been defined in the statute.
  1. This renders the provision vague, and amenable to expansive interpretation by enforcement authorities.
  2. Accordingly, a speech criticising a prominent historical or political figure, or sympathising with a controversial public figure, may be construed as ‘endangering’ the ‘unity and integrity of India’ for initiating legal action against a person.
  3. In the current sociopolitical environment that appears increasingly fragmented, a stringent penal provision without inbuilt checks for abuse may be used to stifle dissent and criticism.
• Implications of ‘Knowingly’ in Section 152 : Second, the term ‘knowingly’ in Section 152 substantially lowers the threshold for commission of the offence, especially in the context of social media.
  1. Even if a person does not have the malicious intent to incite activities or feelings prohibited under Section 152, they can still be considered liable for the offence if they share a post knowing it will reach a larger audience and may provoke such activities or feelings.
  2. This would be sufficient to arrest a person and prosecute them for commission of the offence under Section 152, which is cognisable and non-bailable.
  3. The lack of a statutory requirement to prima facie establish a causal linkage between the speech and its actual consequence before depriving the accused of personal liberty renders Section 152 amenable to abuse much like its predecessor.
  4. This has the potential to instill a chilling effect on free speech.
• Potential for Abuse of Section 152 : The potential for abuse of the sedition-like provision is clearly borne out by data of the National Crime Records Bureau (NCRB) regarding Section 124A of the IPC.
  1. Out of 548 persons arrested between 2015 and 2020 for sedition, only 12 people were convicted in seven cases.
  2. More importantly, this was the situation when Section 124A IPC was relatively narrower and more specific in comparison to Section 152 of the BNS.
  3. Unfortunately, the NCRB data, and the benefit of hindsight regarding abuse of Section 124A, seem to have had no bearing in designing the contours of Section 152 of the BNS.

 

The way forward

• Judiciary's consequentialist interpretation : In the past, the judiciary has consistently adopted a consequentialist interpretation to strike a careful balance between national interest and the freedom of expression.
  1. The Supreme Court has given weight to the actual consequence or impact of free speech in determining the offence rather than considering the ‘speech’ on its own.
  2. For instance, in Balwant Singh and Anr v. State of Punjab (1995), the Court drew a line of demarcation between casual sloganeering and its repercussions or consequences, requiring a direct causal nexus between the act and its impact for it to amount to an offence of sedition.
  3. Further, in Javed Ahmad Hazam v. State of Maharashtra and Ors(2024), the Court said the “effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds…”.
  4. Moreover, in Kedar Nath Singh v. State of Bihar (1962), the Court had differentiated ‘disloyalty towards the government’ from ‘strongly worded criticism of the government and its policies’.
• Guidelines for enforcement authorities : Given the lack of inbuilt safeguards in Section 152 to prevent its abuse, these interpretations should guide the enforcement authorities in applying this provision.
  1. Moreover, the Supreme Court should, when it gets the earliest opportunity, craft a set of guidelines for the enforcement authorities, demarcating the boundaries for the terms used under Section 152 BNS, as it did with respect to ‘arrest’ in D.K. Basu v. State of West Bengal.
  2. This will ensure that the provision does not become a proxy for the offence of seditio

 

Conclusion

It is important to provide liberal space to thoughts, beliefs and expressions, and to subject them all to unimpeded criticisms, especially in the age of social media. We need to fall back on the concept of ‘marketplace of ideas’, as envisioned by Justice Holmes in Abrams v. United States, because the best test of truth will always be the potential of an idea to get itself accepted in a democratic and diverse society.