In a recent recommendation, the Chief Commissioner for Persons with Disabilities (CCPD) stated that private establishments such as businesses, societies, associations, and so on are bound by the accessibility requirements under the Rights of Persons with Disabilities Act, 2016 (the “RPwD Act”). It concluded in a case filed by Mr. Rahul Bajaj, an upcoming IP attorney, against Practo Technologies Private Limited (“Practo”) and the Director General of Health Services (“DGHS”). In the case, Mr. Bajaj argued that the Practo application, which provides health-related services, was not accessible to persons with blindness, and that the lack of accessibility contravenes Sections 40, 42, and 46 of the RPwD Act read with Rule 15 of the RPwD Rules, which mandate accessibility. In response, Practo argued that it was not bound by the said provisions and that no accessibility standards exist for it to follow. The CCPD disagreed with Practo, and agreed with Mr. Bajaj.
The CCPD stated that Section 46 mandates private service providers to make their services accessible, and that Rule 15(1) of the RPwD Rules applies to all establishments, Government and private. It reasoned that the word “Establishment” used in Rule 15 covers both Government and private establishments by definition. It went on to point out that the definition of private establishments covers entities like Practo, which is bound to make its application accessible. On the aspect of accessibility standards, the CCPD stated that Practo is bound to comply with GIGW accessibility guidelines for Government websites as well as accessibility standards (17801 Parts 1 and 2) of BIS. In conclusion, the CCPD asked DGHS to monitor the implementation of its recommendations.
This CCPD recommendation clarifies that even private establishments are bound to make their technologies and services accessible to persons with disabilities and that accessibility requirements under the RPwD Act apply to them. Many mobile applications, online services, eCommerce platforms, and other products/services are today not accessible, and based on this recommendation, they will be bound to do so within a few months.
Else, they can be held liable for non-compliance with relevant standards and/or guidelines under the RPwD Act and Rules. Businesses may however avoid such a situation by proactively performing accessibility audits, and taking necessary steps towards making their information and communication technology products/services accessible as per the BIS standards.
Important Excerpts of the Case
Important paras from the case are as follows:
“Mr. Rahul Bajaj Vs. Practo … Case No. 13205/1102/2022.
4.10 Most relevant provision of this Section 46 of the Rights of Persons with Disabilities Act, 2016 (RPwD Act, 2016) is mentioned below -:
“SECTION 46 – Time limit for accessibility by service providers. – The service providers whether Government or private shall provide services in accordance with the rules on accessibility formulated by the Central Government under section 40 within a period of two years from the date of notification of such rules:
Provided that the Central Government in consultation with the Chief Commissioner may grant an extension of time for providing certain category of services in accordance with the said rules.”
4.11 This provision lays down a time limit for accessibility for service providers. As per the provision, service providers have to provide services in accordance with government rules made under Section 40 of RPwD Act, 2016 relating to accessibility. The time limit prescribed for providing service is “2 years” from the date of notification of guidelines. The term used in Section 46 is ‘service providers, whether government or private’. Mere reading of this section leaves no doubt that the provision is applicable to private establishments as well. Term ‘whether government or private’ leaves no room for debate whether this provision is applicable to private establishments or not.
4.12 As far as Section 40 is concerned, it provides that the appropriate government shall formulate rules laying down standards of accessibility for divyangjan on various kinds of services and infrastructure which is provided to the public, which is inclusive of ‘information & technology including appropriate technologies and systems.
The Section is mentioned below -:
“SECTION 40 – Accessibility – The Central Government shall, in consultation with the Chief Commissioner, formulate rules for persons with disabilities laying down the standards of accessibility for the physical environment, transportation, information, and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas.”
4.13 From the combined reading of Section 40 and Section 46 it becomes clear that private establishments, which are providing information & technology services are bound to make their services and infrastructure accessible for divyangjan in accordance with Section 40 and Section 46.
4.14 Another provision that is important for this discussion is Rule 15 of Rights of Persons with Disabilities Rules, 2017. This provision is relevant for private as well as government establishments. In sub-rule (1) it imposes responsibility on ‘every establishment’ to comply with the standards relating to the physical environment, transport, and ‘information & communication technology’.
Further, in Clause 3 of sub-rule (1) term ‘information & communication technology is further elaborated as website standard as specified in the guidelines for Indian Government websites, as adopted by the Department of Administrative Reforms and Public Grievances, Government of India;
(ii) documents to be placed on websites shall be in Electronic Publication (ePUB) or Optical Character Reader (OCR) based pdf format. Rule 15 is mentioned below -:
“15. Rules for Accessibility.-
(1) Every establishment shall comply with the following standards relating to physical environment, transport and information and communication technology, namely :-
a. standard for public buildings as specified in the Harmonised Guidelines and Space Standards for Barrier Free Built Environment for Persons With Disabilities and Elderly Persons as issued by the Government of India, Ministry of Urban Development in March, 2016;
b. standard for Bus Body Code for transportation system as specified in the notification of the Government of India in the Ministry of Road Transport and Highways, vide number G.S.R. 895(E), dated the 20th September 2016;
c. Information and Communication Technology- (i) website standard as specified in the guidelines for Indian Government websites, as adopted by Department of Administrative Reforms and Public Grievances, Government of India; (ii) documents to be placed on websites shall be in Electronic Publication (ePUB) or Optical Character Reader (OCR) based pdf format:
Provided that the standard of accessibility in respect of other services and facilities shall be specified by the Central Government within a period of six months from the date of notification of these rules.
(2) The respective Ministries and Departments shall ensure compliance of the standards of accessibility specified under this rule through the concerned domain regulators or otherwise.”
4.15 Again in this Rule term used is ‘every establishment shall comply with …’. Hence, it is important to look into the meaning of term ‘establishment’. RPwD Rules, 2017 do not define term ‘establishment’ separately. The term is defined in Section 2(i) of Rights of Persons with Disability Act, 2016. It is crystal clear from the reading of the section that private establishments are included in the definition of ‘establishment’.
“Section 2(i) – “establishment” includes a Government establishment and private establishment.”
Moreover, it is also noteworthy to mention that term establishment is preceded by another term ‘every’, which makes it certain that framers of the rule intended to bring both private as well as the government establishments under the ambit of Rule 15 of RPwD Rules, 2017.
4.16 Further, Rule 15 in sub-rule (2) entrusts ‘respective ministries and departments’ with responsibility to ensure that the standards of accessibility have to be complied with. Term ‘respective ministries’ means ministry which has been entrusted upon to look into affairs relating to particular subject. In case of Practo Technologies, Respondent No. 1, the subject Respondent No. 1 is dealing with is directly relating to ‘health services’. Respondent No. 1 is using app and other information and communication technologies tools to provide health services. Director General of Health Services (Respondent No. 2) is the department which is entrusted upon to look into affairs relating to health services. Hence, it cannot shift its responsibility upon Ministry of Information & Technology.
During online hearing, Respondent No. 2 shifted its stand which it took in its written reply, Respondent No. 2 submitted that it is ready to take responsibility to ensure that Rule 15 is followed by Respondent No. 1, i.e. Practo Technologies Pvt. Ltd.
4.17 Another issue which was raised by the Respondent No. 1 was relating to absence of guidelines and hence, there is no ‘direction’ to move forward. It is noteworthy to mention that there are various guidelines in place which have to be complied by the Respondent. For instance, Guidelines for Indian Government Websites (“GIGW”) and notification issued by Bureau of Indian Standards, which has notified IS 17801 Parts 1 and 2 in relation to Accessibility of Information & Communication Technology Products and Services. Hence, the contention of the Respondent No. 1 relating to guidelines is devoid of any substance.
4.18 Summarizing the observations made in the preceding paragraphs, this Court concludes the following -:
a. Private establishments, such as the Respondent No. 1 in the present Complaint is bound by Section 46 read with Section 40 of RPwD Act, 2016.
b. Private establishments, such as the Respondent No. 1 in the present Complaint is bound by Rule 15 of RPwD Rules, 2017.
c. There are government guidelines on the subject matter of accessibility of website, apps and other Information & Communication Technology platforms. These existing guidelines are applicable on private establishments, such as the Respondent No. 1 in the present Complaint.
d. Private establishments, such as the Respondent No. 1 in the present Complaint is bound to comply with existing government guidelines in terms of Rule 15 of RPwD Rules, 2017 and also in terms of Section 46 read with Section 40 of RPwD Act, 2016.
e. Respondent No. 2, Director General of Health Services, Mb o Health & Family Welfare is the concerned ministry under Rule 15(2) of RPwD Rules, 2017.
f. Respondent No. 2, Director General of Health Services, M/o Health & Family Welfare is bound by duty entrusted under Rule 15(2) of RPwD Rules, 2017.”
The full order may be downloaded here. Mr. Rahul Bajaj Vs. Practo … Case No. 13205/1102/2022