IN THE HON’BLE SUPREME COURT OF INDIA, AT

NEW DELHI

WRIT PETITION (C)

NO. 98 OF 2012

CASE CONCERNING CONSTITUTIONAL LAW

COUNSIL FOR PETITIONER

(ANUSHRUTI SHAH)

ROLL NUMBER-23, SECTION –C, SEMESTER III

SUBMITTED TO

MS. ADITI SINGH

(FACULTY OF LAW)

IN THE MATTER OF

JEEJA GHOSH AND ANOTHER ……Petitioners

VERSUS

UNION OF INDIA AND OTHERS ..….Respondents

MEMORANDUM ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

ABBREVIATIONS………………………………………..……………………….3

INDEX OF AUTHORITIES………………………………………………………4-5

STATEMENT OF JURISDICTION………………………………………………6

STATEMENT OF FACTS………………………………………………………….7-8

STATEMENT OF ISSUES…………………………………………………………..9-10

ARGUMENTS ADVANCED…………………………………………………….......11-15

PRAYER……………………………………………………………………………….16
 ABBREVIATIONS

¶ : Paragraph

AIR : All India Reporter

Art. : Article

Hon'ble : Honourable

SC : Supreme Court

SCC : Supreme Court Cases

Pvt. : Private

Ltd. : Limited
 INDEX OF AUTHORITIES
CASES

I. Jared Abiding v. Union of India

II. National Federation of Blind v. UPSC
III. Government of NCT of Delhi v. Bharath Lalmeena
IV. Sukhdev and Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331, ¶ 95
V. Ajay Hasia v. Khalid Mujib , AIR 1981 SC 487, ¶9.
VI. Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320 ¶ 11.
VII. Sukhdev and Ors v. Bhagatram and Ors AIR 1975 SC 1331
VIII. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, ¶ 35
IX. Indian Council For Enviro Legal Action v. Union of India, (2011) 8 SCC 161 ¶ 20.

BOOKS

I. MP JAIN, INDIAN CONSTITUTIONAL LAW, (6th Ed, LexisNexis Butterworth Wadhwa,

2010)

INTERNATIONAL TREATIES AND CONVENTIONS AND STATISTICAL RECORDS

I. United Nations Convention on Rights of Persons with Disabilities- Articles 5,9, 9(2)
II. Vienna Convention on Law of Treaties (1963)

LEGAL DATABASES

I. Manupatra
II. SCC Online
III. West Law
IV. Hein Online
 RELEVANT ACTS/STATUTES

I. Constitution-Articles 14, 19, 21, 32

II. The Persons with Disabilities Act, 1995
III. Civil Aviation Requirements’ 1st May, 2008 (CAR-2008)
IV. Rule 133A of the Aircraft Rules, 1937
 STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Supreme Court
under Article 321 of the Constitution of India for the violation of Fundamental Rights guaranteed
under the Constitution of India by filing a writ petition.

The petitioner most humbly and respectfully submits before the jurisdiction of the present court
and accepts that it has the power and authority to preside over the present case.

1
1 Article 32 in The Constitution Of India, 1950- 32. Remedies for enforcement of rights conferred by
this Part- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause ( 2 ). (4) The right guaranteed by this article shall
not be suspended except as otherwise provided for by this Constitution.
 STATEMENT OF FACTS

I. Petitioner No.1, Ms. Jeeja Ghosh is an Indian citizen with cerebral palsy. She is an
eminent activist involved in disability rights and is a very famous personality with a
very high qualification.

II. It so happened that she was invited to an International Conference in Goa, from the
19th to the 23rd of February, 2012, hosted by ADAPT (Petitioner No.2). ADAPT
purchased return plane tickets for Ms. Jeeja Ghosh, including a seat on flight operated
by SpiceJet Ltd. (Respondent No.3) scheduled to fly from Kolkata to Goa on the
morning of 19th February, 2012. The conference was to begin in the afternoon of the
19th February, 2012.

III. After being seated on the flight, Ms. Jeeja Ghosh was approached by members of the
flight crew who requested to see her boarding pass, which she gave them. Then they
proceeded to order her off the plane. Despite her tearful protestations and informing
them that she needed to reach Goa for the conference, they insisted that she de-board.

IV. After returning to the airport and arguing with airlines officials, she later discovered
that the Captain had insisted that she be removed due to her disability.

V. As a result of the shock and trauma of this event she had trouble sleeping and eating,
so she was taken to a doctor the following day where she was prescribed medication.
Because of this, she was unable to fly to Goa on 20th February, 2012, and, thus,
missed the conference all together. Not only did this humiliate and traumatize her, but
it also deprived the conference organizer, ADAPT (petitioner No.2) and all of the
attendees of the opportunity to hear her thoughts and experiences.

VI. Petitioner No.1 grudges that even after four years of the said incident whenever she
has a flashback, she feels haunted with that scene when she was pulled out of the
plane, like a criminal. She continues to have nightmares.

VII. At this stage, that SpiceJet had sent a letter to petitioner No.1 apologizing for the
incident. However, the SpiceJet tried to trivialize the incident by just mentioning that
'inconvenience caused' was 'inadvertent'.

VIII. Also before approaching the Court she had submitted a compliant to the Ministry of
Social Justice and Empowerment about the incident as well as to the Commissioner
 for Persons with Disabilities, West Bengal and the Chief Commissioner for Persons
with Disabilities, Government of India.

IX. Both had issued show cause notices to SpiceJet in response to which petitioner No.2
was informed that a refund for flight, less Rs. 1,500/- as a cancellation fee from the
airlines on which the return luggage had been booked through Jet Konnect, will be
made. We percieve it as sprinkling salt on our wounds
 STATEMENT OF ISSUES

ISSUE I: Whether the writ petition filed under Article 32 maintainable?

ISSUE II: Whether there is a violation of fundamental rights viz. Article 14, 19 and 21?
 SUMMARY OF ARGUMENTS

ISSUE I: The writ petition filed under Article 32 is maintanable.

It is humbly submitted before the Hon’ble Court that the present writ petition is maintainable
against the Union of India and also against Spicejet Pvt Ltd. Since it is a state under Article 12 of
the Constitution. It is further submitted that since there has been gross violation of Article 14, 19
and 21 of the Constitution, the writ petition is maintainable, and on account of the same relief is
sought.

ISSUE II: The fundamental rights viz. Article 14, 19 and 21 are violated.

It is humbly submitted before the Hon’ble Court that, Article 19 and 21 of the Constitution have
been violated on account of arbitrary action of the state , thus, resulting in the violation of Article
14 as well. Protection of life and personal liberty, Right to move freely throughout the territory
of India have been violated on account of the act of the state and Spicejet Pvt Ltd.
 ARGUMENTS ADVANCED

ISSUE I: Whether the writ petition filed under Article 32 maintainable ?

The present writ petition is maintainable under Article 32 of the Constitution , since,

(I.1) Spicejet Pvt. Ltd.falls within the ambit of “other authorities” as enshrined u/a 12 of the
Constitution

(II.2) There has been violation of Fundamental Rights.

I.1. A writ petition can be filed against the Union and Spicejet Pvt. Ltd.

A writ petition can be filed against the State for the violation of Fundamental rights2 under
Article 32 of the Constitution3; therefore, the writ petition is maintainable against Union of India.

Further, to constitute a private party as being state, the same must fall within the ambit of other
authorities u/a 12 and thus must satisfy the court that it is either an instrumentality or an agency
of the State4. In order to adjudge the same, the functions of the corporation5 must be of public
importance, and closely related to governmental functions.

Public Function is one which “seeks to achieve some collective benefit for the public6 or a
section of the public”. Institutions engaged in performing public functions are, by virtue of the
functions performed, government agencies.7

Further under the well-established doctrine of Parens Patriae, it is the obligation of the State to
protect and take into custody the rights and the privileges of its citizens for discharging its
obligations. 8

2
Sukhdev and Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331, ¶ 95
4
Ajay Hasia v. Khalid Mujib , AIR 1981 SC 487, ¶9.
6
Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320 ¶ 11.
7
Sukhdev and Ors v. Bhagatram and Ors AIR 1975 SC 1331
Hence, in the present case, the act of Spiceject engaged in transportation business is a public
function as well as a Governmental function.

Therefore, it is humbly submitted that, spicejet being an instrumentality of the state for the
purposes of Air transport falls within the ambit of “Other Authroity” as enshrined u/a 12 of the
Constitution9. Therefore, a writ petition is maintainable against Spicejet Pvt. Ltd., if, Spicejet is a
private party, a Petition can be instituted against private party u/a 32 of the Constitution, if the
State is made a co-party in the petition.

I.2. Fundamental Rights have been violated

I.2.1. Violation of the rights of the Petitioner.

The fundamental right to Protection of life and personal liberty, Right to move freely throughout
the territory of India as guaranteed under u/a 21 and 19 of the Constitution been violated on
account of the arbitrary action of the state.

ISSUE II: Whether the Union of India can be held liable for the violation of the
fundamental rights vested in Article 14, Article 19 and Article 21?

The Union of India (respondent No.1) has an obligation to ensure that its citizens are not subject
to such arbitrary and humiliating discrimination.

It is a violation of their fundamental rights, including the right to life vested in Article 21, right to
equality vested in Article 14, right to move freely throughout the territory of India vested in
Article 19(d), and right to practice their profession vested in 19(g).

8
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, ¶ 35
9
Indian Council For Enviro Legal Action v. Union of India, (2011) 8 SCC 161 ¶ 20.
These Articles are as under:

14. Equality before law.—The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.

19. Protection of certain rights regarding freedom of speech, etc.—

(1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble
peaceably and without arms; (c) to form associations or unions 1 [or co-operative societies]; (d)
to move freely throughout the territory of India; (e) to reside and settle in any part of the
territory of India; and (g) to practise any profession, or to carry on any occupation, trade or
business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the
right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality, reasonable restrictions on the
exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the
interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub-
clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing
law in so far as it relates to, or prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business

21. Protection of life and personal liberty.—No person shall be deprived of his life or personal
liberty except according to procedure established by law.

The State has an obligation to ensure these rights are protected – particularly for those who are
disabled.

The filing of this petition was necessitated because of the reason that the petitioner Jeeja Ghosh
is not the only disabled passenger to suffer such discrimination and humiliation. There have been
many others who have undergone same kind of maltreatment and trauma while undertaking such
air flights.

Some such instances are narrated below.

One, Mr. Tony Kurian was repeatedly denied the right to purchase tickets on an Indigo flight
because he is visually impaired.

Ms. Anilee Agarwal was recently forced to sign an indemnity bond before she could fly from
Delhi to Raipur on Jet Connect, threatened with being “body-lifted” by four male flight crew
members, and finally “thrown down the steps” in an aisle chair when she refused to be carried by
hand.

Mr. Nilesh Singit was told by a SpiceJet captain that he was not allowed to fly with his crutches,
and has been asked to sign indemnity bonds on numerous occasions.

Ms. Shivani Gupta recently reported that she has also been asked to sign indemnity bonds on
numerous occasions.

Thus, such problems exist across airlines and across the country and require clear national
direction. It is further alleged that despite the existing constitutional, statutory and international
law on the issue, situations continue where these differently abled persons face discrimination
and harassment while traveling.

In various landmark cases like Jared Abiding v. Union of India, National Federation of Blind v.
UPSC and Government of NCT of Delhi v. Bharath Lalmeena, the Supreme Court has recognized
the rights of the disabled persons including travelling by train, appearing the examination for
Indian administration and allied services and appointment of disabled persons as physical
education teacher etc.

The SC allowed the writ petition partly and directed the Government of India and the Union
Public Service Commission to permit the visually handicapped (blind and partially blind) eligible
candidates to compete and write the civil services examination which is ordinarily held yearly by
the Union Public Service Commission. And they shall be permitted to write the examination in
Braille-script or with the help of a Scribe. There shall be no orders as to costs.
In Jared Abiding v. Union of India the supreme Court bearing in mind the discomfort
andharassment suffering by a person of loco motor so disability would face while travelling by
train particularly to far off places issued directions to the Indian Airlines to grant persons
suffering from locomotor so disability to the extent of 80%.

In Government of NCT of Delhi v. Bharath Lalmeena, The Delhi High court held that people
with disabilities can be appointed as physical education teachers provided they have passed the
qualifying examination undergone the requisite training.
 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon'ble
Court be pleased to:

I. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the
respondents directing them to follow “Civil Aviation Requirements” dated 1-5-2008 with regard
to “Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility” as issued
by the office of the Director General of Civil Aviation.

II. Issue any order or direction or pass any other or further order or orders in the interest of
justice, as it may deem fit, in the facts and circumstances of the present case.”

The court may also be pleased to pass any other order, which this Hon’ble Court may deem fit in
light of justice, equity and good conscience. All of which is respectfully submitted on behalf of

The Petitioners

Sd/-

..............................

(Counsel for the “Petitioners’”)