Web Accessibility Policy Making:
An International Perspective
This document is an excerpt from the G3ict White Paper “Web Accessibility Policy Making: An International Perspective,” (Revised Edition 2012) researched and edited by Nirmita Narasimhan of Centre for Internet & Society, India, in collaboration with accessibility and disability policy experts from around the world. The paper seeks to identify some of the initiatives and best practices which have been adopted by 14 countries and the European Union as a first step towards policy formulation for countries.
While India has legislation generally aimed at prohibiting discrimination of Persons with Disabilities, there is an urgent need for policy formulation to ensure accessibility of IT products and services in general and web accessibility in particular. India needs to develop an action plan coupled with policy formulation and a plan for legislation to ensure universal web accessibility. Given the place of prominence that India has in the field of IT products and services, it is only just that the country takes tangible steps to enable a significant proportion of its population to participate in this medium. Accessibility provisions outlined in the working draft of the Persons with Disabilities Act, 2011 is a step in this direction.
India has generic legislation on disability in the form of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act which was enacted in 1995 with the objective of ensuring equal opportunities for people with disabilities and their full participation in nation building. The Constitution of India guarantees to its citizens the right to receive information. The Freedom of Speech and Expression enshrined in Art. 19(1) (a) is inclusive of the right to receive information. This right extends to receiving speech that is of a commercial nature as well. The equality clause of the Constitution demands that differently circumstanced people are to be treated differently, to assert their equal worth and to enhance their capabilities to participate in society as equals.
Persons with disabilities do not have a special right to information. However, the information available to the rest of the population must similarly be available to the disabled. The right to receive information is effective only when such information is available in formats that can be accessed. Information in such special formats is rarely provided. Consequently, persons with disabilities are deprived of the information available on the Internet, while the rest of the population enjoys access to the same. In Mr. X v. Hospital Z it was observed that government services cannot be denied to an individual on the basis of his disability. Therefore, insofar as online services maintained by the government are concerned, failure to make their content accessible to the disabled clearly vitiates the Constitutional guarantees of the Right to Information and Equality.
An updated Persons with Disabilities Act is currently under formulation which outlines specific provisions for accessibility with regard to public spaces, buildings, services and information. A draft of the bill is available on the website of the Ministry of Social Justice and Empowerment.
2. Type of Policy:
Generic disability legislation, case precedents and constitutional provisions for free speech
3. Signatory to UNCRPD:
India is signatory to the United Nation Convention on the Rights of Persons with Disabilities, 2006 (UNCRPD) and the Biwako Millennium Framework Towards an Inclusive, Barrier-free and Rights-based Society for Persons with Disabilities in Asia and the Pacific, 2002.
4. List of Referenced and Accompanying Documents:
At present India doesn’t have a formal accessibility policy in place but work on creating an overarching accessibility policy for the country has been initiated and is in progress. Given that accessible websites hold untold promise for those with all manner of disabilities to engage in all aspects of modern society, a web accessibility initiative would significantly buttress India’s current disability policy and legal apparatus and improve its adherence to its international legal commitments. India’s signing in 2007 of the UNCRPD is an important first step, implying its commitment to facilitating web accessibility. However, while India’s legislations and policies for persons with disabilities are all designed to promote access and inclusion reflecting the broad approach of the UNCRPD, they do not include any measures that specifically address web accessibility yet.
• Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995
The Persons with Disabilities Act of 1995 seeks to improve access of persons with disabilities to education, employment, transportation, and life services among other things. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act of 1999 seeks to generally empower persons with the named conditions to “live as independently and fully as possible” and to ensure the “realization of equal opportunities, protection of right and full participation of persons with disabilities.”
The National Policy for Persons with Disabilities, originally drafted in 1993 and minimally updated as of 2006, is similarly broadly targeted towards facilitating the integration of disabled persons into society by focusing on human resource development and education, employment, accessibility in built environments, and equal opportunity for sports, recreation and cultural activities, among other things. While each of these initiatives embraces the contemporary social model approach to disability, placing the onus on the state to remove barriers between society and the disabled, none of them is tailored to the Internet era.
• International Treaties
India is a signatory to the UNCRPD and Biwako Millennium Framework Towards an Inclusive, Barrier-free and Rights-based Society for Persons with Disabilities in Asia and the Pacific, 2002. Both these instruments obligate member states to act proactively in order to secure the Rights of the visually challenged to equal access to information and the Internet. The Biwako Millennium Framework recognizes the Right to Information and Communication as a basic human right. Information and Communication has been defined as including, “the Internet, including web, multimedia content, Internet telephony and software used to create web content.” The Government of India is therefore, obligated to act proactively in order to ensure that the disabled are not excluded from cyberspace.
• Case Law
Since there is currently no accessibility specific Indian legislation, case law established by Supreme Court rulings has now led to the settled position of law that international conventions and norms are to be read into domestic laws in the absence of enacted domestic law, to the extent that there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them. In Javed Abidi v Union of India the SC observed that the object was to create a barrier-free environment for persons with disability and to make special provisions for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation. Therefore, clearly the aforementioned international law obligations do not contradict any municipal law. In fact it furthers the object of the Persons with Disabilities Act of 1995.
• Article 41 of the Constitution of India requires the state to make effective provisions for securing public assistance in the event of disablement. The National Policy for Persons with Disabilities also provides that the government shall take proactive steps to ensure a disable friendly IT environment.
• Persons with Disabilities Act, 2011 Working Draft
The working draft of the Persons with Disabilities Act 2011 prepared by the Centre for Disability Studies, NALSAR University of Law in Hyderabad makes provisions for accessible information and communication technology. It states that governments and the establishments must make provisions to ensure that all content including “publications, periodicals, journals, educational materials, text books, multi-media materials, Internet and electronic formats shall be made available to persons with disabilities in accessible format”. The draft further makes specific inclusion of web accessibility by making it mandatory for all government and private websites providing consumer services to conform to the most updated version of WCAG. The draft bill also allows for incentives and concessions to be given to support existing websites to make them accessible to persons with disabilities.