Supreme Court’s Stand on Digital Inclusion: An Analysis of the Verdict on Accessible KYC for Persons with Disabilities

The digital revolution has made the lives of people convenient and hassle free. Initiatives like Digital India Programme have been improving the lives of citizens through delivery of services and expanding the digital economy. However, the digitisation of essential services has not led to an optimal experience for people with disabilities.

The Supreme Court of India recently came to aid of people with disabilities/facial disfigurements in Pragya Prasun v. Union of India¹, wherein it has expanded the scope of Article 21² of the Constitution of India to ensure that digital services are accessible to these people.

The Supreme Court passed the judgment³ while dealing the writ petitions seeking directions to formulate appropriate rules and guidelines for conducting digital know your customer (KYC)/e-KYC/video KYC process through alternative methods to ensure that the process is inclusive and accessible to all persons with disabilities, particularly acid attack survivors who usually suffer from permanent facial/eye disfigurement and other similarly placed individuals.

It was the case of petitioners that the methods which are used to identify a customer during the digital KYC process or while accessing essential services, are not fully accessible to persons with disabilities as these methods include clicking a live photograph by “blinking of eye”, face recognition, flashing of generic code/text on screen for it to be read by the customer, etc.

The petitioners submitted that it is the statutory duty of the Government to implement “reasonable accommodations”, in accordance with the provisions of the Rights of Persons with Disabilities Act, 2016⁴ (RPwD Act, 2016) read with the Rights of Persons with Disabilities Rules, 2017⁵ (RPwD Rules, 2017).

Legal framework

The Supreme Court referred to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to state that UNCRPD places an obligation on State parties to respect the rights and freedoms of persons with disabilities and to fulfil these rights by taking appropriate legislative, administrative and policy measures.

The Court also stated that the RPwD Act, 2016 and the accompanying Rules, 2017 give effect to the UNCRPD,which incorporates the principle of reasonable accommodation.

Section 13(1)⁶ of the RPwD Act, 2016 mandates the appropriate Government to ensure that the persons with disabilities have rights, equally with others, to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages, and other forms of financial credit. Further, Section 42⁷ of the RPwD Act, 2016 deals with: “Access to information and communication technology.” This section requires the appropriate Government to take measures to ensure that all content available is in accessible format and persons with disabilities have access to electronic media by providing audio description, sign language interpretation and close captioning.

Section 46⁸ of the RPwD Act, 2016 ensures “time-limit for accessibility by service providers”. According to Section 46, the service providers shall provide services in accordance with the rules on accessibility formulated by the Central Government within a period of two years from the date when such rules are notified.

The Court also analysed the framework of National Policy on Universal Electronic Accessibility, 2013, Guidelines for Indian Government Websites which lay down the reference points and standards for access to electronic and information and communication technology products.

Judicial precedents

The Supreme Court relied on several judgments affirming the rights of persons with disabilities highlighting the importance of accessibility.

In Rajive Raturi v. Union of India⁹, it was held that accessibility is a fundamental right integral to the rights to the life, dignity and freedom of movement under Article 21 of the Constitution.

In Recruitment of Visually Impaired in Judicial Services, In re, ¹⁰ it was held that the RPwD Act, 2016 holds the sanctity of a super-statute and that any denial of rights guaranteed under this legislation amounts to violation of fundamental rights enshrined in the Constitution.

In Distribution of Essential Supplies and Services During Pandemic, In re¹¹, the Court recognised the importance of digital accessibility for persons with disabilities. The Court emphasised that digital platforms related to vaccination and other essential services must be accessible to all ensuring that no individual is excluded due to disability.

Findings of the Court

The Supreme Court stated that though digital KYC has benefited the public by making verification process faster and more efficient, persons with blindness and low vision continue to face significant barriers in accessing and completing these procedures.

The Court relied upon the legislative framework and international conventions mentioned above to observe that:

17. … in the contemporary era, where access to essential services, governance, education, healthcare and economic opportunities is increasingly mediated through digital platforms, the right to life under Article 21 of the Constitution must be reinterpreted in light of these technological realities….¹²

The Court recognised that Article 21 must be reinterpreted taking into consideration the contemporary era where access to essential services is mainly through digital platforms. The Court also highlighted the digital divide which is resulting in systematic exclusion not only of persons with disabilities by also of large sections of rural population, senior citizens, economically weaker sections and linguistic minorities.

The Court further held that State’s obligations under Article 21 read with Articles 14, 15 and 38 of the Constitution¹³ must encompass the responsibility to ensure that digital infrastructure, government portals, online learning platforms and financial technologies are universally accessible, inclusive and responsible to the needs of all vulnerable and marginalised populations. The Court also held that:

17. … The right to digital access, therefore, emerges as an intrinsic component of the right to life and liberty, necessitating that the State proactively design and implement inclusive digital ecosystems that serve not only the privileged but also the marginalised, those who have been historically excluded.¹⁴

The Court considered that in present times, digital access secures a life of dignity, autonomy and equal participation in public life.

The Court issued directions to ensure that the process of digital KYC is accessible to persons with disabilities, including the appointment of a Nodal Officer in each department responsible for ensuring compliance with digital accessibility standards. The respondent authorities were also directed to ensure a barrier free digital environment. The Court also made it mandatory for all government websites to adhere to Section 46 of the RPwD Act, 2016 requiring both electronic and print media to be accessible to persons with disabilities.

The Court also directed the respondent authorities to establish a mechanism for human review of rejected KYC applications in cases where accessibility-related challenges prevent successful verification and to establish a dedicated helpline for persons with disabilities, offering step-by-step assistance in completing the KYC process through voice or video support.

Conclusion

The Supreme Court’s judgment¹⁵ marks a significant step in enforcement of rights of persons with disabilities in India. The Court has highlighted the need of inclusivity and accessibility in the digital age by declaring access to digital services as a fundamental right under Article 21 of the Constitution.

The directives given by the Court including that of appointment of Nodal Officers, accessibility audits and establishment of dedicated helplines and grievance redressal mechanism is a step forward to bridge the digital divide.

The industry will have to aim for comprehensive solutions that ensure end-to-end accessibility for all users, regardless of their abilities. The essential service providers need to ensure accessibility in the design of the digital services while also ensuring that these apps are not only accessible to the privileged but also to the marginalised sections of society.

The judgment¹⁶ sets a precedent by ensuring an accessible digital ecosystem. It reaffirms the constitutional rights of persons with disabilities while highlighting the obligation of the State to foster an equitable society. The implementation of Court’s directive will be crucial in achieving an accessible and inclusive digital India.