AJITH PERERA

Vs.

MINISTER OF SOCIAL SERVICES AND SOCIAL WELFARE AND OTHERS

SUPREME COURT
PRASANNA JAYAWARDENA,J.
MALALGODA, J.
M.N.B. FERNANDO, J.
SC/FR/273/2018
NOVEMBER 29, 2018

Public interest litigation-Infringement of fundamental rights-Articles 12(1) and 14(1)(h) of the Constitution-Non-implementation of the Protection of the Rights of Persons with Disabilities Act, No. 28 of 1996, and the Disabled Persons (Accessibility) Regulations, No. 1 of 2006

The petitioner, a campaigner for the rights of persons with disabilities, had previously filed FR Application No. 221/2009 complaining that the non-implementation and non-enforcement in full of the provisions of the Protection of the Rights of Persons with Disabilities Act, No. 28 of 1996, as amended, and the Disabled Persons (Accessibility) Regulations, No. 1 of 2006, violated the fundamental rights guaranteed by Articles 12(1), 14(1) (g) and 14(1)(h) of the Constitution of the petitioner and others similarly circumstanced. The court granted leave to proceed and thereafter the said application was disposed of by a final order dated 27th April 2011 wherein the court ordered inter a/ia that henceforth parts of new public buildings or public spaces (as defined in the regulations) should be designed and constructed in accordance with the requirements specified in the regulations. The order provided further that a fresh application may be filed if the order was not complied with.

In the present application, the petitioner pleaded that despite the passage of time since the order of the Supreme Court in FR Application No. 221/2009, many public buildings, public places and places where common services are available did not satisfactorily or in a meaningful manner comply with the provisions of the Regulations. The petitioner further pleaded that certificates of conformity have been frequently issued for newly constructed or renovated public buildings or public structures, which do not conform to the requirements, performance specifications and designs set out in the Regulations. As a result, the petitioner and

others similarly circumstanced were unable to access many public buildings, public places and places where common services are available, or had to face difficulties or embarrassment when doing so. The petitioner pleaded further that the respondents' failure to fully enforce the provisions of the Act and the Regulations amounts to a continuing violation of the fundamental rights guaranteed by Article 12(1), 12(2) and 14(1)(h) of the Constitution to the petitioner and others similarly circumstanced.

Held:

1. It is now a widely accepted norm that the State has a duty to take reasonable and adequate measures to ensure that persons with disabilities who comprise a significant portion of the community - have the opportunity to go about their day-to-day activities and live fulfilling and successful lives, just as others in the community have that opportunity.

2. Having enacted the Act, declared a National Policy on Disability and made the Regulations, the State and its agencies have a duty to implement and ensure compliance with the provisions of the Act and Regulations so that persons with disabilities are provided the opportunity to live their day-to-day lives on a platform of equality with others.

3. Despite the passage of about 13 years since the Regulations were made and more than one and a half years after the expiry of the time limit allowed for compliance with the Regulations, the available evidence is of large-scale non-compliance with the Regulations. This has caused substantial prejudice to the petitioner and other persons with disabilities, who have been prevented from accessing numerous public buildings, public places and places where common services are available, or have had to face difficulty, embarrassment or danger of injury in doing so.

4. The concept of human dignity, which