SUBJECT – PUBLIC INTERNATIONAL LAW

TOPIC- THE CASE OF JEEJA GHOSH

SYNOPSIS

 Introduction
 International Forums and Conventions which relates to the safeguarding the rights of
Disabled people.
 Judicial Background
 Political Background of Jeeja Ghosh
 Facts of the case
 Laws stated by the Supreme court in the case
 Supreme court’s approach while deciding the case
 Verdicts determine the supremacy of Parliamentary form of government
 Another way through which the judgement could have been written
 Conclusion

INTRODUCTION

In terms of its participation with

“International law”, India has long been labelled as a “dualist country”. The Executive, at least in
theory, has the authority to assume international agreements, but the domestic fulfilment of those
commitments necessitates Parliamentary approval. Although India is still formally dedicated to
dualism, it has numerous monist inclinations in reality. Following the assumption of international
law commitments, they are translated into domestic law via a variety of ways, which do not need
Parliamentary authorization in addition, the Indian judicial system administers “non-
domesticated international law” commitments in a variety of ways, reflecting varying “shades of
monism”. “International law” is a kind of pliable law that is established on the cooperation of the
states involved. The process for incorporating “international law principles” into a “country's
domestic” framework differs in every country. The concept of inclusion and the concept of
adaptation are the two main concepts for such acceptance (“monism and dualism, respectively”).
Monist countries adopt international law straightforwardly into their domestic legal systems or
municipal laws, while dualist countries need enabling regulations to do so. India is a dualist
country, which means that in order to give implement a treaty, Parliament must pass appropriate
laws. Every person is entitled to an appropriate remedy from a “competent tribunal” for
infringement of basic rights guaranteed by the constitution or any other legislation. “Monism and
dualism” are the two major concepts of the relationship among both “international and municipal
law”. Monism concept, are two distinct but analogous facets of a single system. As per dualism,
they are completely separate and distinguished legal systems. Because international law involves
a wide number of aspects of a country's legal system, the dualist theory is frequently referred to
as the “pluralistic theory”.  India, that is just as dualist as it is described, the Executive has the
capacity to assume international legal treaties, whereas the domestic implementation of those
treaties requires Parliamentary approval. Officially, the Executive is authorized to take action.
The discussion of this monist and dualist concept was sparked and dealt in detail in the landmark
case of “Jeeja Ghosh v Union of India”. In this assignment this landmark case is being dealt in
detail with help of some other important cases and international conventions and also it explains
the application of International laws into Municipal or Domestic laws1.

INTERNATIONAL FORUMS AND CONVENTIONS RELATED TO THIS TOPIC

International forums and treaties that govern a variety of complex and sensitive problems such as
“Human Rights, Children's Rights, Child Trafficking, Crime Against Women, and Disabled
Persons' Rights”. All Human Rights instruments, as well as those that apply to all humans, also
“protects the rights of disabled people”. These treaties and conventions also comprise of the
“principles of equality and non-discrimination”. The following are the Human Rights
Conventions:

▪ “United Nation’s Declaration on Human Rights”

▪ “International Covenant on Civil and Political Rights”

1
Prabhash Ranjan, Anmolan and Farheen Ahmad. Is the Supreme Court Confused About the Application of
International Law? THE WIRE. Sep 28, 2016. https://thewire.in/law/supreme-court-international-law
 ▪ “International Covenant on Economic, Social and Cultural Rights”
▪ “Convention against Torture, other Cruel Forms, Inhumane and Degrading Treatment or
Punishment”

Specific Legislation on Rights of Disabled Person-

▪ “Declaration on the Rights of the Disabled Person”

▪ “ILO Convention on Vocational Rehabilitation and Employment (Disabled Person)”
▪ “Inter-American Convention on the Elimination of All Forms of Discrimination against
Person with Disabilities”
▪ “Article 15 of European Social Charter”
▪ “Article 23 of Convention on Rights of Child”
▪ “Article 18(4) of African Charter on Human and People’s Rights 2”

JUDICIAL BACKGROUND

The judicial system has been critical in establishing disabled people's rights. The Constitution's
Articles 21, 14, and 15(2) have all played a significant part in the recognition of disabled people's
rights. The right to life and liberty, as stated in Article 21, implies that everyone has the right to
live a dignified life. Disabled people have the same rights as everyone else under Article 21.
These adaptations even have led to the ratification of some international humanitarian accords.
The judicial system has undertaken such actions in the context of “international law and the
Constitution's fundamental rights”. Even though there's no explicit article that addresses the
rights of disabled people, “the interpretation of Article 21” has made them accessible to them.
“Persons with Disabilities Act of 1995” is another piece of law that has been passed. This law
ensures that disabled people have equal access to opportunities and can fully participate in the
development of their country. The apex Court has acknowledged handicapped people' rights and
interests in historic decisions such as “Jared Abiding v. Union of India, National Federation of
Blind v. UPSC, and Government of NCT of Delhi v. Bharath Lalmeena”, including the “right to

2
Niyati Acharya. Jeeja Ghosh & anr v. Union of India & ors. Law times Journal. Mar 13, 2019.
https://lawtimesjournal.in/jeeja-ghosh-anr-vs-union-of-india-ors/
travel by rail, compete in examinations for Indian administration and allied services”, and the
recruitment of disabled individuals as physical education teachers, among others

POLITICAL BACKGROUND OF JEEJA GHOSH

At the time of her birth (Jeeja Ghosh), she was detected with a condition called “cerebral palsy”,
a disorder which is caused due to the lack of oxygen supply to brain, which happened either at
the time of pregnancy or during the birth time. She pursued her education from “Indian Institute
of Cerebral Palsy and La Martiniere in Kolkata”. She spent more than 20 years, serving to the
society and is a believer of righteous approach and in right to dignity for all people. She is
involved in “the disabled people's movement” as well as other disability-related initiatives in
India. Women with disabilities are a particular interest of hers. In the year 2016, the Indian
government awarded the movie “I Am Jeeja” the “National Film Award for best movie on social
themes”. “The Office of the Disability Commissioner has also honoured her with the Role Model
Award”. She is also passionate in literature as well as in the arts. She has also held a number of
Seminars and Workshops on the rights of disabled people in India as well as in abroad.

FACTS OF THE CASE

Jeeja Ghosh, an Indian national with a condition of cerebral palsy, is a well-known figure with a
high level of education. She was invited to attend the “North South Dialogue IV, an international
conference organised by ADAPT in Goa 3”. She was among the 15 international personalities
chosen to examine an “Indo-German project that was on display at the conference”. The aim of
the conference was to help the ones suffering from disabilities and their families, as well as
societal and institutional constraints. “The Respondent Spice Jet Ltd” provided with a return
ticket for Ms. Jeeja Ghosh. She was flying from Kolkata to Goa at the time of the incident. Ms.
Ghosh was seated on the plane when she was contacted by a crew staff who wanted to see her
boarding card. The crew member was concerned that her impairment would put her health in
danger during “pregnancy or delivery”. Even after she vehemently appealed and told the fight
crew members that she needed to get to Goa for the conference, she was de-boarded the plane.
3
Prabhash Ranjan, Anmolan and Farheen Ahmad. Is the Supreme Court Confused About the Application of
International Law? THE WIRE. Sep 28, 2016. https://thewire.in/law/supreme-court-international-law
She then found that, due of her condition, the Captain of the plane had demanded that she should
be evacuated. Ms. Ghosh was shocked and traumatized by the incident, and because of which she
had difficulties in sleeping and eating, so she was taken to the hospital the next day and
was provided with medication. “As a result, she was unable to fly to Goa on February 20th and
thus missed the conference entirely”4. “The petitioner has also made a grievance with the Chief
Commissioner for Persons with Disabilities and the Ministry of Social Justice prior to petitioning
before the court. A petition under Article 32 of the Constitution has been submitted by the
Petitioner. In her petition, she argued that flight crew members' behavior is both outrageous and
illegal and discriminatory and was in violation of the civil aviation requirements”.

LAWS STATED BY THE SC IN THIS CASE

▪ Article Enshrined under the Indian Constitution (ARTICLE 14, 19, 21, 32)

The court noted that the Interest and rights given to people with disabilities are established on the
fundamental principle of human dignity, which is recognized as a crucial part of life and personal
liberty, which may be linked directly to Article 21 of the Indian Constitution under Part III. As a
result, a breach of Article 21 of the Constitution is an infringement to live in dignity.
Fundamental rights must be used to assess the requirements of disabled people, instead on
charity, medical, or social models. Non-disabled and disabled individuals alike should
acknowledge that individuals with disabilities “have the right to live with dignity5”.

▪ Person with Disability (Equal Opportunities Protection of Rights and Full Participation)
Act, 1995

The legislature passed this law to guarantee that disabled people can attain their full potential
without facing discrimination or mistreatment. This Legislation is concerned with aviation
infrastructure, such as airports and planes. Chapter 9 of International Civil Aviation
Organization (ICAO) “provides the standards which are guidelines for ICAO contracting states
stating that Airlines must be always prepared to take a person with disability on board and so the

4
Jeeja Ghosh & Anr vs Union Of India & Ors on 12 May, 2016. WRIT PETITION (C) NO. 98 OF 2012.

5
Aparna Chandra, Mrinal Satish, Ritu Kumar & Suma Sebastian. Prisoners’ Rights. HRLN. Ed 4th, Vol- 1. Jan 2017.
https://hrln.org/uploads/2017/09/Prisoners-Rights-4th-edition-Vol-I-Final-compressed.pdf
48 hours of requirement seems to indicate that airlines will not be prepared otherwise – if there is
a time limit at all, it needs to be reduced”.

▪ UN Convention on right of persons with disability- Article 5, 9 and 9(2)

It was stressed that, despite being publicly recognized, India is unaware of this change from
empathy to equality. Jeeja Ghosh's wellness was harmed by persistent misunderstandings about
health  issues such as cerebral palsy. It saw the airline pilots' and crew's lack of compassion not
only as inhumane, but also as a parody of the “constitutions and Convention on the Rights of
Persons with Disabilities (CRPD's) human rights requirements”. “All the rights bestowed upon
people with disabilities send an eloquent message that there is no question of sympathizing
with those individuals and extending them medical or other assistance,” the judges remarked
on CRPD’s. According to the court, they are also humans, and should be given the
opportunity to bloom into ordinary people. The rights of people with disabilities can be
viewed via the perspective of human rights, which acknowledges that individuals with
disabilities have the same rights to enjoy the full spectrum of internationally mandated
freedoms and rights, free from prejudice predicated on disability 6.

Article 5- According to this article the State shall prohibit all kinds of disability discrimination
and guarantee that disabled people have equal and appropriate legal protections, and shall take
practical and necessary actions to guarantee this.

Article 9- Governments must take practical actions to ensure that individuals with disabilities
enjoy adequate and equal approach to the “physical environment, mobility, information and
communications, such as information and communications technology and networks, and other
public facilities and services” in order for them to live safely and fully participate in all aspects
of life.

▪ The Civil Aviation Requirement

The Civil Aviation Requirement, 2008, as well as the other relevant laws, were brought to
attention. There was no request for a doctor to examine her. Despite the lack of a justification,

6
alentina Della Fina, Rachele Cera, Giuseppe Palmisano. The United Nations Convention on the Rights of Persons
with Disabilities. A commentary. 2017. https://link.springer.com/book/10.1007%2F978-3-319-43790-3
she was de-boarded before even deciding whether her condition prevented her from flying. This
is a clear violation of “Rule 133-A of the Rules of 1937”, as well as the CAR guidelines from
2008.

▪ Aircraft Rules, 1937 – Rule 133A

Referring to “Article 5(2) of the CAR, 2008, it is argued that a medical clearance may be
requested by airlines where the airline, among other things, receives reports that a passenger's
medical condition may be compounded during or as a result of the flight, but according to Article
4(1), no airline shall refuse to transport persons with disabilities or limited mobility, as well as
their assistive aides, escorts, and guide dogs, and their appearance in the cabin, where those
individuals or their representatives inform the airlines of their need at the time of booking or
check-in for travel”. Travelers with disabilities should have accessibility to appropriate
assistance at the time of purchasing or booking, so airlines must include suitable clauses in their
online booking procedures.

▪ Vienna Convention on Law of Treaties (VCLT)- Article 26 and 27

The VCLT began operations in 1980 after being established in 1969. It established the notion of
“pacta sunt servanda in international law”. Any treaty ratified by a country is obligatory on it,
as per this concept, which is established in “Article 26 of the VCLT”, and treaty commitments
must be honored in good conscience by the state. “The Vienna Convention on the Law of
Treaties, 1963 requires India’s internal legislation to comply with international
commitments”. Article 27 of this treaty mentions that a “State party… may not invoke the
provisions of its internal law as justification for its failure to perform a treaty 7.” This article
attempted to illustrate how domestic and international law can coexist. Treaty commitments
are intended to assure that a country's municipal laws are consistent with its international
responsibilities. “Article 27 of the VCLT” is being used by the court to defend its
interpretation of the “pacta sunt servanda principle”. The VCLT's Article 27 offers a different
objective. It prohibits the usage of local legislation as a justification for transgressing
international law. – i.e., if a nation violates international law, it cannot justify itself via
7
Jordan Daci. The Relationship between International Law and Domestic Law under the Constitution of the
Republic of Kosovo. Academic Journal of Interdisciplinary Study.2281-4612 /ISSN:2281-3993.
its national law. This approach also was reflected in Article 3 of the International Law
Commission's (ILC) Articles of State Responsibility, that stated that international law
regulates the classification of a state's act as internationally unlawful, and that such
classification is unaffected by the categorization of the same act as lawful under domestic law.
As a result, the decision's citation of Article 27 is questionable.

SUPREME COURT’S APPROACH WHILE DECIDING THE CASE

Application of International Law into Municipal Law-

“International treaties/conventions” are instruments developed by the global community as a

whole for nations to adhere to for the common good. Article 253 of the Indian Constitution
mentions about legislations for giving effect to International agreements. Hence, it is evident
that for an International treaty, agreement or a convention to be implemented in India,
Parliament has the power to make laws with that regard 8. “The Vienna Convention on the Law
of Treaties”, which governs all elements of state-to-state treaty formation.  The apex Court has
acknowledged the “convention's customary status”, even though India has yet to ratify it.
Nevertheless, it is technically possible for Parliament to disapprove a treaty agreed through by
the Executive, where in the treaty would have no value. Furthermore, any treaty or agreement
that contradicts any of the Constitution's clauses will be void in our country, and the Vienna
Convention's provisions will be of no significance.

Pacta Sunt Servanda-

The judgment also looked to international law while establishing the decision emphasizing the
rights of people with disability. Paragraph 13 of the judgement, for example, states: “The
Vienna Convention on the Law of Treaties, 1963 requires India’s internal legislation to
comply with international commitments. Article 27 states that a “State party… may not

8
Niyati Acharya. Jeeja Ghosh & anr v. Union of India & ors. Law times Journal. Mar 13, 2019.
https://lawtimesjournal.in/jeeja-ghosh-anr-vs-union-of-india-ors/
invoke the provisions of its internal law as justification for its failure to perform a treaty.” The
very first line of paragraph 13 seems to be a statement of “international law's pacta sunt
servanda” doctrine. As per this concept, enshrined in “Article 26 of the VCLT”, any treaty
signed by a nation binds it, and treaty commitments must be fulfilled in good conscience by
the government. Guarantee that the country's internal legislation is compatible with its treaty
obligations is one approach to uphold treaties obligations. This point is represented in the
opening line of paragraph 13 of the decision. If that's the scenario, one could ask why the next
sentence of the very same paragraph quotes Article 27 rather than Article 26. It appears that
the court is citing Article 27 of the VCLT to support its representation of the pacta sunt
servanda concept, while in fact the court should have referenced Article 26. The VCLT's
Article 27 serves a distinct objective It forbids the use of domestic law as a defense for
international law violations. This notion is also mirrored in Article 3 of the “International Law
Commission's (ILC)” Articles of State Responsibility, which specifies that international law
governs the categorization of a nation's act as internationally wrongful, and that this
classification is unaffected by the classification of the very same act as lawful under domestic
law. Thence, the application and relevance of article 27 in the judgment is debatable 9.

Verdicts determining supremacy of parliamentary form of government-

In the case of Jolly George Vergese v. Bank of Cochin, justice Krishna Iyer said that “until
the Municipal Law is amended to suit the treaty, what binds the courts is the former, not the
latter.” In State of West Bengal v. Kesoram Industries, the Supreme Court reiterated that India
adheres to the “doctrine of dualism” and that “a contract entered into by India cannot become
law of the land...unless Parliament passes a law as prescribed by Article 253.”

Another way through which judgement could have been written

The apex court while delivering the judgement also mentioned the article 27 of the VCLT, which
was not need. There would have been no change in the judgement if the article 27 of the act was
not used. The usage if this article imposes a question upon the government credibility. Which
was not needed because the government has done work for upliftment and safeguarding of the
9
Prabhash Ranjan, Anmolan and Farheen Ahmad. Is the Supreme Court Confused About the Application of
International Law? THE WIRE. Sep 28, 2016. https://thewire.in/law/supreme-court-international-law
people with disability. Instead of this, the court should have mentioned any other measure
through with the right of the disabled people cannot be violated at any cost.

CONCLUSION

The Supreme court of India has reflected mixed opinion with the regards of application of
international laws in India. Like, in the case of People’s Union for Civil Liberties v. Union of
India, the court stated that “customary international law” can be administered in the domestic
realm till it is not contrary to our municipal law. Which means that there is no requirement of
legislating that law. In another case, Vishakha v State of Rajasthan, the apex court laid down
guidelines regarding prevention of sexual harassment at work place and also stated that “usage
the of international law without it being implemented by the procedure established under Article
253 of the Indian constitution”. The court justified this statement by stating that there is not act
or law governing the issue of sexual harassment at work place hence, to fill this vacuum, the
judiciary can rely upon international treaties. Many other judgements of supreme court have
been subjected to the question of judicial overreach and creeping monism. However, it is also of
the view that the legislature’s work is to legislate laws and the supreme court has to interpret
those laws. In the case of, State of West Bengal v. Kesoram Industries, the Supreme Court
reiterated that India adheres to the “doctrine of dualism” and that “a contract entered into by
India cannot become law of the land...unless Parliament passes a law as prescribed by Article
253.” Hence, India officially sticks to the concept of dualism, nevertheless in some instances
it has tilted a little towards monism.