Right to digital access part of right to life under Article 21, rules SC

Holding that the right to digital access is included in the right to life under Article 21 of the Constitution, the Supreme Court on Wednesday directed the Centre, RBI and other authorities to make the process of digital KYC accessible to the disabled, particularly those with facial disfigurements and visual disabilities.

“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,” a Bench of Justice JB Pardiwala and Justice R Mahadevan said.

Noting that the principle of substantive equality demanded digital transformation to be both inclusive and equitable, the top court issued a set of 20 directions to the Centre and different public entities (PEs) to make the digital KYC process more inclusive.

It said, “…persons with disabilities encounter unique barriers in accessing online services due to the lack of accessible websites, applications and assistive technologies. Similarly, individuals in remote or rural areas often face poor connectivity, limited digital literacy, and a scarcity of content in regional languages, effectively denying them meaningful access to e-governance and welfare delivery systems.”

Writing the verdict for the Bench, Justice Mahadevan lamented that “The digital divide – characterised by unequal access to digital infrastructure, skills, and content – continues to perpetuate systemic exclusion, not only of persons with disabilities, but also of large sections of rural populations, senior citizens, economically weaker communities, and linguistic minorities.”

The Bench said, “Bridging the digital divide is no longer merely a matter of policy discretion but has become a constitutional imperative to secure a life of dignity, autonomy and equal participation in public life. 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.”

In such circumstances, the Bench said, “The State’s obligations under Article 21 – read in conjunction with Articles 14,15 (right to equality and non-discrimination) and 38 (State’s obligation to promote welfare of the people) of the Constitution – must encompass the responsibility to ensure that digital infrastructure, government portals, online learning platforms, and financial technologies are universally accessible, inclusive and responsive to the needs of all vulnerable and marginalised populations.”

The top court directed various ministries to ask all regulating authorities — government or private — to follow accessibility standards as prescribed from time to time and appoint a nodal officer in every department responsible for digital accessibility compliance.

All regulated entities must mandatorily undergo periodical accessibility audit by certified accessibility professionals and involve persons with blindness in user acceptance testing phase while designing any app or website or in case of any new feature being launched, it ordered.

It also ordered the RBI to issue guidelines on introducing alternative modes for verifying the "liveness" or capturing a "live photograph" of the customers for digital KYC beyond the traditional "blinking of eyes" and ensure that the entities had customer due diligence and the on-boarding of new customers could be done using the video-based KYC process, in line with the 2016 KYC provisions in which blinking of the eyes was not mandatory.

It ordered the setting up of a dedicated grievance redressal mechanism for persons with disabilities to report accessibility issues.

The verdict came on two petitions: one filed by Pragya Prasun and others — acid attack victims who suffer from facial disfigurement and severe eye burns – and the other by Amar Jain suffering from 100 per cent blindness.

They sought directions to formulate appropriate rules and guidelines for conducting Digital KYC/ e-KYC / Video KYC process through alternative methods, with a view to ensuring that the process was more inclusive and accessible to all persons with disabilities. They also sought “reasonable accommodation” in accessing financial services, telecommunications, and government schemes in accordance with the provisions of the Rights of Persons with Disabilities Act, 2016, Rights of Persons with Disabilities Rules, 2017, and Article 21 of the Constitution.

"The respondent authorities must design their KYC templates or customer acquisition forms to capture disability type and percentage of the customer and appropriately record as part of the account records so as to provide them accessible services or reasonable accommodations," the Bench said.

It ordered the authorities to give clear directions to all regulated entities to accept the image of thumb impression during the digital KYC process.

It directed the Ministry of Electronics and Information Technology to make the necessary amendments to its notification of December 5, 2023, to ensure paper-based KYC process for verification of customers will continue, enabling the petitioners and other similarly-placed individuals to avail an accessible alternative for completing the KYC procedure.

"The respondent authorities shall provide options for sign language interpretation, closed captions, and audio descriptions for visually and hearing impaired users," it said.

Ordering them to include alternative media such as braille, easy-to-read formats, voice-enabled services, to disseminate government notifications and deliver public services, ensuring accessibility for all, it also directed them to ensure that online services including e-governance platforms, digital payment systems, and e-launching platforms are accessible to persons with disabilities.

The Bench asked the authorities to issue appropriate guidelines to develop and implement a mechanism where customers who have already completed their KYC process with one regulated entity may authorise the sharing of their KYC information with other entities through the Central KYC Registry.

"RBI shall monitor and ensure strict adherence by all regulated entities to the guidelines/notifications/directions issued by it, including those in terms of directions issued by this court..,” it said.