Summary
Writ petitions under Article 32 by acid-attack survivors with facial and eye disfigurement and by a person with 100% blindness complained that digital KYC processes, which establish a 'live photograph' through blinking, head movement or face positioning, exclude persons with disabilities from banking, telecom and other essential services. The Court held that accessibility is integral to Article 21, that the right to digital access is an intrinsic component of the right to life and liberty, and that the Rights of Persons with Disabilities Act, 2016 confers a statutory right to accessibility and reasonable accommodation in the KYC process. It issued twenty directions, including alternative modes of verifying liveness beyond eye-blinking, acceptance of thumb-impression images and paper-based KYC, accessibility audits and human review of rejected KYC applications.
Issues
- Whether digital KYC / e-KYC / video KYC norms that depend on blinking of eyes and other visual tasks to establish 'liveness' violate the rights of persons with facial disfigurement and visual impairment under Article 21 of the Constitution and the Rights of Persons with Disabilities Act, 2016.
- Whether the State and its regulators are obliged to provide reasonable accommodation and accessible alternatives in the digital KYC process, and what directions should issue to the Union, the RBI and other regulators to make the process inclusive.
Provisions considered
- Article 21 (read with Articles 14, 15, 38 and 41), Constitution of IndiaIn an era where essential services, governance and economic opportunity are mediated through digital platforms, the right to life must be reinterpreted so that the State's obligations include ensuring that digital infrastructure, government portals and financial technologies are universally accessible; bridging the digital divide is a constitutional imperative and the right to digital access is an intrinsic component of the right to life and liberty. Article 41 directs the State to make provision for cases of disablement. (¶¶ 14.1.2, 17)
- Sections 2(c), 2(y), 3, 13(1), 21(1), 40, 42 and 46, Rights of Persons with Disabilities Act, 2016The Act, treated as a 'super statute', defines 'barrier' and 'reasonable accommodation', guarantees equality and non-discrimination (Section 3), the right to control financial affairs and access bank credit (Section 13), requires accessibility standards for information and communication technology (Section 40), access to electronic media and universal design (Section 42) and compliance by service providers within the prescribed time (Section 46). These provisions confer on the petitioners a statutory right to demand accessibility and reasonable accommodation in digital KYC; the Court directed that all Government websites adhere to Section 46. (¶¶ 14.4.3, 14.4.4, 14.4.5, 14.4.6, 14.4.7, 14.4.8, 14.4.9, 14.4.10, 14.6.2, 16, 18)
- Rules 8 and 15, Rights of Persons with Disabilities Rules, 2017Rule 8 requires every establishment to publish an equal opportunity policy and Rule 15 prescribes accessibility standards, including for information and communication technology, with Ministries to ensure compliance through domain regulators. Non-compliance by regulated entities with the ICT accessibility standards notified under Section 40 was among the petitioners' grievances, and the directions require regulated entities to meet the standards notified from time to time. (¶¶ 13.1, 14.4.11, 14.4.12, 18)
- Section 11A; Rules 2(bba), 9 and Annexure I (digital KYC process), Prevention of Money-laundering Act, 2002 and Prevention of Money-laundering (Maintenance of Records) Rules, 2005These provisions oblige reporting entities to verify client identity and prescribe the digital KYC process, including capture of a live photograph, on which the RBI's Master Direction on KYC, 2016 is based. The Court noted the regulators' position that neither the Rules nor the Master Direction mandate eye-blinking as the sole liveness test and directed the RBI to prescribe alternative modes of establishing liveness and to clarify that V-CIP onboarding does not require blinking. (¶¶ 9.1.2, 9.1.3, 9.1.5, 9.1.7, 9.1.9, 12, 18)
Held
- Accessibility is a fundamental right integral to life, dignity and freedom under Article 21. Where access to essential services, governance, education, healthcare and economic opportunity is increasingly mediated through digital platforms, the State's obligations under Article 21 read with Articles 14, 15 and 38 extend to ensuring that digital infrastructure, government portals, online platforms and financial technologies are universally accessible and inclusive; the right to digital access is an intrinsic component of the right to life and liberty. (¶¶ 14.6.1, 17)
- The petitioners, suffering from facial and eye disfigurement caused by acid attacks and from blindness, are persons with disabilities under the Schedule to the RPwD Act, 2016. KYC processes requiring visual tasks such as blinking, moving the head or positioning the face within a frame prevent them from establishing identity, opening bank accounts and accessing services; the constitutional and statutory provisions confer on them a right to demand accessibility and reasonable accommodation, so the digital KYC guidelines must be revised with accessibility at their core. (¶¶ 13, 13.1, 16)
- Digital platforms that are incompatible with screen readers, present information only visually, use CAPTCHA tests, unlabelled fields and facial-recognition or precise selfie and signature capture deny persons with disabilities equal access and violate the accessibility mandates of the RPwD Act, 2016 and the UNCRPD; governments and private entities must ensure that digital services comply with the Web Content Accessibility Guidelines and other accessibility standards. (¶ 15)
- The RPwD Act, 2016 has acquired the status of a super statute of quasi-constitutional significance, and denial of rights guaranteed under it amounts to violation of fundamental rights; the Act marks a shift from the medical model to one that recognises disability as arising from societal barriers and incorporates the principle of reasonable accommodation. (¶¶ 14.4.2, 14.4.4, 14.6.2)
- The regulators did not contest the grievances: the RBI, Department of Telecommunications, SEBI, PFRDA and IRDAI stated that their frameworks do not mandate eye-blinking as the sole liveness test, that V-CIP officials may ask varied questions, and that offline, paper-based, Aadhaar OTP-based and other alternatives exist, and expressed commitment to accessibility. (¶¶ 9.1.9, 9.3.10, 9.3.12, 9.4.6, 9.5.4, 9.6.2, 11)
- Directions issued: the respondent authorities shall require all regulated entities, government or private, to follow prescribed accessibility standards and appoint nodal officers for digital accessibility; regulated entities must undergo periodic accessibility audits by certified professionals and involve persons with blindness in user-acceptance testing; the RBI shall issue guidelines prescribing alternative modes of verifying liveness or capturing a live photograph beyond blinking of eyes, clarify that customer due diligence and onboarding may be done through V-CIP without blinking, amend the Master Direction on KYC to enhance OTP-based face-to-face e-KYC, run public awareness campaigns and monitor strict compliance. (¶ 18)
- Further directions: KYC templates and customer acquisition forms must capture the customer's disability type and percentage; regulated entities must accept an image of a thumb impression during digital KYC; the paper-based KYC process must continue as an accessible alternative notwithstanding the notification dated 05.12.2023 discontinuing it; sign-language interpretation, closed captions, audio descriptions, Braille, easy-to-read and voice-enabled formats must be provided; devices, websites and applications must comply with the BIS accessibility standards for ICT products and services, WCAG 2.1 and the Guidelines for Indian Government Websites; and all Government websites must adhere to Section 46 of the RPwD Act, 2016. (¶ 18)
- The authorities must also create a mechanism for customers to authorise sharing of completed KYC through the Central KYC Registry, a dedicated grievance-redressal mechanism for accessibility issues, human review by a designated officer empowered to override automated rejections of KYC applications on a case-by-case basis, dedicated helplines offering step-by-step voice or video assistance, and disability-awareness training modules for officials of regulated entities. (¶ 18)
Result
Both writ petitions disposed of with twenty directions to the Union, the RBI and the other respondent authorities to make the digital KYC / e-KYC / video KYC process accessible to persons with disabilities, including alternatives to eye-blinking for liveness verification, acceptance of thumb-impression images and paper-based KYC, accessibility audits, grievance redressal, human review of rejected applications and RBI monitoring of compliance; no costs; connected applications disposed of.