S.H.A. Raza and R.D. Mathur, JJ.
1. The only question, which needs to be determined by this Court is as to whether the Lucknow Development Authority while giving preference for allotment of plots and houses to blinds and other handicapped persons, should also accord concession in the rates of the land.
2. Present petition has been filed by National Federation of Blinds, U. P. Branch, Lucknow and one Sri Dr. Pramod Kumar Singh, who is a Member and General Secretary of the Federation and has been working as Lecturer in Government Raza Post Graduate College, Rampur. In spite of the disability which Dr. Pramod Kumar Singh, petitioner No. 2 suffered, he obtained degree of Doctorate and has been performing the duties of lecturer imparting education to post graduate classes. Petitioner No. 2 had applied for allotment of a plot of land to be leased out to him under the scheme known as Shikshak Vihar, Jankipurarn Extension, Sitapur Road, Lucknow and deposited the requisite form along with the registration charges of Rs. 43,200 by means of a bank draft. After completion of necessary formalities, petitioner No. 2 was allotted property No. 1/10 in Sector 1 'B' type plot, the estimated area of which is 288 sqr. metres and allotment order was issued to the petitioner on 8.7.1999.
3. The petitioner has approached opposite party No. 3 for giving concession in rates of the said property in accordance with Section 43 of the Persons with Disabilities (Equal Opportunities. Protection of Rights and Full Participation) Act, 1995, (hereinafter mentioned as the Act, 1995) by making an application, but as his cries in blindness was not heeded to he filed the present petition. Section 43 of the Act reads as under :
'43. Scheme for preferential allotment of land for certain purposes.--The appropriate Governments and local authorities shall by notification frame schemes in favour of persons with disabilities, for the preferential allotment of land at concessional rates of :
(a) house,
(b) setting up business,
(c) setting up of special recreation centres.
(d) establishment of special schools.
(e) establishment of research centres,
(f) establishment offactories byentrepreneurs withdisabilities.
4. The aforesaid Act was passed by the Parliament to give effect to the proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, The Preamble of the Act provides as under :
'Whereas the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region ;
And whereas India is a signatory to the said proclamation ;
And whereas it is considered necessary to implement the proclamation aforesaid ;
Be it enacted by Parliament in the Forty Ninth year of the Republic of India.'
5. As indicated in the Preamble of the Act, itself, India is a Signatory of the aforesaid covenant. Now, first of all, we have to examine the effect of proclamation signed by India.
6. In England, even if International conventions or covenants are ratified by the State, the English Courts cannot directly enforce the rights guaranteed by the covenants so long it is not adopted by the Parliament.
7. But in some countries the Constitutions place treaties on the same rank as the Constitution itself, as 'the Supreme Law of Land'. The foremost of such Constitutions is that of the United States of America. Article VI (2) provides as under :
'This Constitution, and the laws of the United States, which shall be made in pursuance thereof ; and all treaties made. under the authority of the United States, shall be the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary, notwithstanding.'
8. Thus, in accordance with the said provision in the Constitution of the United States of America, the treaties are placed on the same footing as a federal law where the treaty, is self-executing, but if a treaty is not self-executing no municipal court can enforce it, until it is implemented by a valid law.
9. Article 25 of the West German Constitution, 1949, provides that the 'general principles of international law' shall become part of the domestic law, and directly create rights and duties for the inhabitants of the federal republic, without domestic laws and in derogation of inconsistent domestic law.
10. The framers of the Indian Constitution were inspired by the ideals of international peace and respect of human rights as embodied in the United Nations Charter and the Universal declaration. For that reason, they engrafted a special provision in Article 51 of the Constitution as a Directive Principles of State policy, which provides that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.
11. The early decisions of Hon'ble Supreme Court were to the effect that the Directive Principles of State Policy were not justiciable and enforceable in the Courts. The duty of the Courts in relation to the Directive Principles of State Policy came to be emphasised in later decisions.
12. In Keshavananda v. State of Kerala, (1973) 4 SCC 225, per majority, laid down certain broad propositions with references to Fundamental Rights, which are bound to be productive of far-reachingeffects in future cases before all Courts. It was observed that the Directive Principles of State Policy supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State. The Constitution alms at synthesis of the two, i.e., Fundamental Rights and the Directive Principles of State Policy, which constitute 'conscience of the Constitution' and together they form core of the Constitution. The Courts have a responsibility in so interpreting the Constitution as to ensure implementation of the Directives and to harmonise the social objective underlying the Directives with the individual rights. Hon'ble Supreme Court in Keshaunanda's case (supra) observed that primarily the mandate in Article 37 is addressed to the Legislature, but, in so far as the Courts of justice can indulge in some judicial law making, within the interstices of the Constitution or any statute before them for construction, the Courts too are bound by this mandate. It follows thus that the Courts should uphold, as far as possible, legislation enacted by the State to ensure 'distributive justice' meaning thereby to remove inequalities. In the recent years, Hon'ble Supreme Court enforced directives by issuing directions.
13. Article 38 of the Constitution provides that it is the duly of the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life, and the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
14. Handicapped person, particularly the blinds suffer from inequalities. The concept of disability is directly linked with societal attitudes towards disabled person. The traditional societal attitudetowards the disabled was one of pity, sympathy and charity. The disabled were considered as incapable of leading independent and productive lives. Under the traditional perception of disability, an important element of the welfare of the disabled-recognition and respect of human dignity and self esteem of the disabled persons was completely missing. The new approach for the welfare of the disabled is directed at the socio-economic integration of the disabled in the mainstream of active social life.
15. Present approach lays stress on psychological aspect of disability. It alms at making disabled self-reliant. The economic-vocational approach is concerned with the vocational limitations of the disabled and it is directed towards vocational rehabilitation of the disabled.
16. The International Labour Organisation is the most ardent proponent of this approach. The socio-political approach regards disability as a by-product of interaction between individual and environment. It emphasises on the need for laws to combat discrimination against the disabled.
17. In developing country, likeours, over all plight of disabledpersons is a gloomy picture. Whiletreating a disabled person, we oftenforget that in developing countrieslike ours, mostly children are victimsof disability due to poverty andmalnutrition. On auspiciousoccasions, like marriages, religiousceremonies or when a person startsjourney to any other place, thepresence of person who suffered fromsuch disabilities like blindness, isconsidered inauspicious.Handicapped person, particularlyblinds carry with them a birth markand they are often ridiculed and insulted. Such an attitude deservesdeprecation. Public should beeducated protest against suchdiscriminatory treatment meted out tothe handicapped, but now concern forthe improvement of public health andprevention of diseases wasmanifested in various health relatedprovisions by the International agency.
18. The first internationalinitiative with regard to therehabilitation of the disabled camefrom the International LabourOrganisation, which came into being in 1919 as an autonomous bodyassociated with the League ofNations. As back as 1921, for the firsttime, the International LabourOrganisation turned its attentiontowards the employment problems ofthe disabled persons. Since then, therights of the disabled lie at the veryheart of its mission. A major part ofthe International LabourOrganisation activities for therehabilitation of the disabled consistsof the adoption of internationallabour standards in the form ofvarious recommendations,conventions and resolutions in thatregard. (Conventions andRecommendations 1919-1949 Geneva-International Labour Office, 1949 andalso International Labour Conventionsand Recommendations Geneva.International Labour Office, 1982).
19. The recent amongst such recommendations, included Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) and Recommendation, 1983 (No. 168). The International Labour Organisation has played an instrumental role in the field of vocational rehabilitation of the disabled.
20. Since the inception of the United Nations, the campaign for disability prevention and rehabilitation gained recognition. The Incorporation of the human rights provisions in the Charter of the United Nations and the adoption of the Universal Declaration of Human Rights, followed by two covenants, namely the International Covenant on Civil and Political rights and International Covenant on Economic. Social and Cultural Rights, resolved to fight the menance of disability. The United Nations through its resolutions namely ECOSOC Resolution 309E(XI) 13th July, 1953 on 'Social Rehabilitation of Physically Handicapped', ECOSOC Resolution1068 (XXXIX) 30th July, 1965 on the 'Rehabilitation of Disabled Persons'. General Assembly Resolution 2856 (XXVI) 20th December, 1971 on the 'Declaration on the rights of Mentally Retarded Persons', and General Assembly Resolution 3447 (XXX) 9th December. 1975 on the 'Declaration on the Rights of Disabled Persons' had laid down international norms, standards and guidelines concerning the rights of the disabled persons. A number of specialised agencies, such as the International Labour Organisation. The United Nations Educational. Scientific. Cultural Organisation (UNESCO) The World Health Organisation, the United National International Children Emergency Fund, have oriented their activities towards the disability prevention and rehabilitation programme within the scope of their organisations. In addition, other international bodies associated with the rehabilitation programmes for the disabled include the United Nations Development Programme, the Food Agricultural Organisations. The United Nations Industrial Development Organisation, and the Office of the United Nations High Commission for Refugees etc.
21. Mr. Umesh Chandra, senior counsel appearing on behalf of Lucknow Development Authority contended that even though India might have ratified an International covenant and thereby had become a party to it, but he cited some early decisions of Hon'ble Supreme Court, which were of the view that international covenants and treaties have no direct binding effect on the municipal law of that State unless and except to the extent it has been implemented by the Legislature of that State or incorporated into its national Constitution because of the doctrine of the national sovereignty, the municipal courts of a State, cannot enforce any treaty to which it is a party.
22. But recent decisions of Hon'ble Supreme Court indicate that the municipal courts can enforce international covenants, declarations, proclamations and treaties if they donot run contrary to the laws of the Country. Hon'ble Supreme Court in Vishaka and others v. State of Rajasthan and others. (1997) 6 SCC 241. while dealing with the 'principles of gender equality' considering the India's commitment to the declaration made by the Fourth World Conference on Women in Beijing observed as under :
'The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a vacuum in the domestic law. The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh, 128 Aus LR 353, has recognised the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.'
'It was further observed that, in Nilabati Behera v. State of Orissa. (1993) 2 SCC 746, a provision in the ICCPR was referred to support the view taken that 'an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right', as a public law remedy under Article 32, distinct from the private law remedy in torts. There is no reason why these international conventions and norms cannot, therefore, be used for construing thefundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.'
23. In the case of M/s. B. R. Enterprises v. State of U. P. and others, JT 1999 (3) SC 431. although the Hon'ble Supreme Court upheld the validity of the Act passed by the State Government to ban lotteries but did not interfere into the matter of Bhutan lotteries for the reason that the Bhutan lotteries cannot be controlled under the said Act, because the Act was confined to the State organised lotteries under the Union list, while Bhutan lotteries were sold in India as well as in the State on the basis of the treaty. Thus, Hon'ble Supreme Court, in that regard, observed :
'Under the terms of the present treaty, itself, the sale of Bhutan lotteries has been agreed and subjugated to be subject to the relevant laws in India (as provided in the treaty itself). So far this treaty, there is no law yet framed by the Parliament under Entry 14. List 1. Admittedly, Bhutan lottery does not fall under Entry 40, List 1. Thus, the restrictions and conditions imposed under the impugned Act would only apply to the State lotteries and not to the lotteries of the Kingdom of Bhutan. Next, it has to be seen that when the treaty makes it obligatory for the Bhutan lotteries to be subject to the Indian laws, and in the absence of any law by the Parliament pertaining to the treaty under Entry 14 List 1, under which class of lottery it would fall and to which law it would be subjected to.'
It was further observed :
'This treaty could be under this Entry, but in the absence of any law by the Parliament it would be governed by the terms of the treaty, itself. Entry 41. List 1 refers to the trade and commerce with the foreign country. Even if it falls under it, in the absence ofthe law by the Parliament, it would be governed by the terms of the treaty. Entry 42 List 1 deals with inter-State trade and commerce, under which it will not fall.'
24. From the above quotedobservations of Hon'ble SupremeCourt in Vishaka and others v. Stateof Rajasthan and others, (supra) andM/s. B. R. Enterprises v. State of U. P.and others (supra) it is. thus, evidentthat the international covenants,declarations, and proclamations towhich India is a signatory, can beused for construing fundamentalrights expressly guaranteed in theConstitution of India, which embodythe basic concept of equality in allspheres of human activity. There isno law in India which prohibitsallotment of land and houses tohandicapped persons onconcessional rate, but on thecontrary the Parliament has framed.The Persons with Disabilities (EqualOpportunities, Protection of Rightsand Full Participation) Act, 1995.which provides for preferentialallotment of land on concessionalrate, of houses, setting up business,setting up of special recreationcentres, establishment of specialschools, establishment of researchcentres, and establishment offactories by entrepreneurs withdisabilities. Hence, internationalcovenants, declarations,proclamations and treaties to whichIndia is a signatory, are bound to befollowed by every State.
25. Rehabilitation means the restoration of the disabled to the fullest physical, mental, social, vocational and economic usefulness of which persons is capable. In other words, rehabilitation is a goal oriented programme which alms at enabling an impaired person to reach an optimum mental, physical, or social functional level, which follows basically three aspects : Physical Rehabilitation. Vocational Rehabilitation and Psycho-social integration of the disabled.
26. The physical and vocational rehabilitation cannot achieve desired result, unless disabled feel himselfpsychologically integrated and the society is willing to accept them as productive members. A disabled person not only suffers from the agony of being physically handicapped, but also suffers from the malice of being socially handicapped. Such person also faces adjustment problems of different nature. A disabled suffers from feeling of insecurity both physical and emotional. The false notions about disability in the mind of a common man, deprived a disabled person of his right to lead a meaningful life, which results into deep mental agony, physical discomfort, aversion, ridicule and scorn of the able-bodied, which escalate emotional problems. Promotion of the rights of disabled person, rehabilitation as well as integration are the main stream of social life and are of paramount importance. Problems on disability is mere syndrome, the root causes are inherent in mass poverty, social segregation and illiteracy. The only permanent solution of disability problem, which a handicapped person faces, could be their psycho-social and economic integration and proper placement which will enable them to stand on their own with dignity and decency.
27. Hon'ble Supreme Court in D. N. Chanchala v. State of Mysore, AIR 1971 SC 1762, dealing with the reservation under Article 15(4) of the Constitution observed at page 1775 of the report as under :
'But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society.It would not, in any way, be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15(4). It is on such a principle that reservation for children of Defence personnel and Ex-Defence personnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life ; in some cases economically ruined, and were, therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that the definition of political sufferer not only makes the children of such sufferers distinguished from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of seats. In our view, neither of the two contentions raised by counsel for the petitioner can be accepted, with the result that the writ petition fails and is dismissed.'
28. Problems faced by the disabled persons, attracted the attention of the United Nations which marked the years 1983-1992 as a decade of disabled person and a world programme of action concerning disabled persons was outlined. The decade was also celebrated in India, too. Seminars and functions were organised in large scale and with the help of World Health Organisation, immunisationprogramme, vigorous campaign werelaunched to immunise the peoplefrom diseases, which make themdisabled. It is the obligation of theauthorities to realise that disabilitywhich a handicapped person suffersis not his creation, but may be due toother factors, which we haveenumerated in the foregoingparagraphs. It is obligation of everycitizen as well as of the State to instillamongst handicapped a feeling thatthey are partners of men and womenwho do not suffer from suchdisability. They deserve to be engagedand inspired to attain the height,which an able person can attain inhis life. With a view to fulfil itsconcomitant with the decade of thedisabled persons (1993-2002)convened by the Economic and SocialCommission held at Beijing during,1st to 5th September, 1992, theParliament enacted Act. 1995. Thusproclamations, declarations andvarious resolutions, and covenants, towhich India is a party and asignatory, can be enforced by thisCourt to the extent that thosedeclarations, proclamations,resolutions and covenants have beenincorporated in the Act, 1995. Section 43 of the Act provides that theappropriate Governments and localauthorities shall, by notification,frame schemes in favour of personswith disabilities, for the preferentialallotment of land at concessionalrates of houses, setting up business,setting up of special recreationcentres, establishment of specialschools, establishment of researchcentres and establishment offactories by entrepreneurs withdisabilities. It is, thus, evident that ifany reservation or concession to thehandicapped persons, is provided bythe State or its instrumentality, thatwill be in consonance with theInternational proclamations,declarations, resolutions andcovenants made by the UnitedNations Organisations and Section 43of the Act, 1995.
29. It is really unfortunate that the State Government as well as local authorities, including the development bodies, have not framed a scheme in favour of the personswho suffer from such disabilities. Non-framing of such a scheme would not in any way negate the provisions of Section 43 of the Act, which clearly lays down that such disabled persons will get preference in the matter of allotment of land and houses at concessional rates. It is a matter of common knowledge that the land and houses at concessional rates are given by the Lucknow Development Authority to various other categories of persons like legislators, journalists, freedom fighters, etc., and their own employees. Why the handicapped persons should be denied the concessional rates for allotment of land and houses, has not been indicated in the order passed by the Lucknow Development Authority. Only this much has been indicated in the order of the Lucknow Development Authority dated 27.9.1999 that although the blind persons will get preference in the matter of allotment but they will not be given any discount concession in the rates. This order runs contrary to the provisions of Section 43 of the Act, referred to above. The contention of the Lucknow Development Authority is that neither the State nor the Lucknow Development Authority has framed any Scheme and notified the Scheme, hence the handicapped persons cannot be given land or house on concessional rates. Such a contention cannot be accepted. It was the obligation of the State Government and all local bodies including the Development Authorities, to frame a Scheme and notify the same. If they had not done so, they cannot take advantage of their own wrong.
30. In view of what has been indicated hereinabove, the writ petition deserves to be allowed. A writ in the nature of certiorari quashing the order passed by the Lucknow Development Authority dated 27.9.1999 contained in Annexure-1, is issued. The opposite party Nos. 1 and 3 are directed not only to give preference in the matter of allotment of land and houses to handicapped persons, but also to provide concessional rates to handicapped persons. The State Government aswell as the Lucknow Development Authority and other local bodies, who are engaged in housing activities, are directed to frame a scheme in favour of persons who suffer from disabilities, for preferential allotment of land and houses at concessional rates and notify the same within a period of three months from the date of production of a certified copy of this order. The Lucknow Development Authority is also directed not to cancel the allotment of the petitioner No. 2 for the reason that he has not paid the rate fixed, along with the interest, by the Lucknow Development Authority.