Social Justice:
Rights of elderly persons – Writ petition u/Art. 32 of Constitution – Seeking enforcement of rights of elderly persons u/Art. 21 by providing them adequate pension, shelter, geriatric care and medical facilities and also sought effective implementation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – Held: Right to life provided u/Art. 21 encompasses several rights – The right to live with dignity, right to shelter and right to health are basic and fundamental – The State is obliged to ensure that these fundamental rights are not only protected, but are enforced and made available to all the citizens – Central Government and State Governments have started certain schemes towards meeting the rights of elderly persons u/Art. 21, but there is a lot that is required to be achieved – However, a set of directions issued by this Court will not fulfill the constitutional mandate or the mandate of the Act – The only available solution is a continuing mandamus to ensure that the rights of the people are respected, recognized and enforced and that social justice as postulated by the preamble in the Constitution is given meaning and teeth – Initial directions issued so that effective contributions are made to recognize and enforce rights of elderly persons – Constitution of India – Arts. 21, 39 and
41 – Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – ss. 30 and 31.
Issuing directions, the Court
HELD : 1.1 The conceptualisation of justice by Constitution framers was as much valid in 1949 (when the Constituent Assembly debates took place) as it is today. But, with times having changed, varied situations have emerged which may not have existed in 1949 and were perhaps not foreseen at that time. The rights of elderly persons is one such emerging situation that was perhaps not fully foreseen by the Constitution framers. Therefore, while there is a reference to the health and strength of workers, men and women, and the tender age of children in Article 39 of the Constitution and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want in Article 41 of the Constitution, there is no specific reference to the health of the elderly or to their shelter in times of want and indeed to their dignity and sustenance due to their age. [Paras 2 and 3][1294-B-C; 1295-A-B]
1.2 The right to life provided for in Article 21 of the Constitution must be given an expansive meaning. The right to life, encompasses several rights but for the time being the Court is concerned with three important constitutional rights, each one of them being basic and fundamental. These rights are the right to live with dignity, the right to shelter and the right to health. The State is obligated to ensure that these fundamental rights are not only protected but are enforced and made available to all citizens.[Para 44][1308-D-E]
2.1 The right to live with dignity is, in effect, a part of the right to life as postulated in Article 21 of the Constitution. Such a right would be rendered meaningless if an aged person does not have the financial means to take care of his basic necessities and has to depend for it on others. [Para 16][1298-F-G]
2.2 National Social Assistance Programme (NSAP) was introduced on Independence Day, 1995 as a fully funded Centrally Sponsored Scheme. In the introduction to the Programme document, it is noted that the Directive Principles of State Policy of the Constitution enjoin upon the State to undertake within its means a number of welfare measures, targeting the poor and the destitute in particular. Article 41 of the Constitution directs the State to provide public assistance to its citizens in the case of unemployment, old age, sickness and disablement as well as in other cases of undeserved want, within the limit of the State’s economic capacity and development. Among the initial three components of the Programme are the National Old Age Pension Scheme which subsequently came to be known as the Indira Gandhi National Old-Age Pension Scheme. Both the Government of India and the State Governments and the Union Territory Administrations must work in tandem if they are to make the Pension Scheme workable and meaningful. [Paras 17 and 18][1299-A-E]
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 : [1981] 2 SCR 516 ; Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC
454 : [2011] 4 SCR 1057 ; Common Cause v. Union of India (2018) 5 SCC 1 : [2018] 6 SCR 1 ; K.S.
Puttaswamy v. Union of India (2017)10 SCC 1:[2017]
10 SCR 569 – relied on.
Unni Krishnan, J.P. v. State of Andhra Pradesh (1993)
1 SCC 645 : [1993] 1 SCR 594 – referred to.
3.1 The right to shelter or the right to reasonable accommodation is one of the basic needs of any human being. Unfortunately, while there has been some positive development in this regard, attention has not been paid to the needs of the elderly who require special care and attention which, in many sections of the society, is missing. [Para 21][1300-G-H]
3.2 The right to shelter is subject to “economic
budgeting” by the State. No blanket order can be prayed for by the petitioner or even argued for overlooking the financial capacity of the State. No doubt, in matters of fundamental rights, financial issues take a backseat but it must be remembered at the same time that the resources of the country are not unlimited and when it comes to the Court directing the State to expend amounts, judicial restraint is necessary. [Para 25][1302-G-H; 1303-A]
3.3 It is noted in the introduction to the Integrated Programme for Senior Citizens that there has been a steady rise in the population of senior citizens in India. The number of elderly persons has increased from 1.98 crore in 1951 to 7.6 crore in 2001 and 10.38 crore in 2011. It is projected that the number of 60+ in India would increase to 14.3 crore in 2021 and 17.3 crore in 2026. The main objective of the Programme “is to improve the quality of life of the Senior Citizens by providing basic amenities like shelter, food, medical care and entertainment opportunities …..” It is also proposed to encourage productive and active ageing through providing support for capacity building activities. It was submitted that under this Programme grant-in-aid is given for running and maintenance of senior citizens homes, homes for elderly women etc. [Para 26][1303-B-D]
3.4 There can be no doubt that the right to shelter is an important constitutional right and therefore shelter must be made available to everybody and to the maximum extent possible. With this in view, the Government of India has framed schemes, inter alia, for homeless persons particularly in urban areas but it is time to recognize that there are a large number of elderly persons in several parts of the country, including rural India, who are rendered ‘homeless’ due to migration of their families to other parts of the country and even outside the country. While some of these elderly persons are certainly not destitute, but they do need assistance because of their age and are willing to pay and contribute for a roof over their head. In the absence of a suitable number of old age homes, and homes as per their status, they are left to fend for themselves making them vulnerable to mishaps and other unforeseen events. [Para 27][1303-D-G] Shantistar Builders v. Narayan Khimalal Totame AIR 1990 SC 630 ; Chameli Sing v. State of Uttar Pradesh (1996) 2 SCC 549 : [1995] 6 Suppl. SCR 827 ;
Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997) 11 SCC 121 : [1996] 7 Suppl. SCR 548 – relied on.
4.1 The Government of India has launched the National Programme for Healthcare of the Elderly during 2010-11. The objective of this National Programme is to provide dedicated healthcare facilities to senior citizens, that is, those above 60 years of age at the primary, secondary and tertiary healthcare delivery system. The basic aim of the National Programme is to provide separate and specialised comprehensive healthcare to senior citizens at various levels of the State healthcare delivery system including outreach services. [Para 32][1305-B-C]
4.2 The National Programme is now about six or seven years old and it must be implemented with due earnestness, otherwise it will remain only a paper programme. There is undoubtedly a lot that has been achieved in the last few years but there is still a lot that is required to be achieved and the Union of India and all the State Governments and Union Territory Administrations should take an active interest in the implementation of the National Programme. [Para 35][1305-F-G]
Vincent Panikurlangara v. Union of India (1987) 2 SCC
165 : [1987] 2 SCR 468 ; Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42 : [1994] 6 Suppl. SCR 626 ; Kirloskar Brothers Ltd. v. Employees State Insurance Corpn (1996) 2 SCC 682 : [1996] 1 SCR 884 ; State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83 : [1996] 10 Suppl. SCR 279 ; Nagar Nigam v. AL Faheem Meat Exports (P) Ltd. (2006) 13 SCC 382 : [2006] 10 Suppl. SCR 354 ; Occupational Health and Safety Association v. Union of India (2014) 3 SCC 547 : [2014] 4 SCR 10 – relied on.
5.1 The petitioner has raised, alternatively, an equally significant issue namely that even if the constitutional rights are not enforceable due to difficulties in “economic budgeting” even then the law enacted by Parliament in the form of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWP Act) mandates the protection and enforcement of the rights of elderly persons. It is quite clear that Parliament was fully aware of the financial impact of the law. Considerations of “economic budgeting” by the State both at the level of the Government of India and at the level of the State Governments must have been taken into account while enacting the legislation. Therefore, there cannot be any excuse of lack of finances either by the Government of India or by the State Governments in strictly implementing the provisions the MWP Act. If not the constitutional then at least the statutory rights of elderly persons must be recognised and implemented. [Para 45][1308-E-G]
5.2 A set of directions issued by this Court will not fulfil the constitutional mandate or the mandate of the MWP Act. There is a need to continuously monitor the progress in the implementation of the constitutional mandate to make available to the elderly the right to live with dignity and to provide them with reasonable accommodation, medical facilities and geriatric care. While this may take some time, the only available solution is a continuing mandamus which is a well-recognised practice and procedure adopted by this Court in several cases to ensure that the rights of the people are respected, recognized and enforced and that social justice as postulated by the Preamble in the Constitution is given meaning and teeth. Given the constitutional importance of the issues raised, focused and perhaps more vigorous efforts are needed. [Paras 47 and 48][1309-C-F]
6. An evaluation study is contemplated on all aspects of the National Social Assistance Programme for use of best practices and to bring about uniformity in the implementation of the Scheme in all States. In addition, a social audit for the NSAP schemes is also contemplated and guidelines have been issued for a social audit as recently as on 30th November, 2018 for the launch of a social audit pilot in 21 States and Union Territory Administrations. [Para 49][1309-F-G]
7. It would be appropriate to issue some initial directions so that effective contributions are made to recognise and enforce the rights of elderly persons :
1. The Union of India will obtain necessary information from
all the State Governments and the Union Territories about the number of old age homes in each district of the country and file a Status Report in this regard.
2. The Union of India will also obtain from all the State Governments the medical facilities and geriatric care facilities that are available to senior citizens in each district and file a Status Report in this regard.
3. On the basis of the information gathered by the Union of India, a plan of action should be prepared for giving publicity to the provisions of the MWP Act and making senior citizens aware of the provisions of the said Act and the constitutional and statutory rights of senior citizens.
4. The Central Government must exercise its power u/s.
30 of MWP Act and issue appropriate directions to the State Governments for the effective implementation of the provisions of the MWP Act. The Central Government must also, in terms of Section 31 of the MWP Act, conduct a review for the purposes of monitoring the progress in implementation of the MWP Act by the State Governments. [Paras 50, 51][1309-H; 1310-B-F]
5. Government of India should have a relook at these schemes and perhaps overhaul them with a view to bring about convergence and avoid multiplicity. In particular, the Government of India and the State Governments must revisit the grant of pension to the elderly so that it is more realistic. Of course, this would depend upon the availability of finances and the economic capacity of the Government of India and the State Governments. [Para 51][1310-G-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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