Ashwani Kumar vs Union of India

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) No. 193 OF 2016

Dr. Ashwani Kumar ....Petitioner

versus

Union of India & Ors. .... Respondents

JUDGMENT

Madan B. Lokur, J.

1. “Social justice” in the Preamble of our Constitution has been given

pride of place and for good reason since it is perhaps the most important

and significant form of justice.

2. In his address on Constitution Day on 26 th November, 2018 the

Hon’ble President of India emphasised that social justice remains a

touchstone of our nation building. The conceptualisation of justice by our

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 Hon’ble President Signature Not Verified Digitally signed by DEEPAK GUGLANI Date: 2018.12.13 12:02:18 IST spoke on the subject of justice and particularly social justice in the Reason:

following words:

W.P(Civil) No.193 of 2016 Page 1 “In the Preamble, justice is not seen as unidimensional. It is viewed as having implications across political, economic and social spheres. Political justice implies the equal participation of all adults in the political process and the just formulation and implementation of laws. Economic justice implies the ultimate eradication of poverty, equal opportunities to earn a livelihood, and fair wages. As such the expansion of economic, entrepreneurship and job opportunities are among examples of economic justice.

Given the diverse history of our people, and given imbalances and hierarchies that have sometimes marked our past, social justice remains a touchstone of our nation building. At the simplest level, it implies the removal of societal imbalances and the harmonisation of rival claims and needs of different communities and groups. Social justice is about providing equal opportunities.

Such a conceptualisation of justice was valid in 1949 and broadly remains relevant today. Even so, the 21st century has brought new challenges. No doubt the concept of justice - political, economic and social – has a resilient core but it needs to be thought of in innovative ways. It requires to be applied afresh to emerging situations – situations that may not have existed or been foreseen when our Constitution framers were at work.” (Emphasis supplied by us).

3. The rights of elderly persons is one such emerging situation that

was perhaps not fully foreseen by our 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.

4. Eventually, age catches up with everybody and on occasion, it W.P(Civil) No.193 of 2016 Page 2 renders some people completely helpless and dependent on others, either

physically or mentally or both. Fortunately, our Constitution is organic

and this Court is forward looking. This combination has resulted in path-

breaking developments in law, particularly in the sphere of social justice

which has been given tremendous importance and significance in a

variety of decisions rendered by this Court over the years. The present

petition is one such opportunity presented before this Court to recognise

and enforce the rights of elderly persons - rights that are recognised by

Article 21 of the Constitution as understood and interpreted by this Court

in a series of decisions over a period of several decades, and rights that

have gained recognition over the years due to emerging situations.

Brief background

5. The petitioner Dr. Ashwani Kumar has preferred a writ petition

under Article 32 of the Constitution with regard to enforcement of the

rights of elderly persons under Article 21 of the Constitution. The

petitioner, who appears in person, has made several prayers in the writ

petition but during the course of submissions, he limited the relief prayed

for to four issues. These are:

1. Pension for the elderly.

2. Shelter for the elderly.

3. Geriatric care and medical facilities for the elderly.

W.P(Civil) No.193 of 2016 Page 3

4. Effective implementation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘MWP Act’).

6. During the course of the proceedings and submissions, we were

assisted by HelpAge India through Mr. Mathew Cherian as Amicus

Curiae and Mr. Nikhil Dey a social activist as an Intervener. We were

also assisted by the learned Additional Solicitor General appearing for

the Union of India who specifically underlined the fact that the Union of

India does not consider this as an adversarial litigation.

7. We propose to take up the issues raised by the petitioner in seriatim

but leave it open to him and the learned Amicus to agitate any further

issues that may arise during the pendency of the public interest petition.

The right to dignity and adequate pension

8. It has come on record that the Union of India has categorised the

elderly as those who are above 60 years of age and up to 79 years of age

belonging to one category and those above 80 years of age belonging to

another category. The record shows that pension was fixed for persons

between the age of 60-79 years at ₹ 200 per month by the Union of

India under a scheme called the Indira Gandhi National Old Age Pension

Scheme. An amount of ₹ 500 per month was fixed by the Union of

India for persons above 80 years of age.

9. Interestingly, the pension amount was fixed more than a decade

W.P(Civil) No.193 of 2016 Page 4 ago with the latest revision in 2007. It is submitted on the side of the

petitioner that the amount is a pittance and is wholly inadequate to

advance the constitutional mandate of Article 21. If the current value of

the rupee is taken into consideration then in real terms the amount

actually works out to about ₹ 92 per month on the lower scale.

10. There is no doubt that the Scheme places a corresponding

obligation on the State Governments and Union Territory

Administrations to make contributions but their contributions are

varying, as per the affidavits filed in this Court, from less than ₹ 500 per

month to ₹ 2000 per month. One of the directions prayed for by the

petitioner is that a realistic pension ought to be paid to the elderly and it

is his suggestion that it should be at least half the minimum wage.

11. It was submitted by the petitioner, ably supported by the learned

Amicus and the intervenor that the right to live with dignity is a

fundamental right recognised by Article 21 of the Constitution. We do not

doubt this and surely the Union of India would also not doubt this. The

further submission of the petitioner was that availability of adequate

finances is necessary for a person to live a life of dignity. An elderly

person, particularly someone who is in an old age home is unable to look

after himself and therefore needs financial assistance. This can be made

available only if there is a viable pension scheme that is implemented

W.P(Civil) No.193 of 2016 Page 5 with sincerity and which can be taken advantage of by an elderly person.

12. In support of his submissions, reliance was placed by the petitioner

on four significant decisions of this Court which hold that the right to

dignity is integral to the right to life guaranteed by Article 21 of the

Constitution.

13. In Francis Coralie Mullin v. Administrator, Union Territory of

Delhi1 this Court acknowledged that the right to life guaranteed by

Article 21 of the Constitution includes the right to live with dignity

which includes, inter alia, nutrition, clothing and shelter - all of which

require some finances. Provision for these basic necessities can be made

only if the elderly are provided with some pension which is meaningful

and not pension which is equivalent to ₹ 92 per month. Reference was

made to paragraph 8 of the Report which reads as follows:

“8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self……..” (Emphasis supplied by us).

1 (1981) 1 SCC 608

W.P(Civil) No.193 of 2016 Page 6

14. Reference was made by the petitioner to Aruna Ramachandra

Shanbaug v. Union of India2 and Common Cause v. Union of India 3

wherein this Court categorically held that the right to life includes the

right to live with dignity. It was said in paragraph 32 of the Report in

Aruna Ramachandra Shanbaug as follows:

“32. Whilst this Court has held that there is no right to die (suicide) under Article 21 of the Constitution and an attempt to commit suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur case. [Gian Kaur v. State of Punjab, (1996) 2 SCC 648]” (Emphasis supplied by us).

15. Reference was also made by the petitioner to the opinion rendered

by Justice Rohinton Fali Nariman in K.S. Puttaswamy v. Union of India 4

wherein it has been observed that several decisions of this Court have

recognised human dignity as being an essential part of the fundamental

rights chapter in the Constitution. This observation was made in

paragraph 525 of the Report which reads as follows:

“525. ………..Many of our decisions recognise human dignity as being an essential part of the fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at para 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras 12.4 and 14 2 (2011) 4 SCC 454 3 (2018) 5 SCC 1 4 (2017)10 SCC 1

W.P(Civil) No.193 of 2016 Page 7 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at para 37. The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorised use of such information…….” (Emphasis supplied by us).

16. In view of the various decisions of this Court, there cannot now be

any doubt that 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. It is in this context that the petitioner submitted that all elderly

persons must be granted adequate pension so that they are able to sustain

themselves with dignity.

17. The learned Additional Solicitor General drew our attention to the

National Social Assistance Programme (NSAP) which 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

W.P(Civil) No.193 of 2016 Page 8 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, referred to above. It was submitted

that the Scheme is being implemented by the Government of India but

active support is required from the State Governments and the Union

Territory Administrations.

18. While we cannot disagree with the learned Additional Solicitor

General on the issue of active support, we are of opinion that 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. In fact, it is submitted that the NSAP

guidelines provide that State Governments may consider equal or more

top-up to be considered for extending it to the beneficiaries.

19. It was submitted by the learned Additional Solicitor General that

the economic capacity of the Government of India and of the State

Governments ought not to be overlooked and a caution has been

administered by this Court in paragraphs 181 and 182 in the opinion of

Justice B.P. Jeevan Reddy in Unni Krishnan, J.P. v. State of Andhra

Pradesh5 wherein it was held that the economic capacity of the State is

5 (1993) 1 SCC 645

W.P(Civil) No.193 of 2016 Page 9 limited and is, ordinarily speaking, a matter within the subjective

satisfaction of the State. This was in the context of the right to education

but it is submitted that the principle laid down is equally applicable to the

present petition. It was held by this Court as follows:

“181. Right to education after the child/citizen completes the age of 14 years. The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from Part IV to Part III — we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State.

182. In the light of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into Article 21, this Court would be enabling each and every citizen of this country to approach the courts to compel the State to provide him such education as he chooses must be held to be unfounded. The right to free education is available only to children until they complete the age of 14 years.

Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. Indeed, we are not stating anything new. This aspect has already been emphasised by this Court in Francis C. Mullin v. Administrator, Union Territory of Delhi [Francis C. Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608] ………” (Emphasis supplied by us).

In this context, it is pointed out that the NSAP Scheme of the

Government of India provided for a total budget of ₹ 9975 crores for

covering over 3 crore below poverty line beneficiaries exclusively. It was

W.P(Civil) No.193 of 2016 Page 10 also submitted that linking pension to the index of inflation may not be

appropriate since the pension provided is a welfare measure.

20. While this may be so, the issue has, nevertheless, to be looked at

from the humanitarian aspect as well.

The right to shelter

21. It is about two decades since this Court recognised the right to

shelter or the right to reasonable accommodation as 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 our society, is missing. With this in mind, the petitioner

emphasised the right to shelter and referred to several decisions, many of

which recognise the right to adequate shelter as a fundamental right,

which we believe applies to the elderly as well.

22. In Shantistar Builders v. Narayan Khimalal Totame6 this Court

recognised the right to food, clothing and shelter as being a guarantee of

any civilised society. As far as the right to shelter is concerned, it was

observed that there is a right to reasonable accommodation. It was held in

paragraph 9 of the Report as follows:

“9. Basic needs of man have traditionally been accepted to be three — food, clothing and shelter. The right to life is 6 AIR 1990 SC 630

W.P(Civil) No.193 of 2016 Page 11 guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in……...” (Emphasis supplied by us).

23. A much fuller discussion is to be found in Chameli Singh v. State

of Uttar Pradesh7 wherein this Court explained, in a sense, the

requirements of the right to shelter. It was held in paragraph 8 of the

Report that the right to shelter would include adequate living space but

that does not mean a mere right to a roof over one’s head. It was held that

the right to shelter when used as an essential requisite to the right to live

should be deemed to have been guaranteed as a fundamental right. It was

held in paragraph 8 of the Report as follows:

“8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man…….. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting………...” (Emphasis supplied by us).

24. Finally, in Ahmedabad Municipal Corporation v. Nawab Khan

Gulab Khan8 this Court referred to and followed Chameli Singh. More 7 (1996) 2 SCC 549 8 (1997) 11 SCC 121

W.P(Civil) No.193 of 2016 Page 12 importantly, reference was made to our obligations under international

law, including the Universal Declaration of Human Rights and the

International Covenant on Economic, Social and Cultural Rights. The

petitioner strongly relied upon our international obligations and submitted

that apart from the law laid down by this Court in several judgements, we

should respect and acknowledge our international obligations in regard to

the right to shelter. Reference was made to paragraphs 12 and 25 of the

Report which read as follows:

“12. Article 19(1)(e) accords right to residence and settlement in any part of India as a fundamental right. Right to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of the Universal Declaration of Human Rights declares that everyone has the right to a standard of living adequate for the health and well- being of himself and his family; it includes food, clothing, housing, medical care and necessary social services. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights lays down that State parties to the Covenant recognise that everyone has the right to standard of living for himself and his family including food, clothing, housing and to the continuous improvement of living conditions. ……….

25…….The right to life enshrined under Article 21 has been interpreted by this Court to include meaningful right to life and not merely animal existence as elaborated in several judgments of this Court including Hawkers case [ SLPs Nos. 47-51 of 1996], Olga Tellis case [(1985) 3 SCC 545] and the latest Chameli Singh case [(1996) 2 SCC 549] and a host of other decisions which need no reiteration…..” (Emphasis supplied by us).

25. We are in full agreement with the view expressed by the petitioner

but we must be aware of the caution given by this Court to the effect that

W.P(Civil) No.193 of 2016 Page 13 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, at some stage

the petitioner did contend that 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.

26. The learned Additional Solicitor General referred to the recently

revised Integrated Programme for Senior Citizens. It is noted in the

introduction to the Programme 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.

W.P(Civil) No.193 of 2016 Page 14

27. 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.

The right to health

28. It was submitted by the petitioner that medical facilities and

geriatric care are not given the due importance that they deserve. He

submitted that, by and large, it is older persons who require medical care

more frequently than younger persons and if they are not provided the

necessary medical facilities, it would adversely impact on their right to

health. In support of his contention that the right to health is a human

W.P(Civil) No.193 of 2016 Page 15 right and a constitutional right, the petitioner referred to a few decisions

which we detail hereinbelow.

29. In Vincent Panikurlangara v. Union of India 9 this Court did not

specifically deal with the right to health of the elderly but it did make

reference to Article 21 of the Constitution and noted that it includes

within it the right to live with human dignity. In fact, Article 21 derives its

life breath from some Articles in the Directive Principles of State Policy,

particularly, Articles 39, 41 and 42 of the Constitution. While these

Articles do not directly deal with the right to health of the elderly, it is

quite obvious that when they refer to the protection of the health and

strength of men and women, it must include the elderly. It was said in

paragraph 16 of the Report as follows:

16. … “It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin case [Francis Coralie Mullin v. Administrator, Union Territory of Delhi, [(1981) 1 SCC 608] to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses

(e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief…..” (Emphasis supplied by us).

9 (1987) 2 SCC 165

W.P(Civil) No.193 of 2016 Page 16

30. A similar view was expressed by this Court in Consumer

Education & Research Centre v. Union of India (paragraph 25)10 and

Kirloskar Brothers Ltd. v. Employees State Insurance Corpn.

(paragraph 10)11.

31. In State of Punjab v. Mohinder Singh Chawla (paragraph 4)12,

Nagar Nigam v. AL Faheem Meat Exports (P) Ltd. (paragraph 26)13 and

in Occupational Health and Safety Association v. Union of India

(paragraph 10)14 the right to health was given the status of a fundamental

right flowing from Article 21 of the Constitution. There is, of course, no

going back on this.

32. It has been brought to our notice by the learned Additional Solicitor

General that 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.

10 (1995) 3 SCC 42 11 (1996) 2 SCC 682 12 (1997) 2 SCC 83 13 (2006) 13 SCC 382 14 (2014) 3 SCC 547.

W.P(Civil) No.193 of 2016 Page 17

33. The Union of India has also pointed out that the activities relating

to the implementation of the National Programme are ongoing and it is

not as if the objectives and goals of the National Programme can be

achieved overnight.

34. The petitioner concedes that the National Programme has some

positive components but it is submitted that they are not being

implemented effectively or have not been fully operationalised in some

districts of the country. One of the gaps pointed out by the petitioner is

that there is no reliable information about the number of beds reserved for

geriatric care in government or private hospitals or information regarding

specific geriatric centres. It is submitted that these details must be

provided for all 719 districts of the country.

35. We fully appreciate the view of the Union of India but at the same

time, it must be emphasised that 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 we expect the Union of India and all the

State Governments and Union Territory Administrations to take an active

interest in the implementation of the National Programme.

W.P(Civil) No.193 of 2016 Page 18 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

36. While the petitioner emphasized the constitutional rights available

to everybody including the elderly, such as the right to live with dignity,

the right to shelter and the right to adequate medical care and geriatric

care, the petitioner relied, has an alternative, on statutory provisions for

the existence of these rights. It was submitted by the petitioner that even

if the Constitution was not to be given an expansive meaning, there are

statutory rights which are enforceable by the elderly under a law made by

Parliament and that is the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 (MWP Act)

[ 37. The petitioner drew our attention to a few provisions of the MWP

Act to substantiate his contention. In particular, he drew our attention to

Section 19 of the MWP Act which deals with the establishment of old age

homes and requires each State Government to establish and maintain at

least one old age home in every district in the country with each old age

home having accommodation for 150 senior citizens who are indigent.

Section 19 reads as follows:

19. Establishment of oldage homes-

1. The State Government may establish and maintain such number of oldage homes at accessible places, as it may deem necessary, in a phased manner, beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent.

W.P(Civil) No.193 of 2016 Page 19

2. The State Government may, prescribe a scheme for management of oldage homes, including the standards and various types of services to be provided by them which are necessary for medical care and means of entertainment to the inhabitants of such homes.

Explanation. – For the purposes of this section, “indigent” means any senior citizen who is not having sufficient means, as determined by the State Government, from time to time, to maintain himself.

38. The submission of the petitioner and the learned Amicus is that

though more than 300 old age homes have been established in different

parts of the country, the requirement is of many more considering the

large population of indigent elderly. It was submitted that some homes

are in a dilapidated condition, without adequate facilities including

geriatric care. In other words, in several instances, the law laid down in Section 19 of the MWP Act is being complied with only in letter and

certainly not in spirit.

39. Our attention was also drawn to Section 20 of the MWP Act which

provides for medical support for senior citizens. Government hospitals or

hospitals funded fully or partially by the State Government are mandated

to provide beds for all senior citizens, as far as possible. Facilities for

geriatric patients are also required to be earmarked by this Section of the

MWP Act. Section 20 of the MWP Act reads as follows:

20. Medical support for senior citizen-

The State Government shall ensure that -

W.P(Civil) No.193 of 2016 Page 20 i. the Government hospitals or hospitals funded fully or

partially by the Government shall provide beds for all senior citizens as far as possible;

ii. separate queues be arranged for senior citizens; iii. facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens;

iv. research activities for chronic elderly diseases and ageing is expanded;

v. There are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.

40. The submission of the petitioner and the learned Amicus is that

there is a huge gap between the law and its implementation and it is

submitted that even though the MWP Act came into force in 2007 and

more than a decade has passed since then, serious efforts have not been

made by the Government of India or by the State Governments to ensure

that medical facilities for the elderly and geriatric care is made available.

41. It is further submitted by the petitioner that assuming for the sake

of argument that the provisions of the MWP Act are in place and are

being implemented as they should be, the elderly are not aware of their

human rights guaranteed not only by the Constitution but also by the

MWP Act. It is pointed out that Section 21 of the MWP Act requires the

State Governments to give publicity to the provisions of the said Act

through all modes of public media. There is also a mandate for effective

coordination between various ministries and departments of the State

W.P(Civil) No.193 of 2016 Page 21 Government to address the issues relating to the welfare of the elderly

and more importantly, a periodic review is required to be conducted.

42. The submission of the petitioner is that there is hardly any publicity

given to the provisions of the MWP Act and despite efforts by several

organisations such as HelpAge India, the rights of the elderly to shelter

and medical facilities as well as geriatric care remains only a pipe dream.

It is submitted that the Government of India must come out with a

workable plan to give publicity to the provisions of the MWP Act so that

the elderly can live the remainder of their life with dignity.

Discussion

43. Having heard the petitioner, the learned Amicus and others

including the learned Additional Solicitor General, we are left in no doubt

that the petition raises significant issues relating to the recognition and

enforcement of the fundamental rights of the elderly. This is perhaps the

first such petition on the subject and interestingly, the submissions of the

petitioner are based entirely on Article 21 of the Constitution and other

supporting constitutional provisions.

44. We accept that the right to life provided for in Article 21 of the

Constitution must be given an expansive meaning. The right to life, we

acknowledge, encompasses several rights but for the time being we are

concerned with three important constitutional rights, each one of them

W.P(Civil) No.193 of 2016 Page 22 being basic and fundamental. These rights articulated by the petitioner

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.

45. 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 MWP Act mandates the protection and

enforcement of the rights of elderly persons. It is quite clear, submitted

the petitioner, 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. In short, if not the

constitutional then at least the statutory rights of elderly persons must be

recognised and implemented.

46. The consensus that emerged during the submissions was that this

Public Interest Petition should not and cannot be taken as an adversarial

litigation. With this agreement we had put it to the learned counsel and

W.P(Civil) No.193 of 2016 Page 23 parties before us to suggest ways and means to ensure that the rights of

the elderly are addressed keeping in view the financial requirements and

the availability of finances with the Government of India and the State

Governments. One solution proffered was that this Court should issue a

continuing mandamus so that there is effective implementation of the

constitutional rights of the elderly and the provisions of the MWP Act.

47. We are in agreement with the consensus view that emerged during

the course of discussions and submissions and are of opinion that 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.

48. We wish to make it clear that we are not at all critical of the efforts

made by the Government of India or by the State Governments, nor is this

Public Interest Petition intended to undermine the efforts being made or

W.P(Civil) No.193 of 2016 Page 24 contemplated. Nevertheless, we are of the view that given the

constitutional importance of the issues raised, focused and perhaps more

vigorous efforts are needed.

49. In this context, we may note that the learned Additional Solicitor

General submitted that 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.

50. To take this forward, we are of opinion that it would be appropriate

to issue some initial directions so that effective contributions are made to

recognise and enforce the rights of elderly persons.

Directions

51. Taking note of the submissions made by the parties before us and

while complimenting them for a spirited support of the rights of the

elderly, we issue the following directions for the time being:

1. The Union of India will obtain necessary information from

all the State Governments and the Union Territories about

W.P(Civil) No.193 of 2016 Page 25 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 as detailed in the Status Reports, 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. Section 30 of the MWP Act enables the Government of India

to issue appropriate directions to the State Governments to

carry out and execute the provisions of the MWP Act. The

Central Government must exercise its power in this regard

and issue appropriate directions to the State Governments for

the effective implementation of the provisions of the MWP

Act. Alongside this, the Central Government must, in terms

of Section 31 of the MWP Act, conduct a review for the

W.P(Civil) No.193 of 2016 Page 26 purposes of monitoring the progress in implementation of

the MWP Act by the State Governments.

5. Some of the schemes referred to hereinabove are

comparatively dated. It is high time that the Government of

India has 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.

52. The Status Reports should be filed by the Union of India through

the learned Additional Solicitor General on or before 31st January, 2019.

53. List the matters for further proceedings on receipt of the Status

Reports.

………………………J. (Madan B. Lokur)

New Delhi; .……………………..J. December 13, 2018 (Deepak Gupta)

W.P(Civil) No.193 of 2016 Page 27 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) No. 81 OF 2015

Sanjeeb Panigrahi .... Petitioner

versus

Union of India & Ors. .... Respondents

ORDER

For orders and directions, see W.P. (C) No.193 of 2016 –

Dr. Ashwani Kumar v. Union of India & Ors.

………………………J. (Madan B. Lokur)

New Delhi; .……………………..J. December 13, 2018 (Deepak Gupta)

Page 28