REPORTABLE

            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             

J U D G M E N T

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 26th 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

spoke  on  the  subject  of  justice  and  particularly  social  justice  in  the

following words:

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“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

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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.

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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

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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

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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

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14. Reference  was  made  by  the  petitioner  to  Aruna Ramachandra

Shanbaug v. Union of India2 and  Common Cause v. Union of India3

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 India4

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

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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

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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

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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

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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

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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

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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

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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.

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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

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right and a constitutional right, the petitioner referred to a few decisions

which we detail hereinbelow.

29. In  Vincent Panikurlangara v. Union of India9 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             

O R D E R

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