Madras High Court
S. Krishnamurthy vs Dr. Manivasan on 30 June, 2022
Cont.P.No.515 of 2018 and WP.No.16984 of 2017 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2022
CORAM :
THE HON'BLE MR. JUSTICE R.MAHADEVAN
and
THE HON'BLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Contempt Petition No. 515 of 2018
in W.P. No. 22967 of 2015
and
Writ Petition Nos. 16984 of 2017 and
suo motu WP.No.28237 of 2017 and
Writ Petition Nos. 30458, 30469, 30874 and 30884 of 2019
and
WMP.Nos.30976, 30977, 30978, 30973, 30974, 30975 and 30481 of 2019
Contempt Petition No. 515 of 2018
S. Krishnamurthy
Son of N. Sundaresan
1A, Shriniwas Flats
11/30, Sadulla Street
T. Nagar, Chennai - 600 017 .. Petitioner
Versus
Dr. Manivasan
The Principal Secretary
Social Welfare & Nutritious Meal Programme Department
Fort St. George, Chennai - 600 009 .. Respondent
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Writ Petition No. 16984 of 2017
S. Sivaraman .. Petitioner
Versus
1. The Secretary to Government
Social Welfare and Nutritious Meal Programme Department
Secretariat, Fort St. George
Chennai - 600 009
2. The District Collector
Office of the District Collector
Coimbatore - 641 041
3. M/s. Tapovan Residents Welfare Association
rep. by its President N. Padmanabhan Iyer @ N.P. Iyer
No.18, Tapovan Complex
Karadimadai Road, Kuppanur Post
Coimbatore
4. Tvl. Swasthya Retirement Homes Private Limited
140/3, Sholanur Village
Pollachi - 642 002
(RR3 and 4 were impleaded as per the order dated
05.02.2020 made in WMP Nos. 10468 and 8596 of 2019
in WP No. 16984 of 2017)
5. Tapovan Senior Citizens Foundation Trust
represented by its Secretary R. Subramanian
Having Office at 2A, Tapovan Complex
Karadimadai Road, Kuppanur Post
Coimbatore - 641 010
(R5 impleaded as per order dated 29.04.2022
made in WMP No. 7164 of 2022 in
WP No.16984 of 2017) .. Respondents
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Suo motu WP.No.28237 of 2017
1.The Principal Secretary,
Social Welfare and Nutritious Meal Programme Department
Fort St.George, Secretariat
Chennai – 600 009.
2.The Director of Social Welfare,
Guindy, Chennai – 600 032
3.The District Collector,
Coimbatore.
4.The District Social Welfare Officer,
Coimbatore.
5.Dhyanaprastha Foundation,
promoted by Mr.A.V.Ramaswamy,
No.3, Pyramid Complex,
Vadavalli, Coimbatore – 641 041. ...Respondents
WP .No. 30458 of 2019
M/s. Dhyanaprastha Foundation
rep. by its Secretary Mr. R. Venkataraman
A-1, Vanaprastha
Kasthuri Naicken Palayam
Coimbatore - 641 041 .. Petitioner
Versus
1. State of Tamil Nadu
rep. by its Secretary to Government
Social Welfare and Nutritious Meal Programme Department
Ministry of Social Welfare and Nutritious Meal Programme
Department
Fort St. George, Chennai - 600 009
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2. Director of Social Welfare
Chepauk, Chennai - 600 005
3. The District Collector
Office of the District Collector
Coimbatore - 641 041
4. S. Krishnamurthy .. Respondents
WP No. 30469 of 2019
M/s. Brindhavan Senior Citizen Foundation
rep. by its Vice-President Mr. R. Parthasarathy
Guhan Gardens, Lakshmi Nagar
Thondamathur Road, Coimbatore .. Petitioner
Versus
1. State of Tamil Nadu
rep. by its Secretary to Government
Social Welfare and Nutritious Meal Programme Department
Ministry of Social Welfare and Nutritious Meal Programme
Department, Fort St. George, Chennai - 600 009
2. Director of Social Welfare
Chepauk, Chennai - 600 005
3. The District Collector
Office of the District Collector
Coimbatore - 641 041
4. S. Krishnamurthy .. Respondents
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WP .No. 30874 of 2019:-
M/s. Sree Dharma Sastha Trust
rep. by its President Mr. R. Venkataraman
Ayyappa Complex
6/2027B, Lalan Road
Mattancherry, Cochin - 682 002 .. Petitioner
Versus
1. State of Tamil Nadu
rep. by its Secretary to Government
Social Welfare and Nutritious Meal Programme Department
Ministry of Social Welfare and Nutritious Meal Programme
Department
Fort St. George, Chennai - 600 009
2. Director of Social Welfare
Chepauk, Chennai - 600 005
3. The District Collector
Office of the District Collector
Coimbatore - 641 041
4. S. Krishnamurthy .. Respondents
WP. No. 30884 of 2019:-
M/s. Vanaprastha
rep. by its Managing Director Mr. A.V. Ramaswamy
267-B, Dr. Ambedkar Road
Coimbatore - 641 025 .. Petitioner
Versus
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1. State of Tamil Nadu
rep. by its Secretary to Government
Social Welfare and Nutritious Meal Programme Department
Ministry of Social Welfare and Nutritious Meal Programme
Department
Fort St. George, Chennai - 600 009
2. Director of Social Welfare
Chepauk, Chennai - 600 005
3. The District Collector
Office of the District Collector
Coimbatore - 641 041
4. S. Krishnamurthy .. Respondents
Contempt Petition No. 515 of 2018:- Contempt Petition filed under Section
11 of The Contempt of Courts Act, 1971 praying to punish the respondent or
any other authority as this Court deems fit for Contempt of Court, for
deliberately disobeying the order dated 28.11.2016 passed in WP No. 22967
of 2015.
WP No. 16984 of 2017: Petition filed under Article 226 of The Constitution
of India praying to issue a Writ of Mandamus directing the respondents to
effectively and strictly implement the G.O. Ms. No. 83 in Social Welfare
and Nutritious Meal Programme Department dated 23.11.2016 in the State
of Tamil Nadu.
Suo motu WP.No.28237 of 2017: Petition under Article 226 of the
Constitution of India praying to issue a writ of mandamus directing the
respondents to implement G.O.Ms.No.83 dated 23.11.2016 issued by the
Social Welfare and Nutritious Meal Programme Department that (1)All
senior citizen homes must register with the District Social Welfare Officer
(DSWO). All bi-lateral agreements between the senior citizen and the Home
must be compulsorily registered with the appropriate authority (2)Food and
other essential services to the residents should not be stopped under any
circumstances (3)Fund provides should be inducted as majority in the
management for financial transparency (4)there should be proper medical
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facilities, supply of purified drinking water and other various basic
requirements of senior citizens; and file a report for the above compliance
before this court.
WP No. 30458 of 2019:- Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus
calling for the records of the first respondent pertaining to the Government
Order dated 23.11.2016 in G.O. (Ms) No.83, issued by the Social Welfare
and Nutritious Meal Programme (SW6(1) Department viz., the first
respondent herein, under the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 and Tamil Nadu Maintenance of Welfare of
Parents and Senior Citizens Rules, 2009 and quash the same and direct the
third respondent not to take any action against the petitioner under the G.O.
(Ms) No. 83 dated 23.11.2016 issued by the first respondent.
WP No. 30469 of 2019:- Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus
calling for the records of the first respondent pertaining to the Government
Order dated 23.11.2016 in G.O. (Ms) No.83, issued by the Social Welfare
and Nutritious Meal Programme (SW6(1) Department viz., the first
respondent herein, under the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 and Tamil Nadu Maintenance of Welfare of
Parents and Senior Citizens Rules, 2009 and quash the same and direct the
third respondent not to take any action against the petitioner under the G.O.
(Ms) No. 83 dated 23.11.2016 issued by the first respondent.
WP No. 30874 of 2019:- Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus
calling for the records of the first respondent pertaining to the Government
Order dated 23.11.2016 in G.O. (Ms) No.83, issued by the Social Welfare
and Nutritious Meal Programme (SW6(1) Department viz., the first
respondent herein, under the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 and Tamil Nadu Maintenance of Welfare of
Parents and Senior Citizens Rules, 2009 and quash the same and direct the
third respondent not to take any action against the petitioner under the G.O.
(Ms) No. 83 dated 23.11.2016 issued by the first respondent.
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WP No. 30884 of 2019:- Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus
calling for the records of the first respondent pertaining to the Government
Order dated 23.11.2016 in G.O. (Ms) No.83, issued by the Social Welfare
and Nutritious Meal Programme (SW6(1) Department viz., the first
respondent herein, under the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 and Tamil Nadu Maintenance of Welfare of
Parents and Senior Citizens Rules, 2009 and quash the same and direct the
third respondent not to take any action against the petitioner under the G.O.
(Ms) No. 83 dated 23.11.2016 issued by the first respondent.
For Petitioner : Mr. J. Narayanasamy
Amicus Curiae in Cont.P. No. 515 of 2018
Mr. S. Arokia Maniraj
in WP No. 16984 of 2017
Mr. N.L. Rajah, Senior Counsel
for Mr. K.R. Arun Shabari
in WP Nos. 30458, 30469, 30874, 30884
of 2019
For Respondents : Mr. V. Arun
Additional Advocate General
assisted by Mr. P. Balathandayutham
Special Government Pleader in all cases
Mrs. Aparna Nandakumar for R4
in WP No. 16984 of 2017
Mr. N.L. Rajah, Senior Counsel
for Mr. K.R. Arun Shabari for R5
in Suo motu WP No. 28237 of 2017
Mr. C.G. Kumar for R5 in
WP.No.16984 of 2017
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COMMON ORDER
R.MAHADEVAN, J.
For the sake of convenience, this order is arranged under the following
heads:
Sl.No. SUB HEADINGS PARAGRAPHS
I PREFACTORY NOTE 1-2
II DETAILS OF CASES TO BE DECIDED & 3 - 18
PLEADINGS OF PARTIES
III VALIDITY OF THE IMPUGNED 19 - 63
GOVERNMENT ORDER
A SUBMISSIONS AND CONTENTIONS 19 - 25
B DISCUSSION AND FINDINGS 26 – 63
i. On power to issue impugned order
27 – 43
ii. On alleged violation of Article
44 – 53
19(1)(g)
iii. On alleged inconsistency with 54 - 63
RERA Act
IV DOCTRINE OF ‘PARENS PATRIAE’ 64 - 67
AND WELFARE OF SENIOR CITIZENS
V POSITION IN OTHER COUNTRIES 68 - 77
A LEGAL POSITION IN THE UNITED 68 - 73
KINGDOM
B LEGAL POSITION IN THE UNITED 74 - 77
STATES OF AMERICA
VI CONCLUDING REMARKS 78 - 80
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I. PREFATORY NOTE
1. To expect a tree to flourish without nurturing its roots, is an analogy
comparable to the present generation disregarding and treating with
contempt their parents, elders and senior citizens of society. It is often said
that the measure of a society is the way in which it treats its most vulnerable,
and going by that standard, it would not be an exaggeration to State that we,
as a society, have failed in measuring up to the expectation of our ancestors
and elders, who laboured hard to imbibe those very values of respect and
compassion in us.
2. The present case is an instance, where one of the important pillars of
the State, has decisively exercised its ‘parens patriae’ jurisdiction acting as
the parent of the State and every one of its citizens. This court is conscious
of the limitations of its role and powers, seen from the angle that a society
that does not keep up with its duty to protect its elderly can never be
positively transformed by judicial edicts alone. In any case, this court is
embarking on the journey to safeguard the interests of elderly and senior
citizens with the fervent hope that the Indian society will realize its moral
duties towards its elders and the State will play a proactive role in ensuring
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health, self-sufficiency as well as dignity to every senior citizen of this
country.
II. DETAILS OF CASES TO BE DECIDED & PLEADINGS OF
THE PARTIES
3. The issues involved in all these cases are identical and common,
therefore, they are taken up for hearing together and disposed of by this
common order.
Contempt Petition No. 515 of 2018 in WP. No. 22967 of 2015
4. According to the contempt petitioner by name Krishnamurthy, he
originally filed a Public Interest Litigation in WP No. 22967 of 2015
praying to issue a Writ of Mandamus directing the respondents to frame
regulation and appoint a regulatory authority to monitor the functioning of
the Senior Citizen homes. By order dated 16.10.2019, this Court appointed
Mr. J. Narayanaswamy, Advocate as Amicus Curiae to suggest three more
advocates to constitute a team of Amicus Curiae to cross verify the
compliances made by the respondents and to file an affidavit with regard to
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specific cases of non-compliance or lack of facilities in the old age homes
for the benefit of senior citizens. Subsequently, slew of orders and/or
directions were issued by this Court in WP No. 22967 of 2015, pursuant to
which the Government had reported about the modifications brought to the
existing G.O. (Ms) No.83, Social Welfare and Nutritious Meal Programme
(SW 6(1)) Department dated 23.11.2016. By recording the same, this court
disposed of the said writ petition viz., WP No. 22967 of 2015 in the
following terms:
“a. The modified G.O. (Ms.) No.83, Social Welfare and Nutritious
Meal Programme (SW 6(1)) Department dated 23.11.2016 has been
issued and the petitioner expresses his satisfaction with the same. He,
however, expresses a dual concern: (a) there should be a sincere
endeavour to inspect the existing Homes to ensure that they are
compliant; and (b) an endeavour should be made to locate the
unregistered Homes and they should be visited for consequences of
non-registration.
b. Learned Government Pleader assures that on both the aspects,
serious effort would be made.
c. We appreciate the constructive role played by the State
Government and the counsels for the State Government and the
Central Government, as also the petitioner and his counsel in taking
up the issue, the resultant of which is the G.O. which has now been
issued.
d. Writ petition is, accordingly, closed. No costs.”
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5. For the alleged non-compliance of the aforesaid order dated
28.11.2016 passed in WP No. 22967 of 2015, this contempt petition came
to be filed by the petitioner.
6. The grievance of the petitioner in the contempt petition is that the
Government or the instrumentalities of the Government have not taken any
efforts to inspect the unregistered or registered homes to satisfy that the
guidelines issued by the Government in G.O. Ms. No. 83 dated 23.11.2016
have been complied with in its letter and spirit. It is further stated that in
paragraph 10 of the said G.O. Ms. No.83 dated 23.11.2016, the Government
has merely delegated the task of inspecting and/or monitoring the old age
homes with the Director of Social Welfare as well as the District Collector.
Therefore, the petitioner has written letters requiring the authorities to
implement the order of this Court, particularly by referring to Rule No.
IX(i), which provides for management of governance. As per Rule IX (i),
the management should be broad based with majority of elected
representatives of fund providers with transparency in financial matters. The
said Rule empowers the senior citizens, who are fund providers, to have an
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effective voice and participate in the decision making process especially
when they have parted with their hard earned money and terminal benefits to
these private homes. However, the directions issued by this Court have not
been complied with. Therefore, the present contempt petition is filed.
7. The first respondent filed a reply affidavit denying the averments
made in the affidavit filed in support of the contempt petition. It is stated
that some of the senior citizens like the petitioner, entered into agreement
with the management of the private homes, which contains several clauses
including payment of security deposit. In such cases, at the expiry of the
period of agreement, the occupier has to either vacate the old age home or
get the agreement extended for a further period. Therefore, the conditions
based on which a contract has been entered into by the petitioner with a
third person will bind him. Most of the occupiers of old age home are
executing leave and license agreement for 20 years. The land belongs to the
trust/foundation and only the building was leased out. In the case of
Dhyanaprastha Foundation, a society registered under the Tamil Nadu
Societies Registration Act, on 08.10.2002, under which the petitioner
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became a lessee, paid a caution deposit of Rs.6,89,000/- and licence was
executed in his favour for 20 years. Out of the caution deposit, a sum of
Rs.24,000/- will be deducted towards maintenance and the remaining
amount will be refunded after expiry of 20 years as per the agreement dated
25.05.2014. It is further stated that Dhyanaprastha Foundation consists of
several committees and the petitioner is one of the members in the Kitchen
committee of the said foundation. Further, most of the members of the
committees are elected by the inmates among themselves and they are
looking after the administration of the Trust/Old age home. While so, the
present attempt of the petitioner is to interfere with the business transaction
of the trust while being a lessee. The petitioner being a lessee and having
entered into an agreement with the Trust, the dispute, if any, has to be
resolved by themselves and interference of the respondents cannot be called
upon.
8. It is further stated by the first respondent that even though the
Government cannot interfere with the contractual dispute between two
private parties, on the basis of the order dated 24.06.2019 passed by this
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Court, a show cause notice dated 07.08.2019 was issued to Dhyanaprastha
Foundation, Coimbatore calling upon them to show cause as to why action
should not be taken against them for contravention of clause IX (i) of G.O.
Ms No.83, Social Welfare and Nutritious Meal Programme 6(1) Department
dated 23.11.2016 or to close down the Senior Citizen home run by them.
But, so far, no reply has been received to the said show cause notice. It is
further stated in the reply statement of the first respondent that a reply is
awaited from the Old Age Home or if the Foundation fails to submit the
reply, appropriate action deemed fit will be taken up by the District
Collector, Coimbatore as per law.
WP No. 16984 of 2017
9. This writ petition has been filed as a Public Interest Litigation.
According to the petitioner, he is a Senior Citizen and is in receipt of
pension every month. It is stated that there are more than 18 paid senior
citizens homes mushroomed in Coimbatore District and the services
rendered in those homes are paid service. In other words, each and every
service rendered in those homes are chargeable or paid service. The
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petitioner further averred that the promoters of those Old Age Homes are
fleecing the inmates and demanding exorbitant amount as service charges.
Even the petitioner and his wife are living in the Old Age Home called
Tapovan since February 2014 and at the time of their induction, they have
entered into a lease deed for 20 years with one Mr. M.N. Varadarajan and
paid Rs.20 lakhs. However, after staying there for three years, the petitioner
came to know that the said Varadarajan is not the owner of the property. On
enquiry, the petitioner came to know that one Mr. Adithya is the owner of
the facility and he had given a General Power of Attorney in favour of the
said Varadarajan. Thus, it is stated that the grievance, if any, could not be
ventilated by the inmates of the Private Old Age Homes and there should be
a mechanism put in place.
Suo motu WP No. 28237 of 2017
10. This suo motu writ proceeding is registered on the basis of a letter
dated 25.10.2017 written by one Mr.Sangameswaran Krishnan, who is a
resident of a paid senior citizen's home, known as Pyramid Complex in
Coimbatore, praying for a direction to the respondents to implement G.O.
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Ms. No. 83 dated 23.11.2016 issued by the Social Welfare and Nutritious
Meal Programme Department with a direction to all senior citizen homes to
be registered with the District Social Welfare Officer; all bi-lateral
agreements between the senior citizen and the Home to be compulsorily
registered with the appropriate authority; food and other essential services to
the residents should not be stopped under any circumstances; fund providers
should be inducted as majority in the management for financial
transparency; to provide proper medical facilities, supply of purified
drinking water and other basic requirements of senior citizens and to file a
report of compliance before this Court.
11. In the said letter dated 25.10.2017, it is allged by the said
Mr.Sangameswaran Krishnan that lured by the pep talk of the promoter of
the home A.V. Ramaswamy, they moved into the senior citizen home during
the year 2006 after paying Rs.13 lakhs as interest free security deposit. At
the time of their accommodation, fancy promises were made by the promoter
of the home offering quality food, security, religious recreational activities
and opportunity to interact with similar age group of persons. Therefore, he
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signed a long term lease for 20 years with provision for renewal for a further
period of 20 years at the option of the lessee on the same terms or with
altered conditions. The lease deed was not registered though it is
compulsory, which resulted in loss of revenue to the exchequer. Further, the
promoter Ramasamy flouted all the provisions of law and now, he is
showing his resistance and unwillingness to implement the order passed by
the Government in G.O. Ms. No.83 dated 23.11.2016, with the result, the
hapless and vulnerable senior citizens are severely affected with nowhere to
turn except to approach this Court.
12. In response, two status reports were filed, one by the first respondent -
Principal Secretary to the Government of Tamil Nadu, Social Welfare and
Nutritious Meal Programme Department and another by the Director of
Social Welfare, Chennai - 600 032. In the status report of the second
respondent, it was stated that in the 32 Districts of the State, there are 118
Old Age Homes are being run by Non-Governmental Organisations with
State and Central Government Grant-in-aid and they are duly registered in
accordance with G.O. Ms. No.83 dated 23.11.2016. According to the second
respondent, implementing G.O. Ms. No.83 dated 23.11.2016 would result in
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mandatory registration of the Old Age Homes bringing such homes within
the administrative control of the Social Welfare Department, which
inter alia require compliance of Rule 16 of the Tamil Nadu Maintenance
and Welfare of Parents and Senior Citizens Rules, 2009, the minimum area
per inmate, provision for proper ventilation, floors with wooden carpets to
cover slippery surfaces, safe drinking water, medical care and special
assistance, special toilets and ramps for differently abled persons, dignified
burial of the bodies in the event of death etc. The said compliances are also
verified by the District Social Welfare Officer periodically. Further,
registration of the Old Age Homes would result in adherence of several
compliances such as proof of building stability certificate, fire safety
certificate, sanitation certificate, qualification of the staff, salary given to
them, photographs of the staff, audited statement once in three years, annual
report once in three years, nutrition charge, submission of report by the
District Social Welfare Officers etc. In case of absolute purchase of
retirement homes by individual, the owner should have absolute right to sell
the unit and any breach of agreement would result in de-
registration/cancellation of the entity. As per Rule 23 of the Tamil Nadu
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Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, the
District Committee of Senior Citizens is the regulatory authority established
in all the District with the District Collector as Chairman. Apart from
periodical monitoring and inspection of old age homes, the G.O. Ms. No.83
also provides for resolution of the petitions received in the office of the
District Social Welfare Officer and out of the 2224 cases, around 1003 cases
have been amicably settled and 1221 cases, which could not be settled
through counselling, were referred to Sub-Divisional Tribunals headed by
the Revenue Divisional Officer and District Tribunals headed by the District
Collector. It is further averred that there are Old Age Homes which are free
from any complaint from the inmates. However, in some Homes, when the
management hikes, the charges due to increase in grocery and other
provisional items, dispute arose between the inmates and management.
Even in the present case, the dispute is attributable due to increase in food
charges by the Promoter and non-payment of the party. However,
instructions were issued to the Promoter not to stop supply of food at any
cost and to ensure that basic amenities are continued to be provided. The
respondents are also insisting those Old Age Homes, which are not
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registered, to get it registered mandatorily. Thus, it is stated that effective
steps were taken to redress the complaints then and there as provided in
G.O. Ms. No.83, Social Welfare and Nutritions Meals Programme
Department dated 23.11.2016.
Writ Petition Nos. 30458, 30469, 30874 and 30884 of 2019
13. These writ petitions are filed by the petitioners, who are running and
maintaining private old age homes for senior citizens. They are aggrieved by
the order dated 23.11.2016 passed in G.O. Ms. No.83, Social Welfare and
Nutritious Meal Programme Department, issued by the Government.
14. The main grievance projected in these writ petitions is that G.O. Ms.
No. 83 dated 23.11.2016 has been passed invoking the provisions of The
Maintenance and Welfare of Parents and Senior Citizens Act and Rules,
which according to them, has no application to the running of old age
homes. It is vehemently contended that those Senior Citizens, who are
admitted in their homes, are not indigent, but are affluent inasmuch as they
retired from government service after holding top posts. The children of
most of the inmates were settled in foreign countries and therefore, they
anticipated a decent shelter at their advanced age. Their accommodation in
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the Old Age Homes is preceded by agreements for leave and licence which
contain several terms and conditions. As per the agreement, a fixed amount
will be remitted towards caution deposit and utilising the same, the inmates
will be provided with all the basic amenities such as food, round the clock
security, clean drinking water, ambulance services, medical care, amusement
and entertainment, religious activities such as prayers etc., to suit their
needs. The petitioners also utilise the amount so deposited for payment of
salaries to the staff employed at the complex and to meet the other incidental
expenses.
15. The petitioners further averred that the petitioner in Contempt Petition
No. 515 of 2018, has filed WP No. 22967 of 2015 for framing regulations
and appointment of regulatory authority to monitor the functioning of the
Senior Citizen homes and on the basis of the directions issued by this Court,
the Government issued the impugned G.O. Ms. No.16 dated 09.02.2016
which provides for periodical visit to the old age homes to ensure
compliance of various procedural requirements. On the basis of the
directions issued by this Court, the impugned G.O. Ms. No. 83 dated
23.11.2016 was issued.
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16. It is further submitted that the Maintenance of Parents and Senior
Citizens Act, 2007 envisages setting up of old age homes by the State
Government to accommodate indigent senior citizens. In the case of the
petitioners, they are only accommodating affluent senior citizens who have
the wherewithal and are resourceful enough to remit the amount towards
caution deposit. The applicability of the scheme can at best be extended to
Homes or Shelters established by the Government to accommodate the
indigent persons or those who have no wherewithal or abandoned by their
children. The scope of the Act, therefore, cannot be extended to private
homes run by the petitioners. In the case of the petitioners, they enter into
Leave and Licence agreement with the Senior Citizens, who require shelter,
which contains several clauses and it would bind the Old Age Home as well
as the lessee. In such circumstances, the periodical visit or interference of
the instrumentalities of the Government is not required and it offends the
fundamental rights as guaranteed to the petitioners under Article 19 (2) (g)
of The Constitution of India.
17. A counter affidavit was filed by the Additional Chief Secretary to the
Government of Tamil Nadu, Social Welfare and Women Empowerment
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Department on behalf of the respondents. According to the respondents, the
petitioners have registered themselves under the Societies Registration Act
for the purpose of running, maintaining and managing the senior citizens
homes. When the petitioners involved themselves in such activities, it is
always open to the respondents to cause periodical inspection and whether
the medical care and other amenities are properly provided, notwithstanding
the leave and licence agreement entered into between the occupants and the
writ petitioners. Thus, it is stated that the State Government has a bounden
duty to discharge in protecting the senior citizens from being harassed or
victimised in any manner. Therefore, it cannot be said that the Senior
Citizen Homes run by the petitioners must be free from the purview of any
interference, inspection or supervision by the Government.
18. The moot question therefore that arises for consideration before this
Court at this stage is the validity of G.O. Ms. No. 83 dated 23.11.2016. If
this question is decided, the issues raised in the contempt petition as well as
the other two writ petitions seeking implementation of the said G.O. would
automatically be settled.
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III. VALIDITY OF THE IMPUGNED G.O.
A. SUBMISSIONS AND CONTENTIONS
19. Mr. J.Narayanaswamy, learned Amicus Curiae submitted that the
State must act upon the Model Guidelines for retirement homes and
formulate appropriate rules/legislations. He further submitted that the
Amendment Bill to the 2007 Act is presently pending before the Parliament,
however, the proposed definition of 'senior citizens care homes' will not
mean to cover the retirement homes. He drew the attention of the court to
the Preamble and section 19(1) of the Act which envisages the powers of the
District Collector and his/her duties under the 2007 Act and submitted that
these provisions clearly reflect that they are intended to ensure security and
dignity of senior citizens, which are broad and will not be limited to just
government run homes. It is further submitted that subsequent to the order
dated 28.11.2016, the government has collected data and/or statistics about
the old age homes which are registered and those homes which are non-
registered. The Government also proposed to cut off electricity and water
supply to those homes which are not registered. Further, the primary
grievance of the contempt petitioner pertains to non-implementation of
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clause IX (i) of the G.O. Ms. No.83, which would allow the residents to take
care of their own needs. The endeavor of the contempt petitioner is to ensure
formation of an association for maintenance and administration of the day-
to-day affairs of the retirement homes. The fact remains that the government
itself agrees that G.O. Ms. No.83 needs a re-look and improvement and the
senior citizens should form part of day to day activities. However, G.O. Ms.
No.83 does not specify the term “day-to-day” enabling the residents to
manage the daily affairs.
20. While agreeing that G.O. Ms. No. 83 may need some improvements,
the learned Amicus Curiae submitted that it will be incorrect to say that the
G.O. has no legs to stand as it came into existence only through an order of
this Court. He also submitted that Senior citizens form a different class of
persons, who will be governed by the Maintenance and Welfare of Senior
Citizens Act, 2007. Section 19(2) of the said Act stands on a different
footing, as per which, the state government is empowered to ensure
standards for all homes for senior citizens. Further, the duty of the District
Collectors prescribed under the Rules is wide enough to understand that the
state governments have powers to make regulations for privately run old age
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homes and retirement homes. He also submitted that the G.O. will still be
applicable to retirement villa communities as the initial G.O. Ms. No. 16 did
and by extension, G.O. Ms. No. 83 should also cover the villa communities.
In the event of any grievance of the inmates of the Homes, there are nodal
authorities to address the issues of the senior citizens.
21. The learned Amicus Curiae also submitted that the model guidelines
for retirement homes prepared by the Ministry of Housing and Urban Affairs
state that there are no regulations for private homes. The introduction to the
impugned G.O. itself makes it clear that it is applicable to private homes too.
It cannot be said that G.O. Ms. No. 83 is ultra vires the Act. It came into
existence as a result of judicial action initiated by this Court. Therefore, the
order of this Court itself provides legs and legal sanctity for the G.O. to
stand. It is not that the senior citizens volunteer to be a part of the
management. They are just forced to claim a position of influence there as
their needs are not being taken care of. Apart from the said submissions,
with able assistance, the learned Amicus Curiae also produced various
materials to substantiate his arguments.
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22. The learned counsel appearing for the Contempt Petitioner submitted
that the committee managing the retirement homes contains only the
promoter and their relatives. The welfare association constituted in such Old
Age Homes has control and supervision only insofar as it relates to kitchen
and maintenance activities and nothing else. He also brought to the notice of
this Court several issues, such as, non-availability of nurse or a doctor on
call during night hours; leakage of ceilings that have not been fixed despite
repeated complaints; water logging issues that could result in senior citizens
slipping while walking; broken glass/window panes. The learned counsel
further submitted that in this background, the implementation of para 9 (i) of
the Government Order will only enable the inmates of the Old Age Home be
made a part of the management. The learned counsel also submitted that
there are certain homes where the agreements are not given to the
leaseholders inspite of demands and no associations are allowed to be
formed. The Government, having issued G.O. Ms. No.83, failed to give
effect to it and thereby committed contempt of the Order passed by this
Court.
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23.1. Mr. N.L. Rajah, learned Senior counsel appearing for the
Petitioners in WP Nos. 30458, 30469, 30874 and 30894 of 2019 would
contend that the impugned Government Order cannot be made applicable to
Old Homes run by the petitioners inasmuch as there is no legal basis on
which the guidelines have been made. He brought to the notice of this Court
that there are two categories of old age homes viz., those that are run by the
Government through the Social Welfare Department or other Departments
and those which are run by private agencies like the petitioners. The
constitution of these two categories of Old Homes are different. The Private
Old Age Homes like the one run by the petitioners are maintained by Trusts
or Societies registered under the Tamil Nadu Cooperative Societies Act. The
inmates are accommodated after entering into agreements, which govern
their stay. While so, the invocation of the Maintenance and Welfare of
Parents and Senior Citizens Act and Rules is untenable and it is not intended
to regulate the private Old Age Homes run by private agencies like the
petitioners herein.
23.2. The learned Senior counsel further submitted that the impugned
order in G.O. Ms. No. 83 is arbitrary and incapable of being implemented
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and complied with. In this context, attention was drawn to the condition that
requires separate rooms/dormitories to be given for men and women and he
questioned as to how it will be possible for couples who wish to live
together. Therefore, it is submitted that these guidelines are inapplicable to
old age homes that are commercially run to suit the specific needs of the
Senior Citizens.
23.3. The learned Senior counsel also submitted that the
constitutional guarantees conferred to the petitioners under Article 19(1)(g)
cannot be interfered with by the Government by passing a Government
Order, if at all, it must be through a legislation. Thus, the impugned
Government Order which is made applicable to commercial homes,
providing for inspection or periodical visits offends Article 19 (1) (g) of the
Constitution of India, will be beyond the ambit of the parent Act, which
does not envisage such applicability. The learned Senior counsel further
submitted that even in the report submitted by the Government, it was
specifically mentioned that it is applicable only to those NGOs which are in
receipt of grant and subsequently, the government undertook to frame
separate guidelines for privately run homes.
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23.4. According to the learned Senior counsel, it is improper to say
that inmates or occupiers are not involved in management of day-to-day
affairs. In the case of Dhyanaprastha foundation, the residents themselves
are managing the common area and kitchen. In Vanaprastha and another
home, the residents are not inclined to take up management. In case of
Brindhavan, there exists an association that is dealing with daily affairs.
While so, in G.O. Ms. No. 83, paragraph IX (i) is vaguely worded. It says
‘fund providers’ should be elected as representatives in management that is
broad based. However, the G.O. does not define ‘fund providers’ and does
not provide for any mechanism for elections among fund providers. The
earlier G.O. Ms. 18 did not have any objectionable clauses, on which the
comments were also called for from the central and state governments. The
stand of the state government reflected a demarcation between lease-based
and ownership based homes. However, the classification that was espoused
by the state government did not find place in the subsequent G.O. Ms.
No.83. Similarly, the difference between leasehold homes and ownership
homes is not found in G.O. Ms. 83. The writ petitioners receive lease
amounts which are used for development of these homes on one hand and
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used for repayment of loans on the other hand. Thus, the impugned
Government Order would amount to excessive legislation which is not
intended for allegedly protecting the inmates of the Home.
23.5. The learned Senior counsel referred to the object of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007. It is his
contention that it relates only to senior citizens and that objective has to run
through all the provisions of the Act. Section 19 of the Act provides for
establishment of old homes by the state government and that too for indigent
senior citizens only. The same intention is reflected in rule 19 of the Tamil
Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009
(“TN Rules”). It provides for the “scheme for management of old age homes
for indigent senior citizens” i.e., established under section 19 of the Act.
Further, Rule 19 (1)(B) of the Rules provides for a procedure that shall be
followed to select the inmates of the home. Thus, there is nothing in the
rules and the Act providing for the minimum standards for private old age
homes. While so, it cannot be substituted by means of a Government Order.
23.6. Similarly, Paragraph IX (b) of the Government Order provides
that “the managing committee and sub-committee should meet regularly-
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monthly once to discuss the improvements of home and standards”.
However, neither ‘managing committee’ nor ‘sub-committee’ is defined.
The rules under the Maintenance and Welfare of Parents and Senior Citizens
Act, 2007 define ‘Management Committee in Old Age Homes’ differently as
consisting of (i) District Social Welfare Officer (ii) Extension Officer (SW)
(iii) Non Governmental Organization and (iv) Inmates (3 persons). While so,
it will not be practically possible for private homes or retirement homes to
be managed by a committee of this nature. Further, there is no clarity as to
who should be appointed in the managing committee and the sub-committee.
These rules are derived from sections 19 and 32 of the Act and would
therefore not be applicable to the retirement homes in question. Paragraph
I(5) of the Government Order provides that “each old age home should be
secular and respect the faith and religious sentiments of the residents. This
cannot be enforced as against private homes or they cannot be forced to be
secular. The occupants of the private homes might consist of minority
entities wanting to establish retirement homes where they cannot be forced
to be secular.
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23.7. Coming to Paragraph II (3)(3) it is stated that it provides for
“separate rooms/dormitories for males and females” which is impossible in
case couples who want to stay together. Further, it contradicts Rule 19(1)(D)
of the Rules which provide that “the home shall provide separate lodging for
men and women inmates, unless a male and a female inmate are either blood
relations or a married couple”. Further Paragraph II (3)(5) provides that
“dormitories should compulsorily be in the ground floor” which essentially
affects the usage of floor space in retirement homes. Thus, the impugned
Government Order is not something that is envisaged by the Senior Citizens
Act, 2007. The Model Guidelines for Development and Regulation of
Retirement Homes published by the Ministry of Housing and Urban Affairs
makes the intention of the government and the situation clear. The following
parts of the Model Guidelines were highlighted to drive home the intention
of the government with regard to retirement homes:
“The Ministry of Housing and Urban Affairs (MoHUA) has
recognised the fact that ‘Retirement Homes’ comes under the
category of real estate project and are subject to the provisions of the
Real Estate (Regulation & Development) Act, 2016. MoHUA has
prepared these Model Guidelines to enable the State Governments
and Union Territories to make appropriate provisions in their
respective Acts and Regulations to protect the rights of the senior
citizens and retirees, who are residents of Retirement Homes.”
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The Central government seeks to bring regulations under the Real
Estate (Regulation & Development) Act, 2016 by the state government
as it pertains to the concurrent list.
“Article 41 of the Constitution of India, stipulates that the “The State
shall, within the limits of its economic capacity and development,
make effective provision for securing the right to work, to education
and to public assistance in cases of unemployment, old age, sickness
and disablement, and in other cases of undeserved want.” Social
Justice has been made the concurrent responsibility of the Central
and State Governments. In view of this, the Government of India
enacted the ‘Maintenance and Welfare of Parents and Senior Citizens
Act’ (‘MWPSCA’) in 2007. The MWPSCA makes it mandatory for
legal heirs (child/ relative) to provide care to their older parents or
relatives after they attained the age of 60 years or above. The
Ministry of Social Justice & Empowerment (MoSJE) prepared the
‘National Policy for Senior Citizens’ in 2011, which states that
“institutional care [should be seen] as the last resort” for senior
citizens. In furtherance of this policy, the MoSJE implements the
‘Integrated Programme for Old Persons’ (IPOP), which provides
support for the establishment and maintenance of Old- Age Homes,
day-care centres, mobile medical units, regional resource & training
centres and formation of senior citizen associations. The States are
expected to establish and maintain ‘Old-Age Homes’ for the care of
senior citizens, with at least one old-age home for 150 persons to be
provided in every district.6 However, the demand for Old-Age Homes
is not evenly spread across the States/UTs due to different socio-
economic conditions.”
23.8. According to the learned Senior Counsel, the above paragraphs
make the stand of the government clear. The government seeks to take a
segmented approach that is sensitive to different needs of the senior citizens.
The state government has a duty towards the senior citizens who are
indigent. Therefore, it is the responsibility of the state to regulate old age
homes that house indigent senior citizens. As far as retirement homes are
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concerned, it is submitted, appropriate modifications must be carried out in
the rules under the RERA and empower the senior citizens to claim redressal
of their grievances under the RERA. Therefore, the G.O. Ms. 83 cannot be
made applicable to all old age homes and retirement homes. Further, the
basis of the model guidelines as stated in the document was highlighted as
follows:
“Recognising its role and responsibility with regard to the regulation
of real estate in particular and urban development and housing in
general, MoHUA has drafted a set of Model Guidelines, which can be
implemented by the State Governments and Union Territories to
develop and regulate the Retirement Homes in order to ensure senior
citizens an independent and dignified life after retirement”
23.9. Referring to Paragraph II (7) of the G.O. which provides for
bedding facilities, the learned Senior counsel submitted that these provisions
have to be applied only if the States are providing for such facilities. There
are different models of retirement homes that exist (i) where 10 senior
citizens come together and buy certain property which takes a nature of a
joint venture (ii) Private old age homes that are run by NGOs for non-profit
(iii) Where senior citizen buys a house and takes care of the house
independently that is similar to a gated community (iv) Where house
premises are sold and services are rented out. Here, multiple services such as
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medical, pharmacy, recreational and religious facilities are provided. There
is no uniformity in the ways in which these homes operate and therefore
mandating bedding facilities to such homes is totally unacceptable.
23.10. In Paragraph II (8) of the G.O., it requires that “cameras should
be installed in all rooms in the homes”. This is a clear invasion of privacy.
CCTVs can be installed in corridors but not in rooms. Similarly, in
Paragraph II (10) admission criteria is stipulated, which is unacceptable and
cannot be mandated for retirement homes run by private individuals. In
Paragraph III it provides for undertaking productive activities, meditation,
prayers and outings. These cannot be mandated as if they are done for
school children. In Paragraph V, it provides that toiletries must be provided.
Here, the same is a matter of choice of each resident.
23.11. According to the learned Senior counsel, the petitioners are not
against the regulation, but such regulations must be in a manner known to
law which is provided by both state and central governments. Even in the
Preamble to the Senior Citizens Act, 2007 it clearly states that it is for the
“indigent” senior citizens only. The State of Tamil Nadu has recently
released a Draft State Policy on Senior Citizens which seeks to provide
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guidelines, standard operating procedures etc., for both non-profit and
commercial old age homes i.e., run by both government and private entities.
While the state has proposed to standardize the establishment and
management of commercial old age homes, these guidelines which are
arbitrary and ultra vires the Act cannot be legally sustained. The various
provisions under the G.O. are vague and there is a lot of bureaucratic
discretion. Such bureaucratic interference and vagueness will discourage
people from venturing into the sector and defeat the whole purpose. As far
as indigent senior citizens are concerned, the paternalist attitude of the State
in framing guidelines and regulations is appropriate As far as commercial
homes are concerned, State has no power to regulate. Therefore, the learned
Senior counsel for the petitioner submitted that (i) a specific authority can
be designated to receive the complaints and address the grievances (ii) The
impugned Government Order can be quashed or the conditions stipulated
thereof shall be modified.
23.12. Referring to the statement of objects and reasons to the Senior
Citizens Bill it is submitted that the Bill clearly provides that it is enacted
for the “indigent” senior citizens. The whole enactment must be construed in
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light of this proposition in the statement of objects and reasons. Section 19
provides for establishment of old age homes for indigent senior citizens and
Section 19(2) cannot be read in isolation. It must be read harmoniously with
section 19(1). The sub-section (2) follows sub-section (1) and the legislature
has not provided it as a separate section. Both central and the state
governments are in the process of legislating enactment for commercial old
age homes. In such cases, it is inappropriate for state governments to pre-
empt and enact. The Draft Policy for Planned Development of Retirement
Housing through grant of license under the Haryana Development and
Regulation of Urban Areas Act, 1975. The same has not been issued under
the Senior Citizens Act, 2007. This makes it sufficiently clear that these
homes form a separate category all together.
23.13. With regard to redressal of grievances, the senior counsel
submitted that the same can be addressed in the following manner: Toll-free
numbers for senior citizens to make complaint have been instituted. Upon
receiving complaints, the state government can take action on those
complaints to redress the grievances. If they cannot be resolved, there is
sufficient scope for the state government itself to approach authorities under
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the Consumer Protection Act, 2019. Section 2(5) which defines
“complainant” to mean:
“(i) a consumer; or
(ii) any voluntary consumer association registered under any law for
the time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous consumers
having the same interest; or
(vi) in case of death of a consumer, his legal heir or legal
representative; or
(vii) in case of a consumer being a minor, his parent or legal
guardian;”
23.14. Therefore, the learned senior counsel would submit that the
definition of “complainant” is broad enough to include state and central
governments. If the service provider does not agree with the state
government’s proposal to address the grievances, the state government can
initiate a complaint before the consumer protection forum along with the
aggrieved parties. For instance, in a different issue, the District Collector
had filed a complaint before the consumer protection forum. The same can
be done in case of senior citizens’ issues as well. Thus, there exists a
compliance system and the court may just give a nudge for the district
collectors to act according to the provisions of the enactment and utilize
scope given to approach authorities.
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23.15. The learned Senior counsel placed reliance on the decisions in
(i)K.A. Abbas v. Union of India and another [1970 (2) SCC 780] (ii)State
of Tamil Nadu & another v. P. Krishnamurthy [2006 (4) SCC 517] and
(iii)Shreya Singhal v. Union of India [(2015) 5 SCC 1] and contended that
a subordinate legislation can be challenged on the ground of vagueness.
When the law is vague and people applying it are left with uncertainty, there
is more scope for misuse which should eventually render the law invalid.
23.16. He also placed reliance on the decision in the case of Kartar
Singh v. State of Punjab [1994 SCC (Cri) 899] and contended that vague
laws delegate basic policy matters impermissibly and such uncertain and
undefined deployment will lead to unlawful application.
24.1. On the other hand, Mr. V. Arun, learned Additional Advocate
General appearing for the respondent - Government submitted that a resident
of a private complex who had entered into a lease agreement had demanded
certain changes and raised grievances with the management. In this context,
dispute had arisen and the inmate was left without providing food, water and
certain basic amenities. The District collector and the Secretary to State had
visited the complex to ensure their grievances were addressed. Further, the
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resident had approached the RERA which initiated action against the entity
and imposed penalty as well. The Government old age homes are under
government control. In case of private homes, whenever complaints are
made by resident associations, the homes are visited and grievances are
redressed by the state. The Government also filed a report in contempt
petition providing clear data on the number of retirement homes and the
manner in which they are functioning. In the said report, it was stated the
aggrieved inmates of the Old Age Homes can approach the authorities for
any issues concerning their stay and those who are responsible for handling
such complaint and/or inspecting homes are mentioned in the report. The
Old Age Homes situated throughout the State are rendering various services
to the inmates and therefore, they have to be brought under the supervisory
control of the Government. The learned Additional Advocate General also
brought to the notice of this Court the definitions of ‘maintenance’ and
‘welfare’ under the Act. In the preamble to the Government Order, it is
clearly stated that the said G.O. is within the ambit of the parent Act as it
envisages welfare and maintenance of senior citizens in general. The
Government Order therefore cannot be said to be outside the scope of the
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Senior Citizens Act, 2007 for the following reasons: (i) Preamble of the
Senior Citizens Act is broad enough to ensure the welfare and maintenance
of senior citizens (ii) The definitions of “maintenance” and “welfare” of
senior citizens is broad as well. It does not qualify maintenance and welfare
to relate only to indigent or residents of state run old age homes (iii) Section
19 of the Senior Citizens Act provides for the establishment of old age
homes by the state government. Section 19(2) of the Act specifically
provides that “the state government may prescribe scheme for management
of old age 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” Further, section 20 of the
Act provides for medical support. The introduction to G.O. Ms. No. 83 thus
makes it clear that different categories of old age homes are sought to be
covered. The Government Order has been issued on the basis of the
directions issued by this Court and all the directions contained in G.O. Ms.
No. 83 are in consonance with the parent Act and it cannot be said to be in
violation in Article 19(1)(g) or Article 21. Further, the vires of TN
Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 has
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not been challenged and in the absence of the same, the petitioners have no
locus stnadi to challenge the Government Order.
24.2. With respect to the Contempt Petition, the learned Additional
Advocate General submitted that G.O. Ms. No. 83 provides for fund
providers to be made a part of the management and that lease holders, such
as Mr. Krishnamurthy, Contempt Petitioner will not be considered as fund
providers. The contempt petitioner namely Mr. Krishnamurthy cannot be
regarded as a ‘fund provider’ for the purposes of para IX(i) of the G.O. Ms.
No.83. Further, he submitted that the question of non-implementation of
paragraph IX (i) that provides “management should be broad based with a
majority of elected representatives of the fund providers, with transparency
in financial matters” and it does not arise in this case inasmuch as the
contempt petitioner is not a fund provider, but he is only a resident and
lease-holder. According to the learned Additional Advocate General, the
term ‘Fund provider’ refers only to those running the homes and not to
residents and the residents may not be considered as fund providers. In any
event, the official respondents have complied with the directives issued by
this Court and therefore, the question of invocation of contempt jurisdiction
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is not called for. The Government issued various directions pertaining to
registration of Homes and endeavor is being made to ensure compliance of
the G.O. Ms. No.83. The said order only refers to old age homes and does
not speak about retirement homes. The contempt petitioner is residing in a
retirement home and the order passed by this Court, which is the subject
matter of the contempt petition, also deals with the same.
24.3. The learned Additional Advocate General further contended
that under the Model Guidelines for Development and Regulation of Old
Age Homes issued by the Ministry of Housing and Urban Affairs, the state
governments are mandated to frame guidelines in consonance with the
model guidelines to regulate the retirement homes. In pursuance of the same,
the state of Haryana has framed a Draft Policy for Planned Development of
Retirement Housing through grant of license under Act 8 of 1975 i.e.,
Haryana Development and Regulation of Urban Areas Act, 1975. Thus,
Rule 19 of the TN Maintenance and Welfare of Parents and Senior Citizens
Rules, 2009 is pari materia with Rule 22 of Haryana Maintenance and
Welfare of Parents and Senior Citizens Rules, 2009. Therefore, there would
be no reason for Tamil Nadu not to adopt the same approach to frame
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appropriate guidelines for retirement homes. Further, he submitted that the
Senior Citizens Act, 2007 is within the purview of the Ministry of Social
Justice and Empowerment and consequently, the Model Guidelines issued
by the Ministry would be made applicable to retirement homes within the
purview of the Ministry of Housing and Urban Affairs.
24.4. With respect to specific non-compliance of paragraph IX (i) of
G.O. Ms. No.83 which provides that “management should be broad based
with a majority of elected representatives of the fund providers, with
transparency in financial matters”, the learned Additional Advocate General
contended that “inmates” cannot be considered as “fund providers” and thus
cannot be elected into the management. Nevertheless, the inmates have the
right to form associations to ensure their welfare. Thus, there is no contempt
in that specific aspect as well. The learned Additional Advocate General
therefore prayed for dismissal of the Contempt Petition.
25. Mrs. Aparna Nandakumar, learned counsel appearing for the fourth
respondent in WP No. 16984 of 2017 submitted that the fourth respondent is
a private limited company. They have constructed a “retirement villa
community” containing 62 Villas in phase – I and 19 in Phase II. These
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villas have been sold and the fourth respondent is solely engaged in
“maintenance” and acts as a service provider. The villas having been sold,
the provisions under the G.O. will not be applicable to the fourth respondent
any longer. She submitted that under the Model Guidelines for Development
and Regulation of Old Age Homes issued by the Ministry of Housing and
Urban Affairs, the state governments are mandated to frame guidelines in
consonance with the model guidelines to regulate the retirement homes. In
pursuance of the same, the State of Haryana has framed a Draft Policy for
Planned Development of Retirement Housing through grant of license under
Act 8 of 1975 i.e., Haryana Development and Regulation of Urban Areas
Act, 1975. She submitted that Rule 19 of the TN Maintenance and Welfare
of Parents and Senior Citizens Rules, 2009 is pari materia with Rule 22 of
the Haryana Maintenance and Welfare of Parents and Senior Citizens
Rules, 2009. Therefore, there would be no reason for Tamil Nadu not to
adopt the same approach to frame appropriate guidelines for retirement
homes. Further, the learned counsel sought to differentiate the Ministries
which control the old age homes and retirement communities. While the old
age homes viz., the Senior Citizens Act, 2007 is within the purview of the
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Ministry of Social Justice and Empowerment, the retirement homes i.e.,
Model Guidelines are within the purview of the Ministry of Housing and
Urban Affairs. Paragraph 9 of the introduction to G.O. Ms. No.83 clearly
excludes from its purview the category of homes which fall under the
RERA.
B. DISCUSSION AND FINDINGS
26. We have heard the counsel on either side and perused the materials
placed on record.
i. On power to issue the impugned order
27. Before going into the vires of the executive order and testing it on the
anvil of whether it falls within the four corners of the legislation concerned,
viz. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007,
it would be appropriate to reiterate the circumstances in which this executive
order came to be passed, which is after the filing of the first writ petition in
this regard seeking for framing of regulations and the establishment of a
regulatory body for the administration of private old age homes and the
subsequent directions of the First Bench. The Government had come out
with this executive order in the circumstances of the case recognizing the
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various problems faced by elderly persons in the old-age homes and the
sorry State of affairs which can be traced to the fact or of absolute non-
regulation of these old-age homes by the Government.
28. Having said that, the scope of the Act and the Rules made thereunder
need to be examined. The stated object of the Act is to provide for more
effective provisions for the maintenance and welfare of parents and senior
citizens, which has been guaranteed and recognized under the Constitution
and for matters connected therewith or are incidentally thereto. The Act
provides for a mechanism for a senior citizen who is unable to maintain
himself from his own earning or out of the property owned by him to
approach a Tribunal seeking for maintenance. It also mentions the parties
against whom such a claim can lie under the Act. The jurisdiction and
procedure to be followed by the Tribunal has also been set out in the Act,
including the constitution of the Tribunal, the summary procedure in case of
enquiry, the order for maintenance, the enforcement of the order of
maintenance, et cetera.
29. The Act, which is the first of its kind as a legislation in India on the
subject, also talks of establishment of old-age homes by the State
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Government under Section 19, medical support for senior citizens, the
measures to be taken by the State Government for publicity and awareness
for the welfare of senior citizens et cetera. It is seen that the Tamil Nadu
Government has also come out with subordinate legislation in the form of
Rules which have been issued under the Act, which set out in detail the
procedure for filing an application for maintenance, and its registration, the
preliminary scrutiny of the application, the service of notice and application
on the respondent, the procedure in case of non-appearance by the opposite
party, the procedure in case of admission of claim, the procedure for
impleading children or relatives, the appointment of conciliation officer,
reference to the conciliation officer, the proceedings by the conciliation
officer, the maintenance of register by the District Social Welfare Officer
and also the procedure before the Appellate Tribunal. The Rules also set out
under Rule 19, a scheme for management of the old-age homes which are
established by the State Government under Section 19 of the Act. The Rules
also make provision for a plan for the protection of life and property of
senior citizens under Rule 21 and the establishment of a State Council of
senior citizens which shall be done by the State Government to advise the
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Government on the effective implementation of the Act and to perform such
other functions in relation to senior citizens as the Government may specify
in this regard. The composition of the State Council has also been
mentioned under the Rules. Under Rule 23, the establishment by the State
Government of District Committee of Senior Citizens for each District to
advise on effective and coordinated implementation of the Act at the District
level and to perform such other functions in relation to senior citizens at the
District level as the State Government may specify, has also been envisaged.
The functions and duties of the Council have also been detailed out in
Rule 24.
30. It is therefore seen that the Act and the Rules thereunder have been
passed for safeguarding as well as protecting the rights and interests of
senior citizens in almost all aspects of their life by the State Government.
However, just as any legislation cannot be completely foolproof and only at
the time of implementation of legislation, the loopholes in the legislation as
well as the future needs of society and circumstances which may come up
much later will expose the shortcomings of any legislation, it is seen that
this Act and the Rules thereunder are riddled with several deficiencies. The
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Act is completely silent about the establishment, management or
administration of old-age homes which are owned and run by private
individuals or entities.
31. A perusal of the Act and the Rules would therefore make it evident
that there is no provision in the Act for establishment of an old age home
which is run privately and at best, section 19 of the Act only deals with the
establishment of old-age homes by the State Government. Section 19 of the
Act falling under chapter III- ‘Establishment of old-age homes’, may be
usefully extracted hereunder:
“19. Establishment of old-age homes-
(1) the State Government may establish and maintain such number
of old-age 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.
(2) The State Government may, prescribe a scheme for management
of old-age 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.”
32. It therefore becomes clear that the Act deals with the establishment of
an old age home by the State Government and for indigent persons, meaning
thereby, persons who are not having sufficient means, which term would
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also be defined by the State Government from time to time. Having said this,
the question would therefore arise as to whether the impugned GO, which is
an executive order passed by the State Government can be said to fall within
the four corners of this legislation and the further question which is of
greater importance would be whether if the impugned G.O. does not fall
within the four corners of the Act, it would stand scrutiny before the law and
be upheld as being valid.
33. The answer to the first question would be in the outright negative, that
is to say, that the impugned Government Order would not fall within the
provisions of the Act as the Act only contemplates the establishment of old-
age homes by the State Government and their maintenance by the State
Government while the provisions of the Act are clearly and unambiguously
silent about the establishment, administration or management of old-age
homes by the private individuals or entities or even of their supervision by
the State Government in any manner.
34. Now, coming to the most important legal question on the powers of
the State Government to regulate old-age homes which are managed
privately, outside the framework of the Act and the Rules as well as whether
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such a power can be understood to be held by the State Government with or
without a legislation in this regard. In order to examine this question, we
would have to turn to the constitutional provisions regarding the executive
power of the State.
35. Article 162 of the Constitution deals with the extent of executive
power of the State, which reads as under:
“Article 162. Extent of executive power of State.-Subject to the
provisions of this Constitution, the executive power of the State shall
extend to the matters with respect to which the Legislature of the State
has power to make laws:
Provided that in any matter with respect to which the legislature of a
State and Parliament have power to make laws, the executive power
of the State shall be subject to, and limited by, the executive power
expressly conferred by this Constitution or by any law made by
Parliament upon the union or authorities thereof.”
Once it is understood that the executive power of the State is co-extensive
with its legislative power, the next aspect would be to identify the head/field
of legislation under which the State can exercise its executive as well as
legislative power in this regard. With respect to the maintenance and welfare
of senior citizens, the field of legislation which is available to the State
Government would be under the head “Social Security” which falls under
Entry 23 of the Concurrent List under the Seventh Schedule to the
Constitution.
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36. The earliest case on the point is the judgement of the Constitution
Bench of the Hon'ble Apex Court in Rai Sahib Ram Jawaya Kapur and
Ors. v. The State of Punjab, [AIR 1955 SC 549], where the precise question
for consideration was whether the executive power of the State could extend
to matters upon which the State legislature is competent to legislate, and are
confined to matters over which legislation had been passed already. While
dealing with this question, the Hon'ble Supreme Court held as under:
“7. Article 73 of the Constitution relates to the executive powers of
the Union, while the corresponding provision in regard to the
executive powers of a State is contained in Article 162. The
provisions of these articles are analogous to those of section 8 and 49
respectively of the Government of India Act, 1935 and lay down the
rule of distribution of executive powers between the Union and the
States, following the same analogy as is provided in regard to the
distribution of legislative powers between them. Article 162, with
which we are directly concerned in this case, lays down :
"Subject to the provisions of this Constitution, the executive power of
a State shall extend to the matters with respect to which the
Legislature of the State has power to make laws :
Provided that in any matter with respect to which the Legislature of a
State and Parliament have power to make laws, the executive power
of the State shall be subject to, and limited by, the executive power
expressly conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof."
8. Thus under this Article the executive authority of the State is
executive in respect to matters enumerated in List II of Seventh
Schedule. The authority also extends to the Concurrent List except as
provided in the Constitution itself or in any law passed by the
Parliament. Similarly, Article 73 provides that the executive powers
of the Union shall extend to matters with respect to which the
Parliament has power to made laws and to the exercise of such
rights, authority and jurisdiction as are exercisable by the
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Government of India by virtue of any treaty or any agreement. The
proviso engrafted on clause (1) further lays down that although with
regard to the matters in the Concurrent List the executive authority
shall be ordinarily left to be State it would be open to the Parliament
to provide that in exceptional cases the executive power of the Union
shall extend to these matters also.
Neither of these articles contain any definition as to what the
executive function is and what activities would legitimately come
within its scope. They are concerned primarily with the distribution of
the executive power between the Union on the one hand and the
States on the other. They do not mean, as Mr. Pathak seems to
suggest, that it is only when the Parliament or the State Legislature
has legislated on certain items appertaining to their respective lists,
that the Union or the State executive, as the case may be, can proceed
to function in respect to them. On the other hand, the language of
Article 162 clearly indicates that the powers of the State executive do
extend to matters upon which the state Legislature is competent to
legislate and are not confined to matters over which legislation has
been passed already. The same principle underlies Article 73 of the
Constitution. These provisions of the Constitution therefore do not
lend any support to Mr. Pathak's contention.
…
13. A question very similar to that in the present case did arise for
consideration before a Full Bench of the Allahabad High Court in
Motilal v. The Government of the State of Uttar Pradesh
MANU/UP/0312/1950 : AIR1951All257 . The point canvassed there
was whether the Government of a State has power under the
Constitution to carry on the trade or business of running a bus
service in the absence of a legislative enactment authorizing the State
Government to do so. Different views were expressed by different
Judges on this question. Chief Justice Malik was of opinion that in a
written Constitution like ours the executive power may be such as is
given to the executive or is implied, ancillary or inherent. It must
include all powers that may be needed to carry into effect the aims
and objects of the Constitution. It must mean more than merely
executing the laws. According to the chief Justice the State has a right
to hold and manage its own property and carry on such trade or
business as a citizen has the right to carry on, so long as such activity
does not encroach upon the rights of others or is not contrary to law.
The running of a transport business therefore was not per se outside
the ambit of the executive authority of the State. Sapura, J., held that
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the power to run a government bus service was incidental to the
power of acquiring property which was expressly conferred by article
298 of the Constitution. Mootham and Wanchoo, JJ., who delivered a
common judgment, were also of the opinion that there was no need
for a specific legislative enactment to enable a State Government to
run a bus service. In the opinion of these learned Judges an act would
be within the executive power of the State if it is not an act which has
been assigned by the Constitution of India to other authorities or
bodies and is not contrary to the provisions of any law and does not
encroach upon the legal rights of any member of the public.
Agarwala, J., dissented from the majority view and held that the State
Government had no power to run a bus service in the absence of an
Act of the legislature authorizing the State to do so. The opinion of
Agarwala, J., undoubtedly supports the contention of Mr. Pathak but
it appears to us to be too narrow and unsupportable.
14. It may not be possible to frame an exhaustive definition of what
executive function means and implies. Ordinarily the executive power
connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away. The Indian
Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts
or branches of the Government have been sufficiently differentiated
and consequently it can very well be said that our Constitution does
not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another.
The executive indeed can exercise the powers of departmental or
subordinate legislation when such powers are delegated to it by the
legislature.
It can also, when so empowered, exercise judicial functions in a
limited way. The executive Government, however, can never go
against the provisions of the Constitution or of any law. This is clear
from the provisions of article 154 of the Constitution but, as we have
already stated, it does not follow from this that in order to enable the
executive to function there must be a law already in existence and
that the powers of executive are limited merely to the carrying out of
these laws.
15. The limits within which the executive Government can function
under the Indian Constitution can be ascertained without much
difficulty by reference to the form of the executive which our
Constitution has set up. Our Constitution, though federal in its
structure, is modelled on the British Parliamentary system where the
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executive is deemed to have the primary responsibility for the
formulation of governmental policy and its transmission into law
though the condition precedent to the exercise of this responsibility is
its retaining the confidence of the legislative branch of the State. The
executive function comprises both the determination of the policy as
well as carrying it into execution. This evidently includes the
initiation of legislation, the maintenance of order, the promotion of
social and economic welfare, the direction of foreign policy, in fact
the carrying on or supervision of the general administration of the
State.
16. In India, as in England, the executive has to act subject to the
control of the legislature; but in what way is this control exercised by
the legislature ? Under article 53(1) of our Constitution, the
executive power of the Union is vested in the President but under
article 75 there is to be a Council of Minister with the Prime Minister
at the head to aid advise the President in the exercise of his functions.
The president has thus been made a formal or constitutional head of
the executive and the real executive powers are vested in the
Ministers or the Cabinet. The same provisions obtain in regard to the
Government of States; the Governor or the Rajpramukh, as the case
may be, occupies the position of the head of the executive in the State
but it is virtually the council of Ministers in each State that carries on
the executive Government. In the Indian Constitution, therefore, we
have the same system of parliamentary executive as in England and
the council of Ministers consisting, as it does, of the members of the
legislature is, like the British Cabinet, "a hyphen which joins, a
buckle which fastens the legislative part of the State to the executive
part." The Cabinet enjoying, as it does, a majority in the legislature
concentrates in itself the virtual control of both legislative and
executive functions; and as the Ministers constituting the Cabinet are
presumably agreed on fundamentals and act on the principle of
collective responsibility, the most important questions of policy are
all formulated by them.
17. Suppose now that the Ministry or the executive Government of a
State formulates a particular policy in furtherance of which they want
to start trade or business. Is it necessary that there must be a specific
legislation legalising such trade activities before they could be
embarked upon ? We cannot say that such legislation is always
necessary….. .”
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37. The ratio in Ram Jawaya Kapur's case was followed by the
Constitution Bench of the Supreme Court in Naraindas Indurkhiya v. The
State of Madhya Pradesh & Ors, [AIR 1967 SC 1170]. Further, in
Bishambhar Dayal Chandra Mohan & Ors. v. State of Uttar Pradesh &
Ors. [AIR 1982 SC 83], the Hon'ble Supreme Court, while dealing with the
power of the executive in relation to a matter in Entry 33 of the Concurrent
list, followed these earlier judgments and held as follows:
“In other words, the State in exercise of its executive power is charged
with the duty and the responsibility of carrying on the general
administration of the State. So long as the State Government does not
go against the provisions of the Constitution or any law, the width and
amplitude of its executive power cannot be circumscribed. If there is
no enactment covering a particular aspect, certainly the Government
can carry on the administration by issuing administrative directions or
instructions, until the legislature makes a law in that behalf.
Otherwise, the administration would come to a standstill”
38. In PH Paul Manoj v. P. Veldurai, [(2011) 5 SCC 214], the Hon'ble
Supreme Court upheld the G.O. issued by the government of Tamil Nadu
recognizing the jurisdiction of the state government to issue executive
orders with respect to a subject matter not covered by legislation, provided
they do not violate the provisions of the Constitution and are not repugnant
to any enactment of the state and union legislatures and observed as follows:
“19. …….In a welfare state the functions of Executive are ever
widening, which cover within their ambit various aspects of social and
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economic activities. Therefore, the executive exercises power to fill
gaps by issuing various departmental orders. The executive power of
the State is co-terminus with the legislative power of the State
Legislature. In other words, if the State Legislature has jurisdiction to
make law with respect to a subject, the State Executive can make
regulations and issue Government Orders with respect to it, subject,
however, to the constitutional limitations. Such administrative rules
and/or orders shall be inoperative if the Legislature has enacted a law
with respect to the subject.”
39. Very recently, the Hon'ble Supreme Court answered, whether the state
government has jurisdiction to issue a notification requiring doctors seeking
admission to postgraduate and super speciality courses to execute a
compulsory bond when the Medical Council of India Act, 1956 does not
contain any provision related to compulsory bonds. In Association of
Medical Super Speciality Aspirants and Residents & Ors. v. Union of
India & Ors., [(2019) 8 SCC 607], the Hon'ble Supreme Court held as
follows:
“17. Entry 66 of List I of the 7th Schedule to the Constitution refers
to coordination and determination of standards in institutions for
higher education or research and scientific and technical institutions.
Entry 25 of List III of the 7th Schedule deals with education,
including technical education, medical education and universities,
subject to the provisions of entries 63, 64, 65 and 66 of List I.
Legislations can be made by the State Legislature relating to medical
education subject to the legislation made by the Parliament. The
Medical Council of India Act governs the field of medical education
in this country. Admittedly, there is no provision in the Medical
Council of India Act touching upon the subject matter of compulsory
bonds. Therefore, the States are free to legislate on the subject matter
of medical bonds. Executive authority of the State Government is co-
extensive with that of the legislative power of the State Legislature.
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Even in the absence of any legislation, the State Government has the
competence to issue executive orders under Article 162 of the
Constitution on matters over which the State legislature has the
power to legislate. The Notifications issued by the State Governments
imposing a condition of execution of compulsory bonds at the time of
admission to postgraduate courses and super Speciality courses
cannot be said to be vitiated due to lack of authority or competence.
The field of bonds requiring compulsory employment is not covered
by any Central Legislation. Therefore, the submissions made on
behalf of the Appellants that the States lacked competence to issue the
notifications as the field is occupied are rejected.”
40. The judgment in Ram Jawaya Kapur case has also been affirmed by
another Constitution bench in the case of Government of NCT of Delhi v.
Union of India [(2018) 8 SCC 501] where the executive power of the State
and of the union has been discussed in detail. The principle that emerges out
of these two judgements is that once the State Government has the
legislative power on a subject, the executive power of the State is also
co-extensive with that and the fact that there is a legislation already existing
on the subject or that specific subject has not already been legislated upon
would not limit the executive power of the State to exercise its executive
function in this regard. The only exception to this would be, where the
executive exercises its function in such a way that an executive order of the
State would run contrary or repugnant to any of the existing legislative
provisions whether of the State or of any legislation made by Parliament in
respect of the same subject. Where there is no pregnancy or an executive
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order is not against or contrary to any of the provisions in respect of which
legislation has been made expressly, an artificial fetter or limit cannot be
placed upon the executive power of the State on the premise that an
executive order issued by the State deals with an aspect with respect to
which there is no legislation or in respect of which the State has not already
exercised its power of legislation.
41. Applying the above legal principle to the facts on hand, in the present
case, while it is beyond dispute that the legislation governing the field with
respect to maintenance and welfare of senior citizens and elders is the Act of
2007, it is equally beyond dispute that the Act does not make any provision
with respect to the establishment, registration, administration or
management of old age homes which are run privately. In this regard only
two aspects need to be a certain, viz. (1) whether the State has the executive
power coextensive with its legislative power to exercise its executive or
legislative power in this regard; and (1) whether in the absence of any
provision with respect to private old age homes in the Act, the State can
independently exercise executive power and make an executive order with
respect to the management of private old age homes as has been done under
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the impugned GO.
42. As already stated, the field of legislation under Entry 23 of List III of
the Constitution under the Seventh Schedule deals with ‘Social Security and
social insurance’ and the State therefore has the legislative as well as the
executive power to exercise its function with respect to any subject falling
within the broad field of social security. On the next question that when the
legislation concerned, viz. the Act of 2007 does not deal with privately
managed old age homes, there is no question of any executive order running
contrary to any provision of the Act and in such circumstances, when the
State has the legislative power meaning thereby also the executive power
coextensive with that legislative power, it will become clear as daylight that
the State has the executive power under Article 162 to issue any executive
instruction/order with respect to privately managed old age homes.
43. In the light of the above discussion qua the power of the State to issue
an executive order in respect of privately managed old age homes vis-à-vis
the provisions of the Constitution as well as the existing provisions under
the central legislation, to which the impugned G.O. does not make any
contrary provision and can at best be said to support the existing legislative
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provisions, this Court finds that the impugned G.O. is constitutionally valid
and there are no grounds to interfere with the same. The desirability or
otherwise to pass a legislation to incorporate the management of privately
managed and owned old-age homes by the State Government is a matter to
be left to the legislature.
ii. On alleged violation of Article 19(1)(g)
44. Having tested the validity of the impugned G.O. from the stand point
of the source of power, it is now appropriate to also test its validity on the
alleged grounds of violation of Article 19(1) (g); and on the ground of
conflict with the provisions of the Real Estate (Regulation and
Development) Act, 2016 (RERA Act).
45. It has been argued that the contents of the impugned order would
violate the fundamental right under Article 19 (1)(g) of the Constitution.
Article 19 (1) (g) guarantees to citizens the fundamental right to practice any
profession, or to carry on any occupation, trade or and business and the
same has been made subject to reasonable restrictions under Article 19(6) in
the interests of the general public. Thus, whether the restrictions imposed by
the impugned G.O. on the right of the writ petitioners, who run the
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retirement/old age homes can be said to be reasonable, must be tested on the
anvil of the doctrine of proportionality.
46. The Hon'ble Supreme Court has interpreted and applied the doctrine
of proportionality in the context of Article 19(1)(g) in Modern Dental
College and Research Centre vs State of Madhya Pradesh, [(2016) 7 SCC
353]. This test was later affirmed in multiple judgments of the Supreme
Court. The test of proportionality as propounded by the Constitution Bench
in Modern Dental College & Research Centre requires the satisfaction of a
four-limb test (paragraph 53):
i. The restriction must be in pursuance of legitimate state aim
ii. Rational nexus between the restricting measures, facts and
objects sought to be achieved.
Iii. Necessity of the measure to achieve the said aim, i.e., it should
be a least restrictive measure
iv. Balancing of competing interests i.e., balancing the right
under Article 19(1)(g) and the social control/restriction imposed on
the same.
47. Further, with reference to earlier jurisprudence, the Court noted that
while examining the reasonableness of the limitation, one must keep in mind
the following:
“(1) The Directive Principles of State Policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as
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to go beyond the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no
abstract or general pattern or a fixed principle can be laid down so as
to be of universal application and the same will vary from case to case
as also with regard to changing conditions, values of human life,
social philosophy of the Constitution, prevailing conditions and the
surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed
and the social control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are intended to
be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or reasonable
connection between the restrictions imposed and the object sought to
be achieved. If there is a direct nexus between the restrictions, and the
object of the Act, then a strong presumption in favour of the
constitutionality of the Act will naturally arise.”
48. The four-limb test of proportionality that was propounded in Modern
Dental College was followed by the Constitution Bench of nine judges of
the Supreme Court in K.S. Puttaswamy v. Union of India, [(2017) 10
SCC 1] and subsequently summarized and followed in K.S. Puttaswamy v.
Union of India, [(2019) 1 SCC 1]. The Hon'ble Supreme Court in K.S.
Puttaswamy case, adopted the “legitimate state interest” test as the first limb
of the four limbs in the proportionality test.
49. Further, specifically in the context of Article 19(1)(g), this test was
followed in Anuradha Bhasin v. Union of India & Ors., [(2020) 3 SCC
637], where it was reiterated that the doctrine of proportionality must be
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followed before passing any order intending to restrict the fundamental
rights of the individuals. Any obstruction with fundamental rights without
any proper justification will thus be rendered disproportionate. Here, the
court also referred to the decision in Om Kumar & Ors. v. Union of India,
[(2001) 2 SCC 386] which explained the application of proportionality to an
administrative order in the following manner:
“28. By 'proportionality', we mean the question whether, while
regulating exercise of fundamental rights, the appropriate or least
restrictive choice of measures has been made by the legislature or the
administrator so as to achieve the object of the legislation or the
purpose of the administrative order, as the case may be. Under the
principle, the Court will see that the legislature and the
administrative authority 'maintain a proper balance between the
adverse effects which the legislation or the administrative order may
have on the rights, liberties or interests of persons keeping in mind
the purpose which they were intended to serve'. The legislature and
the administrative authority are, however, given an area of discretion
or a range of choices but as to whether the choice made infringes the
rights excessively or not is for the Court. That is what is meant by
proportionality.”
50. In Internet and Mobile Association of India v. Reserve Bank of
India, [(2020) SCC OnLine SC 275], the Circular issued by the Reserve
Bank of India was tested against the proportionality doctrine. Here, the
regulations were held to be in the nature of statutory regulations
necessitating a similar level of regard given to executive and parliamentary
policy. The most recent judgment on the application of proportionality
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doctrine is Akshay N. Patel v. Reserve Bank of India & Anr., [2021 SCC
OnLine SC 1180]. Here, the Hon'ble Supreme Court also reiterated that a
regulated economy is in fact critical to ensure balance between private
interests and ensuring a just polity for citizens and observed as under:
“Regulating the economy is reflective of the compromise between the
interests of private commercial actors and the democratic State that
represents and protects the interests of the collective. Scholars across
the world have warned against the judiciary constitutionalising an
unregulated marketplace61. This Court must be bound by a similar
obligation, in order to preserve its fidelity to the Constitution. With
the transformation in the economy, the Courts must also be alive to
the socio-economic milieu. The right to equality and the freedom to
carry on one’s trade cannot inhere a right to evade or avoid
regulation. In liberalized economies, regulatory mechanisms
represent democratic interests of setting the terms of operation for
private economic actors. This Court does not espouse shunning of
judicial review when actions of regulatory bodies are questioned.
Rather, it implores intelligent care in probing the bona fides of such
action and nuanced deference to their expertise in formulating
regulations. A casual invalidation of regulatory action in the garb of
upholding fundamental rights and freedoms, without a careful
evaluation of its objective of social and economic control, would
harm the general interests of the public.”
51. Similar view justifying the necessity of interference with contractual
relations of private parties was also taken as early as in 1986 by the
European Court of Human Rights in James & Ors. v. The United Kingdom
[(1986) ECHR 2]. Here, leasehold reform that conferred rights on the “long
lease” (21 years) holders to compulsorily purchase the freehold of the
property from the owners was challenged. The Act that was challenged
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sought to right the ills of the long leasehold system and the interference with
contractual relations was held to be in pursuance of a legitimate aim in the
following manner:
“47. The aim of the 1967 Act, as spelt out in the 1966 White Paper,
was to right the injustice which was felt to be caused to occupying
tenants by the operation of the long leasehold system of tenure (see
paragraph 18 above). The Act was designed to reform the existing
law, said to be "inequitable to the leaseholder", and to give effect to
what was described as the occupying tenant’s "moral entitlement" to
ownership of the house (ibid.). Eliminating what are judged to be
social injustices is an example of the functions of a democratic
legislature. More especially, modern societies consider housing of the
population to be a prime social need, the regulation of which cannot
entirely be left to the play of market forces. The margin of
appreciation is wide enough to cover legislation aimed at securing
greater social justice in the sphere of people’s homes, even where
such legislation interferes with existing contractual relations between
private parties and confers no direct benefit on the State or the
community at large. In principle, therefore, the aim pursued by the
leasehold reform legislation is a legitimate one.”
52. In the case on hand, it is clear as daylight that the restrictions imposed
have been done in the interests of the larger public, i.e. the senior citizens of
this country who constitute nearly 13.8 crores or about nearly 10 percent of
the population (as per the 2020 National Commission on Population
Report). As already stated, the impugned order was passed in pursuance of
the orders of this Court and the earlier PIL which brought to light the
prevailing sorry state of affairs about the dismal quality of life being led by
the senior citizens of this country.
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53. Applying the four-limb test of proportionality as mentioned above, it
is clear that the State has tried its best to balance the competing interests of
the parties while protecting the life, dignity and interests of the senior
citizens in all practical aspects of their daily life. Management of such old
age homes cannot be said to be a purely commercial activity with no control
or regulation by the State. On the contrary, senior citizens being one of the
vulnerable sections of society need utmost care and protection by the State
and inspite of the best efforts of the State to establish old age homes that
would be enough for the population, and to directly cater to their needs, the
need for privately managed homes are a reality that cannot be denied. In
these circumstances, there can be no two opinions that the State must
regulate these homes with detailed guidelines to be followed. Infact, the
Societies and Trusts managing these private retirement homes must work in
tandem with the State Government in order that the quality of life of the
senior citizens is elevated to the desired level. Therefore, the restrictions
imposed by the impugned order cannot be said to be violative of Article
19(1)(g), and this ground of attack fails accordingly.
iii. On alleged inconsistency with RERA Act
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54. This leaves us with the only question as to whether there is any
inconsistency between the impugned G.O. Ms. No.83 and the provisions of
the RERA Act?
55. The Real Estate (Regulation and Development) Act, 2016 (“the
RERA”) was enacted with the objective to balance the interests of
consumers with the necessity to promote the real estate sector. It seeks to
protect the interests of consumers in the real estate sector and provides for a
system for speedy redressal of grievances. It establishes the Real Estate
Regulatory Authority to achieve the said objectives to ensure efficiency and
transparency in the real estate sector. Under Section 88 of the RERA, the
application of other laws are not barred.
56. Having held that the impugned G.O. has been issued pursuant to the
executive power of the State under Article 162 of the Constitution, the
question whether the provisions of RERA would override the Senior
Citizens Act, 2007 in case of any overlapping areas, would be academic. In
any case, a three judge bench of the Hon'ble Supreme Court in KSL &
Industries Ltd., v. Arihant Threads Ltd. [(2015) 1 SCC 166], considered
the scope of section 34(2) of the Recovery of Debts Due to Banks and
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Financial Institutions Act, 1993 which is similarly worded as section 88 of
RERA and considered the effect of “not in derogation of” in the following
manner:
“36. Sub-section (2) was added to Section 34 of the RDDB Act w.e.f.
17-1-2000 by Act 1 of 2000. There is no doubt that when an Act
provides, as here, that its provisions shall be in addition to and not in
derogation of another law or laws, it means that the legislature
intends that such an enactment shall coexist along with the other
Acts. It is clearly not the intention of the legislature, in such a case, to
annul or detract from the provisions of other laws. The term “in
derogation of” means “in abrogation or repeal of”. The Black's Law
Dictionary sets forth the following meaning for “derogation”:
“derogation.—The partial repeal or abrogation of a law by a later
Act that limits its scope or impairs its utility and force.”
It is clear that sub-section (1) contains a non obstante clause, which
gives the overriding effect to the RDDB Act. Sub-section (2) acts in
the nature of an exception to such an overriding effect. It states that
this overriding effect is in relation to certain laws and that the RDDB
Act shall be in addition to and not in abrogation of, such laws. SICA
is undoubtedly one such law.
37. The effect of sub-section (2) must necessarily be to preserve the
powers of the authorities under SICA and save the proceedings from
being overridden by the later Act i.e. the RDDB Act.”
48. In view of the observations of this Court in the decisions referred
to and relied on by the learned counsel for the parties we find that,
the purpose of the two enactments is entirely different. As observed
earlier, the purpose of one is to provide ameliorative measures for
reconstruction of sick companies, and the purpose of the other is to
provide for speedy recovery of debts of banks and financial
institutions. Both the Acts are “special” in this sense. However, with
reference to the specific purpose of reconstruction of sick companies,
SICA must be held to be a special law, though it may be considered to
be a general law in relation to the recovery of debts. Whereas, the
RDDB Act may be considered to be a special law in relation to the
recovery of debts and SICA may be considered to be a general law in
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this regard. For this purpose we rely on the decision in LIC v. Vijay
Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111] . Normally the
latter of the two would prevail on the principle that the legislature
was aware that it had enacted the earlier Act and yet chose to enact
the subsequent Act with a non obstante clause. In this case, however,
the express intendment of Parliament in the non obstante clause of the
RDDB Act does not permit us to take that view. Though the RDDB
Act is the later enactment, sub-section (2) of Section 34 thereof
specifically provides that the provisions of the Act or the Rules made
thereunder shall be in addition to, and not in derogation of, the other
laws mentioned therein including SICA.
49. The term “not in derogation” clearly expresses the intention of
Parliament not to detract from or abrogate the provisions of SICA in
any way. This, in effect must mean that Parliament intended the
proceedings under SICA for reconstruction of a sick company to go
on and for that purpose further intended that all the other
proceedings against the company and its properties should be stayed
pending the process of reconstruction. While the term “proceedings”
under Section 22 of SICA did not originally include the RDDB Act,
which was not there in existence. Section 22 covers proceedings
under the RDDB Act.”
57. Therefore, “not in derogation” was considered to mean that the
Parliament did not intend to abrogate the earlier laws all together but sought
for a harmonious application of other laws. This decision was considered by
another three judge bench in Pioneer Urban Land and Infrastructure
Limited v. Union of India [(2019) 8 SCC 416]. The Hon'ble Supreme Court
departed from the principle of later enactment prevailing over the earlier one
(in presence of non-obstante clauses in both the enactments) while
considering section 238 of the Insolvency and Bankruptcy Code, 2016 and
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sections 88 and 89 of the RERA. It was held as follows:
“24. It is significant to note that there is no provision similar to that
of Section 88 of RERA in the Code, which is meant to be a complete
and exhaustive statement of the law insofar as its subject matter is
concerned. Also, the non-obstante clause of RERA came into force on
1st May, 2016, as opposed to the non-obstante clause of the Code
which came into force on 1st December, 2016. Further, the
amendment with which we are concerned has come into force only on
6th June, 2018. Given these circumstances, it is a little difficult to
accede to arguments made on behalf of learned senior counsel for the
Petitioners, that RERA is a special enactment which deals with real
estate development projects and must, therefore, be given precedence
over the Code, which is only a general enactment dealing with
insolvency generally. From the introduction of the explanation to
Section 5(8)(f) of the Code, it is clear that Parliament was aware of
RERA, and applied some of its definition provisions so that they could
apply when the Code is to be interpreted. The fact that RERA is in
addition to and not in derogation of the provisions of any other law
for the time being in force, also makes it clear that the remedies under
RERA to allottees were intended to be additional and not exclusive
remedies. Also, it is important to remember that as the authorities
under RERA were to be set up within one year from 1st May, 2016,
remedies before those authorities would come into effect only on and
from 1st May, 2017 making it clear that the provisions of the Code,
which came into force on 1st December, 2016, would apply in
addition to the RERA.”
58. Here, it was concluded that RERA has to be harmoniously
constructed with the IBC and that the amendment to IBC will prevail over
the RERA only in case of conflict. The entire line of precedents on the
meaning of “not in derogation of” was considered in Forum for People’s
Collective Efforts & Anr. v. State of West Bengal [(2021) 8 SCC 599]
while considering the RERA and a similar state enactment - West Bengal
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Housing Industry Regulation Act, 2017. The Hon'ble Supreme Court held
that section 88 of the RERA is indicative of the parliamentary intention to
not “preclude altogether the exercise of legislative authority whether under
the Central or State enactments”. However, here, the identical state
legislation that created a parallel regime in the state attracted the test of
repugnancy and was thus struck down.
59. Therefore, the effect of sections 88 and 89 of the RERA is that all
laws that are not inconsistent with the RERA will continue to operate in
their own sphere, while the ones that are inconsistent will not prevail over
the RERA. The same principle would be applicable to the impugned G.O. as
well. As long as it is not repugnant to any of the statutory provisions, there
can be no inconsistency between the impugned G.O. and the provisions of
the RERA Act. Also, as already stated, that the RERA Act does not preclude
the application of other laws unless they are inconsistent with the RERA.
60. On behalf of the retirement homes, it was contended that G.O.
Ms.No.83 would not apply to them on the ground that they are solely
covered under the RERA and the “Model” Guidelines for Development and
Regulation of Retirement Homes formulated by the Ministry of Housing and
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Urban Affairs (MoHUA). The model guidelines recognize that the
retirement homes are real estate projects that come under the RERA and
these were formulated, as the introduction to the guidelines notes:
“to enable the State Governments and Union Territories to make
appropriate provisions in their respective Acts and Regulations to
protect the rights of the senior citizens and retirees, who are residents
of Retirement Homes”
The model guidelines acknowledge that the retirement homes sector is
inadequately protected from cheating, exploitation and other forms of
harassment, even though the occupants do have affluence and financial
capacity to pay for the services. The Ministry seeks to enable the regulation
of the retirement home sector in order to ensure senior citizens’ well being.
The document itself envisages that state governments and union territories
will be implementing the model guidelines in order to develop the
retirement homes sector as well as ensure a dignified life for senior citizens.
61. It is to be noted that on the limited aspect covered by the RERA Act,
the same would apply to the retirement homes while the impugned G.O.
with a broader objective of protecting the rights of senior citizens covers
many aspects of their day-to-day practical life and as such, it cannot be said
that the provisions of the RERA Act and the impugned G.O. must be
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mutually exclusive to be valid. They must be read harmoniously as the
object of the laws are obviously different and have been made pursuant to
different fields of legislation, with no apparent conflict or repugnancy
between the two.
62. Therefore, the model guidelines must be taken into account while
framing regulations or guidelines for retirement homes considering the
framework that the RERA has given, specifically, the provisions relating to
‘functions and duties of the promoter’ and ‘rights and duties of the allottee’.
Further, the guidelines recognize the following responsibilities of the state
government in regulating retirement homes:
i. The rules/regulations governing the roles and
responsibilities of service provider/retirement home operator are to
be framed by the respective state governments. Service
provider/retirement home operator is defined as:
“any person/entity, which is capable of and/or specializes in the
operation and management of Retirement Homes, which may include
on-site monitoring, personal care services and any other relevant
services, including the basic maintenance services.”
The Urban Local Bodies (ULBs) and development authorities are to
frame necessary provisions and regulations under the applicable
laws to ensure the service provider/retirement home operator is
mandatorily registered.
ii. Basic rights of the allottee/resident of a retirement home are
provided in Annexure A to the model guidelines. However, these are
not exclusive and the state governments can elaborate/add to these
rights in their respective rules and policies of the state in tune with
specific local demands. The promoter/developer and the service
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provider/retirement home operator are bound to ensure these rights
which can also be mandated to form a part of the ‘Agreement of
Sale’. The basic rights mentioned in the Annexure are also in
addition to those prescribed under all other laws, contractual
documents.
63. The introduction to G.O. Ms. No.83 notes that “old age homes”
includes “retirement living solutions which fall under 3 broad categories,
outright buys, leased homes, and rental homes for elderly which are purely
commercial models”. Further, Office Memorandum of the MoHUA attached
to the G.O. Ms. No.83 states “in case a developer collects money with the
intent to pass on ownership of old age homes to buyers, then such a
development would come within the purview of the Real Estate Act”.
Therefore, it has been acknowledged that the compliances under the RERA
and rules, regulations under the RERA will be in addition to the standards
prescribed by the state government, and where the provisions of the RERA
Act have direct application, the impugned G.O. does not make any
contradictory provisions, and as such, the ground of inconsistency with the
RERA Act fails accordingly.
IV. ‘DOCTRINE OF PARENS PATRIAE’ AND WELFARE OF
SENIOR CITIZENS
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64. The case at hand is one where this Court has, at the instance of one of
its public-spirited citizens, exercised its parens patriae jurisdiction, and on
some positive nudging by the court, the State Government also realizing its
role towards the elderly and the senior citizens of the State, while
recognizing the void in the existing legislation on the management of
private old age homes, has come out with the impugned Government order,
the validity of which this Court has upheld.
65. The question relating to the effective implementation of the Act as
well as the enforcement of the rights of elderly persons under Article 21 of
the Constitution has already been examined in detail by the Supreme Court
in the case of Ashwini Kumar v. union of India [(2019) 2 SCC 636] where
the Supreme Court has examined the entire issue in the backdrop of social
justice which is one of the important ideals mentioned in the Preamble to
our Constitution. The following paragraphs of the said judgement throw
immense light on the subject and are usefully extracted hereunder-
“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
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specific reference to the health of the elderly or they are sheltered 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
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 pathbreaking 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 recognize and enforce the rights of elderly
persons-rights that are recognized 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.
….
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.
…
The right to shelter
21. It is about two decades since this court recognize 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 require special care and attention which, in many
sections of society, is missing. With this in mind, the petitioner
emphasize the right to shelter and referred to several decisions, many
of which recognize 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 Totame
MANU/SC/0115/1990 : AIR 1990 SC 630 this Court recognized the
right to food, clothing and shelter as being a guarantee of any
civilized 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:
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9. Basic needs of man have traditionally been accepted to
be three -- food, clothing and shelter. The right to life is
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.........
23. A much fuller discussion is to be found in Chameli Singh v. State
of Uttar Pradesh MANU/SC/0286/1996 : (1996) 2 SCC 549 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 organized 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............
24. Finally, in Ahmedabad Municipal Corporation v. Nawab Khan
Gulab Khan MANU/SC/0051/1997 : (1997) 11 SCC 121 this Court
referred to and followed Chameli Singh. More 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 judgments, 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:
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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
[MANU/SC/0039/1985 : (1985) 3 SCC 545] and the latest
Chameli Singh case [MANU/SC/0286/1996 : (1996) 2
SCC 549] and a host of other decisions which need no
reiteration.....
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 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.
….
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
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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 right and a constitutional right, the Petitioner
referred to a few decisions which we detail hereinbelow.
29. In Vincent Panikurlangara v. Union of India
MANU/SC/0482/1987 : (1987) 2 SCC 165 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,
[MANU/SC/0517/1981 : (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
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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.....
30. A similar view was expressed by this Court in Consumer
Education & Research Centre v. Union of India (paragraph 25)
MANU/SC/0175/1995 : (1995) 3 SCC 42 and Kirloskar Brothers Ltd.
v. Employees State Insurance Corporation (paragraph 10)
MANU/SC/0873/1996 : (1996) 2 SCC 682.
31. In State of Punjab v. Mohinder Singh Chawla (paragraph 4)
MANU/SC/0277/1997 : (1997) 2 SCC 83, Nagar Nigam v. AL
Faheem Meat Exports (P) Ltd. (paragraph 26) MANU/SC/0858/2007
: (2006) 13 SCC 382 and in Occupational Health and Safety
Association v. Union of India (paragraph 10) MANU/SC/0076/2014 :
(2014) 3 SCC 547 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.
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
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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.
The Maintenance and Welfare of Parents and Senior Citizens Act,
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 old age homes-
1. The State Government may establish and maintain
such number of old age 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.
2. The State Government may, prescribe a scheme for
management of old age 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,
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"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.
….
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 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
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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 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 recognized 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 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
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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 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 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
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detailed in the Status Reports, a plan of Act ion 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 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.”
66. It is therefore beyond the pale of any doubt that the right to life as a
fundamental right postulated under Article 21 of the Constitution of India
would take within its broad sweep, the right to health, the right to shelter
and the right to live with dignity. It has been elaborated in the extracted
paragraphs of the judgement of the Supreme Court that without these the
right to life would be rather meaningless as it has been emphasised several
times that the right to life cannot mean mere animal existence. Taking
forward the spirit of the judgement extracted supra, the impugned
Government order can be said to have understood the spirit of these
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decisions and the specific provision under Rule IX (i) in the Annexure to the
G.O. which deals with ‘management of governance’, speaking of
broadbasing the management of private old age homes with elected
representatives of the fund providers constituting the majority as per this
Rule, has to be interpreted as the progressive and conscious action on the
part of the State Government in consonance with the principles of assuring
dignity to elderly citizens in order that they may partake in the decision-
making of the management of old-age homes where they specifically
contribute to the funds of the private old-age homes. While it is the
contention of the writ petitioners who have challenged the validity of the
impugned G.O. that the security deposit made by the inmates of the old-age
home cannot entitle them to participate in the administration of the old-age
home as the term ‘management’ and the term ‘fund providers’ has not been
defined in the impugned GO. It is clear that such a contention is without any
substance for the very object and reason for such a Rule to be introduced by
way of the impugned executive order is that these elderly persons who
contribute a huge sum which infact works as a corpus for the management of
the old-age home would definitely be included under the term ‘fund
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providers’ and the said Rule was introduced in response to the specific
grievance made by the petitioner in his original writ petition that the
administration of these private old-age homes was not being run in a
transparent manner, and that inspite of contributing heavily to the old-age
homes, the services that were offered to the inmates were rather poor and
not proportionate to the funds provided by these inmates. As such the
technical contention that the term ‘management’ and the term ‘fund
providers’ have not been defined cannot be used as a stumbling block in the
implementation of the provision which contemplates the participation of the
fund providing inmates in the administration of the private old-age homes.
In the event that there are many number of such fund providers, such
inmates can always choose their representatives who can represent them in
the administrative body of the old-age homes.
67. As already stated above, in spite of the well intentioned steps taken by
the State Government by way of coming out with subordinate legislation
under the Act of 2007 as well as passing the executive order in the
impugned GO, certain circumstances have not been completely foreseen and
it is expected that the State Government will work tirelessly towards the
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upholding of the dignity of these elderly citizens by providing them access
to good health, medical facilities, food, shelter and all other basic amenities
as well as other aspects that contribute to the making of a dignified life till
the very end. The State Government may also do well in plugging the
loopholes that have been pointed out by the writ petitioners and come up
with further clarifications and details and also examine the desirability of
incorporating certain provisions by way of legislation that will have greater
force in law.
V. POSITION IN OTHER COUNTRIES
68. In this regard, a reference is also made to the legislations in the UK
and USA in respect of social security, care for the elderly and the role
played by the State in managing the standard of care provided to the elderly
by private care homes. Both the Central and State Government may also use
these details as a cue for further legislation and action in this regard.
A. Legal Position in the United Kingdom
69. The Care Standards Act 2000 and the Regulation of Care (Scotland)
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Act 2001 establish new regulatory frameworks for all care homes in the
United Kingdom. The responsibility for formulating standards and
regulations will be retained by the Department of Health and the Scottish
Executive. Standards are not legally enforceable, but failure to meet
standards can be used as evidence in prosecutions for failure to comply with
regulations.
70. Under this legislation, individual health authorities are responsible for
initially registering and inspecting nursing homes, and local authorities are
responsible for registering and inspecting residential care homes. (Nursing
homes are for residents who primarily need skilled nursing care. Residential
homes are for clients who primarily need social care.) Under the new
legislation, which came into force in England and Scotland in 2002, the
distinction between nursing homes and residential care homes has
disappeared. Responsibility for registering and inspecting homes and
enforcing regulations have been transferred from health authorities and local
authorities to the Commission for Health Improvement and three other new
central organisations: the National Care Standards Commission in England,
the National Assembly for Wales, and the Scottish Commission for the
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Regulation of Care. The National Care Standards Commission has
registration and enforcement powers that encompass not only care homes
but also independent hospitals and other forms of social care.
71. The responsibility for ensuring that the services are appropriate to
individual needs and are of high quality remain with local authorities and
NHS care trusts. Research in the United States and Australia has shown that
having low numbers of staff is associated with poor quality care. The
Regulation of Care (Scotland) Act 2001 allows local authorities to employ,
fund, and determine the qualifications, skill mix, and number of nursing
staff and to retain the ability to use publicly employed staff. In England local
authorities may not fund, employ, or determine the number of nursing staff.
72. The government has adopted a “traffic light” system for NHS trusts
under which they are reimbursed on the basis of both their financial
performance and the quality of care provided, but this approach is not being
implemented in contracts with private nursing homes. In the United States,
patients are assigned by staff to up to 66 categories of dependency, and
reimbursement is made using a measure of case mix.
73. The National Care Standards Commission's inspectorate will be
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responsible for monitoring and enforcing standards. Persuading errant
providers to comply with standards requires a regime of credible sanctions.
Apart from education and persuasion, the Care Standards Act provides the
National Care Standards Commission with four sanctions with which to
threaten providers who don't comply: formal notice of non-compliance;
fines of up to £5000 for specific offences, such as failing to comply with
conditions of registration; withdrawal of licence; and the exclusion of
individuals from the industry. Although an enforcement notice might shame
a home, if it fails to do so inspectors may be reluctant to take action that
would lead to a revocation of registration. The disruption that revocation
would cause to residents makes it an unpopular step and unlikely, except in
the most extreme circumstances. Intermediate sanctions—such as levying
large financial penalties, barring new admissions, or taking over
management—have not yet been made available to the care standards
commission. These types of intermediate sanctions are considered essential
tools for regulators in the United States, in other sectors in the United
Kingdom, and in the NHS.
B. Legal Position in United States of America
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74. In the USA, Independent living communities – sometimes also known
as retirement communities, senior apartments or 55+ communities – cater to
people who require little to no assistance. These are seniors who are
independent and have few medical concerns. These homes are paid for
privately and include options like meal packages and social activities.
Because these homes are private, there isn’t much government funding
except, for some, under Section 202 of the Supportive Housing for the
Elderly Program. This U.S. Housing and Urban Development program
finances housing for “very low-income elderly persons, including the frail
elderly,” and provides rent subsidies.
75. Assisted living communities are specifically designed for people who
can no longer live on their own but do not need the high-level care of
nursing homes. Assisted living facilities help residents with daily routines
like eating and taking medications. These facilities also provide social
activities, provide transportation and have staff available 24 hours a day.
Assisted living facilities are mostly paid for privately, but some do accept
Medicaid. If a nursing home is receiving funds from Medicare or Medicaid,
it must comply with federal regulations established in the 1987 Nursing
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Home Reform Act.
76. In general, assisted living facilities and senior housing are regulated
by the states. Each state issues a license to a facility after an inspection,
typically conducted annually or semi-annually. This process is overseen by a
state’s department of health, department of social services or, in some
instances, a combination of these departments. Inspection teams typically
comprise nurses, social workers, sanitarians and public health officials. The
teams survey staff, residents and family members; examine facility records,
and make observations. These surveys are then used to identify compliance
and quality improvement issues.
77. Most state regulations address essential services that a senior living
facility must provide. These services include assistance with activities of
daily living (help with dressing, eating, etc.), meals, housekeeping and
resident assessments. Some states have additional regulations for services
such as money management, making medical appointments and taking
residents shopping.
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VI. CONCLUDING REMARKS
78. In view of the above discussion upholding the validity of the
impugned G.O. and taking into consideration the fact that the cases
challenging the validity of the G.O. have been taken up for hearing along
with the contempt petition alleging non-implementation of the G.O., and
while simultaneously placing on record appreciation for the State
Government for its efforts in passing the impugned executive order
addressing the grievances of the public interest writ petitioners, it is
appropriate that the contempt petition is to be closed without further orders.
79. In the above background, this Court would deem it fit to issue the
following guidelines:
i. The State Government shall take steps to inspect all old age
homes within the State and ensure implementation of the spirit of the
impugned GO, which has now been upheld.
ii. After inspection, the State Government may issue directives to
be complied with, and deficiencies, if any, to be rectified by the old age
homes/retirement homes in order to comply with the spirit of the
Government Order as well as the orders passed herein. The State
Government shall take steps to monitor the day-to-day functioning of the
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homes, with more focus on nutrition, hygiene and medical needs of inmates,
such as food, round the clock security, clean drinking water, ambulance
services, medical care, amusement and entertainment, religious activities,
etc., to suit their needs.
iii. The non-compliance of the directives/non-rectification of the
deficiencies as pointed out, must entail civil consequences for the retirement
homes/old age homes, including cancellation of registration.
iv. The State Government must ensure that every old age
home/retirement home within the State is registered with it and the
Government must maintain records of its inmates as well as the persons
involved in the Management.
v. The State Government must ensure that non-registered homes
do not continue to function within the State, and must act on any complaint
by any person in this regard, after necessary inspection.
vi. The State Government must maintain a grievance cell for senior
citizens, while ensuring compliance of the Government Order, now being
upheld.
(The term “State Government” employed in the above guidelines shall
include any authorized representative or officer of the Government).
vii. It is only appropriate that the substance of the impugned
executive order may be well made part of a legislation either independently
or as an addition to the existing legislation on the subject with more clarity
in order that no further time is wasted on debating the validity and
applicability of the welfare measures to senior citizens and old age
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homes/retirement homes, etc. on a universal scale.
80. To sum up,
(i) Contempt Petition is closed.
(ii) WP.Nos.16984 and 28237 of 2017 stand disposed of, with the
aforesaid directives.
(iii) Other writ petitions viz., 30458, 30469, 30874 and 30884 of
2019 stand dismissed.
(iv) There is no order as to costs.
(v) Consequently, connected miscellaneous petitions are closed.
(R.M.D., J.) (J.S.N.P., J.)
30.06.2022
rsh
Index : Yes/No
To
1. The Secretary to Government
Social Welfare and Nutritious Meal Programme Department
Ministry of Social Welfare and Nutritious Meal Programme
Department
Fort St. George, Chennai - 600 009
2. Director of Social Welfare
Chepauk, Chennai - 600 005
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3. The District Collector
Office of the District Collector
Coimbatore - 641 041
4.The District Social Welfare Officer,
Coimbatore.
R.MAHADEVAN, J.
and
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J.SATHYA NARAYANA PRASAD, J.
rsh/rk
Contempt Petition No. 515 of 2018
and WP.Nos.16984 and 28237 of 2017
& 30458, 30469, 30874 and 30884 of 2019
30.06.2022
https://www.mhc.tn.gov.in/judis
