DR. ASHWANI KUMAR versus UNION OF INDIA & ORS.

[2018] 13 S.C.R. 1286

[2018] 13 S.C.R.

DR. ASHWANI KUMAR

UNION OF INDIA & ORS.

(Writ Petition (C) No. 193 of 2016)

BDECEMBER 13, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Social Justice:

Rights of elderly persons – Writ petition u/Art. 32 ofConstitution – Seeking enforcement of rights of elderly persons u/CArt. 21 by providing them adequate pension, shelter, geriatric careand medical facilities and also sought effective implementation ofthe Maintenance and Welfare of Parents and Senior Citizens Act,2007 – Held: Right to life provided u/Art. 21 encompasses severalrights – The right to live with dignity, right to shelter and right tohealth are basic and fundamental – The State is obliged to ensureDthat these fundamental rights are not only protected, but are enforcedand made available to all the citizens – Central Government andState Governments have started certain schemes towards meetingthe rights of elderly persons u/Art. 21, but there is lot that is requiredto be achieved – However, set of directions issued by this CourtEwill not fulfill the constitutional mandate or the mandate of the Act– The only available solution is continuing mandamus to ensurethat the rights of the people are respected, recognized and enforcedand that social justice as postulated by the preamble in theConstitution is given meaning and teeth – Initial directions issuedso that effective contributions are made to recognize and enforceFrights of elderly persons – Constitution of India – Arts. 21, 39 and41 – Maintenance and Welfare of Parents and Senior Citizens Act,2007 – ss. 30 and 31.

Issuing directions, the Court

GHELD : 1.1 The conceptualisation of justice by Constitutionframers was as much valid in 1949 (when the ConstituentAssembly debates took place) as it is today. But, with times havingchanged, varied situations have emerged which may not haveexisted in 1949 and were perhaps not foreseen at that time. Therights of elderly persons is one such emerging situation that wasHperhaps not fully foreseen by the Constitution framers. Therefore,

while there is reference to the health and strength of workers,men and women, and the tender age of children in Article 39 ofthe Constitution and to public assistance in cases ofunemployment, old age, sickness and disablement and in othercases of undeserved want in Article 41 of the Constitution, thereis no specific reference to the health of the elderly or to theirshelter in times of want and indeed to their dignity and sustenancedue to their age. [Paras 2 and 3][1294-B-C; 1295-A-B]

1.2 The right to life provided for in Article 21 of theConstitution must be given an expansive meaning. The right tolife, encompasses several rights but for the time being the Courtis concerned with three important constitutional rights, each oneof them being basic and fundamental. These rights are the rightto live with dignity, the right to shelter and the right to health.The State is obligated to ensure that these fundamental rightsare not only protected but are enforced and made available to allcitizens.[Para 44][1308-D-E]

2.1 The right to live with dignity is, in effect, part of theright to life as postulated in Article 21 of the Constitution. Such aright would be rendered meaningless if an aged person does nothave the financial means to take care of his basic necessities andhas to depend for it on others. [Para 16][1298-F-G]

2.2 National Social Assistance Programme (NSAP) wasintroduced on Independence Day, 1995 as fully funded CentrallySponsored Scheme. In the introduction to the Programmedocument, it is noted that the Directive Principles of State Policyof the Constitution enjoin upon the State to undertake within itsmeans number of welfare measures, targeting the poor and thedestitute in particular. Article 41 of the Constitution directs theState to provide public assistance to its citizens in the case ofunemployment, old age, sickness and disablement as well as inother cases of undeserved want, within the limit of the State’seconomic capacity and development. Among the initial threecomponents of the Programme are the National Old Age PensionScheme which subsequently came to be known as the IndiraGandhi National Old-Age Pension Scheme. Both the Governmentof India and the State Governments and the Union Territory

[2018] 13 S.C.R.

AAdministrations must work in tandem if they are to make thePension Scheme workable and meaningful. [Paras 17 and18][1299-A-E]

Francis Coralie Mullin v. Administrator, Union Territoryof Delhi (1981) 1 SCC 608 : [1981] 2 SCR 516 ; ArunaBRamachandra Shanbaug v. Union of India (2011) 4 SCC454 : [2011] 4 SCR 1057 ; Common Cause v. Union ofIndia (2018) 5 SCC 1 : [2018] 6 SCR 1 ; K.S.Puttaswamy v. Union of India (2017)10 SCC 1:[2017]10 SCR 569 – relied on.

Unni Krishnan, J.P. v. State of Andhra Pradesh (1993)C1 SCC 645 : [1993] 1 SCR 594 – referred to.

3.1 The right to shelter or the right to reasonableaccommodation is one of the basic needs of any human being.Unfortunately, while there has been some positive developmentin this regard, attention has not been paid to the needs of theDelderly who require special care and attention which, in manysections of the society, is missing. [Para 21][1300-G-H]

3.2The right to shelter is subject to “economicbudgeting” by the State. No blanket order can be prayed for bythe petitioner or even argued for overlooking the financial capacityEof the State. No doubt, in matters of fundamental rights, financialissues take backseat but it must be remembered at the sametime that the resources of the country are not unlimited and whenit comes to the Court directing the State to expend amounts,judicial restraint is necessary. [Para 25][1302-G-H; 1303-A]F3.3It is noted in the introduction to the IntegratedProgramme for Senior Citizens that there has been steady risein the population of senior citizens in India. The number of elderlypersons has increased from 1.98 crore in 1951 to 7.6 crore in2001 and 10.38 crore in 2011. It is projected that the number of60+ in India would increase to 14.3 crore in 2021 and 17.3 croreGin 2026. The main objective of the Programme “is to improvethe quality of life of the Senior Citizens by providing basicamenities like shelter, food, medical care and entertainmentopportunities …..” It is also proposed to encourage productiveand active ageing through providing support for capacity buildingHactivities. It was submitted that under this Programme grant-in-

aid is given for running and maintenance of senior citizens homes,homes for elderly women etc. [Para 26][1303-B-D]

3.4There can be no doubt that the right to shelter isan important constitutional right and therefore shelter must bemade 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 itis time to recognize that there are large number of elderlypersons in several parts of the country, including rural India, whoare rendered ‘homeless’ due to migration of their families to otherparts of the country and even outside the country. While some ofthese elderly persons are certainly not destitute, but they do needassistance because of their age and are willing to pay andcontribute for roof over their head. In the absence of suitablenumber of old age homes, and homes as per their status, theyare left to fend for themselves making them vulnerable to mishapsand other unforeseen events. [Para 27][1303-D-G]

Shantistar Builders v. Narayan Khimalal Totame AIR1990 SC 630 ; Chameli Sing v. State of Uttar Pradesh(1996) 2 SCC 549 : [1995] 6 Suppl. SCR 827 ;Ahmedabad Municipal Corporation v. Nawab KhanGulab Khan (1997) 11 SCC 121 : [1996] 7 Suppl.SCR 548 – relied on.

4.1 The Government of India has launched the NationalProgramme for Healthcare of the Elderly during 2010-11. Theobjective of this National Programme is to provide dedicatedhealthcare facilities to senior citizens, that is, those above 60years of age at the primary, secondary and tertiary healthcaredelivery system. The basic aim of the National Programme is toprovide separate and specialised comprehensive healthcare tosenior citizens at various levels of the State healthcare deliverysystem including outreach services. [Para 32][1305-B-C]

4.2 The National Programme is now about six or seven yearsold and it must be implemented with due earnestness, otherwiseit will remain only paper programme. There is undoubtedly alot that has been achieved in the last few years but there is still alot that is required to be achieved and the Union of India and all

Athe State Governments and Union Territory Administrationsshould take an active interest in the implementation of theNational Programme. [Para 35][1305-F-G]

Vincent Panikurlangara v. Union of India (1987) 2 SCC165 : [1987] 2 SCR 468 ; Consumer Education &BResearch Centre v. Union of India (1995) 3 SCC 42 :[1994] 6 Suppl. SCR 626 ; Kirloskar Brothers Ltd. v.Employees State Insurance Corpn (1996) 2 SCC 682 :[1996] 1 SCR 884 ; State of Punjab v. Mohinder SinghChawla (1997) 2 SCC 83 : [1996] 10 Suppl. SCR 279 ;Nagar Nigam v. AL Faheem Meat Exports (P) Ltd.C(2006) 13 SCC 382 : [2006] 10 Suppl. SCR 354 ;Occupational Health and Safety Association v. Unionof India (2014) 3 SCC 547 : [2014] 4 SCR 10 – reliedon.

5.1 The petitioner has raised, alternatively, an equallyDsignificant issue namely that even if the constitutional rights arenot enforceable due to difficulties in “economic budgeting” eventhen the law enacted by Parliament in the form of the Maintenanceand Welfare of Parents and Senior Citizens Act, 2007 (MWP Act)mandates the protection and enforcement of the rights of elderlypersons. It is quite clear that Parliament was fully aware of theEfinancial impact of the law. Considerations of “economicbudgeting” by the State both at the level of the Government ofIndia and at the level of the State Governments must have beentaken into account while enacting the legislation. Therefore, therecannot be any excuse of lack of finances either by the GovernmentFof India or by the State Governments in strictly implementingthe provisions the MWP Act. If not the constitutional then atleast the statutory rights of elderly persons must be recognisedand implemented. [Para 45][1308-E-G]5.2 set of directions issued by this Court will not fulfil theGconstitutional mandate or the mandate of the MWP Act. Thereis need to continuously monitor the progress in theimplementation of the constitutional mandate to make availableto the elderly the right to live with dignity and to provide themwith reasonable accommodation, medical facilities and geriatric

care. While this may take some time, the only available solutionis continuing mandamus which is well-recognised practiceand procedure adopted by this Court in several cases to ensurethat the rights of the people are respected, recognized andenforced and that social justice as postulated by the Preamble inthe Constitution is given meaning and teeth. Given theconstitutional importance of the issues raised, focused andperhaps more vigorous efforts are needed. [Paras 47 and48][1309-C-F]

6. An evaluation study is contemplated on all aspects of theNational Social Assistance Programme for use of best practicesand to bring about uniformity in the implementation of the Schemein all States. In addition, social audit for the NSAP schemes isalso contemplated and guidelines have been issued for socialaudit as recently as on 30[th] November, 2018 for the launch of asocial audit pilot in 21 States and Union Territory Administrations.[Para 49][1309-F-G]

7. It would be appropriate to issue some initial directionsso that effective contributions are made to recognise and enforcethe rights of elderly persons :

1. The Union of India will obtain necessary informationfrom all the State Governments and the Union Territoriesabout the number of old age homes in each district of thecountry and file Status Report in this regard.

2. The Union of India will also obtain from all the StateGovernments the medical facilities and geriatric care facilitiesthat are available to senior citizens in each district and file aStatus Report in this regard.

3. On the basis of the information gathered by the Unionof India, plan of action should be prepared for giving publicityto the provisions of the MWP Act and making senior citizensaware of the provisions of the said Act and the constitutionaland statutory rights of senior citizens.

4. The Central Government must exercise its power u/s.30 of MWP Act and issue appropriate directions to the StateGovernments for the effective implementation of the provisionsof the MWP Act. The Central Government must also, in termsof Section 31 of the MWP Act, conduct review for the purposes

Aof monitoring the progress in implementation of the MWP Actby the State Governments. [Paras 50, 51][1309-H; 1310-B-F]

5. Government of India should have relook at theseschemes and perhaps overhaul them with view to bring aboutconvergence and avoid multiplicity. In particular, the GovernmentBof India and the State Governments must revisit the grant ofpension to the elderly so that it is more realistic. Of course, thiswould depend upon the availability of finances and the economiccapacity of theGovernment of India and the State Governments.[Para 51][1310-G-H]

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 193 of 2016

(Under Article 32 of the Constitution of India)]

With

Writ Petition (C) No. 81 of 2015.

Mathew Cherian (Helpage), Nikhil Dey (Pension Parishad)Ms. Kinjal Sampat, ACs.

A. N. S. Nadkarni, ASG, Jugal Kishore Gilda, Adv. Gen., AnilGrover, Abhinav Mukerji, Saurabh Mishra, Ms. Aishwarya Bhati, AAG,Ms. V. Mohana, Sr. Adv., Ms. Raushan Tara Jaswal, Ms. Amita Joseph,Ms. Vani Vyas, Mohit Kaushik, Mukesh Kumar Singh, Ravi ChandraPrakash, Bhanu Priya Sharma, Ashutosh Chaturvedi, Amit, Ms. SushmaSingh, Abhishek Tripathi, Sanjeeb Panigrahi, Purushottam SharmaTripathi, V. V. Pattabhiram, S. K. Gupta, Ms. Madhavi Diwan,Raj Bahadur Yadav, R. R. Rajesh, Shalinder Saini, Ms. Snidha Mehra,B. V. Balaramdas, D. L. Chidanand, G. S. Makker, Ms. Suhasini Sen,M. P. Gupta, Prashant Rawat, Ms. Priya Mishra, Ms. Anil Katiyar, Ms.Anitha Shenoy, Ms. Srishti Agnihotri, Guntur Prabhakar, Ms. PrernaSingh, Anil Shrivastav, Rituraj Biswas, Satyendra Kumar Srivastav,Ms. Abha R. Sharma, D. S. Parmar, Ms. Sujeeta Srivastava, MahendraSingh, Ms. Anshruta Maheswari, Ms. Pratishtha Vij, Siddharth Garg,A. P. Mayee, Chirag Jain, Ms. Mayuri Nayyar Chawla, Salvador SantoshRebelo, P. S. Sudheer, Ms. Shruti Jose, Mrs. Hemantika Wahi, Ms. JesalWahi, Ms. Puja Singh, Ms. Vishakha, Satish Kumar, Sanjay Kr. Visen,Navin Gupta, Ms. Ritu Rastogi, Ms. Sasmita Tripathy, Ms. Bihu Sharma,Ms. Purnima Krishna, G. M. Kawoosa, M. Shoeb Alam, Tapesh Kr.Singh, Aditya Pratap Singh, V. N. Raghupathy, Lagnesh Mishra, ParikshitP. Angadi, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash, Mrs. BeenaPrakash, Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar,Leishangthem Roshmani Kh., Ms. Maibam Babina, Ms. AnupamaNgangom, Ms. Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar,Ranjan Mukherjee, Upendra Mishra, Ms. K. Enatoli Sema, Amit KumarSingh, Shibashish Mishra, Chandan Kumar Mandal, Ms. Uttara Babbar,Ms. Bhavana Duhoon, Ms. Ruchi Kohli, Ms. Aruna Mathur,Ms. Anuradha Arputham, Avneesh Arputham, Ms. Geetanjali, M. YogeshKanna, S. Partha Sarathi, Ms. Sujatha Bagadhi, Mrityunjai Singh,Shuvodeep Roy, Rajeev Kumar Dubey, Kamlendra Mishra, Ms. VaidhrutiMishra, Ashutosh Kumar Sharma, Aviral Saxena, Ms. RachanaSrivastava, Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, AbhishekManchanda, Ms. Kajal Dalal, Ms. Dimple Nagpal, \K. V. Jagdishvaran,Mrs. G. Indira, Mrinal K. Mandal, Sharan Thakur, Vijay Kr. Paradeshi,V. G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj, Advs. for theappearing parties.

Dr. Ashwani Kumar, Petitioner-in-person.

AThe Judgment of the Court was delivered by

MADAN B. LOKUR, J.

1. “Social justice” in the Preamble of our Constitution has beengiven pride of place and for good reason since it is perhaps the mostimportant and significant form of justice.

2. In his address on Constitution Day on 26[th] November, 2018 theHon’ble President of India emphasised that social justice remains atouchstone of our nation building. The conceptualisation of justice by ourConstitution framers was as much valid in 1949 (when the ConstituentAssembly debates took place) as it is today. But, with times havingCchanged, varied situations have emerged which may not have existed in1949 and were perhaps not foreseen at that time. The Hon’ble Presidentspoke on the subject of justice and particularly social justice in the followingwords:

“In the Preamble, justice is not seen as unidimensional. It isDviewed as having implications across political, economic and socialspheres. Political justice implies the equal participation of all adultsin the political process and the just formulation and implementationof laws. Economic justice implies the ultimate eradication ofpoverty, equal opportunities to earn livelihood, and fair wages.As such the expansion of economic, entrepreneurship and jobEopportunities are among examples of economic justice.

Given the diverse history of our people, and given imbalances andhierarchies that have sometimes marked our past, social justiceremains touchstone of our nation building. At the simplestlevel, it implies the removal of societal imbalances and theFharmonisation of rival claims and needs of different communitiesand groups. Social justice is about providing equalopportunities.

Such conceptualisation of justice was valid in 1949 and broadlyremains relevant today. Even so, the 21st century has broughtnew challenges. No doubt the concept of justice - political,economic and social – has resilient core but it needs to be thoughtof in innovative ways. It requires to be applied afresh toemerging situations – situations that may not have existedor been foreseen when our Constitution framers were atwork.” (Emphasis supplied by us).

3. The rights of elderly persons is one such emerging situationthat was perhaps not fully foreseen by our Constitution framers.Therefore, while there is reference to the health and strength ofworkers, men and women, and the tender age of children in Article 39 ofthe Constitution and to public assistance in cases of unemployment, oldage, sickness and disablement and in other cases of undeserved want inArticle 41 of the Constitution, there is no specific reference to the healthof the elderly or to their shelter in times of want and indeed to theirdignity and sustenance due to their age.

4. Eventually, age catches up with everybody and on occasion, itrenders some people completely helpless and dependent on others, eitherphysically or mentally or both. Fortunately, our Constitution is organicand this Court is forward looking. This combination has resulted in path-breaking developments in law, particularly in the sphere of social justicewhich has been given tremendous importance and significance in varietyof decisions rendered by this Court over the years. The present petitionis one such opportunity presented before this Court to recognise andenforce the rights of elderly persons - rights that are recognised by Article21 of the Constitution as understood and interpreted by this Court in aseries of decisions over period of several decades, and rights that havegained recognition over the years due to emerging situations.

Brief background

5. The petitioner Dr. Ashwani Kumar has preferred writ petitionunder Article 32 of the Constitution with regard to enforcement of therights of elderly persons under Article 21 of the Constitution. Thepetitioner, who appears in person, has made several prayers in the writpetition but during the course of submissions, he limited the relief prayedfor to four issues. These are:

1. Pension for the elderly.

2. Shelter for the elderly.

3. Geriatric care and medical facilities for the elderly.

4. Effective implementation of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 (‘MWP Act’).

6. During the course of the proceedings and submissions, we wereassisted by HelpAge India through Mr. Mathew Cherian as AmicusCuriae and Mr. Nikhil Dey social activist as an Intervener. We werealso assisted by the learned Additional Solicitor General appearing for

Athe Union of India who specifically underlined the fact that the Union ofIndia does not consider this as an adversarial litigation.

7. We propose to take up the issues raised by the petitioner inseriatim but leave it open to him and the learned Amicus to agitate anyfurther issues that may arise during the pendency of the public interestBpetition.

The right to dignity and adequate pension

8. It has come on record that the Union of India has categorisedthe elderly as those who are above 60 years of age and up to 79 years ofage belonging to one category and those above 80 years of age belongingCto another category. The record shows that pension was fixed for personsbetween the age of 60-79 years at ¹ 200 per month by the Union ofIndia under scheme called the Indira Gandhi National Old Age PensionScheme. An amount of ¹ 500 per month was fixed by the Union of Indiafor persons above 80 years of age.

9. Interestingly, the pension amount was fixed more than decadeago with the latest revision in 2007. It is submitted on the side of thepetitioner that the amount is pittance and is wholly inadequate to advancethe constitutional mandate of Article 21. If the current value of the rupeeis taken into consideration then in real terms the amount actually worksout to about ¹ 92 per month on the lower scale.

10. There is no doubt that the Scheme places correspondingobligation on the State Governments and Union Territory Administrationsto make contributions but their contributions are varying, as per theaffidavits filed in this Court, from less than ¹ 500 per month to ¹ 2000per month. One of the directions prayed for by the petitioner is that aFrealistic pension ought to be paid to the elderly and it is his suggestionthat it should be at least half the minimum wage.

11. It was submitted by the petitioner, ably supported by the learnedAmicus and the intervenor that the right to live with dignity is afundamental right recognised by Article 21 of the Constitution. We doGnot doubt this and surely the Union of India would also not doubt this.The further submission of the petitioner was that availability of adequatefinances is necessary for person to live life of dignity. An elderlyperson, particularly someone who is in an old age home is unable to lookafter himself and therefore needs financial assistance. This can be madeavailable only if there is viable pension scheme that is implementedHwith sincerity and which can be taken advantage of by an elderly person.

12. In support of his submissions, reliance was placed by thepetitioner on four significant decisions of this Court which hold that theright to dignity is integral to the right to life guaranteed by Article 21 ofthe Constitution.

13. In Francis Coralie Mullin v. Administrator, Union Territoryof Delhi[1] this Court acknowledged that the right to life guaranteed byArticle 21 of the Constitution includes the right to live with dignity whichincludes, inter alia, nutrition, clothing and shelter - all of which requiresome finances. Provision for these basic necessities can be made only ifthe elderly are provided with some pension which is meaningful and notpension which is equivalent to ¹ 92 per month. Reference was made toparagraph 8 of the Report which reads as follows:“8. But the question which arises is whether the right to life islimited only to protection of limb or faculty or does it go furtherand embrace something more. We think that the right to lifeincludes the right to live with human dignity and all thatgoes along with it, namely, the bare necessaries of life suchas adequate nutrition, clothing and shelter and facilities forreading, writing and expressing oneself in diverse forms,freely moving about and mixing and commingling with fellowhuman beings. Of course, the magnitude and content of thecomponents of this right would depend upon the extent of theeconomic development of the country, but it must, in any view ofthe matter, include the right to the basic necessities of life andalso the right to carry on such functions and activities as constitutethe bare minimum expression of the human-self……..” (Emphasissupplied by us).

14. Reference was made by the petitioner to ArunaRamachandra Shanbaug v. Union of India[2]and Common Cause v.Union of India[3]wherein this Court categorically held that the right tolife includes the right to live with dignity. It was said in paragraph 32 ofthe Report in Aruna Ramachandra Shanbaug as follows:

“32. Whilst this Court has held that there is no right to die (suicide)under Article 21 of the Constitution and an attempt to commitsuicide is crime vide Section 309 IPC, the Court has held thatthe right to life includes the right to live with human dignity,1(1981) 1 SCC 6082(2011) 4 SCC 4543(2018) 5 SCC 1

1298SUPREME COURT REPORTS

Aand in the case of dying person who is terminally ill or in apermanent vegetative state he may be permitted to terminate itby premature extinction of his life in these circumstances and itis not crime vide Gian Kaur case. [Gian Kaur v. State of Punjab,(1996) 2 SCC 648]” (Emphasis supplied by us).

B15. Reference was also made by the petitioner to the opinionrendered by Justice Rohinton Fali Nariman in K.S. Puttaswamy v. Unionof India[4]wherein it has been observed that several decisions of thisCourt have recognised human dignity as being an essential part of thefundamental rights chapter in the Constitution. This observation wasmade in paragraph 525 of the Report which reads as follows:C“525. ………..Many of our decisions recognise humandignity as being an essential part of the fundamental rightschapter. For example, see Prem Shankar Shukla v. DelhiAdmn., (1980) 3 SCC 526 at para 21, Francis CoralieMullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 andD8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC161 at para 10, Maharashtra University of HealthSciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 atparas 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7SCC 761 at para 37. The dignity of the individual encompassesEthe right of the individual to develop to the full extent of his potential.And this development can only be if an individual has autonomyover fundamental personal choices and control over disseminationof personal information which may be infringed through anunauthorised use of such information…….” (Emphasis suppliedFby us).

16. In view of the various decisions of this Court, there cannotnow be any doubt that the right to live with dignity is, in effect, part ofthe right to life as postulated in Article 21 of the Constitution. Such aright would be rendered meaningless if an aged person does not haveGthe financial means to take care of his basic necessities and has to dependfor it on others. It is in this context that the petitioner submitted that allelderly persons must be granted adequate pension so that they are ableto sustain themselves with dignity.17. The learned Additional Solicitor General drew our attention tothe National Social Assistance Programme (NSAP) which wasintroduced on Independence Day, 1995 as fully funded CentrallySponsored Scheme. In the introduction to the Programme document, itis noted that the Directive Principles of State Policy of the Constitutionenjoin upon the State to undertake within its means number of welfaremeasures, targeting the poor and the destitute in particular. Article 41 ofthe Constitution directs the State to provide public assistance to its citizensin the case of unemployment, old age, sickness and disablement as wellas in other cases of undeserved want, within the limit of the State’seconomic capacity and development. Among the initial three componentsof the Programme are the National Old Age Pension Scheme whichsubsequently came to be known as the Indira Gandhi National Old-AgePension Scheme, referred to above. It was submitted that the Scheme isbeing implemented by the Government of India but active support isrequired from the State Governments and the Union TerritoryAdministrations.

18. While we cannot disagree with the learned Additional SolicitorGeneral on the issue of active support, we are of opinion that both theGovernment of India and the State Governments and the Union TerritoryAdministrations must work in tandem if they are to make the PensionScheme workable and meaningful. In fact, it is submitted that the NSAPguidelines provide that State Governments may consider equal or moretop-up to be considered for extending it to the beneficiaries.

19. It was submitted by the learned Additional Solicitor Generalthat the economic capacity of the Government of India and of the StateGovernments ought not to be overlooked and caution has beenadministered by this Court in paragraphs 181 and 182 in the opinion ofJustice B.P. Jeevan Reddy in Unni Krishnan, J.P. v. State of AndhraPradesh[5]wherein it was held that the economic capacity of the State islimited and is, ordinarily speaking, matter within the subjectivesatisfaction of the State. This was in the context of the right to educationbut it is submitted that the principle laid down is equally applicable to thepresent petition. It was held by this Court as follows:

“181. Right to education after the child/citizen completes the ageof 14 years. The right to education further means that citizenhas right to call upon the State to provide educational facilities5(1993) 1 SCC 645

Ato him within the limits of its economic capacity and development.By saying so, we are not transferring Article 41 from Part IV toPart III — we are merely relying upon Article 41 to illustrate thecontent of the right to education flowing from Article 21. We cannotbelieve that any State would say that it need not provide educationto its people even within the limits of its economic capacity andBdevelopment. It goes without saying that the limits ofeconomic capacity are, ordinarily speaking, matters withinthe subjective satisfaction of the State.

182. In the light of the above enunciation, the apprehensionexpressed by the counsel for the petitioners that by reading theright to education into Article 21, this Court would be enablingeach and every citizen of this country to approach the courts tocompel the State to provide him such education as he choosesmust be held to be unfounded. The right to free education isavailable only to children until they complete the age of 14 years.Thereafter, the obligation of the State to provide educationis subject to the limits of its economic capacity anddevelopment. Indeed, we are not stating anything new. Thisaspect has already been emphasised by this Court in Francis C.Mullin v. Administrator, Union Territory of Delhi [Francis C.Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC608] ………” (Emphasis supplied by us).

In this context, it is pointed out that the NSAP Scheme of theGovernment of India provided for total budget of ¹ 9975 crores forcovering over 3 crore below poverty line beneficiaries exclusively. Itwas also submitted that linking pension to the index of inflation may notFbe appropriate since the pension provided is welfare measure.

20. While this may be so, the issue has, nevertheless, to be lookedat from the humanitarian aspect as well.

The right to shelter

21. It is about two decades since this Court recognised the rightGto shelter or the right to reasonable accommodation as one of the basicneeds of any human being. Unfortunately, while there has been somepositive development in this regard, attention has not been paid to theneeds of the elderly who require special care and attention which, inmany sections of our society, is missing. With this in mind, the petitionerHemphasised the right to shelter and referred to several decisions, many

of which recognise the right to adequate shelter as fundamental right,which we believe applies to the elderly as well.

22. In Shantistar Builders v. Narayan Khimalal Totame[6] thisCourt recognised the right to food, clothing and shelter as being aguarantee of any civilised society. As far as the right to shelter isconcerned, it was observed that there is right to reasonableaccommodation. It was held in paragraph 9 of the Report as follows:

“9. Basic needs of man have traditionally been accepted to bethree — food, clothing and shelter. The right to life isguaranteed in any civilized society. That would take withinits sweep the right to food, the right to clothing, the rightto decent environment and reasonable accommodationto live in……...” (Emphasis supplied by us).

23. much fuller discussion is to be found in Chameli Singh v.State of Uttar Pradesh[7]wherein this Court explained, in sense, therequirements of the right to shelter. It was held in paragraph 8 of theReport that the right to shelter would include adequate living space butthat does not mean mere right to roof over one’s head. It was heldthat the right to shelter when used as an essential requisite to the right tolive should be deemed to have been guaranteed as fundamental right.It was held in paragraph 8 of the Report as follows:

“8. In any organised society, right to live as human being is notensured by meeting only the animal needs of man…….. Right toshelter, therefore, includes adequate living space, safe anddecent structure, clean and decent surroundings, sufficientlight, pure air and water, electricity, sanitation and othercivic amenities like roads etc. so as to have easy access to hisdaily avocation. The right to shelter, therefore, does not meana mere right to roof over one’s head but right to all theinfrastructure necessary to enable them to live and develop as ahuman being. Right to shelter when used as an essential requisiteto the right to live should be deemed to have been guaranteed asa fundamental right. As is enjoined in the Directive Principles,the State should be deemed to be under an obligation tosecure it for its citizens, of course subject to its economicbudgeting………...” (Emphasis supplied by us).

6AIR 1990 SC 630

7(1996) 2 SCC 549

A24. Finally, in Ahmedabad Municipal Corporation v. NawabKhan Gulab Khan[8] this Court referred to and followed Chameli Singh.More importantly, reference was made to our obligations underinternational law, including the Universal Declaration of Human Rightsand the International Covenant on Economic, Social and Cultural Rights.The petitioner strongly relied upon our international obligations andBsubmitted that apart from the law laid down by this Court in severaljudgements, we should respect and acknowledge our internationalobligations in regard to the right to shelter. Reference was made toparagraphs 12 and 25 of the Report which read as follows:“12. Article 19(1)(e) accords right to residence and settlement inCany part of India as fundamental right. Right to life has beenassured as basic human right under Article 21 of the Constitutionof India. Article 25(1) of the Universal Declaration of HumanRights declares that everyone has the right to standard of livingadequate for the health and well-being of himself and his family;Dit includes food, clothing, housing, medical care and necessarysocial services. Article 11(1) of the International Covenanton Economic, Social and Cultural Rights lays down that Stateparties to the Covenant recognise that everyone has the right tostandard 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 beeninterpreted by this Court to include meaningful right to lifeand not merely animal existence as elaborated in severaljudgments of this Court including Hawkers case [ SLPs Nos.F47-51 of 1996], Olga Tellis case [(1985) 3 SCC 545] and thelatest Chameli Singh case [(1996) 2 SCC 549] and host of otherdecisions which need no reiteration…..” (Emphasis supplied byus).

25. We are in full agreement with the view expressed by theGpetitioner but we must be aware of the caution given by this Court to theeffect that the right to shelter is subject to “economic budgeting” by theState. No blanket order can be prayed for by the petitioner or evenargued for overlooking the financial capacity of the State. No doubt, atsome stage the petitioner did contend that in matters of fundamental

H8(1997) 11 SCC 121

rights, financial issues take backseat but it must be remembered at thesame time that the resources of the country are not unlimited and whenit comes to the Court directing the State to expend amounts, judicialrestraint is necessary.

26. The learned Additional Solicitor General referred to the recentlyrevised Integrated Programme for Senior Citizens. It is noted in theintroduction to the Programme that there has been steady rise in thepopulation of senior citizens in India. The number of elderly persons hasincreased from 1.98 crore in 1951 to 7.6 crore in 2001 and 10.38 crore in2011. It is projected that the number of 60+ in India would increase to14.3 crore in 2021 and 17.3 crore in 2026. The main objective of theProgramme “is to improve the quality of life of the Senior Citizens byproviding basic amenities like shelter, food, medical care and entertainmentopportunities …..” It is also proposed to encourage productive and activeageing through providing support for capacity building activities. It wassubmitted that under this Programme grant-in-aid is given for runningand maintenance of senior citizens homes, homes for elderly womenetc.

27. There can be no doubt that the right to shelter is an importantconstitutional right and therefore shelter must be made available toeverybody and to the maximum extent possible. With this in view, theGovernment of India has framed schemes, inter alia, for homelesspersons particularly in urban areas but it is time to recognize that thereare large number of elderly persons in several parts of the country,including rural India, who are rendered ‘homeless’ due to migration oftheir families to other parts of the country and even outside the country.While some of these elderly persons are certainly not destitute, but theydo need assistance because of their age and are willing to pay andcontribute for roof over their head. In the absence of suitable numberof old age homes, and homes as per their status, they are left to fend forthemselves making them vulnerable to mishaps and other unforeseenevents.

The right to health

28. It was submitted by the petitioner that medical facilities andgeriatric care are not given the due importance that they deserve. Hesubmitted that, by and large, it is older persons who require medical caremore frequently than younger persons and if they are not provided thenecessary medical facilities, it would adversely impact on their right to

Ahealth. In support of his contention that the right to health is humanright and constitutional right, the petitioner referred to few decisionswhich we detail hereinbelow.

29. In Vincent Panikurlangara v. Union of India[9]this Courtdid not specifically deal with the right to health of the elderly but it didBmake reference to Article 21 of the Constitution and noted that it includeswithin it the right to live with human dignity. In fact, Article 21 derives itslife breath from some Articles in the Directive Principles of State Policy,particularly, Articles 39, 41 and 42 of the Constitution. While these Articlesdo not directly deal with the right to health of the elderly, it is quiteobvious that when they refer to the protection of the health and strengthCof men and women, it must include the elderly. It was said in paragraph16 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 Courtin Francis Mullin case [Francis Coralie Mullin vDAdministrator, Union Territory of Delhi, [(1981) 1 SCC 608] tolive with human dignity, free from exploitation. This right to livewith human dignity enshrined in Article 21 derives its lifebreath from the Directive Principles of State Policy andparticularly clauses (e) and (f) of Article 39 and Articles 41and 42 and at the least, therefore, it must include protectionEof the health and strength of the workers, men and women,and of the tender age of children against abuse, opportunities andfacilities for children to develop in healthy manner and inconditions of freedom and dignity, educational facilities, just andhumane conditions of work and maternity relief…..” (EmphasisFsupplied by us).

30. similar view was expressed by this Court in ConsumerEducation & Research Centre v. Union of India (paragraph 25)[10]and Kirloskar Brothers Ltd. v. Employees State Insurance Corpn.(paragraph 10)[11].G31. In State of Punjab v. Mohinder Singh Chawla(paragraph 4)[12], Nagar Nigam v. AL Faheem Meat Exports (P) Ltd.

9(1987) 2 SCC 16510(1995) 3 SCC 4211(1996) 2 SCC 682H12(1997) 2 SCC 83

(paragraph 26)[13] and in Occupational Health and Safety Associationv. Union of India (paragraph 10)[14] the right to health was given thestatus of 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 AdditionalSolicitor General that the Government of India has launched the NationalProgramme for Healthcare of the Elderly during 2010-11. The objectiveof this National Programme is to provide dedicated healthcare facilitiesto senior citizens, that is, those above 60 years of age at the primary,secondary and tertiary healthcare delivery system. The basic aim of theNational Programme is to provide separate and specialisedcomprehensive healthcare to senior citizens at various levels of the Statehealthcare delivery system including outreach services.

33. The Union of India has also pointed out that the activitiesrelating to the implementation of the National Programme are ongoingand it is not as if the objectives and goals of the National Programmecan be achieved overnight.

34. The petitioner concedes that the National Programme hassome positive components but it is submitted that they are not beingimplemented effectively or have not been fully operationalised in somedistricts of the country. One of the gaps pointed out by the petitioner isthat there is no reliable information about the number of beds reservedfor geriatric care in government or private hospitals or informationregarding specific geriatric centres. It is submitted that these detailsmust be provided for all 719 districts of the country.

35. We fully appreciate the view of the Union of India but at thesame time, it must be emphasised that the National Programme is nowabout six or seven years old and it must be implemented with dueearnestness, otherwise it will remain only paper programme. There isundoubtedly lot that has been achieved in the last few years but thereis still lot that is required to be achieved and we expect the Union ofIndia and all the State Governments and Union Territory Administrationsto take an active interest in the implementation of the NationalProgramme.

The Maintenance and Welfare of Parents and SeniorCitizens Act, 2007

13(2006) 13 SCC 38214(2014) 3 SCC 547

A36. While the petitioner emphasized the constitutional rightsavailable to everybody including the elderly, such as the right to live withdignity, the right to shelter and the right to adequate medical care andgeriatric care, the petitioner relied, has an alternative, on statutoryprovisions for the existence of these rights. It was submitted by thepetitioner that even if the Constitution was not to be given an expansiveBmeaning, there are statutory rights which are enforceable by the elderlyunder law made by Parliament and that is the Maintenance and Welfareof Parents and Senior Citizens Act, 2007 (MWP Act)

37. The petitioner drew our attention to few provisions of theMWP Act to substantiate his contention. In particular, he drew ourCattention to Section 19 of the MWP Act which deals with the establishmentof old age homes and requires each State Government to establish andmaintain at least one old age home in every district in the country witheach old age home having accommodation for 150 senior citizens whoare indigent. Section 19 reads as follows:D19. Establishment of oldage homes-

1. The State Government may establish and maintain suchnumber of oldage homes at accessible places, as it may deemnecessary, in phased manner, beginning with at least one in eachdistrict to accommodate in such homes minimum of one hundredEfifty senior citizens who are indigent.

2. The State Government may, prescribe scheme formanagement of oldage homes, including the standards and varioustypes of services to be provided by them which are necessary formedical care and means of entertainment to the inhabitants ofsuch homes.FExplanation. – For the purposes of this section, “indigent” meansany senior citizen who is not having sufficient means, as determinedby the State Government, from time to time, to maintain himself.

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

Gthat though more than 300 old age homes have been established indifferent parts of the country, the requirement is of many more consideringthe large population of indigent elderly. It was submitted that somehomes are in dilapidated condition, without adequate facilities includinggeriatric care. In other words, in several instances, the law laid down inSection 19 of the MWP Act is being complied with only in letter andHcertainly not in spirit.

39. Our attention was also drawn to Section 20 of the MWP Actwhich provides for medical support for senior citizens. Governmenthospitals or hospitals funded fully or partially by the State Governmentare mandated to provide beds for all senior citizens, as far as possible.Facilities for geriatric patients are also required to be earmarked by thisSection of the MWP Act. Section 20 of the MWP Act reads as follows:

20. Medical support for senior citizen-

The State Government shall ensure that -

i.the Government hospitals or hospitals funded fully or partiallyby the Government shall provide beds for all senior citizensas far as possible;

ii.separate queues be arranged for senior citizens;

iii. facility for treatment of chronic, terminal and degenerativediseases is expanded for senior citizens;

iv.research activities for chronic elderly diseases and ageing isexpanded;

v.There are earmarked facilities for geriatric patients in everydistrict hospital duly headed by medical officer withexperience in geriatric care.

40. The submission of the petitioner and the learned Amicus isthat there is huge gap between the law and its implementation and it issubmitted that even though the MWP Act came into force in 2007 andmore than decade has passed since then, serious efforts have not beenmade by the Government of India or by the State Governments to ensurethat medical facilities for the elderly and geriatric care is made available.

41. It is further submitted by the petitioner that assuming for thesake of argument that the provisions of the MWP Act are in place andare being implemented as they should be, the elderly are not aware oftheir human rights guaranteed not only by the Constitution but also bythe MWP Act. It is pointed out that Section 21 of the MWP Act requiresthe State Governments to give publicity to the provisions of the said Actthrough all modes of public media. There is also mandate for effectivecoordination between various ministries and departments of the StateGovernment to address the issues relating to the welfare of the elderlyand more importantly, periodic review is required to be conducted.

42. The submission of the petitioner is that there is hardly anypublicity given to the provisions of the MWP Act and despite efforts by

Aseveral organisations such as HelpAge India, the rights of the elderly toshelter and medical facilities as well as geriatric care remains only apipe dream. It is submitted that the Government of India must come outwith workable plan to give publicity to the provisions of the MWP Actso that the elderly can live the remainder of their life with dignity.

BDiscussion

43. Having heard the petitioner, the learned Amicus and othersincluding the learned Additional Solicitor General, we are left in no doubtthat the petition raises significant issues relating to the recognition andenforcement of the fundamental rights of the elderly. This is perhaps thefirst such petition on the subject and interestingly, the submissions of theCpetitioner are based entirely on Article 21 of the Constitution and othersupporting constitutional provisions.

44. We accept that the right to life provided for in Article 21 of theConstitution must be given an expansive meaning. The right to life, weacknowledge, encompasses several rights but for the time being we areDconcerned with three important constitutional rights, each one of thembeing basic and fundamental. These rights articulated by the petitionerare the right to live with dignity, the right to shelter and the right tohealth. The State is obligated to ensure that these fundamental rights arenot only protected but are enforced and made available to all citizens.

45. The petitioner has raised, alternatively, an equally significantissue namely that even if the constitutional rights are not enforceabledue to difficulties in “economic budgeting” even then the law enacted byParliament in the form of the MWP Act mandates the protection andenforcement of the rights of elderly persons. It is quite clear, submittedFthe petitioner, that Parliament was fully aware of the financial impact ofthe law. Considerations of “economic budgeting” by the State both atthe level of the Government of India and at the level of the StateGovernments must have been taken into account while enacting thelegislation. Therefore, there cannot be any excuse of lack of financeseither by the Government of India or by the State Governments in strictlyGimplementing the provisions the MWP Act. In short, if not theconstitutional then at least the statutory rights of elderly persons must berecognised and implemented.

46. The consensus that emerged during the submissions was thatthis Public Interest Petition should not and cannot be taken as anHadversarial litigation. With this agreement we had put it to the learned

counsel and parties before us to suggest ways and means to ensure thatthe rights of the elderly are addressed keeping in view the financialrequirements and the availability of finances with the Government ofIndia and the State Governments. One solution proffered was that thisCourt should issue continuing mandamus so that there is effectiveimplementation of the constitutional rights of the elderly and the provisionsof the MWP Act.

47. We are in agreement with the consensus view that emergedduring the course of discussions and submissions and are of opinion thata set of directions issued by this Court will not fulfil the constitutionalmandate or the mandate of the MWP Act. There is need to continuouslymonitor the progress in the implementation of the constitutional mandateto make available to the elderly the right to live with dignity and to providethem with reasonable accommodation, medical facilities and geriatriccare. While this may take some time, the only available solution is acontinuing mandamus which is well-recognised practice and procedureadopted by this Court in several cases to ensure that the rights of thepeople are respected, recognized and enforced and that social justice aspostulated by the Preamble in the Constitution is given meaning andteeth.

48. We wish to make it clear that we are not at all critical of theefforts made by the Government of India or by the State Governments,nor is this Public Interest Petition intended to undermine the efforts beingmade or contemplated. Nevertheless, we are of the view that given theconstitutional importance of the issues raised, focused and perhaps morevigorous efforts are needed.

49. In this context, we may note that the learned Additional SolicitorGeneral submitted that an evaluation study is contemplated on all aspectsof the National Social Assistance Programme for use of best practicesand to bring about uniformity in the implementation of the Scheme in allStates. In addition, social audit for the NSAP schemes is alsocontemplated and guidelines have been issued for social audit asrecently as on 30[th] November, 2018 for the launch of social audit pilotin 21 States and Union Territory Administrations.

50. To take this forward, we are of opinion that it would beappropriate to issue some initial directions so that effective contributionsare made to recognise and enforce the rights of elderly persons.

ADirections

51. Taking note of the submissions made by the parties before usand while complimenting them for spirited support of the rights of theelderly, we issue the following directions for the time being:

1.The Union of India will obtain necessary information fromBall the State Governments and the Union Territories aboutthe number of old age homes in each district of the countryand file Status Report in this regard.

2.The Union of India will also obtain from all the StateGovernments the medical facilities and geriatric care facilitiesCthat are available to senior citizens in each district and file aStatus Report in this regard.

3.On the basis of the information gathered by the Union ofIndia as detailed in the Status Reports, plan of action shouldbe prepared for giving publicity to the provisions of the MWPDAct and making senior citizens aware of the provisions ofthe said Act and the constitutional and statutory rights ofsenior citizens.

4.Section 30 of the MWP Act enables the Government of Indiato issue appropriate directions to the State Governments tocarry out and execute the provisions of the MWP Act. TheECentral Government must exercise its power in this regardand issue appropriate directions to the State Governmentsfor the effective implementation of the provisions of theMWP Act. Alongside this, the Central Government must, interms of Section 31 of the MWP Act, conduct review forFthe purposes of monitoring the progress in implementationof the MWP Act by the State Governments.

5.Some of the schemes referred to hereinabove arecomparatively dated. It is high time that the Government ofIndia has relook at these schemes and perhaps overhaulGthem with view to bring about convergence and avoidmultiplicity. In particular, the Government of India and theState Governments must revisit the grant of pension to theelderly so that it is more realistic. Of course, this woulddepend upon the availability of finances and the economiccapacity of the Government of India and the StateHGovernments.

52. The Status Reports should be filed by the Union of India throughthe learned Additional Solicitor General on or before 31[st] January, 2019.

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

Writ Petition (C) No. 81 of 2015

For orders and directions, see W.P. (C) No. 193 of 2016 - Dr.Ashwani Kumar v. Union of India & Ors.

Kalpana K. Tripathy

Directions issued.