On October 26, the Keralam Legislative Assembly unanimously passed the Keralam Senior Citizens (Care and Protection of Rights) Bill, 2026. The Bill was introduced on October 13 and scrutinised by the Subject Committee. It is being described as India's first comprehensive State law on elder rights. It moves the law away from the family-maintenance model of the 2007 Central Act and towards an enforceable framework. That framework includes mandatory registration of care centres, a State certification regime for caregivers, compulsory reporting of abuse within 48 hours, imprisonment of up to three years for cruelty and abandonment, and a statutory “living will”.
The Bill now awaits the Governor's decision. Its two boldest features are the living will and the penal chapter. Both stand on ground already occupied, one by a Constitution Bench of the Supreme Court and the other by Parliament. How these provisions are handled before assent will decide whether the law survives its first challenge.
A Living Will With Fewer Safeguards Than The Supreme Court Requires
In Common Cause v. Union of India (2018), a Constitution Bench recognised the right to execute an advance medical directive as part of the right to die with dignity under Article 21. The Court framed detailed guidelines under Article 142 and directed that they would hold the field until Parliament legislated. The procedure proved unworkable in practice, and in January 2023 another Constitution Bench simplified it. The requirement of a Judicial Magistrate's countersignature was removed. What remained was the core of the safeguard. The directive must be signed before two attesting witnesses, preferably independent, and attested by a notary or Gazetted Officer. Both witnesses and the attesting officer must record their satisfaction that the document was executed voluntarily and with full understanding of its consequences. A copy must also go to a custodian designated by the local government, which States are still in the process of operationalising.
As reported during the debate, the Keralam Bill allows a senior citizen to execute a living will before the Chairperson of the District-Level Senior Citizen Protection Forum or Protection Unit. The process is set in motion by a family member or the authority in charge of the care centre. The two-witness requirement does not appear. When members of the Opposition raised this, the Chief Minister responded that the safeguards would be incorporated in the rules.
That answer does not resolve the difficulty, for three reasons.
First, the context makes the omission serious. The Bill applies the living will to senior citizens at home or in care centres. It is triggered by the very persons who may have a stake in the outcome: heirs, and institutions that bear the cost of prolonged care. The Bill itself recognises this risk elsewhere. When a care-centre resident wishes to donate property or funds, the Protection Unit must conduct an inquiry, and the agreement is executed before the District Magistrate. A gift of property thus attracts more scrutiny than a decision to refuse ICU admission or invasive life support. The State has calibrated its safeguards the wrong way round.
Second, rules can supplement a statute, but they cannot supply its essential safeguards. Voluntariness is the foundation on which Common Cause upheld advance directives against the charge that they invite abuse. Leaving that safeguard to subordinate legislation means it can be diluted by executive notification. It also leaves the parent Act exposed to a challenge under Article 21 until the rules are framed.
Third, the omission affects doctors. A doctor who withdraws treatment is protected because the withdrawal follows the Common Cause framework. In March, the Supreme Court applied that framework for the first time in Harish Rana v. Union of India. The Court refined the procedure, directed High Courts to ensure that Judicial Magistrates receive intimation of medical board decisions, and again urged legislation. Now consider a doctor in a Keralam hospital acting on a directive that complies with the State Act but falls short of Common Cause. That doctor has no assurance that the Bharatiya Nyaya Sanhita, a central law, will not apply. A State statute cannot carve an exception into central criminal law without the President's assent.
The solution is straightforward. The 2023 safeguards should be written into the Act itself: two attesting witnesses, attestation by a notary or Gazetted Officer, recorded satisfaction of voluntariness, and deposit with the custodian. The chapter should also expressly state that it operates subject to the Supreme Court's framework and in furtherance of it.
An Overriding Central Act Already Occupies Part Of The Field
The second concern raised in the Assembly was inconsistency with the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. That Act is not a dormant statute. Section 3 gives it overriding effect over inconsistent laws. Section 23 empowers Tribunals to void property transfers made on an unfulfilled promise of care, a remedy courts continue to read expansively. Section 24 punishes abandonment of a senior citizen with imprisonment of up to three months, a fine of up to Rs 5,000, or both.
The Keralam Bill treats much of the same conduct differently. Abandonment, abuse and cruelty, and illegal possession of a resident's property each carry up to three years' imprisonment and a fine of up to Rs 50,000. Obstructing implementation carries up to two years and Rs 25,000. The offences are cognisable and bailable.
In Forum for People's Collective Efforts v. State of West Bengal (2021), the Supreme Court struck down West Bengal's housing law as repugnant to RERA. It reaffirmed three tests of repugnancy under Article 254: direct conflict, Parliament's intention to enact an exhaustive code, and occupation of the same field. The Court also drew a line that matters here. States remain free to enact legislation on subjects that are allied, incidental or cognate to the Parliamentary law. What they cannot do is re-enact the same field.
Judged by that line, most of the Keralam Bill is safe. The 2007 Act says little about the regulation of home-care agencies, hospices and caregiver training centres. It says nothing on caregiver rights, accessible public infrastructure, digital inclusion, or district protection units. In these areas the Bill fills gaps rather than duplicating anything, which is exactly the kind of cognate legislation Forum for People's Collective Efforts permits.
The penal chapter is different. It takes conduct that Parliament has already defined and punished, abandonment in particular, and prescribes a punishment twelve times higher. Its penal provisions also engage criminal law under Entry 1 of the Concurrent List. Two laws prescribing different punishments for the same act present the clearest case of direct conflict. Under Article 254(1), the State law is void to the extent of the repugnancy. That would mean losing precisely the deterrent penalties that give the Bill its force.
Reservation Is The Bill's Safest Route
Article 254(2) provides the remedy. A State law on a Concurrent List matter that is repugnant to an earlier central law will prevail in that State if it is reserved for the President's consideration and receives assent. Without that assent, the strongest provisions of the Bill risk being invalidated at the first prosecution. Every person accused under the Act would have a repugnancy defence available from the outset.
The constitutional context has also changed. In its opinion on the Presidential Reference in November 2025, a Constitution Bench held that the Governor has three options under Article 200: assent, withholding with return to the Assembly, or reservation for the President. The Bench held that the choice among them involves real discretion, that courts cannot impose timelines, and that the merits of a decision to reserve are not open to judicial review. The full opinion leaves the Governor's choice in this case effectively final.
In that setting, reservation should not be seen as obstruction. It is the only route that secures the Bill's penal chapter. The State Government would do better to seek reservation itself, with the living-will chapter amended first. That is preferable to obtaining a quick assent that leaves the law exposed. Reservation will cost time, and the Union may propose changes. Parliament also retains its power under the proviso to Article 254(2) to amend or repeal the State law later. These are the ordinary costs of cooperative federalism, and they are smaller than the cost of a statute struck down after it has already shaped expectations.
Keralam's demographic situation is real: an ageing population, children working abroad, and a care industry that has grown with little regulation. The Bill is the most serious legislative response to that reality anywhere in India. But rights that collapse at the first technical challenge offer no real protection to the people they are meant for. Two steps before assent would make India's first State elder-rights law a durable one: writing the Common Cause safeguards into the statute, and reserving the Bill under Article 254(2).
Author is an Assistant Professor at School of Law CHRIST (Deemed to be University), Delhi NCR Campus. Views are personal.