Elaborating on the thought that the measure of a society is the way in which it treats its most vulnerable, the Madras High Court recently issued a slew of directions to the State Government for proper maintenance of the Old Age Homes in the state.
These directions involved frequent inspections, compliance to the executive orders, registration of old age homes, maintenance of record, cancellation of registration in case of non-compliance, and establishment of a grievance cell.
The court was adjudicating upon a contempt petition alleging that an earlier order of the Government directing the State to ensure proper compliance of the Government Order dealing with proper administration of Old Age Homes. While issuing direction the court also remarked that the society could not be positively transformed through judicial directions alone and the society had major role to play in ensuring the well being of the senior citizens of the country.
The bench of Justice R Mahadevan and Justice Sathya Narayana Prasad observed as under:
"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 health, self-sufficiency as well as dignity to every senior citizen of this country."
The Contempt petition was filed for non compliance of an earlier order of the High Court wherein the court had directed the Government to inspect the existing Old Age Homes and to ensure that they are complying with the impugned Government Order and to inspect the unregistered homes. (t was alleged that the Government and its instrumentalities have not taken any efforts to inspect the unregistered or registered homes. Another writ petition was filed by one of the inmates at an old age home citing deficiency in services promised. A suo motu proceeding was also initiated seeking direction to the respondents to comply with the implied GO.
The main contentions raised against implementation of the impugned GO to private old age homes was that the State did not have authority to pass such orders when the Act itself was silent woth respect to the same. Another contention was that making these orders applicable to the private old age homes affected their fundamental rights as guaranteed under Article 19(1) (g) of the Constitution. The third issue was that Old Age Homes were different from Retirement Communities. While Old Age Homes were within the purview of the 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.
On power to issue the impugned order
The court noted that the Senior Citizens Act, 2007 did not make any provision with respect to the establishment, registration, administration or management of old age homes which are run privately. In such a context, what had to be looked into was (1) whether the State has the executive power coextensive with its legislative power to exercise its executive or legislative power in this regard; and (2) whether in the absence of any provision with respect to private old age homes in the Act, the State could independently exercise executive power and make an executive order with respect to the management of private old age homes as has been done under the impugned GO.
The court noted that the State had executive power under Article 162 to issue any executive instruction/order with respect to privately managed old age homes. The State had an executive power coextensive with that of the legislative power. In addition, since the Act was silent with respect to privately managed old age homes, the question executive order running contrary to the provisions of the Act was mute.
On alleged violation of Article 19(1)(g)
The court reiterated that the fundamental rights guaranteed under the Constitution were subject to reasonable restrictions. Whether these restrictions were reasonable had to be tested on the Doctrine of Proportionality. The court noted that as per Modern Dental College and Research Centre vs State of Madhya Pradesh, the four limbs to be satisfied in a test of proportionality were as follows:
- The restriction must be in pursuance of legitimate state aim
- Rational nexus between the restricting measures, facts and objects sought to be achieved.
- Necessity of the measure to achieve the said aim, i.e., it should be a least restrictive measure.
- Balancing of competing interests i.e., balancing the right under Article 19(1)(g) and the social control/restriction imposed on the same.
In the present case, the restrictions were imposed 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). The impugned orders were passed pursuant to the orders of the court in pleas bringing light into the sorry state of affairs and dismal quality of life being led by the senior citizens of the country. The court observed as under:
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 alleged inconsistency with RERA Act
The court noted that the effect of sections 88 and 89 of the RERA was 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. Thus, the RERA Act does not preclude the application of other laws unless they are inconsistent with the RERA.
The court noted that the while only a limited aspect was covered by the RERA Act, the impugned G.O. had a broader objective of protecting the rights of senior citizens covers many aspects of their day-to-day practical life. Thus, 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.
The court directed the State Government to inspect and Old Age Homes and ensure proper implementation of Government Order dealing with administration of Old Age Homes. The state was directed to monitor the day-to-day functioning of the homes, focussing on nutrition, hygiene and medical needs of inmates and other activities to suit their needs. Any deficiencies were to be rectified by the old age homes. The court held that non compliance to the directions or non-rectification of the deficiencies will result in cancellation of registration and other civil consequences.
The state was directed to ensure registration of every old age home in the State and maintain records of its inmates as well as persons involved in the management. Non-registered homes were not to be allowed to continue functioning.
The State Government was also directed to maintain a grievance cell for senior citizens. It was also suggested to incorporate the substance of the executive order into the legislation to give further clarity on the matter.
Case Title: S Krishnamurthy v. Dr Manivasan
Case No: Contempt Petition No. 515 of 2018 in W.P. No. 22967 of 2015
Citation: 2022 LiveLaw (Mad) 288
Counsel for the Petitioners: Mr. J. Narayanasamy Amicus Curiae, Mr. S. Arokia Maniraj, Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari
Counsel for the Respondents: Mr. V. Arun Additional Advocate General assisted by Mr. P. Balathandayutham Special Government Pleader, Mrs. Aparna Nandakumar (R4), 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