Madras High Court Issues Directions For Registration And Inspection Of All Old Age Homes In The State, Directs Setting Up Of Grievance Cell

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." Background 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. Courts Observations 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...

Madras High Court Issues Directions For Registration And Inspection Of All Old Age Homes In The State, Directs Setting Up Of Grievance Cell

Upasana Sajeev

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