DR. ASHWANI KUMAR versus UNION OF INDIA & ORS.
[2018] 13 S.C.R. 1286, Supreme Court of India, 2018
Outcome: Directions issued
Segment: Ratio
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DR. ASHWANI KUMAR
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 193 of 2016)
DECEMBER 13, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Social Justice:
Rights of elderly persons – Writ petition u/Art. 32 of
Constitution – Seeking enforcement of rights of elderly persons u/
Art. 21 by providing them adequate pension, shelter, geriatric care
and medical facilities and also sought effective implementation of
the Maintenance and Welfare of Parents and Senior Citizens Act,
2007 – Held: Right to life provided u/Art. 21 encompasses several
rights – The right to live with dignity, right to shelter and right to
health are basic and fundamental – The State is obliged to ensure
that these fundamental rights are not only protected, but are enforced
and made available to all the citizens – Central Government and
State Governments have started certain schemes towards meeting
the rights of elderly persons u/Art. 21, but there is a lot that is required
to be achieved – However, a set of directions issued by this Court
will not fulfill the constitutional mandate or the mandate of the Act
– The only available solution is a continuing mandamus 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 – Initial directions issued
so that effective contributions are made to recognize and enforce
rights of elderly
persons – Constitution of India – Arts. 21, 39 and
41 – Maintenance and Welfare of Parents and Senior Citizens Act,
2007 – ss. 30 and 31.
Issuing directions, the Court
HELD : 1.1 The conceptualisation of justice by Constitution
framers was as much valid in 1949 (when the Constituent
Assembly debates took place) as it is today. But, with times having
changed, varied situations have emerged which may not have
existed in 1949 and were perhaps not foreseen at that time. The
rights of elderly persons is one such emerging situation that was
perhaps not fully foreseen by the Constitution framers. Therefore,
[2018] 13  S.C.R. 1286
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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 specific reference to the health of the elderly or to their
shelter in times of want and indeed to their dignity and sustenance
due 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 the
Constitution must be given an expansive meaning. The right to
life, encompasses several rights but for the time being  the Court
is concerned with three important constitutional rights, each one
of them being basic and fundamental.  These rights 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.[Para 44][1308-D-E]
2.1 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. [Para 16][1298-F-G]
2.2 National Social Assistance Programme (NSAP) was
introduced on Independence Day, 1995 as a fully funded Centrally
Sponsored Scheme. In the introduction to the Programme
document, it is noted that the Directive Principles of State Policy
of the Constitution enjoin upon the State to undertake within its
means a number of welfare measures, targeting the poor and the
destitute in particular. Article 41 of the Constitution directs the
State to provide public assistance to its citizens in the case of
unemployment, old age, sickness and disablement as well as in
other cases of undeserved want, within the limit of the State’s
economic capacity and development. Among the initial three
components of the Programme are the National Old Age Pension
Scheme which subsequently came to be known as the Indira
Gandhi National Old-Age Pension Scheme. Both the Government
of India and the State Governments and the Union Territory
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Administrations must work in tandem if they are to make the
Pension Scheme workable and meaningful. [Paras 17 and
18][1299-A-E]
Francis Coralie Mullin v. Administrator, Union Territory
of Delhi (1981) 1 SCC 608 : [1981] 2 SCR 516 ; Aruna
Ramachandra Shanbaug v. Union of India (2011) 4 SCC
454 : [2011] 4 SCR 1057 ; Common Cause v. Union of
India (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)
1 SCC 645 : [1993] 1 SCR 594 – referred to.
3.1 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 who require special care and attention which, in many
sections of the society, is missing. [Para 21][1300-G-H]
3.2
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, 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. [Para 25][1302-G-H; 1303-A]
3.3
It is noted in the
introduction to the Integrated
Programme for Senior Citizens that there has been a steady rise
in the population of senior citizens in India. The number of elderly
persons has increased from 1.98 crore in 1951 to 7.6 crore in
2001 and 10.38 crore in 2011.  It is projected that the number of
60+ in India would increase to 14.3 crore in 2021 and 17.3 crore
in 2026. The main objective of the Programme “is to improve
the quality of life of the Senior Citizens by providing basic
amenities like shelter, food, medical care and entertainment
opportunities …..” It is also proposed to encourage productive
and active ageing through providing support for capacity building
activities. It was submitted that under this Programme grant-in-
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aid is given for running and maintenance of senior citizens homes,
homes for elderly women etc. [Para 26][1303-B-D]
3.4
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 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. [Para 27][1303-D-G]
Shantistar Builders v. Narayan Khimalal Totame AIR
1990 SC 630 ; Chameli Sing v. State of Uttar Pradesh
(1996) 2 SCC 549 : [1995] 6 Suppl. SCR  827 ;
Ahmedabad Municipal Corporation v. Nawab Khan
Gulab Khan (1997) 11 SCC 121 : [1996] 7 Suppl.
SCR 548 – relied on.
4.1 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. [Para 32][1305-B-C]
4.2 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 the Union of India and all
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the State Governments and Union Territory Administrations
should take an active interest in the implementation of the
National Programme. [Para 35][1305-F-G]
Vincent Panikurlangara v. Union of India (1987) 2 SCC
165 : [1987] 2 SCR 468 ; Consumer Education &
Research 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 Singh
Chawla (1997) 2 SCC 83 : [1996] 10 Suppl. SCR 279 ;
Nagar Nigam v. AL Faheem Meat Exports (P) Ltd.
(2006) 13 SCC 382 : [2006] 10 Suppl. SCR 354 ;
Occupational Health and Safety Association v. Union
of India (2014) 3 SCC 547 : [2014] 4 SCR 10 – relied
on.
5.1 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 Maintenance
and Welfare of Parents and Senior Citizens Act, 2007 (MWP Act)
mandates the protection and enforcement of the rights of elderly
persons. It is quite clear 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. If not the constitutional then at
least the statutory rights of elderly persons must be recognised
and implemented. [Para 45][1308-E-G]
5.2 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 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
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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.  Given the
constitutional importance of the issues raised, focused and
perhaps more vigorous efforts are needed. [Paras 47 and
48][1309-C-F]
6. 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.
[Para 49][1309-F-G]
7. It would be appropriate to issue some initial directions
so that effective contributions are made to recognise and enforce
the rights of elderly persons :
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, a plan of action 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.  The Central Government must exercise its power u/s.
30 of MWP Act and issue appropriate directions to the State
Governments for the effective implementation of the provisions
of the MWP Act.  The Central Government must also, in terms
of Section 31 of the MWP Act, conduct a review for the purposes
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of monitoring the progress in implementation of the MWP Act
by the State Governments. [Paras 50, 51][1309-H; 1310-B-F]
5. Government of India should have 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 theGovernment of India and the State Governments.
[Para 51][1310-G-H]
Case Law Reference
[1981] 2 SCR 516
relied on
Para 13
[2011] 4 SCR 1057
relied on
Para 14
[2018] 6 SCR 1
relied on
Para 14
[2017] 10 SCR 569
relied on
Para 15
[1993] 1 SCR 594
referred to
Para 19 
AIR 1990 SC 630
relied on
Para 22
[1995] 6 Suppl. SCR  827
relied on
Para 23
[1996] 7 Suppl. SCR 548
relied on
Para 24
[1987] 2 SCR 468  
relied on
Para 29
[1994] 6 Suppl. SCR 626
relied on
Para 30
[1996] 1 SCR 884
relied on
Para 30
[1996] 10 Suppl. SCR 279 
relied on
Para 31
[2006] 10 Suppl. SCR 354
relied on
Para 31
[2014] 4 SCR 10
relied on
Para 31
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.
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A. N. S. Nadkarni, ASG, Jugal Kishore Gilda, Adv. Gen., Anil
Grover, 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 Chandra
Prakash, Bhanu Priya Sharma, Ashutosh Chaturvedi, Amit, Ms. Sushma
Singh,  Abhishek Tripathi, Sanjeeb Panigrahi, Purushottam Sharma
Tripathi, 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. Prerna
Singh,  Anil  Shrivastav,  Rituraj  Biswas, Satyendra Kumar Srivastav,
Ms. Abha R. Sharma, D. S. Parmar, Ms. Sujeeta Srivastava, Mahendra
Singh, Ms. Anshruta Maheswari, Ms. Pratishtha Vij, Siddharth Garg,
A. P. Mayee, Chirag Jain, Ms. Mayuri Nayyar Chawla, Salvador Santosh
Rebelo, P. S. Sudheer, Ms. Shruti Jose, Mrs. Hemantika Wahi, Ms. Jesal
Wahi, 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, Parikshit
P. Angadi, G. Prakash, Jishnu M. L.,  Mrs. Priyanka Prakash, Mrs. Beena
Prakash, Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar,
Leishangthem Roshmani Kh., Ms. Maibam Babina, Ms. Anupama
Ngangom, Ms. Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar,
Ranjan Mukherjee, Upendra Mishra, Ms. K. Enatoli Sema, Amit Kumar
Singh, 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. Yogesh
Kanna, S. Partha Sarathi, Ms. Sujatha Bagadhi, Mrityunjai Singh,
Shuvodeep Roy, Rajeev Kumar Dubey, Kamlendra Mishra, Ms. Vaidhruti
Mishra, Ashutosh Kumar Sharma,  Aviral Saxena, Ms. Rachana
Srivastava, Suhaan Mukerji, Ms. Astha Sharma, Amit Verma,  Abhishek
Manchanda, 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 the
appearing parties.
Dr. Ashwani Kumar, Petitioner-in-person.
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
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The Judgment of the Court was delivered by
MADAN B. LOKUR, J.
1. “Social justice” in the Preamble of our Constitution has been
given pride of place and for good reason since it is perhaps the most
important and significant form of justice.
2. In his address on Constitution Day on 26th November, 2018 the
Hon’ble President of India emphasised that social justice remains a
touchstone of our nation building. The conceptualisation of justice by our
Constitution framers was as much valid in 1949 (when the Constituent
Assembly debates took place) as it is today. But, with times having
changed, varied situations have emerged which may not have existed in
1949 and were perhaps not foreseen at that time. The Hon’ble President
spoke on the subject of justice and particularly social justice in the following
words:
“In the Preamble, justice is not seen as unidimensional. It is
viewed as having implications across political, economic and social
spheres. Political justice implies the equal participation of all adults
in the political process and the just formulation and implementation
of laws. Economic justice implies the ultimate eradication of
poverty, equal opportunities to earn a livelihood, and fair wages.
As such the expansion of economic, entrepreneurship and job
opportunities are among examples of economic justice.
Given the diverse history of our people, and given imbalances and
hierarchies that have sometimes marked our
past, social justice
remains a touchstone of our nation building. At the simplest
level, it implies the removal of societal imbalances and the
harmonisation of rival claims and needs of different communities
and groups. Social justice is about providing equal
opportunities.
Such a conceptualisation of justice was valid in 1949 and broadly
remains relevant today. Even so, the 21st century has brought
new challenges. No doubt the concept of justice - political,
economic and social – has a resilient core but it needs to be thought
of in innovative ways. It requires to be applied afresh to
emerging situations – situations that may not have existed
or been foreseen when our Constitution framers were at
work.” (Emphasis supplied by us).
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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 specific reference to the health
of the elderly or to their shelter 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 path-
breaking 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 recognise and
enforce the rights of elderly persons - rights that are recognised 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.
Brief
background
5. The petitioner Dr. Ashwani Kumar has preferred a writ petition
under Article 32 of the Constitution with regard to enforcement of the
rights of elderly persons under Article 21 of the Constitution.  The
petitioner, who appears in person, has made several prayers in the writ
petition but during the course of submissions, he limited the relief prayed
for 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 were
assisted by HelpAge India through Mr. Mathew Cherian as Amicus
Curiae and Mr. Nikhil Dey a social activist as an Intervener.  We were
also assisted by the learned Additional Solicitor General appearing for
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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the Union of India who specifically underlined the fact that the Union of
India does not consider this as an adversarial litigation.
7. We propose to take up the issues raised by the petitioner in
seriatim but leave it open to him and the learned Amicus to agitate any
further issues that may arise during the pendency of the public interest
petition.
The right to dignity and adequate pension
8. It has come on record that the Union of India has categorised
the elderly as those who are above 60 years of age and up to 79 years of
age belonging to one category and those above 80 years of age belonging
to another category.  The record shows that pension was fixed for persons
between the age of 60-79 years at ¹  200 per month by the Union of
India under a scheme called the Indira Gandhi National Old Age Pension
Scheme. An amount of ¹  500 per month was fixed by the Union of India
for persons above 80 years of age.
9. Interestingly, the pension amount was fixed more than a decade
ago with the latest revision in 2007.  It is submitted on the side of the
petitioner that the amount is a pittance and is wholly inadequate to advance
the constitutional mandate of Article 21. If the current value of the rupee
is taken into consideration then in real terms the amount actually works
out to about ¹  92 per month on the lower scale.
10. There is no doubt that the Scheme places a corresponding
obligation on the State Governments and
Union Territory Administrations
to make contributions but their contributions are varying, as per the
affidavits filed in this Court, from less than ¹  500 per month to ¹  2000
per month. One of the directions prayed for by the petitioner is that a
realistic pension ought to be paid to the elderly and it is his suggestion
that it should be at least half the minimum wage.
11. It was submitted by the petitioner, ably supported by the learned
Amicus and the intervenor that the right to live with dignity is a
fundamental right recognised by Article 21 of the Constitution. We do
not doubt this and surely the Union of India would also not doubt this.
The further submission of the petitioner was that availability of adequate
finances is necessary for a person to live a life of dignity. An elderly
person, particularly someone who is in an old age home is unable to look
after himself and therefore needs financial assistance. This can be made
available only if there is a viable pension scheme that is implemented
with sincerity and which can be taken advantage of by an elderly person.
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12. In support of his submissions, reliance was placed by the
petitioner on four significant decisions of this Court which hold that the
right to dignity is integral to the right to life guaranteed by Article 21 of
the Constitution.
13. In Francis Coralie Mullin v. Administrator, Union Territory
of Delhi1 this Court acknowledged that the right to life guaranteed by
Article 21 of the Constitution includes the right to live with dignity which
includes, inter alia, nutrition, clothing and shelter - all of which require
some finances. Provision for these basic necessities can be made only if
the elderly are provided with some pension which is meaningful and not
pension which is equivalent to ¹  92 per month. Reference was made to
paragraph 8 of the Report which reads as follows:
“8. But the question which arises is whether the right to life is
limited only to protection of limb or faculty or does it go further
and embrace something more. We think that the right to life
includes the right to live with human dignity and all that
goes along with it, namely, the bare necessaries of life such
as adequate nutrition, clothing and shelter and facilities for
reading, writing and expressing oneself in diverse forms,
freely moving about and mixing and commingling with fellow
human beings. Of course, the magnitude and content of the
components of this right would depend upon the extent of the
economic development of the country, but it must, in any view of
the matter,
include the right to the basic necessities of life and
also the right to carry on such functions and activities as constitute
the bare minimum expression of the human-self……..” (Emphasis
supplied by us).
14. Reference was made by the petitioner to Aruna
Ramachandra Shanbaug v. Union of India2 and Common Cause v.
Union of India3 wherein this Court categorically held that the right to
life includes the right to live with dignity. It was said in paragraph 32 of
the 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 commit
suicide is a crime vide Section 309 IPC, the Court has held that
the right to life includes the right to live with human dignity,
1(1981) 1 SCC 608
2(2011) 4 SCC 454
3(2018) 5 SCC 1
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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and in the case of a dying person who is terminally ill or in a
permanent vegetative state he may be permitted to terminate it
by a premature extinction of his life in these circumstances and it
is not a crime vide Gian Kaur case. [Gian Kaur v. State of Punjab,
(1996) 2 SCC 648]”  (Emphasis supplied by us).
15. Reference was also made by the petitioner to the opinion
rendered by Justice Rohinton Fali Nariman in K.S. Puttaswamy v. Union
of India4 wherein it has been observed that several decisions of this
Court have recognised human dignity as being an essential part of the
fundamental rights chapter in the Constitution. This observation was
made in paragraph 525 of the Report which reads as follows:
“525. ………..Many of our decisions recognise human
dignity as being an essential part of the fundamental rights
chapter. For example, see Prem Shankar Shukla v. Delhi
Admn., (1980) 3 SCC 526 at para 21, Francis Coralie
Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and
8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC
161 at para 10, Maharashtra University of Health
Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786
at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at
paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7
SCC 761 at para 37. The dignity of the individual encompasses
the right of the individual to develop to the full extent of his potential.
And this development can only be
if an individual has autonomy
over fundamental personal choices and control over dissemination
of personal information which may be infringed through an
unauthorised use of such information…….”  (Emphasis supplied
by us).
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.
4(2017)10 SCC 1
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17. The learned Additional Solicitor General drew our attention to
the National Social Assistance Programme (NSAP) which was
introduced on Independence Day, 1995 as a fully funded Centrally
Sponsored Scheme. In the introduction to the Programme document, it
is noted that the Directive Principles of State Policy of the Constitution
enjoin upon the State to undertake within its means a number of welfare
measures, targeting the poor and the destitute in particular. Article 41 of
the Constitution directs the State to provide public assistance to its citizens
in the case of unemployment, old age, sickness and disablement as well
as in other cases of undeserved want, within the limit of the State’s
economic capacity and development. Among the initial three components
of the Programme are the National Old Age Pension Scheme which
subsequently came to be known as the Indira Gandhi National Old-Age
Pension Scheme, referred to above. It was submitted that the Scheme is
being implemented by the Government of India but active support is
required from the State Governments and the Union Territory
Administrations.
18. While we cannot disagree with the learned Additional Solicitor
General on the issue of active support, we are of opinion that both the
Government of India and the State Governments and the Union Territory
Administrations must work in tandem if they are to make the Pension
Scheme workable and meaningful. In fact, it is submitted that the NSAP
guidelines
provide that State Governments may consider equal or more
top-up to be considered for extending it to the beneficiaries.
19. It was submitted by the learned Additional Solicitor General
that the economic capacity of the Government of India and of the State
Governments ought not to be overlooked and a caution has been
administered by this Court in paragraphs 181 and 182 in the opinion of
Justice B.P. Jeevan Reddy in Unni Krishnan, J.P. v. State of Andhra
Pradesh5 wherein it was held that the economic capacity of the State is
limited and is, ordinarily speaking, a matter within the subjective
satisfaction of the State. This was in the context of the right to education
but it is submitted that the principle laid down is equally applicable to the
present petition. It was held by this Court as follows:
“181. Right to education after the child/citizen completes the age
of 14 years. The right to education further means that a citizen
has a right to call upon the State to provide educational facilities
5(1993) 1 SCC 645
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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to him within the limits of its economic capacity and development.
By saying so, we are not transferring Article 41 from Part IV to
Part III — we are merely relying upon Article 41 to illustrate the
content of the right to education flowing from Article 21. We cannot
believe that any State would say that it need not provide education
to its people even within the limits of its economic capacity and
development. It goes without saying that the limits of
economic capacity are, ordinarily speaking, matters within
the subjective satisfaction of the State.
182. In the light of the above enunciation, the apprehension
expressed by the counsel for the petitioners that by reading the
right to education into Article 21, this Court would be enabling
each and every citizen of this country to approach the courts to
compel the State to provide him such education as he chooses
must be held to be unfounded. The right to free education is
available only to children until they complete the age of 14 years.
Thereafter, the obligation of the State to provide education
is subject to the limits of its economic capacity and
development. Indeed, we are not stating anything new. This
aspect 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 SCC
608] ………” (Emphasis supplied by us).
In this context, it is pointed out
that the NSAP Scheme of the
Government of India provided for a total budget of ¹  9975 crores for
covering over 3 crore below poverty line beneficiaries exclusively. It
was also submitted that linking pension to the index of inflation may not
be appropriate since the pension provided is a welfare measure.
20. While this may be so, the issue has, nevertheless, to be looked
at from the humanitarian aspect as well.
The right to shelter
21. It is about two decades since this Court recognised the right
to shelter or the right to reasonable accommodation as 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 who require special care and attention which, in
many sections of our society, is missing. With this in mind, the petitioner
emphasised the right to shelter and referred to several decisions, many
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of which recognise 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 Totame6 this
Court recognised the right to food, clothing and shelter as being a
guarantee of any civilised 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:
“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……...” (Emphasis supplied by us).
23. A much fuller discussion is to be found in Chameli Singh v.
State of Uttar Pradesh7 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 organised 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………...” (Emphasis supplied by us).
6AIR 1990 SC 630
7(1996) 2 SCC 549
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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24. Finally, in Ahmedabad Municipal Corporation v. Nawab
Khan Gulab Khan8 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
judgements, 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:
“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 [(1985) 3 SCC 545] and the
latest Chameli Singh case [(1996) 2 SCC 549] and a host of other
decisions which need no reiteration…..” (Emphasis supplied by
us).
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
8(1997) 11 SCC 121
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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.
26. The learned Additional Solicitor General referred to the recently
revised Integrated Programme for Senior Citizens. It is noted in the
introduction to the Programme that there has been a steady rise in the
population of senior citizens in India. The number of elderly persons has
increased from 1.98 crore in 1951 to 7.6 crore in 2001 and 10.38 crore in
2011.  It is projected that the number of 60+ in India would increase to
14.3 crore in 2021 and 17.3 crore in 2026. The main objective of the
Programme “is to improve the quality of life of the Senior Citizens by
providing basic amenities like shelter, food, medical care and entertainment
opportunities …..” It is also proposed to encourage productive and active
ageing through providing support for capacity building activities. 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.
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 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
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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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 India9 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, [(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 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…..” (Emphasis
supplied by us).
30. A similar view was expressed by this Court in Consumer
Education & Research Centre v. Union of India (paragraph 25)10
and Kirloskar Brothers Ltd. v. Employees State Insurance Corpn.
(paragraph 10)11.
31. In State of Punjab v. Mohinder Singh Chawla
(paragraph 4)12, Nagar Nigam v. AL Faheem Meat Exports (P) Ltd.
9(1987) 2 SCC 165
10(1995) 3 SCC 42
11(1996) 2 SCC 682
12(1997) 2 SCC 83
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(paragraph 26)13 and in Occupational Health and Safety Association
v. Union of India (paragraph 10)14 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 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, 2007
13(2006) 13 SCC 382
14(2014) 3 SCC 547
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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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 oldage homes-
1.   The State Government may establish and maintain such
number of oldage 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 oldage 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.
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.
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39. Our attention was also drawn to Section 20 of the MWP Act
which provides for medical support for senior citizens.  Government
hospitals or hospitals funded fully or partially by the State Government
are mandated to provide beds for all senior citizens, as far as possible.
Facilities for geriatric patients are also required to be earmarked by this
Section 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 partially
by the Government shall provide beds for all senior citizens
as far as possible;
ii.
separate queues be arranged for senior citizens;
iii.    facility for treatment of chronic, terminal and degenerative
diseases is expanded for senior citizens;
iv.
research activities for chronic elderly diseases and ageing is
expanded;
v.
There are earmarked facilities for geriatric patients in every
district hospital duly headed by a medical officer with
experience in geriatric care.
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
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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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 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
recognised 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
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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 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.
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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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 detailed in the Status Reports, a plan of action 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.

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Kalpana K. Tripathy
Directions issued.
52. The Status Reports should be filed by the Union of India through
the learned Additional Solicitor General on or before 31st January, 2019.
53. List the matters for further proceedings on receipt of the Status
Reports.
Writ Petition (C) No. 81 of 2015
O R D E R
For orders and directions, see W.P. (C) No. 193 of 2016 - Dr.
Ashwani Kumar v. Union of India & Ors.
DR. ASHWANI KUMAR v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]