The Madras High Court has upheld the constitutional right of the State government to issue executive orders with respect to management of even private old age/retirement homes. It has ordered that the government must ensure registration of every such home and periodical collection of details regarding the inmates, as well as the management.
Justices R. Mahadevan and J. Sathya Narayana Prasad issued a set of guidelines to the government and said the latter should monitor day-to-day functioning of the homes with focus on nutrition, hygiene, medical needs of inmates, food, round-the-clock security, clean drinking water, ambulance services, entertainment, religious activities and so on.
Making it clear that all old age/retirement homes in the State must be inspected to identify the deficiencies and get them rectified by the management, the judges said non-rectification of the deficiencies must entail civil consequences, including the cancellation of the registration of the particular home with the State government.
“The State government must ensure that non-registered homes do not continue to function within the State and must act on any complaint by any person in this regard, after necessary inspection. The State government must maintain a grievance cell for senior citizens while ensuring compliance of the Government Order now being upheld,” the judges wrote.
The judgement was passed while upholding the constitutional validity of the Government Order (G.O.) issued by the Social Welfare Department on November 23, 2016. Some private homes had challenged the validity of the G.O. on the ground that they were private entities and their commercial activity could not be curtailed by the government.
It was also argued that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 does not empower the government to interfere with the affairs of private old age/retirement homes, where only affluent senior citizens reside on payment of considerable amount of money towards their accommodation, food and other facilities.
Authoring the judgement for the Bench, Justice Mahadevan concurred with the petitioners that the 2007 Act suffers from lacunae and it does not bring the private old age homes under its ambit. However, he held that the government was entitled to issue executive instructions by invoking its constitutional power to ensure social security.
The judge pointed out there were 13.8 crore (nearly 10% of the population) senior citizens in the country as per the 2020 report of the National Commission on Population and therefore it could not be said that management of old age homes should be considered as purely a commercial activity with no control or regulation by the State.
Penning an exhaustive judgement, running to 103 pages, and after tracing the measures taken by various countries including the U.S. and the U.K. to look after their senior citizens, the Bench suggested that the Centre and the State government too could come up with a new legislation or amend the existing legislation on those lines.
“To expect a tree to flourish without nurturing its roots is an analogy comparable to the present generation disregarding and treating with contempt their parents, elders and senior citizens of society. It is often said that the measure of a society is the way in which it treats its most vulnerable, and going by that standard, it would not be an exaggeration to state that we, as a society, have failed in measuring up to the expectation of our ancestors and elders, who laboured hard to imbibe those very values of respect and compassion in us,” the judges lamented in the preamble to their verdict.
Also conscious of its limitations and that societal change could not be brought about with judicial edicts alone, the Bench said, “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 realise 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.”
