Madras High Court exercises parens patriae jurisdiction to deal with the issue of senior citizen welfare and old age homes; Guidelines issued

Madras High Court

Madras High Court: A Division Bench of R Mahadevan and J Sathya Narayan Prasad, JJ. upheld the constitutional validity of Government Order ‘GO (Ms) No. 83′ issued by the Social Welfare and Nutritious Meal Programme Department under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘Act’) and Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (‘Rules’) safeguarding the interests of elderly and senior citizens.

An instant batch of petitions was filed seeking validity of the Government Order ‘GO (Ms) No. 83 dated 23-11-2016 and seeking implementation of the same.

Validity of Government Order

The Court observed that the impugned Government Order would not fall within the provisions of the Act as the provisions of the Act are clearly and unambiguously silent about the establishment, administration or management of old-age homes by the private individuals or entities or even of their supervision by the State Government in any manner.

Placing reliance on Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501 and observed that once the State Government has the legislative power on a subject, the executive power of the State is also co-extensive with that. Thus, the State has the executive power under Article 162 to issue any executive instruction/order with respect to privately managed old age homes.

The Court thus held that the power of the State to issue an executive order in respect of privately managed old age homes, to which the impugned G.O. does not make any contrary provision rather supports the existing legislative provisions, thus, the impugned G.O. is constitutionally valid and there are no grounds to interfere with the same. The desirability or otherwise to pass legislation to incorporate the management of privately managed and owned old-age homes by the State Government is a matter to be left to the legislature.

Violation of Article 19 (1) (g) Constitution of India

A four-limb test was propounded in judgment Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, wherein doctrine of proportionality in the context of Article 19 (1) (g) was tested. It is as follows:

  1. The restriction must be in pursuance of legitimate state aim
  2. Rational nexus between the restricting measures, facts and objects sought to be achieved.
  3. The necessity of the measure to achieve the said aim, i.e., it should be a least restrictive measure
  4. Balancing of competing interests i.e., balancing the right under Article 19(1)(g) and the social control/restriction imposed on the same.

Thus, in view of the test laid above, the Court observed that the Societies and Trusts managing these private retirement homes must work in tandem with the State Government in order that the quality of life of the senior citizens is elevated to the desired level. Therefore, the restrictions imposed by the impugned order cannot be said to be violative of Article 19(1)(g) Constitution of India.

Violation of provisions of Real Estate (Regulation and Development) Act, 2016 (‘RERA’)

Reliance was further placed on Forum for People’s Collective Efforts v. State of West Bengal, (2021) 8 SCC 599 and observed that the effect of sections 88 and 89 of the RERA is 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. The same principle would be applicable to the impugned G.O. as well. As long as it is not repugnant to any of the statutory provisions, there can be no inconsistency between the impugned G.O. and the provisions of the RERA Act. Also, as already stated, the RERA does not preclude the application of other laws unless they are inconsistent with the RERA.

Thus, the Court held that “the provisions of the RERA Act and the impugned G.O. must be batch mutually exclusive to be valid. 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”.

Doctrine of Parens Patriae and Welfare of Senior Citizens

Placing reliance on Ashwani Kumar v. Union of India, (2019) 2 SCC 636 the Court noted that the State Government may also do well in plugging the loopholes that have been pointed out by the writ petitioners and come up with further clarifications and details and also examine the desirability of incorporating certain provisions by way of legislation that will have greater force in law.

The Court thus concluded by issuing the following guidelines:

  1. The State Government shall take steps to inspect all old age homes within the State and ensure implementation of the spirit of the impugned GO, which has now been upheld.
  2. After inspection, the State Government may issue directives to be complied with, and deficiencies, if any, to be rectified by the old age homes/retirement homes in order to comply with the spirit of the Government Order as well as the orders passed herein. The State Government shall take steps to monitor the day-to-day functioning of the batch homes, with more focus on nutrition, hygiene and medical needs of inmates, such as food, round the clock security, clean drinking water, ambulance services, medical care, amusement and entertainment, religious activities, etc., to suit their needs.
  3. The non-compliance of the directives/non-rectification of the deficiencies as pointed out, must entail civil consequences for the retirement homes/old age homes, including cancellation of registration.
  4. The State Government must ensure that every old age home/retirement home within the State is registered with it and the Government must maintain records of its inmates as well as the persons involved in the Management.
  5. 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.
  6. The State Government must maintain a grievance cell for senior citizens, while ensuring compliance of the Government Order, now being upheld. (The term “State Government” employed in the above guidelines shall include any authorized representative or officer of the Government).
  7. It is only appropriate that the substance of the impugned executive order may be well made part of a legislation either independently or as an addition to the existing legislation on the subject with more clarity in order that no further time is wasted on debating the validity and applicability of the welfare measures to senior citizens and old age homes/retirement homes, etc. on a universal scale.

[S Krishnamurthy v. Manivasan, 2022 SCC OnLine Mad 3525, decided on 30-06-2022]


Advocates who appeared in this case :

Mr. J. Narayanasamy, Advocate, for the Petitioner Cont. P. No. 515 of 2018;

Mr. S. Arokia Maniraj, Advocate, for the Petitioner in WP No. 16984 of 2017;

Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari, Advocates, for the Petitioner in WP Nos. 30458, 30469, 30874, 30884 of 2019;

Mr. V. Arun assisted by Mr. P. Balathandayutham, Advocate, for the Respondents;

Mrs. Aparna Nandakumar, Advocate, for R4 in WP No. 16984 of 2017;

Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari, Advocates, for R5 in Suo motu WP No. 28237 of 2017;

Mr. C.G. Kumar, Advocate, for R5 in WP.No.16984 of 2017.


*Arunima Bose, Editorial Assistant has reported this brief.

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