Dignity of Elderly: An Indian Judicial Perspective

‘Dignity’, a non-negotiable tenet of the Indian Constitution, repeatedly affirmed by the Supreme Court, includes within its ambit – the right to health, shelter, and subsistence. Recently, the Supreme Court reiterated these rights for the elderly under ‘social justice’ of the Preamble of the Constitution, the right to dignity under Article 21, Directive Principles of State Policy (DPSP), and statutory rights and obligations in Dr Ashwani Kumar vs Union of India, (2019) 2 SCC 636.

Through this blog post, the author seeks to provide a socio-legal analysis of the judicial interpretation of ‘dignity’ and securing social justice for the elderly in India through constitutional obligations in light of fiscal constraints.

Dignity for the Elderly

While the conceptualisation of ‘dignity’ is not a recent phenomenon, the interpretation of the term in light of certain fundamental, civil-political, and socio-economic rights has recently been expanded by the Indian judiciary. This has been done through Article 21 – the right to life must mean for a person to ‘live a life of dignity’ and through a collective interpretation of the Constitution, statutory obligations under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (‘MWP Act’), judicial pronouncements, International Law, financial policies, and an examination of social security schemes.

Jurisprudence expounded over the decades by the Supreme Court has expanded the right to life to mean one ‘with dignity’, and that such ‘dignity’ should also include nutrition, clothing, and shelter. Discussing the futility of ensuring ‘dignity’ without a commensurate pension for the elderly below the poverty line to sustain themselves effectively, the Court urged the federal structure of the Indian Republic to look at the plight of the elderly with a ‘humanitarian aspect’.While pension was seen as a means to enjoy a life with dignity, the Court also expressly recognised the ‘right to shelter’ as an important tenet of ‘dignity’. Apart from Constitutional provisions, the Court also found substance in Section 19 of the MWP Act – placing the obligation on the State to provide for a minimum of one old age home in every district. This obligation, however, was curtailed at the altar of the “maximum extent possible” to accommodate the State’s fiscal constraints.

Apart from provisions within Part IV of the Constitution highlighting the DPSPs, emphasis was predicated on ‘dignity’ and how the ‘right to life derives its life breath from DPSP’. The Court goes on further to expound that right to health (while not specific to the elderly) has been given the ‘status of a fundamental right flowing from Article 21 of the Constitution and there could be no turning back from this’. While various national and state-level schemes have been enacted to this effect, there is a gap in their implementation which is a cause of concern. The Court further urged the Government to take “an active interest” in the implementation of the National Programme, to effectuate the right of health to the elderly.

The fault lines were amplified due to the lack of implementation at the grassroots, especially during the COVID-19 pandemic. While the pandemic could have been a hurdle, the continuing mandamus passed in the above-mentioned case proved to play a pivotal role to ensure the rights of the elderly during this distressing time. Apart from the continuing mandamus, the Supreme Court (on an additional application), keeping in mind the heightened susceptibility of the elderly during the Covid-19 crisis, re-emphasised the importance of regularly paying pensions, provisions of necessary medicines and adequate protective gear. Such provisions were also extended to the elderly (and caregivers) in the old age homes.

Evaluating the four facets – right to a reasonable pension, right to shelter, right to geriatric care and medical facilities, and effective implementation of the ‘MWP Act’, the Court interpreted these rights specifically for the elderly in light of Article 21 of the Indian Constitution and evaluated how they were intrinsic in the right to live with dignity. Apart from the recognition of dignity, shelter, and health specifically for the elderly, it also urged the Centre and the State Governments to work in tandem to ensure effective implementation of these provisions to ensure a life of dignity.

Constitutional Obligations admits Fiscal Constraints

All parties involved including the division bench of the Supreme Court as well as the Government of India and various states, emphasised the unique nature and non-adversarial nature of the petition. However, even with all parties involved agreeing to the cause of the petition, the only roadblock to effectively realising the dignity of the elderly fell on the sword of “economic budgeting”. The realisation of socio-economic rights often falls short due to the State’s fiscal constraints. As the DPSPs are considered non-justiciable, the Supreme Court in an attempt to move towards an egalitarian society sought to judicially interpret various provisions of Part IV within the justiciable ambit of Part III, especially under Article 21 – the right to life.

Conclusion

This regular monitoring of the status of the judgment dated 13th December 2018 has been furthered by the petitioner through periodic applications urging the Centre and the State Governments to report to the Supreme Court the status of implementation of the different schemes. Wide deference has been given to the State to determine its “economic capacity” and “economic budgeting. The idea of social justice is, therefore, furthered and made justiciable by Article 21, but most importantly through the concept of ‘dignity’.

While this judgment and the recent orders in light of COVID-19 are a step in the right direction, socio-economic rights, specifically in a developing country often end up taking a backseat due to economic budgeting by the State. With an ever increasing ageing population, this poses to be a considerable issue for future generations. A wholistic approach, without depending on the familial Indian structure, needs to be adopted by the Central and the State Governments in tacit concurrence. An active approach in implementing the policies and the judgment at the grassroots would enable the start of a life with dignity for the elderly.

Author: Rasuhan Tara Jaswal is an advocate at the Supreme Court of India and she has pursued her LLM from the University of Cambridge.