Madras High Court issues guidelines for regulation of old-age homes

The Madras High Court last week issued a slew of guidelines to the State government in exercise of its parens patriae jurisdiction for the regulation of old-age homes including private run homes [S Krishnamurthy v Dr Manivasan]..A bench of Justices R Mahadevan and J Sathya Narayana Prasad said in its order that the measure of a society lay in how 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," said the bench..The bench passed the order while hearing a contempt plea claiming that directions previously issued by the court in a Public Interest Litigation (PIL) petition, pursuant to which government orders (GOs) issued were not being complied with..The Court, therefore, proceeded to issue the following guidelines:.i. The State government shall take steps to inspect all old age homes within the State and ensure implementation of the spirit of the GO, which has now been upheld.ii. 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 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.iii. The non-compliance with 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.iv. 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.v. 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.vi. 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).vii. It is only appropriate that the substance of the 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..The Court while delivering the verdict acknowledged the limitations of its role and powers, particularly seen from the angle that a society that did 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,” the bench said..The Court highlighted that the government had issued the executive orders while recognising the various problems faced by elderly persons in the old-age homes, and the sorry state of affairs which could be traced to the fact or of absolute non-regulation of these homes..Along with the contempt plea, the Court was also hearing petitions challenging the GOs which were passed under the Maintenance and Welfare of Parents and Senior Citizens Act, the scope of which, could not be extended to private old age homes according to the petitioners.It was their contention that periodical visits or interference of State instrumentalities was not required, and in fact, it offended fundamental rights as guaranteed to the petitioners under Article 19 (2) (g) of the Constitution..The Court, however, found that the order was constitutionally valid and the restrictions imposed by it could be said to be reasonable since it was clear as day that they came to light in the larger public interest.“As already stated, the impugned order was passed in pursuance of the orders of this Court and the earlier PIL which brought to light the prevailing sorry state of affairs about the dismal quality of life being led by the senior citizens of this country,” the Court said.The bench emphasised that the management of these homes could not be considered a purely commercial activity with no control or regulation by the State.“On the contrary, senior citizens being one of the vulnerable sections of society need utmost care and protection by the State,” the Court noted.The Court also dealt with the doctrine 'parens patriae' and exercising the same for the welfare of senior citizens. Further, the Court examined the legal position in United States of America and United Kingdom with respect to social security, care for the elderly and the role played by the State in managing the standard of care provided to the elderly by private care homes..Additionally, it was clarified that there was no inconsistency between the orders and the Real Estate (Regulation and Development) Act since the statute covered a limited aspect, whereas the orders had the broader objective of protecting rights of senior citizens.“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,” the verdict stated..With this, the Court directed the State government to inspect all old age homes, and ensure the implementation of the spirit of the GO that had been upheld. Further, on inspection, the government was asked to issue directives for the removal of any deficiencies and ensure consequences on non-compliance by the homes. The Court also made the registration of retirement homes mandatory and asked the government to maintain a grievance cell for senior citizens..Advocate J Narayanasamy served as the amicus curiae in the case.Senior Advocate NL Rajah, advocates KR Arun Shabari and S Arokia Maniraj appeared for the petitioners.The respondents were represented by Additional Advocate General V Arun assisted by Special Government Pleader P Balathandayutham, advocates Aparna Nandakumar and CG Kumar..[Read Order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.