Justice Iyer and Distributive Justice

Sandhya Ram S.A.

Introduction

Human Rights of the Older Persons : A Conceptual Enquiry

Human rights are by definition universal. By virtue of the universal scope of all rights, the whole range of internationally recognized human rights standards and principles, as contained in core international human rights treaties, also covers and protects older persons. That is, the civil, political, economic, social and cultural rights belong to all human beings, including older people.

It appears that the rights relating to the elderly in the international human rights instruments stem from the principles of inherent human dignity and non-discrimination which are enumerated as follows:

a) Principle of Inherent Human Dignity
The principle of inherent human dignity is the basic premise on which all human rights stands. This is evident from the various human rights conventions and declarations. The United Nations Charter, 1945 emphasizes on the faith in fundamental human rights, in the dignity and worth of the human person.10 The Preamble of Universal Declaration of Human Rights, 1948 states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”11. Both the International Conventions, namely International Convention on Civil and Political Rights, 1966 and International Covenant on Economic Social and Cultural Rights, 1966 reaffirms the same. These Covenants also state that the rights derive from the inherent dignity of the human person and that the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.12 The spirit of the Convention on Elimination of all forms of Discrimination Against Women, 1979 is rooted in the goals of the United Nations: to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.13 Similar statements can be seen in almost all core international human rights instruments.14

Inherent Dignity and Right to Health

This inherent dignity of the members of the human family contains within it the necessity of making available conditions appropriate for attainment of the highest mental and physical health, without which all of the rights are meaningless and futile. Therefore, it is submitted that the fundamental basis of human rights, namely the inherent dignity of the human person itself is founded on the pedestal of right to health. And health is a term which very much depends on the age factor; be it tender age or old age, health is prone to peculiar age related diseases or a state of ill health. Consequently right to health and therefore the human rights per se is attainable to the older persons, only if geriatric health care is given special attention to by the States. In addition to this the public utility services should be old-age friendly, thereby ensuring that unnecessary “wear and tear” of the human person is avoided and health maintained.

a) Principle of Non-discrimination
The international human rights instruments, while declaring the rights, explicitly declare the same to be entitlements of all, without distinction of any kind. A descriptive list of grounds on which probably a person could be discriminated against is spelt out and any discrimination based on those is expressly barred. In this list, old age or rather age does not find a specific mention. For example, Article 2 of Universal Declaration of Human Rights, 1948 states that,“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. …” . The same phrase is repeated in ICCPR15, and ICESCR16.

It is true that ‘age’ is not mentioned as a non-discriminatory ground, nevertheless the words, ‘fundamental human rights’ and ‘dignity and worth of the human person’, is undoubtedly wide enough to contain within it the dignity and worth of the older human persons as well. Rather than being seen as an intentional exclusion, this omission is probably best explained by the fact that, when these instruments were adopted, the problem of demographic ageing was not as evident or as pressing as it is now. Moreover the prohibition of discrimination on the grounds of “other status” could be interpreted as applying to age17 as well. It is to be noted however that the International Convention on the Protection of the Rights of Migrant Workers and the Members of their Families, 199018 (ICMW) specifically includes ‘age’ as an aspect on which discrimination is disallowed.19

Human Rights of the Older Persons with special reference to Right to Health in the International Human Rights Instruments

Neither the Universal Declaration of Human Rights nor the Core Human Rights Instruments contain any explicit mention of older persons except for certain provisions dealing with social security20 to the older persons. But many of the provisions in these much adhered human rights such as the rights to health21, to an adequate standard of living22, and equality before the law, are of direct relevance to ensuring equal opportunities for the older persons and their full participation in the political, social and cultural life. The Cairo Program of Action, 199423 affirms the principle that elderly people constitute a valuable and important component of a society’s human resources and enumerates the objectives24 aimed at assisting the elderly people with long term support and needs.25 Copenhagen Declaration on Social Development, 1995 specifically states that steps are to be taken to improve the possibility of older persons achieving a better life.26 Beijing Declaration and Platform for Action27 took account of the increase in life expectancy and the growing number of older women, and recognized that their health concerns require particular attention.28

It is pertinent to note that the United Nations General Assembly itself acknowledged that there are numerous obligations vis-à-vis older persons implicit in most core human rights treaties but that explicit references to age in core international human rights treaties are scarce and that there is no such instrument for older persons and that only a few instruments contain explicit references to age.29

Health and Ageing – International Instruments on Ageing
Although no International Convention expressly dealing with the rights of the elderly has been adopted, a number of steps towards the improvement of the lives of older persons have been taken under the auspices of the UN.

a) World Assembly on Ageing – Vienna International Plan of Action on Ageing, 1982
The World Assembly on Ageing adopted the Vienna International Plan of Action on Ageing30, the first international instrument on ageing. It identified three priority areas, namely,

(a) the sustainability of development in a world where the population is increasing in age;
(b) the maintenance of good health and well-being to an advanced age; and
(c) the establishment of an appropriate and supportive environment for all age groups.

It also addresses research, training and education and makes recommendations inter alia regarding health and nutrition.31

Health is that state of total physical, mental and social well-being and is an outcome of the integration of all the sectors which contribute to development. Health care for the elderly should not be limited to curative treatment alone. Equally important is the care designed to alleviate handicaps and relieve pain, and help them to reorient their hopes and plans.32 Care of the elderly should involve their total well being taking into account the interdependence of the physical, mental, social, spiritual and environmental factors. Health care should therefore involve the health and social sectors and the family in improving the quality of life of older persons. Health efforts, in particular primary health care as a strategy, should be directed at enabling the elderly to lead independent lives in their own family and community for as long as possible instead of being excluded and cut off from all activities of society.33 Early diagnosis and appropriate treatment is required, as well as preventive measures, to reduce disabilities and diseases of the aging.34 Participation of the aged in the development of health care and the functioning of health services should be encouraged.35 Particular attention should be given to providing health care to the very old, and to those who are incapacitated in their daily lives. Mental disorders could often be prevented or modified by means that do not require placement of the affected in institutions, such as training and supporting the family and volunteers by professional workers, promoting mental health care, welfare work, day-care and measures aimed at the prevention of social isolation.36 Decisions affecting aging citizens are frequently made without the participation of the citizens themselves. This applies particularly to those who are very old, frail or disabled. Such people should be served by flexible systems of care that give them a choice as to the type of amenities and the kind of care they receive37.

There is a need to develop home care to provide high quality health and social services in the quantity necessary so that older persons are enabled to remain in their own communities and to live as independently as possible for as long as possible. Home care should not be viewed as an alternative to institutional care; rather, the two are complementary to each other and should so link into the delivery system that older persons can receive the best care appropriate to their needs at the least cost38.

Research into the social, economic and health aspects of aging should be encouraged to achieve efficient uses of resources, improvement in social and health measures, including the prevention of functional decline, age-related disabilities, illness and poverty, and co-ordination of the services involved in the care of the aging. The knowledge obtained by research provides scientific backing for a sounder basis for effective societal planning as well as for improving the well-being of the elderly. The population at large should be informed in regard to dealing with the elderly who require care and the elderly themselves should be educated in self-care. Education and training in the various aspects of aging and the aging of the population should not be restricted to high levels of specialization, but should be made available at all levels.39 Practical training centres should be promoted and encouraged, where appropriate facilities already exist to train such personnel, especially from developing countries, who would in turn train others.40 Training in all aspects of gerontology and geriatrics should be encouraged and given due prominence at all levels in all educational programmes.41

b) United Nations Principles for Older Persons, 1991& Proclamation on Ageing, 1992
The UNGA adopted the United Nations Principles for Older Persons42, in pursuance of the Vienna International Plan of Action on Ageing. The resolution was prefaced “To add life to the years that have been added to life”. The principles focused on independence, participation, care, self-fulfillment and dignity of the older persons. Independence of an older person is reliant on basic necessities including health care. Older persons should receive health care as an aid to maintain or regain the optimum level of physical, mental and emotional well-being. Access to health care should also be aimed to prevent or delay the onset of illness. This is in addition to family and community care; and institutional care. Older persons should have the right to make decisions about their care and the quality of their lives.

Thereafter United Nations General Assembly adopted the Proclamation on Ageing, 199243 which poses a policy and program challenge to the Governments as well as NGOs. The significance of the proclamation lies in realization that preparation for old age must start in childhood is the most practical aspect of ageing and the pragmatic approach aiming at tangible opportunities rather than on desirable, yet unaccomplishable goals.

c) Second World Assembly on Ageing – Madrid International Plan of Action on Ageing, 2002
The Second World Assembly on Ageing44 adopted a Madrid International Plan of Action on Ageing45 which includes a number of central themes46 setting out goals, objectives and commitments, including provision of health care, support and social protection for older persons. The member States committed themselves to providing older persons with universal and equal access to health care and services, including physical and mental health services. The growing needs of an ageing population require additional policies, in particular, care and treatment, the promotion of healthy lifestyles and supportive environments.

The recommendations for action were organized according to three priority directions, namely

(i) older persons and development,
(ii) advancing health and well-being into old age and
(iii) ensuring, enabling and supportive environments.

The extent to which the lives of older persons are secure is strongly influenced by progress in these three directions.

Important issues in healthcare and well-being of older persons

1) Health promotion and well-being throughout life: This can be achieved by reducing the cumulative effects of factors that increase the risk of disease and consequently potential dependence in older age. To attain this objective, actions to be taken will include giving priority to poverty eradication policies, implementing legal and administrative measures to reduce the exposure to environmental pollutants from childhood and throughout life, etc.47 Equally important is the development of policies to prevent ill-health among older persons48 and providing access to food and adequate nutrition for all older persons.49

2) Universal and equal access to health care services: Effective care for older persons needs to integrate physical, mental, social, spiritual and environmental factors. Older persons can experience financial, physical, psychological and legal barriers to health-care services. They may also encounter age discrimination and age-related disability discrimination in the provision of services because their treatment may be perceived to have less value than the treatment of younger persons. Governments have the primary responsibility for setting and monitoring standards of health care as well as providing health care for all ages. Partnerships among Governments, civil society, including non-governmental and community-based organizations, and the private sector constitute valuable contributions to the services and the care for older persons. It is crucial, however, to recognize that services provided by families and communities cannot be a substitute for an effective public health system. Universal and equal access to health care50 demands elimination of social and economic inequalities based on age, gender or any other ground, including linguistic barriers. Primary health-care services should be strengthened to meet the needs of older persons.51 Specialized gerontological services must be developed to meet the needs of older persons.52

3) HIV/AIDS in older persons: HIV/AIDS diagnosis among older persons is difficult because symptoms of infection can be mistaken for other immunodeficiency syndromes that occur in older persons. Older persons can be at increased risk of HIV infection merely because they are typically not addressed by public information campaigns and thus do not benefit from education on how to protect themselves. Therefore there should be provision of adequate information, training in care giving skills, treatment, medical care and social support to older persons living with HIV/AIDS and their caregivers.53

4) Training of care providers and health professionals: There is an urgent worldwide need to expand educational opportunities in the field of geriatrics and gerontology for all health professionals who work with older persons and to expand educational programmes on health and older persons for professionals in the social service sector. Informal caregivers also need access to information and basic training on the care of older persons. Professional education in gerontology and geriatrics should be expanded and special efforts are to be made to expand student enrollment in geriatrics and gerontology.54

5) Mental health of older persons: Various losses and life changes can often lead to an array of mental health disorders, which, if not properly diagnosed, can lead to inappropriate treatment, or no treatment, and/or clinically unnecessary institutionalization. Development of comprehensive mental health-care services ranging from prevention to early intervention, the provision of treatment services and the management of mental health problems in older persons is a major objective to act upon.55

6) Older persons and disabilities: Incidence of impairment and disability increases with age. Enabling interventions and environments supportive of all older persons are essential to promote independence and empower older persons with disabilities to participate fully in all aspects of society. The ageing of persons with cognitive disabilities is a factor that should be considered in planning and decision-making processes.56

Health and Ageing : National Initiatives – An Assessment

Though there are legislations covering certain aspects of health care⁵⁷, Right to health, in India is yet to evolve into a comprehensive legislative enactment. Stemming from the Directive Principles of State Policy⁵⁸, which always depend on the availability of resources, right to health received an impetus in India due to the creditworthy role played by the Supreme Court of India in interpreting right to health to be an essential component of the fundamental right to life itself⁵⁹.

This has been followed by High Courts reassuring that adequate and quality medical care is part of right to health and right to life⁶⁰, the most recent being the Delhi High Court’s pronouncement in Mohd. Ahmed (Minor) v. Union of India⁶¹ where the Court confronted a delicate issue whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, is entitled to free medical treatment costing about rupees six lakhs per month especially when the treatment is known, prognosis is good and there is every likelihood of petitioner leading a normal life. Government of Delhi argued that the right to health in a developing country like India could not be so stretched so as to mean to provide free health facilities to a terminally ill patient while other citizens were not even provided basic health care and that the State had an equal obligation towards all citizens and it had to use its limited resources so as to provide the maximum benefit to the maximum number of people. The Delhi High Court brushed aside the contention and held that although obligations under Article 21 are generally understood to be progressively realizable depending on maximum available resources, yet certain obligations are considered core and non-derogable irrespective of resource constraints. Providing access to essential medicines at affordable prices is one such core obligation. Therefore the State was ordered to provide free treatment to the petitioner.

India is also a signatory to the various human rights instrument in general and the instruments categorically dealing with ageing, in particular. Therefore India is committed to provide an effective environment to secure the goals of economic and emotional security for the elderly.⁶²  Constitution of India also mandates respect for international treaties and conventions.⁶³

National Policy on Older Persons, 1999

In pursuance to the First World Assembly on Ageing, 1982, the Government of India adopted the National Policy on Older Persons, 1999.  The policy promotes the concept of  healthy ageing and lays stress on health education programs, affordable health services, strengthening primary health care system with an orientation towards care for older persons, development of health insurance and public-private participation in health care.  The policy seems to have taken less state participation and more of promotion of private medical care by providing land and other facilities at less than market rates to them in return for discounted medical services to the older patients. In promoting awareness on self-care by older persons, Government has taken a facilitator’s role by providing assistance to geriatric care societies, instead of active government propaganda.⁶⁴   The policy recognizes the importance of trained manpower and states that medical colleges will be assisted to offer specialization in geriatrics. The policy realizes the need to include specific geriatric care in the educational and training curriculum of the nurses and paramedical personnel.⁶⁵ Universities, Medical Colleges and research institutions will be assisted to set up centres for Gerontological Studies and Geriatrics.⁶⁶

National Policy (Draft) on Senior Citizens, 2011

The Ministry of Social Justice and Empowerment constituted a Committee under the Chairmanship of Smt (Dr.) V. Mohini Giri to assess the status of various issues concerning senior citizens, in general, implementation of National Policy on Older Persons, 1999 and to draft a new National Policy on Older Persons in particular.67 The Committee has submitted its report including a draft National Policy on Senior Citizens in March 201168 which addresses healthcare as well.

The Policy gives high priority for the healthcare needs of senior citizens with the goal of providing affordable and quality health service for all senior citizens, heavily subsidized for the poor and a graded system of user charges for others. Use of science and technology such as web based services and devices for the well-being and safety of senior citizens will be encouraged and expanded to under-serviced areas. As in the previous policy of 1999, healthcare sector will comprise of public health service, health insurance, health services provided by not-for-profit organizations and private medical care. Public private partnership models will be developed wherever possible to implement healthcare of the elderly. The improvements and innovations are sought to be realized through actions involving varying levels of government intervention which are enumerated as follows:

(a) Public Health Care: Primary health care will be continued to be strengthened and oriented at all levels to meet the needs of senior citizens. At the secondary and tertiary sectors, they will further be expanded to include preventive, curative, restorative and rehabilitative services.

(b) Geriatric and Palliative Care: Geriatric care facilities will be provided at the secondary and tertiary levels of public health system. A tiered national level geriatric healthcare with focus on outpatient day care, palliative care, rehabilitation care and respite care is the desired goal. National and regional institutes of ageing will be set up to promote geriatric healthcare. Adequate budgetary support will be provided to these institutes and a cadre of geriatric healthcare specialists created including professionally trained caregivers to provide care to the elderly at affordable prices. Hospices and palliative care of the terminally ill would be provided in all district hospitals and the Indian protocol on palliative care will be disseminated to all doctors and medical professionals. Twice in a year the Primary Health Care (PHC) nurse or the Accredited Social Health Activist (ASHA) will conduct a special screening of the 80+ population of villages and urban areas and public/private partnerships will be worked out for geriatric and palliative healthcare in rural areas recognizing the increase of non-communicable diseases (NCD) in the country.

(c) Programmes: The National Programme for Health Care of the Elderly (NPHCE) which was being implemented would be expanded and in partnership with civil society organizations, scaled up to all districts of the country. Special programmes will be developed to increase awareness on mental health and for early detection and care of those with Dementia and Alzheimer’s disease. Restoration of vision and eyesight of senior citizens will be an integral part of the National Programme for Control of Blindness (NPCB). Considering the gender based attitudes towards health, programmes would be developed for regular health checkups especially for older women who tend to neglect their health problems.

(d) Health Insurance: Health insurance to cater to the needs of different income segments with varying contribution and benefits will be developed. Packages catering to the lower income groups will be entitled to state subsidy. Concessions and relief will be given to health insurance to enlarge the coverage base and make it affordable. Universal application of health insurance – RSBY (Rashtriya Swasthya Bima Yojana) will be promoted in all districts and senior citizens will be compulsorily included in the coverage. Health Insurance cover would be provided to all senior citizens through public funded schemes, especially those over 80 years who do not pay income tax.

(e) Government Health Fund: From an early age citizens will be encouraged to contribute to a government created healthcare fund that will help in meeting the increased expenses on healthcare after retirement.

(f) Tax Incentive: To strengthen the family system as the primary care giver, tax incentives would be provided for those who take care of the older members.

(g) Mobile Health Clinics: Services of mobile health clinics would be made available through PHCs or a subsidy would be granted to NGOs who offer such services.

The V. Mohini Giri Committee’s Draft Policy of 2011 was not implemented by the Government for reasons best known to itself. The Standing Committee on Social Justice and Empowerment on the subject in its 39th Report “points out to the unconscionable delay in implementing the policy and recommended finalization and implementation of a new policy on Senior Citizens.69

Five Year Plans

Following the National Policy on Older Persons 1999, the Tenth Five Year Plan (2002-2007) gave due emphasis on right to health of the older persons. During this Plan, a National Council for Older Persons was set upto receive complaints, grievances and suggestions from older persons. An Integrated Programme for Older Persons was formulated relating to the care of older persons. Instructions were given to State Governments to provide separate queues for older persons at hospitals at every stage.70 Eleventh Plan continued the initiatives, with little stress on specialized health care of the elderly.71

The Twelfth Five Year Plan (2012-17) has included Senior Citizens under the heading “other marginalized and vulnerable groups”. A division is made among senior citizens based on their age-based needs namely, 60 years and above, and 80 years and above. The Plan states to give increasing attention to the needs of Oldest persons (80+) whose needs are different from those senior citizens in the age group of 60 years and above.72 The Twelfth Plan provides inter alia for setting up of a National Commission for Senior Citizens, helpline for older persons and health insurance.73 The Plan also mentions about formulation and implementation of a new National Policy on Senior Citizens during the Plan period. The new plan policy contain provisions for home care services, access to healthcare, insurance schemes and services to sustain the concept of dignity in old age.74

Integrated Program for Older Persons, 2008

Ministry of Social Justice and Empowerment formulated the Integrated Program for Older Persons.75 Under this scheme, financial assistance is provided to Panchayati Raj Institutions/local bodies and eligible Non-Governmental Voluntary Organizations for establishing and running Old Age Homes, Day Care Centres, Mobile Medicare Units, maintenance of Respite Care Homes & Continuous Care Homes for seriously ill living in old age homes, Physiotherapy Clinics,

Disability and Hearing Aids, training of Caregivers, Mental Health Care and Specialized care, etc. to older persons. Up to 90% of the cost of the project indicated in the scheme will be provided by the Government of India and the remaining shall be borne by the organization/institution concerned.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

The Act contains provisions for medical care of senior citizens.76 Old age homes established and maintained by the government shall have necessary medical care facilities77 The State Government shall ensure certain facilities for senior citizens, in the Government hospitals and hospitals fully or partially funded by the Government. These are:

(i) Beds for all senior citizens, as far as possible
(ii) Separate queues
(iii) Facility for treatment of chronic, terminal and degenerative diseases to be expanded
(iv) Research activities for chronic elderly diseases and ageing to be expanded and
(v) Earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care.

It is submitted that these are the only legislative provisions dealing with healthcare of senior citizens in the country. And it is unfortunate that these are nowhere near the commitments undertaken by the country at the World Assemblies on Ageing as well as in meeting the United Nations Principles for Older Persons. When beds for all senior citizens can be ensured only “as far as possible”, the reach of facility for treatment for chronic diseases is in reality a far cry.

CONCLUSION & SUGGESTIONS

Focus on the rights of older persons is still in its formative stage. Right to health of the older persons has not received the recognition it deserves, both at the International as well as at the National level. Both the Vienna and Madrid Plans of Action on Ageing, are non-binding in nature, and therefore a comprehensive and binding human rights instrument like a ‘Convention on the Rights of Older Persons’, giving due importance to their right to health, need to be adopted by the United Nations.

At the national level, lack of legislative adherence to the international declarations is evident from the fact that despite the Madrid Commitments and also the WHO dedication of Mental Health Day 2013 for the older people of the planet, the Mental Health Care Bill, 2013 provides scanty attention to the Mental Health Care of the Older Persons. As mandated by the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the following shall be implemented :

(a) Geriatric wards and earmarked facilities for geriatric patients are to be established in all district hospitals,
(b) Such geriatric wards in every district hospital shall be duly headed by a Medical Officer with experience in geriatric care
(c) Facility for treatment of chronic, terminal and degenerative diseases for older persons is to be expanded and
(d) research activities for chronic elderly diseases and ageing are to be expanded.

In order to expand research and facilities in geriatric care, specialization in geriatrics should be provided for PG Courses in all medical colleges. Necessary directives shall be given to the Medical Council to ensure such specialization in all medical colleges in the country. As of now, Medical Council approved Post Graduation Program, i.e., MD in Geriatrics is offered only by three Colleges in the whole of India with a total of five seats.78 Super specialty course in Geriatric Mental Health (DM) is offered only in one college in India with a single seat.79 These numbers are grossly insufficient to meet the goals of healthy ageing and equality in health care to all. Without generating sufficient expertise in geriatrics, health care of the elderly will be meaningless.

Older persons are as much entitled to right to health, physical and mental, as much as any other person. Accessibility and availability of health care becomes real to the older persons only if their specialized needs are met. This includes efficient geriatric care, preventive as well as curative healthcare and health promotion. The health care and services need to include necessary training of personnel and facilities to meet the special needs of the older population. Neither the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 nor the National Health Policy, 2002 duly addresses the issues relating to right to health of the Older Persons. A focused approach is required on the part of law and policy makers. For this, there should be identifying and setting of priorities. The issue of health at large and health of specific groups in particular, should be dealt with through an integrated legal approach, rather than through fragmented pieces of legislations and policies, isolated from one another. Ensuring healthy ageing should be a national priority.

*Assistant Professor, V.M. Salgaocar College of Law, Goa; advsandhyaram@gmail.com
1See W. Friedmann, Law in a Changing Society (Second edition, Universal Law Publishing Co. Pvt Ltd, Third Indian Reprint, 2003) 506. Friedmann lists out the role of a welfare state as being that of the protector, provider, entrepreneur, economic controller and arbiter.
2See Articles 15 (1), Article 16 (2) of the Constitution of India
3See UN Charter, UDHR, ICCPR, ICESCR. But see International Convention on the Protection of the Rights of Migrant Workers and the Members of their Families, 1990; Second United Nations Conference on Human Settlements-Habitat II, 1996
4“Formal equality is the principle of equal treatment. Individuals who are alike should be treated alike rather than being treated differently”- Russel L.Weaver et al, Inside Constitutional Law : What Matters and Why (Apsen Publishers, 2009) 247
5“Substantive equality is a principle that concerns the effect or outcome of a law. It underlines affirmative action… Substantive equality theory also focuses on biological differences between men and women…” id. at 248
6Between 2000 and 2050, the proportion of the world’s population over 60 years will double from about 11% to 22%. The absolute number of people aged 60 years and over is expected to increase from 605 million to 2 billion over the same period.
7See Laya Medhini et al. (eds.), HIV/AIDS & The Law (Human Rights Law Network, New Delhi, 2007) Chapter 1
8See generally Help Age International et al., Ageing in the Twenty-First Century – A Celebration and A Challenge (United Nations Population Fund, 2012)
9See GA/RES/50/141 (21 Dec 1995) wherein it was decided that the term “older persons” should be substituted for the term “the elderly”, in conformity with the United Nations Principles for Older Persons.
10See Preamble, Charter of the United Nations, available at https://www.un.org/en/documents/charter/preamble.shtml [accessed on 18 April 2014]
11See para 1, Preamble, Universal Declaration of Human Rights, 1948, available at http://www.un.org/en/documents/udhr/index.shtml#a2 [accessed on 15 April 2014]
12See Preamble, ICCPR available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [accessed on 15 April 2014] and Preamble , ICESCR available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx [accessed on 15 April 2014]
13In its preamble, CEDAW explicitly acknowledges that “extensive discrimination against women continues to exist”, and emphasizes that such discrimination “violates the principles of equality of rights and respect for human dignity”.
14International Convention on the Elimination of All Forms of Racial Discrimination, 1965; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; Convention on the Rights of the Child, 1989; Convention on the Rights of Persons with Disabilities, 2006.
15Article 2, International Covenant on Economic, Social and Cultural Rights, 1966
16Id., Article 2.2
17Paragraph 11, 12, UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6 : The Economic, Social and Cultural Rights of Older Persons, 8 December 1995, E/1996/22, available at http://www.refworld.org/docid/4538838f11.html [accessed on 18 April 2014]
18UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, available at: http://www.refworld.org/docid/3ae6b3980.html [accessed on 18 April 2014]
19See Article 1, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990. The Convention is applicable to all migrant workers and members of their families without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status; See also Article 7, ICMW: The States Parties undertake, to respect and to ensure to all migrant workers and members of their families, the rights provided in the present Convention without distinction of any kind such as to sex, race, colour, language, nationality, age, etc.
20See Article 25 (1) of UDHR: “Everyone has the right to … security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”; See also Article 9 of ICESCR which provides for “the right of everyone to social security, including social insurance”, implicitly recognizes the right to old-age benefits; Article 11 (e), Convention on Elimination of All Forms of Discrimination Against Women, 1979; Commitment 2 (d), Copenhagen Declaration; Para 6.18, Cairo Program of Action 1994.
21See Article 25 (1) of UDHR: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family….”; See also Article 12, International Covenant on Economic, Social and Cultural Rights, 1966; Articles 17 and 25 Convention on the Rights of Persons with Disabilities, 2006 : Article 25 articulates State responsibility with respect to right to health in five principles namely (i) Equality of treatment, (ii) Personalization of care, (iii) Proximity to people’s own communities, (iv) Responsibilities of Health Care Professionals and (v) Non‐discrimination;
22See Article 55 of the UN Charter with a view to create conditions of stability and well-being, declares that the United Nations shall promote inter alia, solutions of international health problems and higher standards of living; See also Article 25 (1) of UDHR: : “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, …”; Article 11, International Covenant on Economic, Social and Cultural Rights, 1966
23A/CONF.171/13, available at http://www.un.org/popin/icpd/conference/offeng/poa.html [accessed 14 April 2014]. The document addresses the critical challenges and interrelationships between population and sustained economic growth in the context of sustainable development. Chapter VI of the Cairo Program of Action deals with Population Growth and Structure, in which part C is exclusively addressing the problems of the elderly people.
24Para 6.17, Cairo Program of Action 1994
25Id. Para 6.19
26Para 26 (q), Copenhagen Declaration
27United Nations, Beijing Declaration and Platform for Action, adopted at the Fourth World Conference on Women, 27 October 1995, A/CONF.177/20/Add.1 (1995), available at: http://www.refworld.org/docid/3dde04324.html [accessed 14 April 2014]. The Platform for Action was endorsed by UN GA Resolution 50/203, 22 December 1995
28See Para 101, Beijing Platform for Action. The long-term health prospects of women are influenced by changes at menopause, which, in combination with life-long conditions and other factors, such as poor nutrition and lack of physical activity, may increase the risk of cardiovascular disease and osteoporosis. See also Strategic Objective C.1 – “Increase women’s access throughout the life cycle to appropriate, affordable and quality health care, information and related services”, paragraph 106, Beijing Platform for Action.
29See A/RES/67/139 of 13 February2013 [accessed 15 April 2014]
30The Vienna International Plan of Action was endorsed by UN General Assembly Resolution A/RES/37/5 of 13 December 1982 and called upon the Governments to implement the principles and recommendations contained in the Vienna International Plan of Action and endorsed the recommendation contained in the Plan of Action that the Commission for Social Development should be designated as the international body to review the implementation of the Plan of Action every four years and make proposals for updating it, available at http://www.un.org/es/globalissues/ageing/docs/vipaa.pdf [accessed 18 April 2014]
31The other areas were education, family, protection of elderly consumers, income security and employment, housing and environment and social welfare. Recommendations 1–17 of Vienna International Plan of Action addresses issues relating to health and nutrition.
32Recommendation 1, Vienna International Plan of Action on Ageing, 1982
33Ibid., Recommendation 2,
34Supra n. 32, Recommendation 3
35Ibid., Recommendation 9
36Ibid., Recommendation 4
37Ibid., Recommendation 8
38Ibid., Recommendation 13
39Supra n.32, Recommendation 54
40Ibid., Recommendation 57
41Ibid., Recommendation 59
42A/RES/46/91 of 16 December 1991, available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/581/79/IMG/NR058179.pdf ?Open Element [accessed 18 April 2014]
43A/RES.47/5 of 16 October 1992, available at http://www.un.org/documents/ga/res/47/a47r005.htm [accessed 18 April 2014]
44Based on the theme of Building a Society for All Ages, the United Nations Second World Assembly on Ageing was held in Madrid, Spain from April 8-12, 2002. Its main objective was to adopt a revised version of the 1982 International Plan of Action on Ageing, including a long-term strategy on aging.
45Available at http://www.un.org/en/events/pastevents/pdfs/Madrid_plan.pdf [accessed 10 April 2014]
46These include: a) the full realisation of all human rights and fundamental freedoms of all older persons; b) the achievement of secure ageing; c) empowerment of older persons; d) provision of opportunities for individual development; e) ensuring the full enjoyment of all human rights, and the elimination of all forms of violence and discrimination against older persons; f) gender equality among older persons; g) recognition of the importance of families; h) provision of health care, support and social protection for older persons; and k) recognition of the situation of ageing indigenous persons.
47See para 66, Madrid International Plan of Action on Ageing, 2002
48See ibid., para 67
49See ibid., para 68
50See supra n.47, para 74
51See ibid., para 75
52See ibid., para 76
53See ibid., para 80
54See ibid., para 82 – 83
55See supra n.47, para 86
56See ibid., para 90
57Environment Protection Act 1986; Mental Health Act, 1987; Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003; Food Safety and Standards Act, 2006; Maternity Benefit Act, 1961; Medical termination of Pregnancy Act, 1972; Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994; Maternity Benefit Act, 1961; The Transplantation Of Human Organs Act 1994; The Indian Medical Degrees Act, 1916; The Indian Medical Council Act, 1956; National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
58See Articles 38, 39 (e) & (f), 41,42, and 47, Constitution of India.
59See CESC Ltd v. Subash Chandra Bose AIR 1992 SC 573, 585.See also State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83; Virender Gaur v. State of Haryana (1995) 2 SCC 577; CERC v. Union Of India (1995) 3 SCC 42; Kirloskar Brothers Ltd v. Employees State Insurance Corporation (1996) 2 SCC 682; Vincent v. Union of India AIR 1987 SC 990; Unnikrishnan JP v. State of A.P AIR 1993 SC 2178; Paschim Banga Khet Mazdoor Samiti v. State of W.B (1996) 4 SCC 37
60See S.K.Garg v. State of U.P. 1999 (1) AWC 847; See also All India Lawyers Union (Delhi Unit) v. Govt. of NCT of Delhi &Ors. 163 (2009) DLT 319 (DB)
61W.P. (C) 7279/2013 , decided on 17th April 2014 , available at http://lobis.nic.in/dhc/MMH/judgement/16-04-2014/MMH17042014CW72792013.pdf [accessed 18 April 2014]
62See Statement by Dr. Satyanarayan Jatiya (Minister for Social Justice & Empowerment, Government of India) at the Second World Assembly on Ageing at Madrid, Spain (8th to 12th April 2002), available at http://www.un.org/swaa2002/coverage/indiaE.htm [accessed 18 April 2014]
63See Article 51 (c) , Constitution of India
64See National Policy on Older Persons 1999, (Ministry of Social Justice and Empowerment, Government of India pages 5–6), available at http://www.tiss.edu/tiss-attachements/downloads/national-policy-for-older-person-npop [accessed 18 April 2014]
65See supra n.62at 11
66See ibid. at 10
67Vide O.M. No. 15-40(2)/2009-10/AG.II, 28.01.2011
68See National Policy on Senior Citizens, 2011 (draft), available at http://socialjustice.nic.in/pdf/dnpsc.pdf [accessed 18 April 2014].
69Recommendation Para No. 6 : Early formulation and implementation of new National Policy on Older Persons , 39th Report of the Standing Committee on Social Justice and Enpowerment on the Subject “IMPLEMENTATION OF SCHEMES FOR WELFARE OF SENIOR CITIZENS” (Presented to Honourable Speaker, LokSabha on 4th January 2014)
70Planning Commission of India (Government of India, Tenth Five Year Plan 2002-2007 , Volume II, Sectoral Policies and Programmes , 488-489
71See Planning Commission of India (Government of India, Eleventh Five Year Plan 2007-2012, Volume I, Inclusive Growth (Oxford University Press, 2008), 133-134
72Planning Commission of India (Government of India), Twelfth Five Year Plan (2012-17) Social Sectors Volume III, (Sage Publications, 2013) 268
73See ibid.at 271
74See supra n.72at 270
75Revised scheme effective from 01.04.2008, available at http://socialjustice.nic.in/hindi/pdf/ipop.pdf [accessed 18 April 2014]
76Chapter IV, Maintenance and Welfare of Parents and Senior Citizens Act, 2007
77See ibid., Section 19 (2)
78Amrita School of Medicine, Kochi, Kerala; Chrisian Medical College, Vellore, Tamil Nadu and Madras Medical College, Chennai, Tamil Nadu. For a list of PG Courses, subjects and Colleges recognised by the Medical Council of India, See http://www.mciindia.org/InformationDesk/ForStudents/ListofCollegesTeachingPGCourses.aspx. [accessed 18 April 2014]
79Chhatrapati Shahuji Maharaj Medical University, Lucknow, Uttar Pradesh