Jayasree v. Union of India & Ors

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940** ## **WP(C).No. 23210 of 2018** **PETITIONER/S: JAYASREE, AGED 49 YEARS, W/O. GANESH, MEADOWS RESIDENCY, CHARRING CROSS, KUNOOR ROAD, OOTY, TAMIL NADU.** **BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** ## **RESPONDENT/S:** |**1**|**THE UNION OF INDIA, REP. BY THE SECRETARY,**| |---|---| ||**MINISTRY OF LAW AND JUSTICE DEPARTMENT,**| ||**MANSINGH ROAD, JAISALMER HOUSE, NEW DELHI 110 011.**| |**2**|**STATE OF KERALA, REPRESENTED BY THE CHIEF**| ||**SECRETARY,THIRUVANANTHAPURAM 695 001**| |**3**|**THE STATION HOUSE OFFICER,**| ||**IRIKKOOR POLICE STATION,KANNUR DISTRICT,**| ||**PIN 670 593.**| ***ADDL R4 JAYAKRISHNAN E.P, S/O BALAKRISHNAN, EDACHERY HOUSE, PERUMANNA, IRIKKOOR PO, KANNUR, PIN 670 539 *ADDL R5 AJAYAKUMAR E.P, S/O BALAKRISHNAN, EDACHERY HOUSE, PERUMANNA, IRIKKOOR PO, KANNUR, PIN 670 539.** **(*ADDL R4 AND R5 IMPLEADED AS PER ORDER DATED 20.07.2018 IN IA NO.13139/18)** **BY ADVS. SMT.K.M.RASHMI-GP SMT. C.G. PREETHA - CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 23210/18 2 ## **JUDGMENT** The broad grounds on which legislations and its provisions are called upon to answer constitutional validation are now fairly well laid out. The potentiality of a law being employed to misuse and to mal-application, is one among such grounds, asserts the petitioner and this Court's answer to this singular assertion would effectively obtain closure to the other legal contentions urged in this writ petition. 2. The daughter of a senior citizen has filed this writ petition assailing Section 24 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as “The Act” for brevity), asserting that its provisions have the wherewithal to be misused by the Competent Authority and therefore, violative of Article 14 and 21 of the Constitution of India. 3. Since the ossature on which the WPC 23210/18 3 foundational facts are built upon by the petitioner revolves around Section 24 of the Act, it becomes necessitous to extract it as under, to enable an easy reference: ## **Exposure and abandonment of senior** **citizen** :- Whoever, having the care or protection of senior citizen leaves, such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousand rupees or with both. 4. The petitioner’s main contention, in challenge to the constitutionality of the afore Section of the Act, is that it is susceptible to being misused or misinterpreted by the Authorities under it, since it provides, allegedly without any precision, that any person having the care and protection of the senior citizen and who leaves the senior citizen in a WPC 23210/18 4 place with an intention of abandoning him/her shall be liable to be punished with imprisonment as prescribed therein. She predicates the words ‘having care or protection of a senior citizen' is extremely vague and not amenable to an accurate definition, particularly because even the Act has not defined this phrase in any definitive manner and, consequentially, that this Section is liable to be put to gross misuse or abuse by the Authorities under the Act. 5. Before I endeavor to obtain answers to the challenge pitched by the petitioner in this writ petition, I deem it necessary to place on record a few very essential facts that must guide my views in this judgment. 6. The petitioner admits to be the daughter of the senior citizen involved in this case and that her mother, the senior citizen, died in an old-age home. According to the petitioner, she is married and she is living with her family in Ooty WPC 23210/18 5 and therefore, that she was physically incapable of taking care of her mother during her lifetime; but that she had been offering her all support, pecuniarily as also through other methods, and thus that she had always taken care of her adequately. She asserts that this being so, subsequent to her mother's death, the Police Authorities have now initiated action under Section 24 of the Act, on the basis of an alleged report of the concerned Social Welfare Officer, to prosecute the petitioner as well as her siblings, for allegedly having abandoned their mother in an old-age home, finally leading to her death. 7. The petitioner contends that she is not liable for any action under the mandate of Section 24 of the Act because she did not have the care and protection of her mother while she was alive. This rather astounding submission is made by her adding that only a person having the WPC 23210/18 6 _de-facto_ physical custody of the senior citizen can be proceeded against under this Section and not any other person, even if such person is _dejure_ obligated to take care and offer protection to the senior citizen. After saying so, the petitioner proceeds to assert that since the words ‘having the care or protection of the senior citizen’ in Section 24 is, according to her, imprecise and incapable of any specific meaning, it is vitiated by the vice of vagueness and she relies on the judgment of the Hon’ble Supreme Court in **Kartar Singh v. State of Punjab** **[1994 (3) SCC 569]** in substantiation of this contention. The petitioner, however, concedes, without any reservation, that her mother was left in an old-age home by her brother and that she died there without anyone to take care of her. She says that in spite of this, she cannot be faulted, because she had to be with her husband and her family residing far away and then she WPC 23210/18 7 incredibly declares “that her duties are to her parents-in-law after marriage and not to her parents and that the social situations in India forbid the daughters after marriage from doing their pious duty of taking care of their parents” (sic). 8. Though I have narrated the essential facts as afore, I am certain that I will not be justified in considering the merits of the factual circumstances; and in any case, I am incapacitated from doing so, on account of the fact that I am now acting under Article 226 of the Constitution of India and thereby proscribed from entering into or stating upon the factual factors affirmatively. 9. My limited endeavor, therefore, will be to find out whether the challenge of the petitioner to Section 24 of the Act can garner legal favour or otherwise. 10. Before I do so, I must specifically WPC 23210/18 8 remind myself that the petitioner challenges Section 24 of the Act solely on the ground that it is vague and consequentially capable of being misused by the official Authorities. No other ground in challenge of the said Section has been impelled, either relating to the competence of the legislature to enact the Section or that there is any other factum that would render it unconstitutional. 11. On the question if a statute or a provision of law can be declared invalid or _ultravires_ the Constitution solely on the touchstone of its alleged potential for misuse, it is now well settled that it cannot be so done merely because there is a possibility of abuse of the powers contained in it and this has been declared emphatically by the Hon’ble Supreme Court right from the year 1962. 12. In **, The Collector of Customs, Madras v.** **Nathella Sampathu Chetty and Others [AIR 1962 SC** WPC 23210/18 9 **316]** , which is one of the starting points of the Hon’ble Supreme Court’s unequivocal view in this area, it has clinchingly held that the mere possibility of abuse of a provision cannot be a ground for declaring the said provision to be unreasonable or vague. In fact, after referring to a famous passage in a judgment by the Supreme Court of Appeal, Northern Ireland, their Lordships acknowledged that if powers are capable of being exercised reasonably, it is impossible to say that they may not also be exercised unreasonably; but that this by itself will not be sufficient to strike down the statute. In paragraphs 44 and 45 of this judgment, their Lordships indited their minds sublimely as under: 44. This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision WPC 23210/18 10 to be unreasonable or void. Commenting on a passage in the judgment of the Court of Appeal of Northern Ireland which stated: “If such powers are capable of being exercised reasonably it is impossible to say that they may not also be exercised unreasonably” and treating this as a ground for holding the statute invalid Viscount Simonds observed in Belfast Corporation v. O.D.Commission [1960]A.C.490: “It appears to me that the short answer to this contention (and I hope its shortness will not be regarded as disrespect) is that the validity of a measure is not to be determined by its application to particular cases .....If it is not so exercised (i.e., if the powers are abused) it is open to challenge and there is no need for express provision for its challenge in the statute”. 45. The possibility of abuse of a WPC 23210/18 11 statute otherwise valid does not impact to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. WPC 23210/18 12 13. This declaration of the Hon’ble Supreme Court thereafter found consistent support in various other judgments and in **State of Rajasthan v. Union of India, [(1977)3 SCC 658]** , Justice P.N. Bhagwati, as his Lordship was then, famously said as under: It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of the power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief. In the last analysis, a great deal must depend on the wisdom and honesty, integrity and character of those who are in charge of administration and the existence of enlightened and alert public opinion. 14. The above view has unceasingly held the arena in the last several decades and in **Padma** **Sundara Rao v. State of Tamil Nadu, [2002 (3) SCC** WPC 23210/18 13 **533]** , the Hon’ble Supreme Court referred to the words of Danckwerts LJ **in Artemiou v. Procopiou** **[All ER page 544-I]** that an “ _intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction_ _available”_ . 15. Subsequently, in **Unique Butyle Tube Industries (P) Ltd. v. UP Financial Corporation** **[(2003)2 SCC 455]** their Lordships reiterated the very same principles and stated the following in paragraphs 11,12 and 13 which, for the purpose of complete reading, is extracted as under: 11. It is a well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor or legislative intent. The first and primary rule of construction is that the intention of the WPC 23210/18 14 **==> picture [318 x 630] intentionally omitted <==** **----- Start of picture text -----**<br> ||||||| |---|---|---|---|---|---| |legislation must be found in the| |words|used|by|the|legislature| |itself. The question is not what| |may|be|supposed|and|has|been| |intended but what has been said,| |“Statutes should be construed, not| |as thereorems of Euclid”, Judge| |Learned Hand said, “but words must| |be construed with some imagination| |of the purposes which lie behind| |them”.| |12. It was observed that courts must| |avoid|the|danger|of|a|priori| |determination of the meaning of a| |provision|based|on|their|own| |preconceived|notions|of| |ideological|structure|or|scheme| |into which the provision to be| |interpreted|is|somewhat|fitted.| |They are not entitled to usurp| |legislative|function|under|the| |disguise of interpretation.| |13. While interpreting a provision the| |court only interprets the law and| |cannot|legislate|it.|If|a| |provision of law is misused and| |subjected to the abuse of process| **----- End of picture text -----**<br> WPC 23210/18 15 of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. 16. The sum total of the conclusions and holdings of the Hon’ble Supreme Court as afore, renders it indisputable that merely because a section can be misused or put to undesirable results, that by itself would not be reason to declare it as being unconstitutional. 17. Being bound and guided by the judgments of the Hon’ble Supreme Court _ut supra_ , I have no hesitation to hold that the challenge of the petitioner to Section 24 on this ground must fail. 18. On the question of vagueness, which has been impelled before me by the petitioner, relying upon the judgment in **Kartar Singh** (supra), I notice that her contention is that the words “whoever having the care or protection of the senior citizen” is capable of no precise meaning. She vehemently contends that this phrase WPC 23210/18 16 is susceptible to varied interpretation by the Authorities under the Act, since it does not specify what is meant by “having the care and protection”. The petitioner asserts that this phrase, as is available presently, can be easily misused because, any child of a senior citizen, whether he/she be incapacitated for valid reasons from taking physical care of the senior citizen, can be implicated under the Section. She, thereafter, predicates that the provision of Section 24 can, therefore, only be applied to the person in de-facto and physical care and protection of the Senior Citizen concerned and not against any other person. 19. The constitutive submissions of Sri. Abhilash, the learned counsel for the petitioner, in respect of the above contentions, are that these words can only be interpreted to mean that it is solely that person, who is physically in charge of the care and protection of the senior WPC 23210/18 17 citizen, who can be prosecuted under Section 24 and not any other person, who may, on account of various reasons, find it not possible to offer his/her physical presence so as to be in charge of the senior citizen. In other words, the attempt of the petitioner is to carve out an exemption for those children or relatives, who are living away from the parent/senior citizen, and to then assert that such children or relatives, being not in the physical care and protection of the senior citizen, would not be liable for prosecution, even if they have abeted or caused the parent/senior citizen to be abandoned under the provisions of the impugned Section. This contention, if accepted, obviously would then lead to the corollary predication that the words “having the care or protection” in the Section can only be construed to mean physical care or protection and therefore, that a child who is not ready to be in such physical care or WPC 23210/18 18 protection of the senior citizen cannot be prosecuted, even for abandoning the senior citizen. 20. I am afraid that I cannot even remotely accede to the afore contentions in any manner at all because the phrase impugned herein has been used in Section 24 within the contours of a special statute, which is laudably intended for the care and protection of senior citizens; and to, therefore, allow the contention that these words ought to be interpreted to apply only against children or persons who are in physical charge of the care and protection of the parent/senior citizen and not against those who; though are legally obligated to offer much care and protection, but who, either on account of disability or indifference; does not take such care physically and then causes or abets the senior citizen to be abandoned, would be virtually to do the greatest violence to the Act WPC 23210/18 19 itself. 21. The purpose of the Act being to ensure that a senior citizen or parent is able to live a life of dignity and self-respect and the statutory obligation, as is resolutely specified in Section 4(3) of the Act, being cast on the children to maintain his/her parent, so that such parent may lead a normal life, it is ineffable to hear the petitioner say that the words “having care and protection” is not capable of a definite meaning. 22. I am certain that it would not need great elaboration for any Court to reject these contentions outright because the words “having the care or protection of the senior citizen” in Section 24 of the Act would obviously mean a child/person, who is legally obligated to be in the care or protection of the parent/senior citizen because otherwise, any child or relative can indifferently decline to take care of the WPC 23210/18 20 senior citizen physically and then assert that since they are not in the physical care or protection of the senior citizen, they would have no obligation under the statute to maintain her or take care of her, except under the orders of the Court or the Tribunal. 23. I have no doubt in my mind that these contentions are completely ectopic to the very philosophy which enlivens the Act and therefore, that any interpretation to the Section in the manner that has now been contented by the petitioner would do unpardonable assault to the very purpose for which this Act has been enacted and consequently, by no stretch of imagination can this Court grant imprimatur to any such assertions. 24. That being said and even though I am completely firm in my mind that the Section does not suffer from any of the vitiating factors as are now alleged by the petitioner, the adjunct WPC 23210/18 21 question is whether the petitioner is factually liable for being prosecuted under Section 24 of the Act. However, I am firm in my mind that this is not an issue that this Court can consider in these proceedings and it will be up to the petitioner to produce cogent and reliable evidence before the competent Authority to establish that she had not abandoned the senior citizen or that she has not left such citizen in any place with the intention of wholly abandoning her. These are matters that the petitioner will have to prove through reliable material and her factual statements of her “disability to have been in care and protection of her mother” can, at the best, only be the defences that may be available to her which, however, does not, for any reason, shake the validity of the provision itself. If the petitioner is able to establish on facts that she had not abandoned or left the senior citizen with the intention of abandoning WPC 23210/18 22 her, then it would be sufficient justification for her to claim exemption from prosecution now launched against her through the impugned orders. In the afore circumstances, I find no cause to entertain this writ petition and I, therefore, dismiss it; however, leaving liberty to the petitioner to invoke and pursue all defences that may be available to her, even under Section 24 of the Act. This writ petition is thus disposed of. **SD/-** ## **DEVAN RAMACHANDRAN** **JUDGE** WPC 23210/18 23 ## APPENDIX ## PETITIONER'S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE CHARGE IN STC NO. 3500/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, KANNUR IN CRIME NO. 384/2016 OF THE IRIKKOOR POLICE STATION, KANNUR DISTRICT. EXHIBIT P2 THE TRUE COPY OF THE INPATIENT BILL DATED 17.09.2015 ISSUED BY THE AKG MEMORIAL COOPERATIVE HOSPITAL, KANNUR DISTRICT. EXHIBIT P3 THE TRUE COPY OF THE BILL DATED 17.09.2015 ISSUED BY AKG MEMORIAL CO-OPERATIVE HOSPITAL, KANNUR. EXHIBIT P4 THE TRUE COPY OF THE DEMAND DRAFTS DATED 23.08.2016 ISSUED IN FAVOUR OF SWANTHANAM. RESPONDENTS' EXHIBITS ANNEXURE R3(A) TRUE COPY OF THE FIR DATED 05.05.2016. ANNEXURE R3(B) TRUE COPY OF THE FINAL REPORT DATED 12.08.2016 ANNEXURE R3(C) TRUE COPY OF THE DEATH CERTIFICATE OF SMT. BHARATHI AMMA ANNEXURE R3(D) TRUE COPY OF THE LETTER ISSUED BY THEM DATED 23.07.2016. // TRUE COPY // PA TO JUDGE RR