Securing Dignity of the Elderly

Relief to Pensioners Came after Sustained Battles

Swapna Jha*

Pensioners’ Cause: The First Crusade

Pensions are essential to ensuring rights, dignity and income security for older persons, according to International Labour Organization (ILO). And that is why the right to an adequate pension has been included in the right to income security in old age in international labour standards.1

There is no denying that pension for the elderly enhances their quality of life and helps rescue them from a life of irrelevance and suffering. Pensions also enable the elderly to access healthcare and go a long way in reducing gender inequality.

Mr H.D. Shourie, the founder of Common Cause, always recognised that pensionary benefits were a key development strategy for the betterment of society in general and the lives of the vulnerable and the elderly in particular. The very first Public Interest Litigation filed by Common Cause under Mr Shourie was an attempt to end the discrimination between various classes of pensioners. The import of the landmark PIL, the turn of events before and after it, and many more supplementary pension cases which followed, are discussed in this article.

The Govt of India introduced a measure of liberalisation for its pensioners in 1979, altering the formula of pension calculation. It accorded a substantial increase, offering further relief to pensioners of civil and defence establishments, against developing inflationary pressures. However, the liberalised pension benefits were offered only to those who retired after April 1, 1979. Not surprisingly, the pre-1979 pensioners raised objections and submitted representations, but no redressal came their way.

Mr. Shourie started a campaign through the Common Cause Journal and by making representations to authorities concerned. He urged the affected pensioners to write ‘letters-to-editors’ in newspapers and also send their representations to the Common Cause office, so that they could be collectively presented to the then Prime Minister Mrs Indira Gandhi. Common Cause received about 15,000 representations which were duly delivered to the PMO. In due course, the govt sent a three-line reply, offering no remedy.

Pension for the elderly enhances their quality of life and helps rescue them from a life of irrelevance and suffering

The underlying discrimination between two categories of pensioners was in clear contravention of Article 14 of the Constitution, which guarantees to every citizen, the fundamental right to equality.

It was on this ground that Common Cause challenged the govt’s liberalisation order, asserting that the grant of benefits only to post 1979 pensioners and depriving others, despite both living in the same circumstances of rising costs, was violative of the Articles 14 and 21 of the Constitution. The petitioners included a civilian pensioner (Mr. D. S. Nakara) and a defence services pensioner, besides Common Cause. Although the case is cited as D.S. Nakara & others vs. Union of India, as per the practice of the Supreme Court, this was the first victory for Common Cause, in its crusade to secure the fundamental rights of common citizens.

Mr Shourie urged the affected pensioners to write ‘lettersto-editors’ in newspapers and also send their representations to the Common Cause office

The Supreme Court judgment not only provided relief to hapless pensioners but it also formed a legal precedent for the interpretation of Article 14 of the Constitution. The Constitution Bench held that pensioners form one class, and cannot be discriminated against regarding pensionary benefits, merely on the basis of their retirement date. The court also held that pension is a right, and not a bounty or gratuitous payment. The govt filed a review against the Constitution Bench decision but the review was rejected.

This decision of the Supreme Court became applicable to all central govt pensioners, from both civil and defence services.

Despite the big victory, there were still big hurdles on way to the implementation including an inordinate delay in the disbursement. In one of his candid editorials featured in the Common Cause journal published in 1983, Mr. Shourie writes: “…Continuing delays in the implementation of Supreme Court judgment…, even after the dismissal of Review Petition of the govt, are exasperating the pensioners.”

Eventually Mr. Shourie’s efforts yielded results and the orders were issued in 1983, directing revision of pension in accordance with the prescribed formula. This measure also entitled the old group of pensioners to the hike in benefits. Common Cause also ensured that the liberalised pension benefits was applicable of state govts and all public institutions, including local bodies etc.

Common Cause’s crusade for pensioners continued even after receiving a landmark judgement in its first PIL. Taking into account the concerns of a vulnerable and ageing population, Common Cause filed two more PILs to protect the rights of pensioners, who remain at risk of poverty in old age. Both the follow-up pension PILs elicited positive results. The cases are discussed below.

Family Pension: Irrational Entitlements

The Family Pension Scheme, introduced in 1950, was aimed at the economic empowerment of widows of govt servants. In 1964, the Scheme was made contributory. It required govt servants to contribute their

two months’ salary or Rs. 5,000, whichever was lesser, out of their death-cum-retirement gratuity. This measure entitled the survivors to the family pension. Consequentially, widows of pensioners opting out of the contributory scheme and of public employees

who expired before 1964 were denied the pension benefits. In 1977, even though this requirement of contribution was dispensed with, widows of pensioners opting out of the 1964 contributory scheme were not eligible for family pensions. Common Cause and others moved the Supreme Court contesting the inequality perpetrated by the new revised scheme.

We raised the following issues:

  • Whether the orders will apply to the widow/minor son/ unmarried daughter as defined in the relevant provisions of family pension scheme;
  • whether the scales of pension as prescribed with effect from 1.1.1973 will be made uniformly applicable to all the eligible persons in the family pension scheme;
  • whether the benefits of the family pension scheme will be made available to all pensioners, irrespective of their contributions of two months’ emoluments in terms of the original family pension scheme, one deleted with effect from 22.9.1977.

In its ruling, the Court said that pension is not merely a statutory right but also a fulfilment of a constitutional promise. It was found that by the exclusion of widows of govt servants not contributing to the 1964 scheme from those who are part of the new scheme, the govt had introduced an ‘invidious classification,’ and hence, was in violation of Article 14.

On the date of the final hearing, the following clarification was submitted by the Union govt:

  • Govts are prepared to grant to the dependents i.e., minor sons, etc. of the pensioners governed under pre- 1964 scheme the same pensionary benefits as are admissible to the dependents under current pension rules.
  • It is clarified that govts are agreeable to apply the increased pension rates introduced from 1.1.1973 to all the eligible persons, including dependents. This will, however, be subject to the condition that the total amount admissible (excluding dearness relief) under the liberalised provision now being agreed to, will not be more than what is admissible to a person covered under the current rules.
  • Govts have already agreed to the grant of arrears of family pension with effect from 22.9.77-the date on which contribution of two months’ emoluments by pensioners was dispensed with. Persons who are now to be granted the benefits of family pension will not be required to contribute two months’ emoluments. Similarly, no demand for refund of contribution already made by pensioners will be entertained.

The court found this clarification, submitted in response to the queries raised by Common Cause, to be clear, unambiguous and wholly satisfactory and disposed of the case in favour of the petitioners. The respondents, i.e UOI, consented to grant pensionary benefits at increased rates under the new Rules. It also agreed to clear the arrears due to dependents governed by the 1964 scheme with effect from the date of promulgation of the new non-contributory scheme.

The Common Cause cases filed on behalf of pensioners benefitted millions across India

Commutation of Pension Rules

In order to meet any urgent and unforeseen requirement post retirement, civil employees can claim up to a third, and defence personnel half, of the pension due to them for 10 years in a lump sum, as ‘commutation.’ Common Cause received several letters attesting to the deprivation suffered by commuted pensioners. A magazine article attested to the misery of these senior citizens, as recounted in their letters: “The most moving is one from Amrit Lal of Jullundur, who is 85 years old and can sign only with a shaky thumbprint. Lal retired as a civilian superintendent from Army Headquarters in April 1954. In February 1960 he asked for, and got, a commutation lump sum of Rs 9.720. So far, the Govt’s relentless deduction of one-third of Lal’s pension has resulted in his repaying Rs 24.750.”2

Common Cause challenged Central Civil Services (Commutation of Pension) Rules, 1981 to strike down certain provisions of the said Rules, as they permitted the Union to recover more than what was paid to the pensioners upon commutation. Further, it sought a direction requesting an appropriate scheme, rationalising the provisions relating to commutation.

On the suggestion of the Apex Court, the Union of India agreed to restore the commuted portion of the pension in regard to civilian employees at the age of 70 years or after 15 years from commutation, whichever is later, effective from April 1, 1986. This would apply to all civilian pensioners (whose retirement age on superannuation was 58 years) and the Armed forces personnel (whose retirement age varied in accordance with the rank in service, the age of 37-38 years or more).

Hence, the reduction in monthly pension on account of commutation, which was a lifetime commitment, was shortened to 15 years, effective from April 1985. The Court directed to give effect to the order in this matter within three months.

Conclusion

The Common Cause cases filed on behalf of pensioners benefitted millions across India. They were also applied as precedence and served as the guiding principle for social security. The govt’s arbitrariness on the pension rules could only be remedied by approaching the Apex Court. These were early days of PILs in India but through these petitions, Common Cause became a pioneer in making legal interventions for securing the fundamental rights of common citizens.

Endnotes

  • International Labour Organization. Social protection for older persons: Key policy trends and statistics. Retrieved on March 3, 2022 from https://bit.ly/3IGEvP0
  • Kalbag, Chaitanya (2013, July 26). Delhi-based Common Cause decides to fight on behalf of pensioners. India Today. Retrieved March 2, 2022 from https://bit.ly/3IIbUcc

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