AN INDIAN SENIOR CITIZEN’S LEGAL RIGHT TO BE TAKEN CARE OF

D. PRISCILLA JAYAM

INTRODUCTION

India has nearly 104 million elderly persons (aged 60 years or above) as per the census of 2011, out of which, 71% of the elderly population resides in rural areas and 21% resides in urban areas.[1] Having in it’s care, a massive number of elders, our country has come up with several laws and policies to cater to their social, economic and physical needs.

THE NEED FOR LEGAL RIGHTS

The measures taken by the Government (in the form of laws and policies) are essential, owing to the fact that the elderly are a vulnerable group of people, requiring special care and protection. In earlier societies, people cared for their elderly, out of love and affection towards them and even out of a moral obligation to do so. One of the major reasons which contributed to this, was the prevalence of a thriving joint family system (present nowadays also, but in lesser numbers). However, globalization, urbanization, industrialization, population explosion and other factors, patronized and helped in the thriving of the nuclear family systems. This led to the neglect of aged persons, thus arising the need for the State to step in.

Hence, it is mandatory for families to provide maintenance[2] to elders as per law.

LEGAL RIGHTS AVAILABLE TO SENIOR CITIZENS IN INDIA - A GLANCE

The Constitution of India,1950

The legal rights of senior citizens are not only found in recent legislation, but also in the very supreme law of the land - The Indian Constitution.

Article 41 of Part IV of the Constitution, makes a mention of the rights of the elderly. Though it is not enforceable by law, as it falls under the Directive Principles of State Policy (DPSP), it is pertinent to note that it is the duty of the State[3] to comply with all the duties enshrined in it.

Article 41 : It is the duty of the State to secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and other cases of undeserved want.

Therefore, we see that it is the State’s duty to secure the right to work, education and public assistance of the elderly under this Article.

The Maintenance and Welfare Of Parents and Senior Citizens Act, 2007

This Act has been a major step towards achieving the object of welfare of the elderly of our nation. According to its object, this Act seeks to bring out more effective provisions for the elderly as guaranteed and recognized by the Constitution.

The key features of this Act are:-

1. Any senior citizen or a parent who cannot maintain himself /herself can file an application before the Maintenance Tribunal against his/her children or relative[4] (in case of a childless senior citizen) where such maintenance extends to the needs of the senior citizen, as required to lead a normal life. (Section 4)

2. Any senior citizen or parent can file the said application, or if incapable to do so, it can be done by any other person or organisation authorised by him. The Tribunal on receiving the application, may take cognizance on it’s own. (Section 5)

Also under subsections 2 and 8 of this section, the Tribunal may order the payment of a monthly allowance during the ongoing proceedings and in case of breach of such order, may issue a warrant for levying dues to the defaulting person and may also imprison such person for a maximum period of one month.

1. The Maintenance Tribunal may order the children or the relatives as the case may be, to make a monthly allowance to the senior citizen or parent, who is unable to maintain oneself, if it is satisfied that he/she had been neglected or refused. (Section 9)

Also, subsection 2 of this section provides for a maximum payment of monthly allowance not exceeding Rs.10,000.

1. The order copy is to be given to the senior citizen or parent free of cost, where such order is to be enforced against the person, so ordered against by the Tribunal.(Section 11)

2. Any senior citizen or parent who is not satisfied by the order of the Tribunal, may within 60 days, file an appeal before the Appellate Tribunal. Even during this period, the children or the relative need to pay the monthly allowance as maintenance and the Appellate Tribunal may allow the appeal even after the expiry of 60 days, if it is satisfied that there is sufficient reason for the delay. (Section 16)

3. In cases where any senior citizen (transferor) had transferred any property, by way of gift or other forms, on a condition that the transferee should provide the basic amenities and basic physical needs, such transfer can be cancelled by the transferor if the transferee fails or refuses to do so. (Section 23).

4. Any person obligated to offer care or protection to a senior citizen or parent under this Act, may be imprisoned or fined for leaving such person in any place with the intention of wholly abandoning them, with a term of imprisonment extending to 3 months or fine of Rs. 5,000 or both. (Section 24)

Corresponding Rules:

In order to ensure better implementation of the Act, the State Governments have enacted their own corresponding Rules, For instance:

● Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.

● Andhra Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2011.

● Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.

● Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.

● Maharashtra Maintenance and Welfare of Parents and Senior Citizens Rules, 2010.

Code of Criminal Procedure, 1973 (CrPC)

Section 125 of this code provides for maintenance to wives, children and parents.Therefore, under this section, maintenance can be claimed by parents.The claimant may claim such maintenance either under this Code or under any other law but, cannot claim under both.

Hindu Law

Section 20 of the Hindu Adoption and Maintenance Act, 1956 provides for the maintenance of aged parents by a Hindu son or daughter, when such a person is not able to maintain oneself.

Muslim Law

Muslim law mandates the maintenance of aged parents. According to Tyabji, parents and grandparents in indigent circumstances are entitled to maintenance from their children and grandchildren. Both sons and daughters are obligated to maintain their parents however, it depends on their economic status. Also according to Mulla, the aged and needy parents are entitled to maintenance.

GOVERNMENTAL POLICIES

It is also pertinent to mention some of the policies formulated by the Government for senior citizens, though the implementation of those policies have not been done entirely.

1. National Policy On Older Persons, 1999 (NPOP), which highlighted the rising elderly population and the urgent need to understand and deal with the medical, psychological and socio-economic problems faced by the elderly. The National Council of Older Persons[5] was also constituted in the same year to monitor the implementation of the policy and to advise the Government on issues relating to the welfare of senior citizens.

2. National Policy on Senior Citizens, 2011, sought to reach out to the bulk of senior citizens living in rural areas, who are dependent on family bonds and inter-generational understanding and support. In principle, the policy values an ‘age integrated society’.

3. As a matter of policy decision, the Government has also proposed changes to the 2007 Act in the form of a Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019. It has been sent to the Standing Committee for discussion. After the bill has been passed and the Act comes into effect, we may expect even better changes.

AFTERMATH OF THE INTRODUCTION OF LAWS AND POLICIES

The laws and policies have highly benefited the senior citizens, as there are several instances where justice has been rendered. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has proved to be an effective facilitator of justice. We can see it’s fruits in several cases, where the provisions of this Act were invoked to attain the required remedy.The case of Sunny Paul & Anr. v. State Nct of Delhi & Ors.[6] stands as a well established precedent.

But still, a pressing issue remains as to the awareness of these laws and policies, as many senior citizens are unaware of their rights, especially the rural elders.

CONCLUSION

The Government of India has taken laudable steps towards protecting it’s older population by way of laws and several policies.However, the awareness is not widespread. Awareness of the existing legal provisions and steps to implement them will prove the success of not only the legislation, but also of a humane society.

END NOTES

[1] Ministry of Statistics and Programme Implementation, Government of India, Elderly in India - Profile and Programmes, 2016. [2] Section 2(b) of the Maintenance and Welfare of Senior Citizens Act,2007, which includes provision for food, clothing, residence and medical attendance and treatment. [3] Article 12 : The State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. [4] Defined in Section 2(g) of the Act, where “relative” means any legal heir of the childless senior citizen, who is not a minor and is in possession of or would inherit his property after his death. [5] Constituted on 10th May, 1999 [6] WP(C) 10463 / 2015.