This article is written by Siddhi P. Nagwekar, Karnataka State Law University’s Law School. This article discusses the legal framework related to the rights of elderly people in India.
Caring for the elderly passes as one of the rudimentary roles a society must be held liable for. The idea of a nuclear family impacted the cycle resulting in an imbalance of the usual life of elderly people by getting the better of a thousand years old practice of India where parents are treated as a pious form of God. While most developed countries have codification and schemes in place to make sure that no senior citizens are deprived of their rights, a major part of the population of the country such as ours remains oblivious to them owing to low rates of literacy. While some of the core laws include the Elder law and the Maintenance and Welfare of Parents and Senior Citizens Act, there are sections further, of our constitution that safeguard the rights and interests of the elderly.
1. Constitutional Safeguards
The right to work, right to education and the right to public assistance in certain cases: It is considered that the State shall, within the boundaries of economic capacity and development, make constructive provision for safeguarding the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Promotion of educational and economic interests of weaker sections: It is given that the State shall promote with special care the educational and economic interests of the weaker sections of the people and shall safeguard them from social injustice and all sorts of exploitation.
However, these provisions are included in Chapter IV i.e., Directive Principles of the Indian Constitution. The Directive Principles, as laid down in articles 36- 51, are not executory by any court of law. But Directive Principles impose positive obligations on the state, i.e., what it should do. The Directive Principles have been declared to be essential in the governance of the country and the state has as an implication to apply them in making laws. The courts, however, cannot impose a Directive Principle as it does not create any legitimate right in favour of any individual. It is most unfortunate that the state has not made even a single Act that is directly related to elderly persons.
2. Legislative Protection
Safeguards under Personal Laws: The duty to maintain parents is righteous and is recognized by all people. However, so far as the law is concerned, the position and extent of such liability vary from community to community.
- Protection under Hindu Laws:
Part IX – Personal Law (Hindu), (Chapter III – Hindu Adoption and Maintenance Act, 1956) states that a Hindu is obliged during his or her life, to maintain his or her legitimate/illegitimate children and his or her aged or infirm parents. The responsibility of a person to maintain his or her aged infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case is, is unable to maintain himself or herself out of his or her own earnings or others property. Therefore, amongst the Hindus, the binding on sons to maintain their aged parents, who were not able to maintain themselves out of their own earning and property, was recognized even in early texts. And this commitment was independent, not qualified by a reference to the possession of the family property. It was a personal legal obligation enforceable by the sovereign or the state. The statutory provision for maintenance of parents under Hindu personal law is 23 Article 46 of the Constitution of India 24 Section 20(1) of Hindu Adoption and Maintenance Act, 1956 25 Section 20(3) of Hindu Adoption and Maintenance Act, 1956 contained in Sec 20 of the Hindu Adoption and Maintenance Act, 1956. This Act is the primary personal law statute in India, that imposes a binding on the children to maintain their parents. As is apparent from the framing of the section, the obligation to maintain parents is not limited to sons only, and daughters also equally have a duty towards parents. It is necessary to note that only such parents who find it financially unviable to maintain themselves from any source, are permitted to get maintenance under this Act.
- Safeguards Under Muslim Law:
Children have a duty to maintain their aged parents even under Muslim law. According to Mulla:
(a) Children in undemanding situations are bound to maintain their poor parents, even though the latter may be able to earn something for themselves.
(b) A son in difficult conditions is obligated nevertheless to maintain his mother, if the mother is poor, irrespective of whether she is infirm.
(c) A son, who is poor, nonetheless, is earning something, is obligated to support his father who earns nothing.
According to Tyabji, parents and grandparents in strained state of affairs are allowed, under Hanafi law, to maintain their children and grandchildren who have the avenues, notwithstanding their ability to earn their livelihood. Both sons and daughters have a duty to maintain their parents under Muslim law. The binding, however, depends on their having the means to do so.
Protection Under Criminal Laws
1. Protection under the Code of Criminal Procedure
Criminal Procedure Code, 1973 – Chapter IX: ‘Order for maintenance of wives, children and parents’: If any person having adequate means abandons or spurns to maintain his mother or father, incapable to maintain himself or herself, a Magistrate of the first class can, upon evidence of such abandonment or refusal, order that person to provide a monthly grant for the maintenance of his wife or such child, father or mother, at such monthly rate not going beyond five hundred rupees in the entirety, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Section 125(3): If any person so ordered fails without adequate reason or cause to meet the order, any such Magistrate can, for every non-compliance of the order, issue a warrant for exacting the amount due in the approach provided for imposing fines, and may sentence that person, for the whole or any part of each month’s grant remaining unpaid after the enforcing the warrant, to imprisonment for a term which may extend to one month or until payment whatever is sooner. It can thus be said that prior to 1973, there was no provision for the maintenance of parents under the code. The Law Commission, however, was not in favour of making such provision. According to its report, the CrPC is not the right place for such a provision. There will be a significant difficulty in the sum of maintenance awarded to parents apportioning amongst the children in a summary proceeding of this type. It is prudent to leave this matter for a pronouncement by civil courts. The provision, nevertheless, was introduced for the first time in Sec. 125 of the Code of Criminal Procedure in 1973. It is also necessary that the opposite party having ample means, abandoned or refused to maintain his, who is unable to maintain himself.
2. Government Protections
The Government of India, Ministry of Social Justice & Empowerment is the nodal Ministry responsible for the welfare of the Senior Citizens. It has declared about the National Policy on Older Persons encapsulating all doubts/worries pertaining to the welfare of older persons. The National Policy on Older Persons recognizes a person aged 60 years and above as a senior citizen. The Ministry is also implementing the following schemes for the benefit of Senior Citizens:
The Government of India approved the National Policy for Older Persons on January 13, 1999, to speed up the welfare measures and enable the elder people in ways advantageous to them. This policy contained the following major points:
- Setting up a pension fund for ensuring security for those persons who have been serving in the unorganized sector,
- Construction of old age homes and day-care centres for every 3-4 districts,
- Establishing resource centres and re-employment bureaus for people above 60 years of age
- Making rail/airfares concessional for travel within and between cities, i.e., a 30% rebate on the train and 50% in Indian Airlines.
- Passing legislation to make sure that obligatory geriatric care in all the public hospitals is available.
- The Ministry of Justice and Empowerment has declared the setting up of a National Council for Older Person, called AGE-WELL Foundation. It will seek the opinion of age on measures to make life easier for them.
- Attempts to sensitize school children to live and work with the Old age. To set up around the clock helpline and discouraging social ostracism of the older persons are being taken up.
- The government policy promotes an immediate settlement of pension, provident fund (PF), gratuity, etc. in order to avoid further hardships. The policies consider elder sensitivity.
Elderly people carry a vast range of experiences of their personal and professional life, and society in general needs to utilize those experiences for a greater future. They can layout a key generational link for upcoming generations. It gives support and stability to families and society. Grandparents in joint families provide a critical link for transmitting values and morals to the younger generation in their early years, thus working towards raising sensible human beings and responsible citizens. Recognizing seniors’ contributions would aid in making ours a more age-inclusive society that doesn’t pit one generation against the other. Their profound cultural impressions and social experiences provide the essential buffer against intolerance, violence and hate crimes which gives stability in society especially in the age of hate and crime. They can play an important role in alleviating societal tensions, both within and outside families through their insights and understanding.
Social security is the simultaneous responsibility of the central and state governments, as mandated under the Indian constitution i.e., Well-being of senior citizens – Article 41 in particular and 46 in general of Indian constitution. In this aspect, the National Policy on Senior Citizen, 2011 was devised. For the welfare and care for the older persons, we must concentrate on the safeguarding of existing traditional social institutions/social support systems such as kinship and family, community bonding, community participation and neighbourhood bonding should certainly be revived. People in the family or those related should show more care and sensitivity towards elderly citizens.
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