This article is written by Somya Jain, from the Vivekananda Institute of Professional Studies. This article majorly discusses the apathetic behaviour of the government towards the senior citizens and the growing judicial activism on the current stance.
Table of Contents
Introduction
Primitive Indian society has established a strong pillar in ensuring the security and well-being of senior citizens. Their expertise, knowledge and experience were much appreciated by the then youth of our country. The concept of joint family found its place in traditional society but over the years it lost its hold and is on the verge of eventually withering away. Ageing is something that cannot be prevented and is treated as a second childhood. Generally speaking, old age brings with it responsibilities on the daughters and sons to fend their parents with all the love and devotion as their parents once did for them. The role of the senior citizens in a family is substantial for proper guidance and discipline. But, in recent times, people have grown to be hesitant to take up the responsibilities of their aged parents.
With modernisation and westernisation, individualistic thoughts paved the way for establishing nuclear families. People are choosing to live separately from their parents leaving the elderly in a state of hysteria and aloofness. At an age where senior citizens require mental and physical support along with care and love from their beloved ones, treating them in ways that are incomprehensible, seems to set a trend in the present society. Apart from the above problems, senior citizens in India have also faced an escalating number of physical violence cases against them. Here the role of the government towards the issue cannot be denied. Considering the increasing problems faced by the aged people, it has become necessary that a robust system with the underlying laws ensuring the protection of the senior citizens at all levels should be established. Government has time and again failed to provide complete protection even though potent laws have been instituted in society. This calls for clarification and effective implementation of laws at both municipal and international levels.
The plight of the senior citizens
Senior citizens have been facing multiple problems in society to which there seems to be no end. According to Age Well Foundation on “Human Rights of Elderly in India Survey”, the problems faced by senior citizens can be distinguished under main heads as follows:
- Health problems;
- Social or Family problems;
- Legal problems;
- Economic problems.
Briefly enumerating the above problems, we shall understand the prevailing problems faced by the senior citizens.
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Health-related problems
- No doubt ageing brings with it a bundle of health problems for many senior citizens. There are various chronic diseases that are associated with the factor of age. Senior citizens are more prone to diseases like cardiovascular illness, arthritis, cancer, diabetes, hypertension and many more. Treatment of these kinds of diseases calls for good fortune as the medicines are pretty expensive for a normal man to invest in. The family members who are bound to fend for their parents, in such circumstances, treat their parents as a liability and a burden on themselves, thereby leaving them all alone.
- In addition to the physical problems, senior citizens also suffer from mental illness. When senior citizens do not receive proper care and attention rather they are deserted to support themselves in the need of the hour, they suffer from several psychological diseases like depression, anxiety, dementia etc.
Social or family problems
- The generational gap has been one of the prominent factors in aggravating the social problems for senior citizens. With advancements in time, industrialisation and westernisation influenced the younger generations to have a more individualistic approach towards life, thereby, swaying them away from elderly individuals.
- As per the trend in the society and the behavioural changes in the attitude of the people, they are more drawn towards materialistic things rather than their loved ones. Nowadays, people are fighting over money and their rights over property, neglecting their aged parents. According to a survey in 2016, around 66% of the cases are land-related disputes and among this around 80% of them emerge from ownership or inheritance disputes. Further, Helpage India, an NGO, surveyed that around 53.2% of all elderly abuse was due to property and inheritance disputes.
Legal problems
- Although the government has initiated various welfare schemes for the benefit of senior citizens, it does not find its place in the present times, the implementation of these policies has sought to the apathy of the government towards senior citizens. Further, the laws are not up to the mark that would provide complete protection to them.
- In addition to this, senior citizens, more precisely those who are based in rural areas, are unaware of their rights against the actions practised by their family members. This lack of knowledge acts as a constraint in providing assistance to senior citizens by all means.
Economic problems
- With the increasing cost of living in a society, it has become difficult for senior citizens, having no adequate income, to survive. Although pensions are one such source, it is not enough to sustain the growing needs of aged people. The cost of their treatment along with other necessities are not sufficient. Therefore, they have to depend on others to provide them with financial support.
- Generally, it is the female counterparts who suffer the most. As they are precluded from earning any income due to the social stigmas, it becomes extremely strenuous for them to survive. Further, the policies established by the government do not tackle the lack of social security among senior citizens. Like in most government offices the retirement age is taken to be between 60-65 years.
Welfare schemes initiated in favour of senior citizens
The government has taken the initiative to establish several schemes for the benefit and protection of senior citizens from the evils in society. Some of the important schemes are discussed below.
Overview of the welfare schemes
The welfare scheme introduced over time can be determined under different heads. These are:
Legislations
- The Constitution of India under Part IV, which deals with Directive Principles of State Policy, also states that it is the duty of the state to ensure the protection of the rights of the aged people. Article 41 entitles the government to provide public assistance and secure the right to work for certain categories of people including senior citizens.
- As per Section 125 of the Code of Criminal Procedure, it is mandatory for children to maintain their parents provided that it is shown that the parents are neglected by their children and are unable to maintain themselves. The section has extended the scope of responsibility to include married daughters as well.
- Section 20 of the Hindu Adoption and Maintenance Act 1956, states that if the parents are unable to maintain themselves from the earnings or other property then the children are responsible for providing them with maintenance.
- Muslim law also establishes the necessity of the children, both son and daughter, to maintain their aged parents. It states that if parents have to maintain their children then the same goes for the children to maintain their parents.
Government schemes
- The Integrated Programme for Older Persons is a scheme introduced by the Ministry of Social Justice and Empowerment which aims to increase the lifestyle of senior citizens by providing them basic amenities like food, shelter, medical care etc.
- Rashtriya Vayoshri Yojana is yet another scheme for providing Physical Aids and Assisted-living Devices for Senior citizens belonging to the Below Poverty Line (BPL) category and is fully funded by the central government.
- The Pradhan Mantri Vaya Vandana Yojana is a retirement cum pension scheme for senior citizens above the age of 60 years announced by the Indian Government. For the financial year 2021-22, the Scheme shall provide an assured pension of 7.40% p.a. payable monthly. This assured rate of pension shall be payable for the full policy term of 10 years for all the policies purchased till 31st March 2022.
- The National Programme for the Healthcare of the Elderly provides for facilities in the district hospitals like opening geriatric OPD and ward, community health centres etc, especially for senior citizens.
- National Policy on older persons initiated in the year 1999, aims to ensure financial and food security, health care, shelter and other needs of older persons, equitable share in the development, protection against abuse and exploitation, and availability of services to improve the quality of their lives. The policy also covers issues like social security, intergenerational bonding, family as the primary caretaker, the role of Non-Governmental Organizations, training of manpower, research and training.
Pension Schemes
- National Pension Scheme is a voluntary and long-term investment plan for retirement under the purview of the Pension Fund Regulatory and Development Authority (PFRDA) and Central Government. It is applicable for all employees from the public, private and even the unorganised sector. It encourages people to invest a portion in their pension account at regular intervals during employment. Tax benefits are also provided on it.
- The Atal Pension Yojana mainly aims at the unorganised sector. It provides security to the Indian citizens from any illness or disease in old age. It provides for getting an option of a fixed pension after retirement with 50% of the contribution made by the government over and above the contribution made by the person himself during his course of employment.
- The Indira Gandhi National Old Age Pension Scheme was introduced by the Ministry of Rural Development of India in association with the National Social Assistance Programme. In this scheme, senior citizens above the age of 60 years will receive a monthly pension and this pension is not contributed by the receiver himself.
Outline of Maintenance and Welfare of Parents and Senior Citizens Act, 2007
The Maintenance and Welfare of Parents and Senior Citizens Act (hereinafter 2007 Act) came into existence in the year 2007. The main objective behind the Act was to provide maintenance to senior citizens along with the protection of their life and property. In addition to this, the Act also establishes Maintenance Tribunals for speedy disposal of cases related to senior citizens. Further, the Act also mandates the constitution of old age homes in every district. The preconditions for a senior citizen to claim advantage under this Act are that the person is unable to maintain herself/ himself from their income or property and the age of the person is above 60 years. Some of the essential features of the Act were:
- Generally, adult children or grandchildren are liable to maintain elderly persons. But if a senior citizen does not have children or grandchildren he can claim maintenance from any relative who is either in possession of the property or will inherit the property after the death of the senior citizen.
- The Act mandates that the maximum maintenance provided to senior citizens will be Rs. 10,000 per month.
- The complaints regarding the matter shall be dealt with by the Maintenance Tribunal on the representation made by either the party or relative or by the court taking the case suo moto.
- No party to the proceeding will be allowed to be represented by a lawyer. However, senior citizens can avail the services of maintenance officers appointed by the state government.
- Any person who intentionally abandons a senior citizen will be charged with a fine of Rs. 5,000 or imprisonment for 3 months or both.
- Further, the Act casts a duty on the state government to arrange for separate queues and beds in hospitals for senior citizens.
- Every district must have at least 1 old age home for the poor and needy senior citizens and it should be able to accommodate a minimum of 150 people.
It is to be noted that states in accordance with the circumstances can amend their respective state laws for senior citizens. The State of Delhi brought several amendments to the said Act with respect to the state in the years 2009, 2010 and 2016. In the 2016 amendment, the amendment stated that the parents can evict negligent sons or daughters from their self-acquired home in 21 days by giving a written complaint to the Deputy Commissioner. There is no need to file a lawsuit. However, the children will also get a chance to explain their stand which, if found unsatisfactory, can lead to an eviction notice.
Government’s sluggish behaviour towards elderly people
Government plays one of the most essential roles in providing protection and security to senior citizens. Although it may seem on the face of it that the government has implemented several schemes for the betterment of elderly persons, the facts state the opposite of the same. The government has failed miserably to provide assistance to people who are the most vulnerable community of society.
Pension, being the sole income for many senior citizens, did not find its way through to these people. This income has been denied for long periods and the negligent behaviour of the government adversely affected the living conditions of senior citizens by deteriorating their standard of living. There are many instances that caught the limelight and were brought to the general public. In a recent case of State of Andhra Pradesh v. Dinavahi Lakshmi Kameswari (2021), the Court, considering the delay made by the state government in providing salaries and pensions to government employees held that these are the rightful entitlements and should be provided without any delay. The Court further upheld that pensions are given for the past year services and thus forms the right to the entitlement of the pensioners and should be accorded as per the rules and regulations in the state. Thereby, the Court ordered the state government to render the appropriate payments along with additional interest on the same.
The government, as promised, also failed to provide speedier disposal by establishing efficient maintenance tribunals. As per the Maintenance and Welfare of Parents and Senior Citizens Act 2007, every state government was responsible for setting up separate beds and queues in hospitals. Apart from that, every district mandatorily requires the constitution of at least 1 old age home. But many citizens belonging from different states have complained about the government’s apathy towards senior citizens as the implementation of the Act seemed to be rather unresponsive from the government’s side.
In a landmark judgment of Ashwani Kumar v. Union of India (2019), the Supreme Court observed that the government has failed to perform its duty under the 2007 Act. While citing various non-compliance of provisions under the Act by the government, the Court directed some measures to be acknowledged and performed by the government. They were:
- The Court directed the Union of India to obtain information from every state and Union Territories regarding the number of old age homes in each district of the country and file a Status Report in this regard.
- The Union of India was directed to gather information from every state government regarding the medical and geriatric care facilities which have to be made available for the senior citizens.
- The Union of India was further directed to incorporate a plan of action for making people aware of the 2007 Act and rendering publicity to the same.
Apart from the above orders the Court further urges the central government to issue appropriate directions to the state governments for the effective implementation of the provisions of the MWP Act and the progress of such implementation shall also be reviewed. The Court also added that the schemes for the senior citizens are old and need a change and overhaul by the government. The government should relook at the pension scheme as well and try to match it with the present economic capacity of the centre and the states.
A PIL petition filed by Pawan Kumar and 14 other residents of Girinagar complained about the functioning of an old age home in the Sai Locality. In this case, the High Court of Karnataka held that a complete failure has been committed on the part of the state government to comply with its statutory obligations under the 2007 Act. The Court while interpreting the 2007 Act stated that even though “may” has been used in the provision to establish old age homes in every state yet it will be construed to be a mandate on the state government as the noble objective of the parliament was to provide protection to senior citizens and it can only be observed by mandatorily following the provisions. Noticing the lethargic attitude of the state, the court directed the state to prescribe a scheme, as per Section 19(2) of the 2007 Act, for the management of old age homes for senior citizens.
In another case of Dr. Krishna Pal Singh (Senior Scientist) & Another Vs. State Of U.P (2020)., the Allahabad Court observed that the government has failed in implementing the provisions of the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 framed under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Court observed that the state government has not directed the District Magistrate (hereinafter DM) to implement the provisions of the Act as it was obligatory on the DM to ensure that the provisions of the said Act are properly carried out. Further, no steps were taken to establish old age homes in every district. The Court also showed displeasure on the part of the state government by not directing the DM to provide guidelines for the protection of life and property of senior citizens.
Role of judiciary in uplifting the status of senior citizens
The judiciary has played an active role in liberally interpreting and expanding the scope of the 2007 Act. Understanding the pain and anguishment of senior citizens, the courts have construed each and every aspect of the dispute to provide maximum protection to them. There are several cases proving that the judiciary has been fighting time and again to uplift the status of senior citizens.
In the case of Smt. Darshna v. Government of NCT of Delhi and Ors. (2018), the Court held that as per the 2007 Act and the Rules framed by the Delhi government a senior citizen can evict his/her son, daughter or legal heir from his property irrespective of whether it is an ancestral or self-acquired property on account of ill-treatment and protect the life and property of the senior citizen.
In the case of Sandeep Gulati v. Divisional Commissioner (2020), the Delhi High Court held that for an eviction suit filed by a senior citizen, he is required to merely show that his property needs protection. There is no obligation for a senior citizen to prove that he/ she needs maintenance or has been ill-treated by his/her son or legal heir. The Court further interpreted that the scope of this Act is not to punish the children and therefore, once it is established that the children have no right over the property of the parents, the fact that the parents do not wish to have their children staying with them is enough for invoking the Act and the Rules.
In another case of Vinay Verma v. Kanika Pasricha and another (2019), the Delhi High Court took a step forward in dealing with cases of senior citizens that are in conflict with other laws. In the present case, the Court observed that the claim of a daughter-in-law for residence in a shared household is often conflicted with the rights of in-laws for exclusive possession of their home. The Court considering the need to harmonise both the laws creates a balance between the two laws. The Court pointed out two possibilities. According to the first possibility, the relationship between the parents and their children is to be observed and whether the daughter-in-law was living as a part of a joint family. If the relationship between them is strained then the parents can file for eviction against the son or daughter-in-law. As per the second possibility, if the relationship between the parents and their children is peaceful enough or the parents collude with the son to evict the daughter-in-law then it is the duty of both the husband and the in-laws to maintain her and provide her shelter. Further, the Court also stated that if the son is ill-treating the parents then unconditional right of eviction is granted to the parents so that they could live peacefully. Lastly, if the son has abandoned his family along with his wife and children and if the wife was living in a joint family then the parents are entitled to provide her shelter for some time till she seeks other remedies for herself.
On similar grounds, the Supreme Court in the case of S. Vanitha v. Deputy Commissioner, Bengaluru Urban District (2020) held that the right of eviction granted to senior citizens should be provided when expedient and necessary, but there should be no overriding effect of the 2007 Act on other acts like Protection of Women from Domestic violence Act 2005. The Court observed that even though the Senior Citizens Act of 2007 has a non-obstante clause but in the event of a conflict with special Acts the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. Therefore, Section 36 of the DV Act 2005 should be harmoniously construed with Section 3 of the Senior Citizen Act 2007.
In another recent case Ramapada Basak vs. The State of West Bengal (2021), the Calcutta High Court emphasised that the right of a senior citizen to exclusively reside in his own house must be viewed from the prism of Article 21 of the Constitution of India. It is established law that children and their spouses living in a senior citizen’s house are licensees at best and that their licence to reside at the senior citizen’s residence comes to an end as soon as the senior citizen ceases to be comfortable with the children and their families. Another issue that arose, in this case, concerned whether the availability of an alternative remedy under the provisions of the Maintenance and Welfare of Parents Senior Citizens Act, 2007 would bar the petitioners (senior citizens) from approaching the High Court in its Writ jurisdiction. It was held that the principle of an alternative remedy cannot be strictly applied to Senior Citizens and a Writ Court must come to the aid of a Senior Citizen in a given case.
Analysing the recent amendments
There were many underlying drawbacks that the 2007 Act faced. The judiciary urged the government to establish more robust and comprehensive legislation which would protect the rights of the senior citizen in an efficient manner. Thereby the government came up with the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019. This bill is set to fill the gaps created by the 2007 Act. some of the essential features of the Act are:
- The amendment widens the scope of the definition of children. The bill included not only children and grandchildren, as observed in the 2007 Act, it also includes step-children, adoptive children, children-in-law, and the legal guardian of minor children.
- The Bill has also expanded the scope of parents which would now include not just biological, adoptive, and step-parents but parents-in-law and grandparents also.
- The definition of maintenance is also enhanced. Maintenance now includes the provision of healthcare, security and safety of parents to lead a peaceful and a secured life with dignity. The earlier Act was restricted to merely provide the parents and senior citizens with basic amenities like food, clothing and shelter.
- One of the most prominent changes sought under the bill is the removal of the cap of Rs. 10,000 as maintenance charge. Thereby, whence the bill will come into existence then more than Rs. 10,000 can be given as maintenance. But the Maintenance Tribunals prior to imparting the amount need to ensure the standard of living and earning of the parent or senior citizen as well the earnings of the children.
- The number of days in which children and relatives must pay the maintenance amount will also be reduced from 30 days to 15 days.
- Instead of establishing old age homes, the state government under the bill will now have to establish senior citizens care homes and minimum standards have to be prescribed by the central government for these homes.
- The Bill further requires that every police station must constitute one officer to deal with cases related to senior citizens and parents. A special police unit must also be formed in every district by the state government.
Conclusion
The increasing population bears with it the responsibility of the government to ensure their protection and security. For a very long time, senior citizens of India have been suffering from various predicaments. The government has also turned its eye and also carried a lethargic attitude towards providing the senior citizens with the necessary help. No doubt the government has initiated a plethora of schemes on paper for the benefit of the elderly section of society, but in reality, these schemes failed miserably thereby adversely affecting the interests of the senior citizens. It is high time when the government needs to buckle up and provide a robust system for the protection of the most vulnerable sector in our country.
References
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