In this article, Aditi Nandanwar from HNLU Raipur discusses Legal rights of elders in India.
Are We Treating Our Elders Legally Right?
India is the only country in the world where we touch the feet of our elders as a mark of respect. We live in a country where we compare our elders to God and have a special place for them in our traditions, culture, and scriptures. Unfortunately, India is also one of those countries which have very few laws regarding the rights of senior citizens.
Recently, Kanubhai Gandhi, Mahatma Gandhi’s grandson, and his wife moved into an old age home in Delhi. This caught up fast in media when our Prime Minister along with one of the union ministers and a Delhi state minister went to pay a visit to them. Now that it has caught a lot of attention everywhere, the question arises as to, are the laws meant for our senior citizens enough to help them lead a peaceful life after retirement?
Provisions in the Constitution safeguarding the rights of elders.
The framers of our constitution were well aware of the plight of our country’s elderly people. They knew that it is quite difficult to meet ends when one hits their 60s. They would face problems like those of housing, taxes, healthcare facilities, and psychological help for aging and social support. Hence, they gave ample provisions to the lawmakers of our country to make laws for them. A few of the provisions in the constitution are:
Article 38. State to secure a social order for the promotion of welfare of the people –
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The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
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The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
Right to work, to education and to public assistance in certain cases–
The State shall, within the limits of its economic capacity and development, make effective provision for securing 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.
Article 42 Provision for just and humane conditions of work and maternity relief
The State shall make provision for securing just and humane conditions of work and for maternity relief
Article 47 Duty of the State to raise the level of nutrition and the standard of living and to improve public health
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health
All of the above provisions of the constitution give the right to the elderly to live a peaceful, dignified life. All the above articles provide provisions to get social, economic and political support from the government as their legal right. However, these articles come under the Directive Principles, which means that though these articles give directions to the State to ensure a minimum standard of living to our elderly; these are not enforceable in courts.
Legal Provisions
There are laws given under the Criminal Procedure Code (Cr. P. c.), personal laws and policies focused on the rights of elderly people. Some of which are discussed below:
Hindu Personal Laws
Hindu Adoption and Maintenance Act, 1956
The Hindi Adoption and Maintenance Act, 1956 empowers our elderly people with legal rights to claim maintenance from their children. Laws and rights under this Act can however be accessed by only Hindus. These laws do not apply to non-Hindu citizens of the country.
Section 20 of the HAMA, 1956, deals with the maintenance of children and aged parents. Under this section, it is clearly mentioned that it is the responsibility of a person to maintain their old and aged parent if they are not able to maintain themselves.
Section 23 of this Act deals with the amount of maintenance that is to be paid to the old and aged parents. According to this section, the court has the discretion to decide the amount or alter the amount already agreed upon to be paid to the aged parents, if it feels that the original amount offered might not be sufficient for their survival.
Under the modern codified Hindu laws, it is not only the son who has the responsibility to maintain the aged parents; such obligation also lies upon the daughter to maintain them. Maintenance can be claimed by both the natural and adoptive parents. However, step-parents, having their own children cannot claim maintenance under this Act.
Muslim Personal Laws
Muslims are also legally entitled to maintain their parents, provided, they have the means to do so.
According to Mulla, a son is entitled to maintain his mother even under “strained” circumstances, if she is poor, even if not “infirm”. The son is also bound to maintain his father if he is earning nothing.
There exists no concept of adoption under the Muslim laws. Hence, there exist no provisions for the maintenance of adoptive parents under Muslim law.
Christian and Parsi Laws
The Christians and Parsis have no personal laws providing for maintenance for the parents. Parents who wish to seek maintenance have to apply under provisions of the Criminal Procedure Code (National Human Rights Commission (NHRC)).
The Code of Criminal Procedure (Cr.P.C.)
Section 125 under the Cr.P.C. 1973 deals with the maintenance of old parents. Under this section, old parents, irrespective of their religion can seek maintenance.
The provision for maintenance of parents under the code was introduced for the first time in Section 125(1) of the Code of Criminal Procedure in 1973. As per the code if any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his father or mother, at a monthly rate as the magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct (National Human Rights Commission (NHRC)).
The Maintenance and Welfare of Parents Act, 2007
This act aims at providing maintenance to senior citizens in the country. It is an Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto (Maintenance and Welfare of Parents Act, 2007). It is a ‘go-to’ statute for providing maintenance as it applies to the whole of India except the state of Jammu and Kashmir.
This Act defines a senior citizen as a person who is above 60 years of age and is a citizen of India. Under section 5(1) of this Act, any senior citizen who is also a parent is entitled to get maintenance; where “parent”, according to section 2 means “father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen”.
The Act also provides provisions for maintenance of child-less senior citizens. Such citizens may be maintained by their legal heir or the person to whom the property maybe transferred after the death of such citizen.
If the senior citizen or parent is incapable, any other person or a voluntary organization authorised by the senior citizen or parent can apply for maintenance on their behalf. This provision is very helpful as most of the senior citizens or parents do not have the time and energy to go around courts and tribunals (Singh, 2008).
Section 24 of the Act provides a punishment for those who, taking care of any senior citizen, leave the senior citizen with an intention of wholly abandoning them to place where no one can find them. Thus, this Act is very useful in protecting the dignity of our senior citizens.
Government Policies
National Policy for Older People, 1999
This policy was launched by the Ministry of Social Justice and Empowerment in the year 1999 to help the senior citizens of the society. Some of the features of this scheme were old age pension scheme, tax exemption, subsidy in healthcare, geriatrics care, mental health services, counseling facilities, land grants, setting up of welfare funds etc. (Rajput Avinash).
Keeping in view the changing demographic pattern, socio-economic needs of the senior citizens, social value system and advancement in the field of science and technology over the last decade, the National Policy on Older Persons, 1999 has been reviewed and the new National Policy for Senior Citizens was finalization (Ministry of Social Justice and Empowerment). India’s population grew rapidly in the subsequent years and the need of forming more provisions was sought. Three new policies were launched by different ministries. The policies and a few of their main features are:
Scheme of Integrated Programme for Older Persons (IPOP)
This scheme was launched by the Ministry of Social Justice and Empowerment in 1992 and was revised in 2008. Under this scheme, funds were provided to the state government, local bodies, NGOs etc. to run and maintain old age homes, day care centres, mobile Medicare units, help lines and counselling centres, day care units for persons with Alzheimer’s disease and dementia etc.
Indira Gandhi National Age Pension Scheme (IGNOAPS)
This scheme was introduced by the Ministry of Rural development. This scheme provided central assistance towards pension by providing Rs 200 per month to persons above 60 years of age and Rs 500 to persons above 80 years of age who belong to households below poverty line (Ministry of Social Justice and Empowerment).
National Programme for the Health Care for the Elderly (NPHCE)
This scheme was launched by the Ministry of Health and Family welfare in the year 2010-11. The major features of this scheme were community based primary healthcare approach, strengthening of health care services, dedicated facilities at 100 districts hospitals etc.
All these policies were aimed at working at the lower levels of the society and ensure that the poorest of poor senior citizens were provided the basic amenities to live their life peacefully.
We also need to change our approach of viewing our senior citizens as a burden on us. We need to come up with policies and statutes which will not only help them in living a peaceful and dignified life but also help us utilise their experience and knowledge on certain aspects. We should also come up with schemes that provide certain compensation in medicines. Medicines now days have become too costly and as we grow old our body weakens and we need medical assistance. Medicine for certain diseases is very costly and is not affordable by even young people. Such medicines should be made available at a subsidised rate to senior citizens.
There are 103.6 million elderly people (60+) living in India today (Government of India, Ministry of Statistics and Programme Implimentation, 2016). And according to a recent survey conducted by the NGO HelpAge-India in 2014, 50% of elderly people are being abused in their homes. Most of these people don’t know their rights and even if they do, they wouldn’t report such incidences as they do not want to spoil their family name.
India has the largest population of young people in the world according to the United Nations. This is an asset for India now. But, once these young people grow old, India might also become a country with the largest number of old people in the world. And to handle such large population of old people with all their demands and pensions, it is better if we start working towards better policies and statutes from right now and create a better standard of living for our senior citizens and let them know that they still are considered next to Gods as in our traditions.
References
- Government of India, Ministry of Statistics and Programme Implimentation. (2016). Elderly in India. New Delhi: Government of India.
- HelpAge-India (2014). Main Findings: Report on Elderly Abuse in India. New Delhi: HelpAge-India. Available at: https://www.helpageindia.org/pdf/highlight-archives.pdf. Accessed on 27 August 2016.
- Ministry of Social Justice and Empowerment. (n.d.). Review of National Policy for Senior Citizens. New Delhi: Press Information Bureau, Government of India.
- National Human Rights Commission (NHRC). (n.d.). Elderly People: Know Your Rights. New Delhi: NHRC.
- Rajput Avinash. Constitutional and Legal Protection in India for Senior Citizens. Available at: http://www.academia.edu/3585186/CONSTITUTIONAL_AND_LEGAL_PROTECTION_IN_INDIA_FOR_SENIOR_CITIZENS; Accessed on 26 August 2016
- Singh, R. K. (2008). Rights of Senior Citizens: Need of the Hour. Legal Services India. Available at: http://www.legalserviceindia.com/article/l170-Rights-Of-Senior-Citizen.html; Accessed on 27 August 2016
