Ageing is an inevitable and uncontrollable part in the lives of human beings. It’s a part of life where the man becomes least productive and extremely weak therefore it is extremely important for the younger generations as well as the duty of the state to take care of the elder ones. It is a stage of life when most of them become physically and psychologically weak and economically dependent on their families. The population of the citizens above the age of 60 years is also found to be increasing every year however most of them are not aware about the rights available to them mainly due to illiteracy and lack of awareness about it. This article is mainly intended to study about various rights and facilities available to the senior citizens nationally and internationally.
Table of Contents
National effort in the Protection of Senior Citizens
Rights under the Indian Constitution
Rights of senior citizens are guaranteed under the chapter IV (Directive Principles of State Policy) of the Constitution under Articles 41 and 46 .[1]
Article 41 of the Constitution mainly discusses guaranteeing work, education and public assistance to certain groups of people. According to this article senior citizens, disabled or sick people etc., are eligible under this article to be provided with work, education as well as public assistance within the economic capacity of the state.
Article 46 of the Constitution
mainly deals with the protection of the economy and educational interest of the people belonging to the weaker group in the society. It also guarantees protection of these weaker sections of citizens from any kind of exploitation or injustice.
However, since these provisions are included under the directive principles of state policy, it is not possible for any court of law to enforce these rights.
Rights under other Legislatures
Personal Laws
Personal laws such as Hindu laws. Muslim laws. Christian and parsi laws etc laid down certain rights for the protection of the senior citizens.
Hindu Laws
The Hindu personal law has included certain provisions to provide maintenance of eldery people by their family if they are unable to maintain themselves due to old age. Section 20 of the Hindu Adoption and Maintenance Act, 1956 confers the rights upon the natural and adoptive parents to ask for maintenance from their children if they are not in a position to maintain themselves. However, the right to claim maintenance from the children is not available to step parents.[2]
Muslim Laws
As per the Muslim personal law, if the old ages parents are economically not in a position to take care of themselves, then it is the duty of the son as well as the daughter to provide maintenance to their parents. However there is no clarity on the right of maintence for the adoptive parents since muslim personal law doensot include the concept of adoption anywhere.[3]
Christian and Parsi Law
There is no specific law which provides for the maintenance of elderly people in the christian and parsi law and therefore if any eldery parents want to claim maintenance from their children, then they can use the provisions mentioned under CrPC.
Provisions under CrPC
Section 125 of CrPC provides rights for the elderly citizens to avail maintenance from their children. All elderly parents can claim maintenance under this section irrespective of their religion or community in which they belong to. However, to avail this right of maintenance under CrPC, the children should be economically fit to provide maintenance to their parents and the parents should not be in a position to take care of themselves due to financial inability
Maintenance and Welfare of Parents and Senior Citizens, Act
In India, there was no specific law for the protection and maintenance of the senior citizens before the enactment of Maintenance and welfare of parents and citizens act, 2007. Even though the constitution of India was envisaged with certain provisions for the protection of elderly citizens, they were of not much use since they were included under the directive principle of state policy which make them unenforceable by the court of law. However, the enactment of this act was indeed a blessing for the elderly citizens and parents as it includes many provisions which not just deals with maintenance but also for improvement in their lives such as compulsory setting up of old age homes in every district, constitution of tribunal to hear such matters etc.[4]
According to this Act, it is mandatory for all the Indian citizens irrespective of their residence to provide maximum Rs 10,000 to their elderly parents or senior citizens who are above the age of 60. Here, the children include natural, adoptive and step children. The children are bound to provide maintenance to their parents if they are not in a position to maintain themselves. Also, the senior citizen also can ask for maintenance either from their children or relatives by filing an application in the tribunal either by himself or through any association or person registered by him.[5] Relative as per this Act includes any person who has the possession of the property or will inherit the property of the senior citizen. Also if any senior citizen has transferred his property to any relative for the purpose of taking care of him and providing him with basic needs but fails to do so after the transfer of property, then wishes for the same. This is an important provision which will protect the elderly citizens from the exploitation of the relatives who try to deceitfully take possession or inherit the property. such transfer of property will be considered void by the tribunal if the senior citizens But to claim maintenance from these children or relatives it should be established that the children or the relative are in a stable financial position to provide maintenance to the parents or the senior citizens. The Act also prescribes for the punishment if any parent or senior citizen is abandoned by their children. [6]
Even though the Act helps in providing maintenance and ensuring protection of the senior citizens, the Act has completely focused on senior citizens who have financially stable children or relatives but has failed to provide any clarity on senior citizens or parents coming from poor backgrounds whose children and relatives are also downtrodden.
Other Governmental Schemes and Protections
Other than these rights mentioned under different legislatures, the government of India has also taken some steps to ensure welfare of senior citizens in the country. A national policy has been brought by the government of India in the year 1999 to improve the lives of elderly citizens in many ways. Some major steps taken by the government in the policy are:-
- Establishment of old age homes in almost every district in the country.
- Construction of resource centres for elderly citizens who are above the age of 60 years.
- Fair concession is provided for senior citizens for rail as well as air travel.
- To ensure proper old age care in almost all public hospitals.
The government is also successful in introducing various schemes such as ‘Jeevan Dhara Yojana, Senior Citizen Unit Yojana’, ‘Medical Insurance Yojana’ etc for providing financial assistance to them. Another famous scheme is ‘Annapurna Yojana’ which was brought by the former Indian Prime Minister, A.B Bajpai which ensures 10 kg of food to senior citizens every month who are unattended by the family.. The government has many policies to provide pensions for old aged citizens every month sufficient enough to meet their basic needs.
https://legalreadings.com/study-of-complaint-procedure-crpc/
Judicial Interpretation on issues with Senior Citizens
In the case of Yogesh Sadhwani v. Commissioner of Police [7], the petitioner filed a case against the lack of efficacy of the Maintenance and welfare of parents and senior citizens act, 2007. In this case, the court intervened to check the efficacy of the act by asking the state governments to file an affidavit to bring up the steps taken by the state government in setting up tribunal, appointing a maintenance officer, for setting up old age homes at every district, etc.
In the case of Santhosh Surendra Patil v. Surendra Narasgopanda Patil [8], the case was filed by the parents against their son and the appeal was against the order of the court asking to vacate the property and building which belonged to the petitioner. The court in this case closely examined the maintenance and welfare of parents and senior citizens and opined that the children are bound to take care and provide maintenance for the elderly parents and therefore held that the eviction order made by the inferior court was valid.
In the case of People’s Union of Civil Liberty v. Union of India [9] the court gave many directions to the state government regarding the identification of beneficiaries in case of old age pension scheme and to ensure payment of these pensions to the eldelry people on 7th of every month.
In the case of H.Mariyam Beevi v. The Secretary of Government [10], the petitioner was an old woman who challenged the order made by a tahsildar who rejected the claim made by the petitioner for the payment of old age pension. The justification given by Tahsildar for rejecting her claim was that her name was not in the list of people belonging to the below poverty line. Since she belonged to the Muslim community there was no provision in their personal law which andates the son in law to provide maintenace. Also her daughter was not in a position to take care of the petitioner since she had to undergo an operation for which she suffered huge expense. The court in this case held that the petitioner was eligible for the old age pension and also quashed the impugned order of the Tahasildar.
In the case of H.S Subramanyam v. H.S Lakshmi [11] the petition was filed by the children against the order of the maintenance tribunal which asked the petitioner as well as the respondent no. 3 to pay a regular maintenance to their mother. The petitioner told that they were regularly paying a fixed amount as maintenance for their mother but the respondent number 3 did not pay any maintenance and also was taking away all the maintenance money from their mother which was provided by the petitioners. The court in this case held that the children have the duty to take care of their age old mother and therefore ordered all the children to pay an amount of 3000 rs every month by each of them to their mother so she can meet her basic needs.
Conclusion
The welfare of eldelry citizen is extremely important in our country and the problems suffered by them should be taken care by the appropriate authorities without any delay. Human rights should be made available to elderly citizens also and it is high time that new laws should be enacted to ensure the protection and welfare of the senior citizens in our country. Even though there are a lot of provisions in the constitution and other legislation for the maintenance and welfare of senior citizens, their efficacy is still in doubt. It is high time that the constitutional provision regarding the rights of senior citizens is amended. The right should be brought under the fundamental rights rather than being a mere constitutional right under the directive principle of state policy. It should be the duty of the state.
REFERENCES
[1]Judicial approach towards rights of elderly people, available to: , http://www.legalservicesindia.com/article/2506/Judicial-Approach-towards-the-Rights-of-Elderly-Persons.html (last visited on December 22, 2020).
[2]Rafi, Sameen. , “Critical Analysis of the Legal Approach to Protect the Elderly Population in India”, Researchgate publication, 2009.
[3] Id.
[4]Rights of senior citizens, available at: http://www.legalserviceindia.com/article/l170-Rights-Of-Senior-Citizen.html (last visited on December 2,2020).
[5] Id.
[6] Supra 4.
[7] 2015 SCC Online Bom 959.
[8] 2017 SCC Online Bom 3053.
[9] AIR 1997 SC 568.
[10] W.P No. 22122 of 2010.
[11] ILR 2014 Karnataka 4978.
BY RACHNA R KURUP | SYMBIOSIS LAW SCHOOL HYDERABAD