The rights of older persons are the entitlements and independence claimed for senior citizens (i.e. above 60 years of age). Elderly rights are one of the fundamental rights of India. The International Day of older persons is celebrated annually on October 1.
The 2001 census of India demonstrated that aged people in India have crossed over 100 million. Many older people in India are not alert about the human rights of older persons, due to high occurrence of illiteracy and lack of alertness. Elder illiteracy directly contributes to a lack of knowledge regarding the human rights for older people in India, and contributes to the infringement of those rights.
THE ISSUES OF CONCERN IN THIS AREA ARE:
- Live with dignity.
- Personal maintenance & care.
- Right to get maintenance assistance.
To maintain the livelihood with due dignity & care government of INDIA enacted a law:
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is a legislation enacted in 2007, initiated by Ministry of Social Justice and Empowerment, Government of India., to provide more effective provision for maintenance and welfare of parents and senior citizens. This Act make it a legal obligation for children and heirs to provide maintenance to senior citizens and parents, by monthly allowance. This Act also provides simple, speedy and inexpensive mechanism for the protection of life and property of the older persons. After being passed by the parliament of India received the assent of President of India on December 29, 2007 and was published in the Gazette of India on December 31, 2007.Some states have already implemented the act and other states are taking steps for implementing this Act.
Indian society lay high importance on providing care and protection for parents and elderly. Withering of joint family system has contributed to the challenges faced by elderly. Nowadays they are forced to live alone and are exposed to various kinds of problems such as lack of physical, social, emotional and financial support. To overcome such difficulties and to face new challenges, the Government of India has enacted this law in the fifty- eighth year of republic so as to provide maintenance and protection to parents and senior citizens. The population of the senior citizens constituted 7.5% of the total population in 2001. However, as per the Report of the Technical Group on Population Projections, constituted by the National Commission on Population in May 2006, and published by the Office of the Registrar General of India, this figure is projected to go up to 12.40% of the population by 2026.
The first case under the act was filed in November 2011 by Siluvai (age 84) and his wife Arulammal (age 80) of Tuticorin against their son and daughter-in-law for neglect, besides taking away their two homes and gold jewellery.
Surveys have found that one out of every six older persons living in urban areas in India aren’t obtaining proper nutrition, one out of every three older persons does not obtain sufficient health care or medicine, and one out of every two older persons don’t receive due respect or good conduct from family members or people in general.
In today’s state of urbanization in which women are increasingly joining the workforce, the roots of joint family systems are eroding. Higher numbers of older people who have spent most of their life with their joint/extended families may face loneliness and marginalization in their old age. In rural areas the older members of families, (i.e.: people who are above 60 years of age), are respected more and are considered a strong part of the family as the joint family system remains part of their roots. In villages 46.91% of the older men and 50.1% of older women are from joint families. In rural areas 13,560 out of 29,000 rural elderly have joint families.
Difficulties faced by older persons
Health and care
Physical and mental health care availability and community and social care aspects of life for the elderly are key concern Nutritional problems are also a concern.
Income and housing
Access to employment opportunities, transportation, housing and income are key concerns. Inhumane living conditions are also a concern.
Social networks and customs
Poor social interaction with family and friends, poor social networks, and those without families are some difficulties faced by some senior citizens. Social customs based upon elder neglect, which the elderly may internalize as beliefs are topics of concern. Losing the will to live from a lack of social support is another issue.
Educational access and opportunities, the potential for leisure pursuits, consumer protections and having access to information are also key concerns.
A senior citizen including parent who is unable able to maintain himself from his own earning or out of the property owned by him, is entitled to get relief under this Act. Children/grand children are under obligation to maintain his or her parent either father, mother or both. Likewise, relative of a senior citizen is also bound to look after the senior citizen. If such children or relative is not maintaining his parents or senior citizen respectively, then the parents/senior citizen can seek the assistance of Tribunal constituted under this Act, to enforce the remedy of maintenance. Such parents/ senior citizen can file an application before the Tribunal, claiming maintenance and other reliefs from their children/relatives as the case may be.
Such application for maintenance can be filed by the senior citizen or a parent himself, or if such person is incapable, then by any other person or any registered organisation authorised by him. The Tribunal can also suo motu take cognizance of the case. After receiving the application the Tribunal may issue notice to the respondent-children/relative and provide them time to furnish their reply. Such application for maintenance should be disposed of within 90 days from the date of service of notice of application to the respondent. However, the Tribunal can extend time for a maximum period of 30 days in exceptional circumstances after recording reason. The Tribunal is having power to allow interim maintenance pending disposal of the case. Even though the application can be filed against any of children/relative as the case may be, such respondent-children/relative can implead other people who are liable to pay maintenance.
If such children/relative who are directed to pay maintenance fail to comply with the order of tribunal without sufficient cause, the Tribunal may issue warrant for levying the due amount from them in the manner levying fines and can also sentence the erring respondent to imprisonment that may extend to one month or until payment made whichever is earlier. The Tribunal will not issue Warrant to execute the order of maintenance, if such petition for execution is filed after a period of 3 months from the date on which the maintenance is due. The application under this Act can be filed before the Tribunal in any district, where the applicant resides or last resided or where children or relative resides. The evidence of proceedings shall be taken in the presence of children/relative against whom relief is sought and if such respondent is willfully avoiding service of summons or neglecting to attend the Tribunal, the Tribunal may proceed and determine the case ex parte. If the Tribunal is satisfied that such children/relative against whom such application for maintenance is pending, neglect or refuses to maintain the parents/senior citizens as the case may be, may order such children/relative to pay monthly allowance to such applicant. The maximum amount of maintenance that can be allowed by the Tribunal is Rs.Ten Thousand per month. The tribunal has power to alter, modify or cancel the order in appropriate circumstances. The Tribunal has also power to levy interest on the maintenance amount, which shall be not less than 5% and greater than 18%. Aggrieved by the order of Tribunal, senior citizen/parent can file appeal before Appellate tribunal within a period of 60 days and if the Appellate tribunal is satisfied that there occurred some delay in filing appeal due to sufficient cause, the appeal can be entertained.
Protection of life and property of Senior citizen
If a senior citizen after the commencement of this Act, has transferred his property either moveable or immovable, by way of gift or otherwise, subject to the condition that the transferee shall provide him basic amenities and physical needs and thereafter such transferee reuses or fails to provide such promise, such transfer of property shall be deemed to have been made by fraud, coercion or undue influence and the Tribunal can declare such transfer as void. Before the enactment of this law, a senior citizen’s only remedy in such a case was to approach the court for maintenance from the children to whom he had given the property by way of gift or otherwise and such property would be the exclusive property of the transferee and the senior citizen had no right in such property. But after the enactment of this Act, a senior citizen can reclaim his property from the transferee. The concerned police personnel will also ensure priority in dealing with these types of cases. Representation by lawyers are prohibited under section 17 of this Act. However the Hon’ble Kerala High Court held that legal practitioners also could represent cases under this Act.
Abandoning a senior citizen in any place by a person who is having the care or protection of such senior citizen is a criminal offence and such person shall be punishable with imprisonment for a term which may extend to three months or fine which may extend to five thousand rupees or both.
This Act also provides that state governments may establish old age homes at least one in one district to accommodate indigent senior citizens. State governments may also ensure proper medical care for senior citizens.
Ageing is a natural process, which inevitably occurs in human life cycle. It brings with a host of challenges in the life of the elderly, which are mostly engineered by the changes in their body, mind, thought process and the living patterns. Ageing refers to a decline n the functional capacity of the organs of the human body, which occurs mostly due to physiological transformation, it never imply that everything has been finished. The senior citizens constitute a precious reservoir of such human resource as is gifted with knowledge of various sorts, varied experiences and deep insights. May be they have formally retired, yet an overwhelming majority of them are physically fit and mentally alert. Hence, given an appropriate opportunity, they are in a position to make significant contribution to the socio-economic development of their nation.
The population of the elderly persons has been increasing over the years. As per the UNESCO estimates, the number of the aged(60+) is likely to 590 million in 2005. The figure will double by 2025. By 2025, the world will have more elderly than young people and cross two billion mark by 2050. In India also, the population of elder persons has increased form nearly 2 crores in 1951 to 7.2 crores in 2001. In other words about 8% of the total population is above 60 years. The figure will cross 18 % marks by 2025.
Problems Of The Aged:
Problems of the aged as follows :
(i) Economic problems, include such problems as loss of employment, income deficiency and economic insecurity.
(ii) Physical and physiological problems, include health and medical problems, nutritional deficiency, and the problem of adequate housing etc.
(iii) Psycho-social problem which cover problems related with their psychological and social maladjustment as well as the problem of elder abuse etc.
The question of ageing was first debated at the United Nations in 1948 at the initiative of Argentina. The issue was again raised by Malta in 1969. In 1971 the General Assembly asked the Secretary-General to prepare a comprehensive report on the elderly and to suggest guideline for the national and international action. In 1978, Assembly decided to hold a World Conference on the Ageing. Accordingly, the World Assembly on Ageing was held in Vienna from July 26 to August 6, 1982 wherein an International Plan of Action on Ageing was adopted. The overall goal of the Plan was to strengthen the ability of individual countries to deal effectively with the ageing in their population, keeping in mind the special concerns and needs of the elderly. The Plan attempted to promote understanding of the social, economic and cultural implications of ageing and of related humanitarian and developed issues. The International Plan of Action on Ageing was adopted by the General Assembly in 1982 and the Assembly in subsequent years called on governments to continue to implement its principles and recommendations. The Assembly urged the Secretary-General to continue his efforts to ensure that follow-up action to the Plan is carried out effectively.
(i) In 1992, the U.N.General Assembly adopted the proclamation to observe the year 1999 as he International Year of the Older Persons.
(ii) The U.N.General Assembly has declared “Ist October” as the International Day for the Elderly, later rechristened as the International Day of the Older Persons.
(iii) The U.N.General Assembly on December 16, 1991 adopted 18 principles which are organized into 5 clusters, namely-independence, participation, care, self-fulfillment, and dignity of the older persons.
These principles provide a broad framework for action on ageing. Some of the Principles are as follows :
(i) Older Persons should have the opportunity to work and determine when to leave the work force.
(ii) Older Persons should remain integrated in society and participate actively in the formulation of policies which effect their well-being.
(iii) Older Persons should have access to health care to help them maintain the optimum level of physical, mental and emotional well-being.
(iv) Older Persons should be able to pursue opportunities for the full development of their potential and have access to educational, cultural, spiritual and recreational resources of society.
(v) Older Persons should be able to live in dignity and security and should be free from exploitation and mental and physical abuse.
(I) Constitutional Protection:
Art. 41 : Right to work, to education and to public assistance in certain cases : The State shall, within the limits of 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.
Art. 46 : Promotion of educational and economic interests of ……. and other weaker sections : The State shall promote with special care the educational and economic interests of the weaker sections of the people…..and shall protect them from social injustice and all forms of exploitation.
However, these provision are included in the Chapter IV i.e., Directive Principles of the Indian Constitution. The Directive Principles, as stated in Article 37, are not enforceable 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 fundamental in the governance of the country and the state has been placed under an obligation to apply them in making laws. The courts however cannot enforce a Directive Principle as it does not create any justiciable right in favour of any individual. It is most unfortunate that state has not made even a single Act which are directly related to the elderly persons.
(II) Legal Protections:
Under Personal Laws:
The moral duty to maintain parents is recognized by all people. However, so far as law is concerned, the position and extent of such liability varies from community to community.
(I) Hindus Laws:
Amongst the Hindus, the obligation of 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 obligation was not dependent upon, or in any way qualified, by a reference to the possession of 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 contained in Sec 20 of the Hindu Adoption and Maintenance Act, 1956. This Act is the first personal law statute in India, which imposes an obligation on the children to maintain their parents. As is evident from the wording of the section, the obligation to maintain parents is not confined to sons only, and daughters also have an equal duty towards parents. It is important to note that only those parents who are financially unable to maintain themselves from any source, are entitled to seek maintenance under this Act.
(II) Muslim Law:
Children have a duty to maintain their aged parents even under the Muslim law. According to Mulla :
(a) Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.
(b) A son though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm.
(c) A son, who though poor, is earning something, is bound to support his father who earns nothing.
According to Tyabji, parents and grandparents in indigent circumstances are entitled, under Hanafi law, to maintenance from their children and grandchildren who have the means, even if they are able to earn their livelihood. Both sons and daughters have a duty to maintain their parents under the Muslim law. The obligation, however, is dependent on their having the means to do so.
(III) Christian And Parsi Law:
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.
(III) Under The Code Of Criminal Procedure:
Prior to 1973, there was no provision for maintenance of parents under the code. The Law Commission, however, was not in favour of making such provision. According to its report:
The Cr.P.C is not the proper place for such a provision. There will be considerably difficulty in the amount of maintenance awarded to parents apportioning amongst the children in a summary proceeding of this type. It is desirable to leave this matter for adjudication by civil courts.
The provision, however, was introduced for the first time in Sec. 125 of the Code of Criminal Procedure in 1973. It is also essential that the parent establishes that the other party has sufficient means and has neglected or refused to maintain his, i.e., the parent, who is unable to maintain himself. It is important to note that Cr.P.C 1973, is a secular law and governs persons belonging to all religions and communities. Daughters, including married daughters, also have a duty to maintain their parents.