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Published : November 13, 2017 | Author : NIHARIKASHARMA
Category : Miscellaneous | Total Views : 309 | Rating :

  
NIHARIKASHARMA
Advocate, Taxation and Constitutional matters
 

 Judicial Approach towards the Rights of Elderly Persons

Abstract
In the past, the figure of the elder was of great importance for his social and cultural role so that the highest places on the social and political scale were reserved for them. The elder was the wise priest to whom the people's decisions and spiritual power were to come. The old men were well-versed and were able to provide good advice to the younger ones based on their life experiences.

Becoming elderly meant achieving a great goal at the time, because the overwhelming majority of the population did not exceed fifty years of age, and the form of respect and esteem that they received, becoming the "experts" of society.

Nowadays, the number of elderly people is steadily increasing through improved living conditions and the wisdom of the elderly is no longer taken into account because they are seen as passive subjects, no longer able to be productive and to do a job as a young person, even weak subjects who need continuous assistance from families or caretakers.

Due to exponential gain in nuclear family trend, elders are prone to stay alone or sent to old age homes or in worst case, are left on their own without any financial support.

The human rights of older persons are an issue that is beginning to garner international attention, partly as a result of the demographic importance of that population. To assess whether calls for a specific human rights approach to older persons are warranted, the article highlights some of the specificities of older persons as a human group and tries to throw some light on how the judiciary has helped in affirming those rights in a pragmatic world.

Introduction
We all know in our family, friends, and neighbors, elderly people, that is, people 60 years of age and older. Those of us who are not yet elderly or seniors would like to be assured that we will become one. Therefore, the simple fact of being an older person is a privilege that confirms more time of life, with the consequent accumulation of experiences and wisdom that means living longer.

But it's not just about living longer, it's about living better. Elderly people (who are 60 or older) are becoming more numerous. Earlier, longevity was something extraordinary, now it is normal. Today, it is common to see people over 80 years of age who are very active, full of enthusiasm and willing to live longer and make the most of it. They have cultural, social, technological and even sports interests.

Over the years, with advancement in science, there has been a substantial increase in life expectancy. As mentioned in the National Policy on Senior Citizens, 2011, “the demographic profile depicts that in the years 2000-2050. The overall population in India will grow by 55% whereas population of people in their 60 years and above will increase by 326% and those in the age group of 80 by 700%, the fastest growing group." 1/8th" of the world's elderly population lives in India.

It is common for legislation to take the trend set by judicial approach regarding the said subject. The said judicial approach is set and maintained by years of discussions, debates held in courts in front of judges. As aggrieved parties come to take shelter of law, judiciary helps not to provide the remedy, but also help in setting the legislation in a way that it helps in subsidizing the upcoming aggravations of similar types.

At times, Indian courts, led by the Supreme Court, have reached unprecedented heights in the effective recognition of the peoples’ rights and recognized the sensitivity of the issues prevailing in the society and helping in effective eradication. This article's purpose is to analyze the path which the Indian judiciary has taken on the rights of elderly people. It seeks to answer the question whether and to what extent Indian courts have employed the Indian laws and the constitution of India to combat the discrimination and also directed the legislature to form new legislation in accordance of the ever-changing society.

Background
The need for such discourse arose due to the changing family trends in the society. In earlier Hindu society, people used to stay in a joint family which used to devolve on the death of the eldest member to its younger successors. With a change in times, people in big cities started to stay in nuclear families due to a shortage of resources, space etc. the elder people either stayed alone if they had any property of their own, or were sent to old age homes. In case if a child dies before the parents, then are chances of relatives conning the elders and trying to grab their property fraudulently. For those staying outside of metropolitan cities, their broods would leave them for education, job opportunities etc. leaving them alone and vulnerable. This is a common tendency of people staying in remote areas, prevalent equivalently among all classes of the society. Immigration most often leaves parents back alone and at risk.

The anguish even hastens for old widows. Their plight can be seen when their own kids try to get rid of them by sending them in old age homes or even worse to Banaras where they are left at the mercy of the public and are forced to beg to manage a square of meal. Today, more than 40000 such widows can be found on the Ghats of Varanasi there these poor souls are left to die in the name of religion as to get Moksha reincarnation.

There is also evidence of systematic and continuous abuse of the elderly i.e. infliction of physical emotional or psychological harm on the older persons. Half of the elderly population reportedly experience abuse besides disrespect and neglect. According to the report of the National Crime Records Bureau (NCRB), a total of 8,973 cases were registered as crimes against senior citizens from January 2014 to October. 2014. As such every society and State recognizes certain rights of the senior citizens, distinct from the rest of the society.1

Rights of elderly people

Older people should have access to adequate food, water, housing, clothing and health care, through income, support from their families and the community, and their own self-sufficiency and have the opportunity to work or have access to other possibilities of obtaining income.

They should be able to participate in determining when and to what extent they will stop performing work activities. They should have access to appropriate educational and training programs. And have the possibility to live in safe environments that are adaptable to their personal preferences and their continually changing abilities. They should be able to reside in their own home for as long as possible.

The legal rights of senior citizens can be secured by affirming there right to maintenance, which will help them securing financial security. Maintenance is defined in the Maintenance and Welfare of Parents and Senior Citizens Act,2007 as including “provision for food, clothing, residence and medical attendance and treatment”.

The Constitution of India guarantees the right to life and liberty of every individual under Article 21. This has been interpreted to include the right to live with dignity and would encompass the right to live with dignity of the senior citizens. Article 4 l of the Constitution lies down that 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, sickness and disablement and in other cases of desertion and neglect. Article 46 also imposes a positive obligation on the State to promote with special care the economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation. Articles 41 and 46 are included in the Directive Principles of State Policy which are not enforceable in any court of law; nevertheless, they impose positive obligations on the State and are fundamental in the governance of the country.

Legal Framework and the Judicial Approach

Before 1956, there were no proper laws for providing maintenance to elder parents or widow of the deceased property holder.

In Narayanarao Ramachandra Pant V. Ramabai, ILR (1879) 3 Bom 415, the privy council at the outset identified the right to maintenance of the old widow of the deceased whereas there was no such provision made by the testator and also passed the decree which indwelt the old mother back in her husband’s property.

Then, in 1956, Hindu Adoption and Maintenance Act, 1956 was passed.

By Section 20(1) of the act, every Hindu son or daughter is under obligation to maintain aged and infirm parent. Parents are entitled to maintenance if they are unable to maintain themselves. The amount is determined by the court taking into consideration the position and status of the parties.

In K.M.Adam V. Gopalakrishnan 1974 0 AIR(Mad) 232; 1973 0 Supreme(Mad) 339; Supreme court opined, inter alia, If the child is a Hindu, irrespective of whether the father or the mother is a Hindu, it is entitled to claim maintenance against him or her.

In Kirtikant D. Vadodaria v. State of Gujarat, supreme court opined old and infirm parents are entitled to maintenance under this Act from their daughter same way as from son.

The shortcoming this section was that it was applicable to Hindus only.

Muslim Law

Children have a duty to maintain their aged parents even under the Muslims Law. According to Mulla:

· Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.

· A son, though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm.

· A son, who though poor, is earning something, is bound to support his father who earns nothing.

According the 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.

As this law is also a personal law, it is only applicable to people who practice Islam as their religion.

There are no such provisions regarding Christians or Parsis in their personal laws.

Code of Criminal Procedure, 1973

Section 125(1)(d) makes a person having sufficient means to maintain his parents if they are unable to maintain themselves. Such petition is filed in criminal court as it is given in Cr.P.C. this makes the process of mitigation comparatively faster compared to civil procedures. It is applicable to all, irrespective of their religious faith and religious persuasions, and includes adoptive parents. This section has been interpreted by the Supreme Court in its ruling so as to make daughters and sons, married or unmarried, equally responsible to maintain their parents.

In the case of Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr 1987 AIR 1100, 1987 SCR (2) 331, the supreme court rightly observed that a married daughter who is self sufficient has to provide maintenance to the father or mother who don’t have any other son. Also, the step mother is equally entitled for the maintenance as the father.

According to the opinion given in Baban @ Madhav Dagadu Dange V. Parvatibai Dagadu Dange Anr.1978 0 CrLJ 1436 the expression "mother" includes "adoptive mother” as well.

Section 125(1)(d) of Code of Criminal Procedure, 1973 tries to bring all the citizens under the protection of one legislation regardless of their religion.

For those who did not have any children were still out of the ambit of maintenance and were not covered by any legislation till 2007.

In 2007, the Maintenance and Welfare of Parents and Senior Citizens Act was passed to provide maintenance support to elderly parents and senior citizens. The Act establishes the Maintenance Tribunal to provide speedy and effective relief to elderly persons. Section 19 of the act also mandates the establishment of an old age home in every district and provides for the protection of life and property of the elderly.

The High Court of Jharkhand in Jharkhand Senior Citizen Advocates Service Sansthan and Another v. State of Jharkhand, through the Chief Secretary and Others2016 2 JLJR 137; 2016 0 Supreme (Jhk) 120 has directed the state Old Age Homes in each district of the State with the immediate effect along with directing state government to arrange different queues in hospitals and other steps for easement for elderly people while taking medical treatment.

In Reju & Ors. Vs. The Maintenance Tribunal, Thiruvananthapuram & Ors, 2016 0 AIR(Ker) 97, the High Court of Kerala has upheld the order of the tribunal for providing welfare means to the relative even if there is no successor interests arising from the senior citizen’s property as to the petitioner.

A significant provision in the Act deals with the Transfer of Property, which can be made void under certain circumstances - like if children/relatives refuse to provide elders with basic amenities and physical needs.

This is only applicable in cases where the property was transferred after the commencement of the Act - in 2007. According to the section 24 of the Act, any person who abandons a senior citizen they’re responsible for can be jailed for up to 3 months, and/or be made to pay a fine of up to five thousand rupee.

F. Judgment against Harassment of Parents

The Delhi High Court on 20th January 2004 asked the son and daughter-in-law of a septuagenarian couple, who had approached the Delhi High Court for help, to ensure that the old parents are not harassed. The couple had alleged they were being tortured by their children. “See to it that the needs of the old couple are looked after properly and they are not put to trouble,”

In Sunny Paul & Anr. vs State Nct of Delhi & Ors., the Delhi High Court has ruled that Children who abuse their parents while staying with them in their house can be evicted from the property,

Justice Manmohan, in his ruling, specified that the house need not be self-acquired or owned by the parents.

“As long as the parents have the legal possession of the property, they can evict their abusive adult children,” the court said, adding that even the “courts have repeatedly acknowledged the right of senior citizens or parents to live peacefully and with dignity”.

The court, consequently, directed the Delhi government to amend its rules and formulate an action plan to protect the life and property of senior citizens because Delhi government’s rules allowed a senior citizen to complain to district authorities to evict abusive children only from a self-acquired property, despite the fact that the Act makes no such distinction and gives protection to parents even in a rented accommodation.

Observations
India today is passing through an era of transition. From being a traditional society for thousands of years the social norms are changing very fast. While the older generations still clings to its traditional value system and beliefs younger people find it rather cumbersome to carry the burden of traditional responsibilities and at the same time live up to expectations of a cut throat, fast paced and competitive life.

Most elderly people face a complete life change after their retirement. For those who get post retirement emoluments, they are less prone to crisis as compared to others. But only a small class of people is engaged in service sector. Most of the population is engaged in some sorts of businesses. Mostly they do not prepare for the old age and then left at the mercy of there children or other relatives.

For most of the veteran population is a lacking awareness regarding the rights of senior citizen. Most of them are illiterate, poor, destitute, living on streets or in slums.

There are adequate provisions protecting the veterans of the society but most of the aggrieved are either not aware of those or might be reluctant to take shelter of court for the case will be against their own relatives. Those who want to take the course of law even they are reluctant due to the lengthy and ever time consuming procedures. Even those who are somehow involved they also continue to regret their involvement in court cases or any kind of legal formalities. Most old people in India prefer to compromise instead of attending court hearings and often pay heavy prices by giving up their rights and interests.

Elder abuse has become the norm with most families, surpassing in many cases. Younger family members do not even realize that their elders are being abused /neglected or discriminated by them.

Increasingly old people in India today need effective legal provisions and its proper implementation to protect themselves against adverse circumstances.

Most old people are not more looked up to or respected for their experience, knowledge and wisdom. Old people everywhere are always hesitant in getting involved with court cases they seem to be reluctant to visit courts even for their own good.

Conclusion
The population of old people in India is increasing dramatically. However, as is the case with most developing countries in India too they have so far remained marginalized and under privileged with more focus on children, women and youth in the society. Now with ever increasing number of old people their voice is difficult to be ignored. Their needs & rights are seeking every one’s attention. Their demand for equitable share in the mainstream is reaching unprecedented levels. It is becoming increasingly difficult to ignore their human rights for the authorities, judicial system and the government. Though legal provisions and practices have very little to do with old age, but it certainly determines the path of building and developing an environment full of social harmony towards elderly. Therefore there is an urgent need to relook at the existing legal provisions and come up with more equitable, effective and strong legal provisions to encourage older persons-friendly legal practices in the country. The same should be followed by spreading of awareness with equal zeal.

The elder remains a useful resource, either with his own income or with his own energy or by his wisdom, is useful to the family economy. They must be provided with home, where to feel comfortable, safe and secure; on contrary, they are sent to old age homes where in some cases these institutes are only social containers where older people are no longer important, but they are only restrained in anticipation of his death.

One of the most recent cases, also witnessed by the various news reports, is that of Shimla’s old age home, where various non-self-sufficient older people have suffered violence and ill-treatment of all kinds.

In this case the blame is also upon the family who, instead of caring for one's own dear, lets him age and "rotten" in these institutes because he does not have time to devote himself to them.

Yet, it is important to pay close attention to this problem by solving it, perhaps by encouraging "caregivers" (people who take care of the elderly), or by removing architectural barriers through environmental prostheses so as to favor older self-sufficiency.

Retirement should be a time of rest for the elder who, on the other hand, lives with anguish, melancholy, suffering and loneliness until death. It should not be seen as a weight because it is unproductive, but as a cultural resource and an urn of experiences and advice. We must not forget that all that surrounds us is largely the result of their work, and if society has evolved, it is only through their efforts to pass on their experiences from generation to generation.

Nevertheless, we are no longer able to respect them and consider them useless. However, in recent years, in some cities, the figure of the elder has been re-evaluated. There are nowadays very well-used strategies that allow older people to play an active role in society. The Commission of European Communities, in its Treaty Towards a Europe of All Ages, makes us understand how "older people are already very active in non-governmental organizations", especially in voluntary activities (for example, grandparents) which are advantageous for the elderly as it returns to assume a significant social role and acquire new physical and mental contact stimuli as well as to obtain a sense of satisfaction and personal fulfillment

To conclude, we now live in a world where the number of retirees and the elderly in general is growing, while the working population is constantly decreasing.

Although the elderly are so numerous, they are increasingly overlooked. Families should take the situation more seriously and restore their role, trying to keep the elderly in order to ease their self-sufficiency and ensure their safety.

The elder must return to assume what was his original bearer of traditions and possessory of experience and he should have cared for him in respect of all the dimensions of his personality because, unwilling or nonsense, old age is something that concerns all and none of us would ever want to be marginalized.

The way we now approach the figure of the elderly can in the future fall back on us because we are the elders of the future.

Reference
1. http://ncrb.gov.in/StatPublications/CII/CII2017/FILES/CrimeInIndia2017.pdf

 




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