Laws for Senior citizens in India
Our seniors are our responsibility. Intergenerational equity is a principle of natural justice. A generation which neglects its elders and aged commits crime and shall be mate with same fate in their elder years. 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 caused by the changes in their body, mind, thought process. Ageing refers to a decline in the functional capacity of the organs of the human body, which occurs mostly due to physiological transformation. 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 and mentally capable of contributing to the well being of the society. Hence, given an appropriate opportunity, they are in a position to make significant contribution to the socioeconomic development of their nation.
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 % mark by 2025.
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) Psychosocial 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 followup 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, namelyindependence, participation, care, selffulfillment, 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 wellbeing.
(iii) Older Persons should have access to health care to help them maintain the optimum level of physical, mental and emotional wellbeing.
(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.
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.
(IV) Governmental Protections:
1. The Government of India approved the National Policy for Older Persons on January 13, 1999 in order to accelerate welfare measures and empowering the elderly in ways beneficial for them. This policy included the following major steps :
(i) Setting up of a pension fund for ensuring security for those persons who have been serving in the unorganized sector,
(ii) Construction of old age homes and day care centers for every 34 districts,
(iii) Establishment of resource centers and reemployment bureaus for people above 60 years,
(iv) Concessional rail/air fares for travel within and between cities, i.e.,30% discount in train and 50% in Indian Airlines.
(v) Enacting legislation for ensuring compulsory geriatric care in all the public hospitals.
2. The Ministry of Justice and Empowerment has announced regarding the setting up of a National Council for Older Person, called agewell Foundation. It will seek opinion of aged on measures to make life easier for them.
3. Attempts to sensitise school children to live and work with the elderly. Setting up of a round the clock help line and discouraging social ostracism of the older persons are being taken up.
4. The government policy encourages a prompt settlement of pension, provident fund (PF), gratuity, etc. in order to save the superannuated persons from any hardships. It also encourages to make the taxation policies elder sensitive.
5. The policy also accords high priority to their health care needs.
6. According to Sec.88B, 88D and 88DDB of Income Tax Act there are discount in tax for the elderly persons.
7. Life Insurance Corporation of India (LIC) has also been providing several scheme for the benefit of aged persons, i.e., Jeevan Dhara Yojana, Jeevan Akshay Yojana, Senior Citizen Unit Yojana, Medical Insurance Yojana.
8. Former Prime Minister A.B.Bajpai was also launch ‘Annapurana Yojana’ for the benefit of aged persons. Under this yojana unattended aged persons are- being given 10 kg food for every month.
9. It is proposed to allot 10 percent of the houses constructed under government schemes for the urban and rural lower income segments to the older persons on easy loan.
The policy mentions:
The layout of the housing colonies will respond to the needs and life styles of the elderly so that there is no physical barriers to their mobility; they are allotted ground floor; and their social interaction with older society members exists.
Despite all these attempts, there is need to impress upon the elderly about the need to adjust to the changing circumstances in life and try to live harmoniously with the younger generation as for as possible.
It may be pointed out that recently the Madurai Bench of the Madras High Court has ruled that the benefits conferred on a Government employee, who is disabled during his/her service period, under Section 47 of Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995 cannot be confined only seven types of medical conditions defined as ‘disability’ in the Act. The seven medical conditions are blindness, low vision, leprosycured, hearing impaired, locomotor disability, mental retardation and mental illness. A Division Bench comprising Justice F.M.Ibrahim and Justice K.Venkataraman said : “We feel that the court cannot shut its eyes if a person knocks at its doors claiming relief under the Act. In a welfare State like India, the benefits of benevolent legislation cannot be denied on the ground of mere hyper technicalities. It may be noted that this Act is not directly related to aged person but seven medical conditions which prescribed in this Act are the common symptom of the aged person.
Need For A Change In Approach:
In the older times, after the completion of 50 years of life, one had to detach oneself from the responsibilities of a ‘Grihastha’ and switch over to the third stage of human life which was known as ‘Vanpristha’ which referred to the devotion of the next 25 years of life by the ‘Vanpristhi’ by mana, vachana and karma to the selfless service of the suffering humanity and the larger society in return to the services received form society during the first 50 years of life.
Certain strategies and approaches at different levels of policy making, planning and programming etc. will have to be adopted in order to harness this vast human resource for promoting the involvement and participation of senior citizens in socioeconomic development process on a much larger scale.
This participation must result in an end to their social isolation and an increase in their general satisfaction with their life. Any attempt to secure the help of the elderly in offering their service to the nation must simultaneously ensure some sort of package of services aimed at arranging for them a better quality of life and a well designed social security network for the senior citizen. The society and the state in India need to accept the challenge of their effectively focusing their attention on the following twin issues of:
(i) How to provide a fair deal to the senior citizens so that they are able to peacefully, constructively and satisfactorily pass their lives; and
(ii) How to utilize the vast treasure of knowledge and rich life experience of the older people so that they are able to utilize their remaining energies and contribute to the all round development of their nation.
Palliative Care: Need of the hour : According to a pilot survey, 70% of city’s elderly population is undergoing some kind of medication. The average spending per day ranges between Rs. 3 to 200. However, nearly half of the money goes waste. The reason is absence of proper palliative care in the country. World Health Organization has marked October 7 as a day to create awareness about the importance and need for hospice and palliative care. “Access to the best quality care, while facing terminal illness is a human right. Ironically, many people in the world are denied this right. The bitter side is that government in many countries does not even realize the important of this right” said geriatric physician Dr. Abhishek Shukla.
It may be conclude by saying that the problem of the elderly must be addressed to urgently and with utmost care. There is urgent need to amend the Constitution for the special provision to protection of aged person and bring it in the periphery of fundamental right. With the degeneration of joint family system, dislocation of familiar bonds and loss of respect for the aged person, the family in modern times should not be thought to be a secure place for them. Thus, it should be the Constitutional duty of the State to make an Act for the welfare and extra protection of the senior citizen including palliative care.
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# UN Ageing http://www.un.org/en/globalissues/ageing/
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# Health of the Elderly in India: Challenges of Access and Affordability
# Subhojit Dey, Devaki Nambiar, J. K. Lakshmi, Kabir Sheikh, and K. Srinath Reddy. IJIS, June 2015 National Law School, Bangalore.
# Concessions and Facilities given to Senior Citizens." Ministry of Social Justice and Empowerment, Government of India. Accessed 7 January 2016.
# "Concession Rules." Indian Railways (India Government website). Accessed February 2016.
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