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101
INTERNATIONAL JOURNAL OF RESEARCH AND
ANALYSIS VOLUME 4 ISSUE 1 2016
PROBLEMS OF ELDERLY PEOPLE IN INDIA – A SOCIO- LEGAL ANALYSIS
*Neha bharti1
INTRODUCTION-
“Young people know how to run fast,
But old people know the way.”
As, rightly said, elderly people with long rich fund of their
experiences, make very important contribution to their family, society and the
nation at large. From the very beginning of human civilization old people due to
their experiences have been enjoying important and respectable status in family
and in society as well. In ancient time people used to live in joint family but in
present days under the drastically changed social set up and materialistic
approach towards life, joint family has gradually vanished giving place to
nuclear families. Due to this changing scenario, all over the World old people
are facing great hardship, health hazards and neglect from their children who
are quite busy in their pursuits and not devoted for the welfare of their old
parents. Women empowerment has also added to their woe because the female
counterpart in the family are also getting employed, due to this children have
become responsibility of old aged parents who themselves required support
being dependent due to their age and health related problems. In due course of
time they have become vulnerable class of society and are subjected to different
1 Author- Neha Bharti, Research scholar Department of Law, University of Allahabad, Utter
Pradesh, India, Email- [email protected]
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type of abuses commonly by their children, grand-children and family. All
these factors have made the elderly persons a burden and a neglected class in
family and in society as well. Now under the present circumstances there is a
big question mark over the identity and status of the old age persons. In view of
above, it is the high time to suggest not only a dialogue for suggesting suitable
measures for revival of their identity in society which is desirable, but also
necessary to safeguard their welfare and improve their living conditions so as
to give back them their lost dignified status in the family in particular and
society in general.
INTERNATIONAL PERSPECTIVE-2
The problem relating to the elderly person has not only been a concern for India
alone but the problem has also been attended to at the international level.
Unfortunately any specific provision related to old age people was missing in
very initial international laws like UN3 charter,1945 ,Universal/Convention of
Human Right,1948, International convention on Civil & Political Right and
Economic, Social and Cultural Right,1966. The first international plan of action
on aging was adopted by UN in 1982 in Vienna and the assembly in subsequent
years called on government to implement it’s principles & recommendations. It
was in 1991 that the UN came out with the 18 principles evolved for elderly
persons. This was the first time when UN provided some effective principles to
support and safeguard the interests of the older persons. These principles
nowhere defines, who is an older person and are organized into 5 clusters,
namely –
2 Information is based on Brownlie’s Documents on Human Rights, Ian Brownlie & Guy S.
Goodwin Gill (Eds) (Sixth Edi), 2010. 3 ‘UN’ means ‘United Nations’
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Independence, Participation, Care, Self fulfillment and Dignity of older persons.
These principles provide a broad framework for action on aging. Some of these
are explained as follows-
Independence- there come the opportunity and accessibility to work, food,
water, clothing and health care.
Participation- older person should remain integrated in society and
participate actively in the formulation of policies which affect them.
Care- included access to health care etc.
Self fulfillment- which included, pursue opportunities for the full
development of their potential and have access to education, cultural,
spiritual and recreational resources of society.
Dignity- included live in dignity, security, free from exploitation and
mental & physical abuse.
These are the principles, which look very noble but only
encourage government to pursue these principles into their national programs.
These principles are not commanding in nature and their application always is
only at the mercy of the state. After that a Committee on Economic, Social and
cultural Right adopted the general comment on the Right of older person. The
comment provided the way as to how these principles may be applied to the
older persons. UN declared the international year of old person 1999 with 4
priorities-
Situation of older persons
Individual life long development
Relationship between generation &
Inter relationship of population, aging and development.
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Again in 2002, UN assembly adopted a plan of action on aging with focus on
human right of elderly persons. It is submitted that their attempts to improve the
situation of elderly people are remarkable but without the support of any
implementation and monitoring mechanism, these principles remain only a
noble and pious hope. In spite of all these provisions and commitments, the
ground reality remains that, there is no universal acceptance of any law on the
rights of older person.
The population of elderly persons has been increasing over the
year. As per the UNESCO estimates, the number of elderly persons likely to
590 million in 2005 and will be double by 2005. So, it is need of the time that
World community should consider seriously about more effective legal support
mechanism for the older people which can be applicable universally.
INDIAN APPROACH-
India being a welfare state the policies of the government has not been silent on
the issue, as may be noticed in the various steps taken by the government to
fulfill the need of such persons. It is further evidenced through the various
legislations passed by the government since independence and even by the rules
which regulate the society in early ancient period. Some provisions relating to
elderly people in India are as follows-
UNDER CONSTITUTION OF INDIA-4
Constitution of India is the supreme law of the land in India which
guarantees varieties of fundamental rights enshrined under part- III ( Article
14 to 32 ) of the Constitution; As - Right to equality ( Article 14 to 18 ),
Right to freedom ( Article 19 to 22 ), Right against exploitation ( Article 23
4Information based on book Indian Constitutional Law, By M.P. Jain (7’th Edition), LexisNexis
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& 24 ), Right to freedom of religion ( Article 25 to 28 ), Cultural and
educational right ( Article 29 to 30 ) and Right to constitutional remedies (
Article 32 ). These are general rights available either only to the citizens or
to all persons. But like wise International provisions and commitments
which expressly provide protection against discrimination on the ground of
age is missing. It is very unfortunate, may be reason behind it that the
constitution makers never thought that Indian society which is based on
such noble tradition and culture would ever face any problem like this. Still,
even in absence of any specific provision in the Constitution to protect the
interest of elderly people, High Courts and Supreme Court of India have
take initiative to given relief to elderly persons under the provisions of
Article 14 (Equality before law), Article 21 (Protection of life and personal
liberty), Article 41(Right to work, to education and to public assistance in
certain cases), Article 46 (Promotion of education and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker sections) and Article
47 (Duty of State to raise the level of nutrition and the standard of living
and to improve public health) etc. by various decided cases. As- In the
Sudhir Kumar case5 the high court directed the police authorities to keep
strict vigilance on elderly victims to protect their life and property. Right to
get pension was treated as fundamental right under Article 21 of the
constitution.6 Further, the Supreme Court has expanded the scope of Article
21 by including the right to food, shelter, medical facilities and dignified
life for every person.7
5 See Sudhir kumar V.State of W.B. , WP No. 22614 (W) of 2009
6 See Sukh Deo v. State of A.P., AIR (1986) SC 991
7See Chameli Singh v. State of U.P., AIR 1996 SC 1051 and Ashok Kumar v. Union of India, AIR
(1997) SC 2298
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LEGAL PROTECTION UNDER PERSONAL LAWS-
HINDU LAW-8
It will not be right to state that Indian laws were all silent over the problem,
relating to elderly people. Specially, in Hindus it is the pious obligation which
was absolutely recognized by the early texts and not was dependent upon family
property.
First of all, statutory provision for maintenance of parents under
Hindu personal law is given under Sec. 20 of Hindu Adoption and Maintenance
Act,1956 which imposes an obligation on the children to maintain their parents.
This provision not only imposes the obligation to maintain parents on the son
but also upon the daughter. It is to be noted that only those parents who are
financially unable to maintain themselves from any source are entitled to seek
maintenance under this Act.
MUSLIM LAW-9
Under Muslim Law the persons entitled to maintenance are-
Wife, Children, Grandchildren, Parents, Grandparents, Son’s wife, Step-mother
and other relations by blood.
According to Mulla, even under Muslim law children have a duty to maintain
their aged parents, although they are able to earn something for themselves.
8 Information based on Dr. Paras Diwan- On Hindu Law ( 2
nd Edition ) Orient publication
company 9 Text book on Muslim Law- by Rakesh kumar Singh, page 185
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ANALYSIS VOLUME 4 ISSUE 1 2016
It is obligatory upon a man to provide maintenance for his father, mother and
grandfather and grandmother if they happen to be in circumstances
necessitating it.
According to Tyab ji, Indigent parents and grand-parents are entitled to get
maintenance from their children and grand children. Both son and daughter are
duty bound to maintain their parents.
The grand-children of a person would not be liable to maintain, if there is a
husband, children or parents who would be under a duty to maintain, even
though they may be entitled to daughter or the father must maintain.
PROVISIONS UNDER CRIMINAL PROCEDURE CODE,1973-10
Sec. 125 to 128 (chapter IX) of the Cr. P.C., 1973, provide for speedy, effective
and inexpensive remedy against person who neglected or refuse to maintain
their dependant wives, children and parents. Chapter also provide for interim
maintenance during the pendency of case, procedure, alteration and
enforcement of the order of maintenance. These provisions are, in a way, aimed
at preventing starvation and vagrancy leading to the commission of crime11
, and
are expected to be applicable to persons irrespective of the religions to which
they belong or to the personal laws applicable to them because Cr.P.C. is a
secular law. 12
10
Based on R.V. Kelkar’s Lectures on Criminal Procedure, 5’th Edition 11
See Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386 and S.Sethurathinam pillai v. Brbara, (1971) 3 SCC 923 12
See Mohd. Ahmed khan v. Shah Bano Begum, (1985) 2 SCC 556
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GOVERNMENT POLICIES FOR THE PROTECTION & CARE OF
OLDER PERSONS SINCE INDEPENDENCE-13
In 1999 for the first time government approved the National Policy, specially
for the older person to accelerate measures; As- setting up of a pension fund,
construction of old age homes, establishment of resource centers etc. Sec.88-B,
88-D and 88-DDB of Income tax provided discount in tax for the elderly
persons. Life insurance corporation of India ( LIC ) has also provided several
scheme for the benefit of aged person. Government also launched ‘Annapurna
Yojana’ for the welfare of old age people. It is also proposed to allot 10% of
houses constructed under governmental schemes to the older persons etc.
THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR
CITIZEN ACT, 2007-14
Before this act provisions related to elderly people were in very scattered form.
This is the only Act so for in India, which deals with special provisions for
senior or old age persons but even it does not address the need of senior citizen
who do not have either children or property.
Under Sec.5.(1) of Act, a senior citizen or a parent may apply for
maintenance under Sec.4 of the Act.15
If they are incapable, any other person or
organization authorized by them can apply for maintenance on their behalf. The
tribunal even suo motu can take cognizance and when a proceeding regarding
13
Information based on details of welfare schemes for the aged persons on 19-March-2015,
press information bureau, Government of India, Ministry of social justice & Empowerment, Retrieved 10-05-2016 14
Information based on The Maintenance and Welfare of Parents and Senior Citizen Act,
2007,(No. 56 of 2007, 29 December) 15
A senior citizen is an Indian citizen who is at least 60 years old. A parent could be father or
mother, whether biological, adoptive or step father or step mother, whether or not the father or
the mother is a senior citizen.
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monthly allowance for the maintenance is pending, may order to pay monthly
allowance for the interim maintenance of the senior citizen including parent.
According to Sec.4(1) the senior citizen is entitled to apply for maintenance
under Sec.5 against one or more of his children who are major.16
If the senior
citizen has transferred by way of gift his property with condition that the
relative shall provide the basic amenities and basic physical needs to the senior
citizen. In case of default Sec.23.(1) says that said transfer shall be declared
void by the Tribunal if the senior citizen so desires. Sec.24. of this Act provides
Whoever, having the care or protection of senior citizen leaves, such citizen,
shall be punishable with imprisonment of either description for a term which
may extend to three months or fine which may extend to five thousands rupees
or with both. But this provision of punishment and fine is very nominal and
seems not sufficient enough to deter further offences and solve the problem.
The present Act states that “The state Government may contribute
for each sub-division one or more tribunals……………. The tribunals shall be
presided over by an officer not below the rank of sub-division officer of a state.
There are two loop wholes in this provision, Firstly the use of “may” leaving
the State Government the option of not forming such tribunals & Second the job
is entrusted to the SDO, who has a number of other responsibilities already
which may cause difficulties to pursue these provisions.
The laws and provisions made to deal with problem are no doubt
very good and pious in nature, but the present laws in present form will meet
the needs of only parents and senior citizens belonging to educated families,
property owning classes and are living in urban area. It can’t cater to need of
citizen and parent belongs to the poorer and illiterate classes of society. It is
16
According to The Indian Majority Act, 1875
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very unfortunate that mostly cases related to abuse of elderly people are not
even reported. As- an incident reported by Hindustan Times news paper that a
daughter beats 85 year old mother, neighbours has made the video of that
incident, put it on social sites and called the police. A police team visited the
elderly woman’s house and asked her to file a complaint against her daughter.
She, however, refused to lodge the complaint, saying it was a family issue.17
But in some reported cases results of this Act is very impressive as in the first
case under this Act was filed in November 2011, by siluvai (age 84) and his
wife Aruammal (age 80) from Tuticorin against, their son and daughter-in-law
for neglecting, and taking away their two homes and gold jewellery.18
In another
case 35 elderly persons benefited under Maintenance and Welfare of Parents
and Senior Citizens,2007.19
So, It is the need of the present society to improve
the present laws and amend the constitution to provide specific provisions for
the care and protection of old aged person and to bring their rights and interests
in the sphere of fundamental rights. Thus it should be the constitutional duty of
the state to make better provisions for the welfare and extra protection of senior
citizen including palliative care.
17
Based on the news reported by m.hindustantimes.com, may 24,2016, 1:34 AM 18
The Times of India, Nov 11.Retrieved 10-05-2016 19
The Times of India.8 Jan 13. Retrieved 10-05-2016
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SUGGESTIONS & CONCLUSION-
So, after analyzing all this, problem and its measures, it may be submitted that
notwithstanding all these provisions the problem relating to elderly people not
only still prevails in society but is also increasing gradually as well. It is evident
that something is going wrong with the implementation of these provisions. To
find out the root cause of the problem we have to apply a multidisciplinary
approach towards this problem to cure it from the root. The famous jurist Sir
Henry James Sumner Maine in his book ‘Ancient law’ rightly said that, “law &
society moves from status to contract”, seems very relevant in present social
concept. It is next to impossible and quite impractical to ask people to live the
way of life as their grand-parents lived and revive joint family system in the
present society. So, we have to come up with some effective solution which
may suit our present social setup. It is not only the government’s responsibility
to protect the interests of the elderly people, but as a responsible citizen of the
society everyone should make effort to secure the dignified status of the old age
people in the family and in the society as well. In today’s fast life, most people
complain that they have no enough time or money at some particular time to
provide proper care and health facilities to their parents and grand-parents. In
that case, it might be quite possible to form a welfare society or co-operative
society by some families with some joint fund which would provide proper care
to old members of these families. Through this welfare society they can also
create some jobs for other people. As; care takers, doctors, nurses etc. to serve
these elderly people and they can also add their family in this welfare society.
These self financed welfare societies may be a good alternative to the
government aided institutions. NGO’s and some other private institutions are
also playing very important role in the society for elderly people.
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Government should support these NGO’s to improve the condition of the older
people in the society.
But, without the awareness and support of the people in the
society all these laws and provisions would be useless because it is not only a
legal problem but a social problem as well. People should have love and
affection and a sense of responsibility towards their aged parents. One should
never forget that every child has to grow and has one day to fall in the category
of old aged person/parents. What we give to our parents shall automatically
come back up on us. It is the Law of the Nature that one has to pay in dues, by
observing his duties then only one can expect others/children to perform their
duty towards them.