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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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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.