INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 4 ISSUE 1

Transcription

1 PROBLEMS OF ELDERLY PEOPLE IN INDIA A SOCIO- LEGAL ANALYSIS *Neha bharti 1 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, - nehabharti2909@gmail.com 101

2 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 UN 3 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), UN means United Nations 102

3 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. 103

4 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 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 4 Information based on book Indian Constitutional Law, By M.P. Jain (7 th Edition), LexisNexis 104

5 & 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 case 5 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 (W) of See Sukh Deo v. State of A.P., AIR (1986) SC See Chameli Singh v. State of U.P., AIR 1996 SC 1051 and Ashok Kumar v. Union of India, AIR (1997) SC

6 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

7 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, 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 crime 11, 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 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 See Mohd. Ahmed khan v. Shah Bano Begum, (1985) 2 SCC

8 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, 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 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. 108

9 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,

10 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, 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,, 1:34 AM 18 The Times of India, Nov 11.Retrieved The Times of India.8 Jan 13. Retrieved

11 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. 111

12 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. 112