Constitutional Rights Of Elderly In India - An Analysis
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Category: Constitutional & Human Rights
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CONSTITUTIONAL RIGHTS OF ELDERLY IN INDIA: AN
ANALYSIS
Deeksha Tewari, Assistant Professor, IILM University
ABSTRACT
Getting old is a normal process of life and with this change in circumstances elderly people require a lot of care and love from their loved ones. This is the most vulnerable stage in a person’s life. India is a home to almost oneeighth of the world’s elderly. Thus, it becomes more important to have a strategy to protect the interests of this section of society. The main idea behind providing this security is to provide sustenance to people who can no longer work to earn a living. Until recently family and children used to take care of the elderly persons and they used to be the reliable source of security to old parents but as the times are changing there has been a change where now kids are no longer taking care of the parents as their parents used to take care of their own parents.
Since 2007 we have Maintenance and Welfare of Parents and Senior Citizens Act 2007 where now elderly persons can claim maintenance but prior to this they could claim maintenance under the umbrella of diverse laws such as family laws, CPC, CRPC, IPC and fundamental right under the Constitution of India. The problem is in the implementation of the laws in the practical scenario. Lack of existing legal provisions is the root cause or if they have knowledge then there is a fear that the kids might through them to some old age home. In this research paper the researcher will analyze the provision of existing legislation and will suggest a few means to effectively implement the laws that are there to protect the basic human rights of Senior Citizens. Keywords: Human Rights, Constitutional Right, Social Security, Rights of elderly, old age
Introduction
There has been a dramatic change in the living conditions of the elderly across the country. Until very recently the elderly population was not so significant as their life expectancy was less. They had limited needs and requirements which were looked after by their family members and relatives. But with the change in socioeconomic status and with the coming of industrialization, urbanization, the lifespan of the elderly has increased and with this their needs have also been expanded. This has led to a rise in the number of cases where the rights of the elderly are being violated. According to an estimate by the WHO, between 2015 and 2050, the share of the world’s population over 60 years is expected to double from 12 to 22 percent. The pace at which the population is aging has increased incrementally worldwide. In addition, human life expectancy has also increased at a rapid rate.
India’s senior population has been steadily increasing since 1961. 1 Table 12: Table depicts the rise in the lifespan of senior citizens. The old-age dependency metric is used to gauge the ratio between the number of persons over the age of 65 years and the number of persons between the ages of 15 and 64 years, expressed per 100 persons. In India, this ratio grew from almost 11 percent to over 14 percent from 1961 to 2011 and was projected to increase to over 20% in 2031. The distribution of elderly who are economically dependent on other people saw an increase
1 Aging population in India - statistics & facts | Statista
2 Aging population in India - statistics & facts | Statista
in the rural areas. However, the proportion of entirely dependent elderly in rural as well as urban areas had declined. In 2017, those that were entirely dependent in rural areas relied on their children or their needs while second in the line was the relative spouse. 3 The challenges further pile on from a rising need for healthcare with an increase in age. Due to higher morbidity from chronic diseases, the elderly has long-standing healthcare needs that are tied together with high out-of-pocket expenditures which more than three-fourths of them cannot afford. In order to effectively address these challenges, there is a pressing need of positioning elderly health care into a broader framework in the universal access and affordability plan of Ayushman Bharat (Universal Health Coverage).
This, along with other government schemes that protect financial security, such as higher tax exemption for senior citizens would contribute toward alleviating the economic and social conditions affecting geriatric well-being in the country. 4 It is a proven fact that majority of old age persons in India suffer from at least one chronic disease such as asthma, arthritis, depression, diabetes. This has increased because of the increase in the lifespan of people. Despite the rapid growth of India’s economy, the living conditions of most of the old age persons remains poor. According to a survey undertaken by Ministry of Statistics and Programme Implementation, Govt of India less than 11% of the old age population have pension. If we look at the savings of these people, it is low, and the living style of the younger generation is totally changed.
5 India’s age dependency ratio is also getting effected and is increasing day by day. There is an intergenerational gap which has led to disagreement of opinion and hence a rapid decline could be seen of older people living with their children. Constitutional Provisions: The supreme law of the land i. e. , Constitution of India was enacted with a view to cover all class of persons. The maker of the Constitution has this idea that at the age of 60s one’s health deteriorate and the person loses his physical strength. The idea behind enacting provisions was
3 Aging population in India - statistics & facts | Statista
4 Aging population in India - statistics & facts | Statista
5 Anubhuti Agarwal Rights of Elderly People RIGHTS OF ELDERLY PEOPLE | Law column
to ensure that at such an age a person doesn’t face any problems and gets a sense of security. The provisions are as follows: • Article 38: State to secure a social order for the promotion of welfare of the people. Sub section (1) to Article 38 states that the state is obliged to promote the welfare of the people by securing and protecting the social order where justice i. e. , social, economic, and political justice prevails in a society. In the next sub section (2) it says that the state shall strive to remove inequalities in income and endeavor to remove inequalities in status, facilities, and opportunities amongst all the individuals living in society. 6 • Article 41: Right to work in education and to public assistance in certain cases.
It is mandatory for the state to make provisions 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. 7 • Article 42: Provision for just and humane conditions of work and maternity relief. It is the duty of the state to provide just and humane conditions of work and for maternity relief. 8 • Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health. It is the duty of the state to increase the level of nutrition and the standard of living of its people and the improvement of public health. It should be priority of a state to work towards improving the public health and prohibit the consumption of drugs etc. 9
6 Constitution of India Article 38
7 Constitution of India Article 41
8 Constitution of India Article 42
9 Constitution of India Article 47
National Provisions:
1. Hindu Personal Laws
Ø Hindu Adoption and Maintenance Act, 1956 The Act gives legal rights to old people to claim maintenance from their children. This act defines a Hindu and applies to Hindus only. Meaning thereby that a non-Hindu cannot claim maintenance under this act. Section 2010 of the act states the provision with respect to maintenance of children and aged parents. This section clearly specifies the responsibility of a person to maintain their old parents if the parents are unable to maintain themselves. Further section 23 of the same act talks about the amount of maintenance that is to be paid to old, aged parents. The discretion lies with the court to decide the amount or to alter the amount agreed upon if it feels that the amount offered earlier is not sufficient to be paid to old parents.
With the changing time as daughter became coparcener in the family property the responsibility to maintain parents and the right of parents to claim maintenance has expanded. Now they can claim maintenance from both son and daughter. The right to claim maintenance vests in both natural and adoptive guardian. But the stepparents cannot claim maintenance under the said act. 11
2. Muslim Personal Laws
Although there is no specific section which talks about the provision related to maintenance of old parents, but Muslims are also legally bound to maintain their parents if they have means to do so. As per Mulla a son is liable to maintain his father and mother even if he is not in the circumstances to maintain himself, if she is poor, even if not “infirm”. As Muslims do not have the concept of adoption therefore, they do not have provisions for the maintenance of adoptive parents under Muslim law.
3. Christian and Parsi Laws
The Christians and Parsi have no personal laws that talks about maintenance of the parents. The parents who want to claim maintenance claim it under the Code of Criminal Procedure,
10 Hindu Adoption and Maintenance act, 1956, Section 20
11 Hindu Adoption and Maintenance act, 1956, Section 23
1973.
4. The Code of Criminal Procedure, 1973
Section 125 of the Code of Criminal Procedure, 1973 states the law related to maintenance of old parents. It provides relief to all old parents who seek maintenance from their children irrespective of the religion to which they belong. It has universal application. The law states that if any person who has sufficient means neglects or refuses to maintain his parents i.e., father and mother who are unable to maintain themselves then a Magistrate of first class may on the proof of such neglect or refusal, grant order to such person to give a monthly allowance for the maintenance of his parents, at a rate fixed by the magistrate.12
5. The Maintenance and Welfare of Parents Act, 2007
There are various terminologies such as old age, aged persons, senior citizen, elderly given under various international and national instruments. The Indian law uses the term Senior Citizen and has defined it under section 2 (h) of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as “Any person who has attained the age of 60 or above and who is a citizen of India will be considered as Senior Citizen”. The act emphasizes providing maintenance to senior citizens in the country. It is working in line with the constitutional provisions. Section
5 sub clause (1) specifies that a parent is entitled to get maintenance. The term parent is defined
under section 2 sub clause (d)of the act it means a father or a mother whether biological, adoptive or stepfather or stepmother irrespective of whether the father or the mother is a senior citizen. The act also provides for maintenance of childless senior citizens by the persons who are their legal heirs or whom the property may be transferred after the death of such citizen. If the senior citizen is unable to file a suit for maintenance, any organization or any person who is authorized by them to file, it on their behalf can apply for maintenance. Section 24 says that if the person who was taking care of the senior citizen leaves him at a place where no one can find them. Thus, this act is very useful in protecting the dignity of our senior citizens. 13
12 Code of Criminal Procedure, 1973, Section 125
13 Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Microsoft Word - The Maintenance and Welfare of Parents and Senior Citizens Act, 2007.docx (indiacode.nic.in) Policies made by Government:
1. National Policy for Older People, 1999
Ministry of Social Justice and Empowerment launched a policy in the year 1999 to protect and empower the senior citizens of the society. Few provisions were related to old age pension scheme, tax exemption, subsidy in health care, mental health services, counselling facilities, land grants, setting up of welfare funds etc. as the demographic pattern, socio-economic needs of the society the law has evolved a lot and the new national policy on old, aged persons were finalized14. The different policies were launched by different ministries. Following are the policies dealt in detail: Ø Scheme of Integrated Programme for Older Persons (IPOP) The scheme was originally launched in 1992 but as the circumstances changed it was revised in 2008. This scheme provides funds provided by the state government, local bodies, NGOs etc.
to run and maintain old age homes, day care centers and mobile care units for the persons who are infected by Alzheimer’s disease and dementia etc. 15 Ø Indira Gandhi National Age Pension Scheme (IGNOAPS) The scheme was introduced by the Ministry of Rural Development with an aim to provide central assistance towards pension by giving 200 Rs a month to the senior citizens and 500 Rs to the persons who are above 80 years of age who belong to Households below poverty line. Ø National Programme for the Health Care for the Elderly (NPHCE) In the year 2010-11 the Ministry of Health and Family welfare launched this scheme. The main features of the scheme were community based primary health care approach and strengthening health care services. It aimed to provide dedicated facilities at 100 districts hospitals. This scheme works towards those 14Ministry of Social Justice and Empowerment. (n. d.
). Review of National Policy for Senior Citizens. New Delhi: Press Information Bureau, Government of India. 15 National Human Rights Commission (NHRC). (n. d. ). Elderly People: Know Your Rights. New Delhi: NHRC. people who are below the poverty line and cannot afford medical services. There is a need to change the mindset of the coming generations in the sense of viewing senior citizens as a burden. With the changing times it would be a great initiative if we come up with policies and statutes which will help the senior citizens in living a peaceful and dignified life. The government should make some schemes for senior citizens to compensate in medicines. There are few medicines which are too costly which even the younger generation cannot afford, hence the medicines should be given at a marginalized rate which will make access to medicines easy for senior citizens.
16 Objective of the programme: • To provide a framework creating enabling environment for everyone. • To build a new structure for the Ageing group of society. • To foster accessible, cheap, and good quality care services to senior citizens. • To interact and spread the concept of Active and healthy Ageing. Counselling them to get involved in some activities which they like to feel healthy, stay active and spend their 60s in a smooth manner. • The National Rural Health Mission, AYUSH and the other departments who are working towards the same goal should work together to achieve the desired results.
Conclusion and Suggestion: The time has come where the coming generations need to think of their old parents as a responsibility and not as a liability because when they were small, and they needed that care and protection now it’s their turn to give the same level of care and protection to their old parents.
16 Detailed brief of NATIONAL PROGRAMME FOR HEALTHCARE OF ELDERLY (NPHCE), Detailed Brief
of NPHCE. pdf (mohfw. gov. in) The Researcher, after analyzing the laws and provisions is of the view that the Society still lacks knowledge of their legal rights, and it is important to spread awareness about the same and interact with the old, aged persons. The State should make provisions to ensure and collect data to understand the status of effectiveness of the policies that exist for the senior citizens. The block development officer or the sarpanch of the village should have the data of the senior citizens and whether they are living a dignified life should be updated by interacting with them in person. The PHCs should conduct weekly clinics where the monitoring and assessment of old people are carried out.
The awareness of the days and working timing of the clinic organized by PHCs should be informed well before by various methods like advertising it in newspaper, by putting hoardings, by giving ad on television, by announcements in the area. There is a provision in the law schools to have legal aid cells to spread awareness in society with respect to laws the students should be directed to form groups and choose the area where they reside to connect with the aged persons of that area and help them by telling them their rights and the policies and rules made by the government to support, protect, and prevent the abuse of senior citizens. The para medical task force should be made to ensure that there is no shortage of experts in the health care sector and the services are given on time without any delay to the needy group of people.
The earth is round we come to a point where we started, we started as a small child who is sensitive and needs gentle care and love and when aged persons are at a stage where life is almost at the end aged persons become like a small kid who now need the same love, gentleness, and a sense of security from their children.