21 Rights of the Elderly in India

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1. LEARNING OUTCOMES

  • To develop an understanding of the laws and policies relating to the rights of the elderly in India.
  • To critically understand the key provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and its significance.
  • To comprehend the various concessions and facilities available to the elderly in India.

2. INTRODUCTION

Advancing of old age is usually associated with many challenges, including declining health, reduction in social commitments and increasing possibilities of discrimination and rights challenges making the elderly more vulnerable. This calls for the protection of the rights of the elderly in an effective manner to enable them to enjoy their rights on an equal basis with others and integrate them into the society. Accordingly, various laws, policies and schemes have been implemented in India to ensure the protection of the rights of the elderly and create an age friendly environment in the society.

3. LEGAL PROTECTION OF ELDERLY RIGHTS IN INDIA

In the light of the international recognition of the human rights of the elderly persons and considering the specific needs of the elderly in India, the Government of India has made various efforts to protect and promote the human rights of the elderly through various legislations, policies and schemes.

For the purposes of availing the various old age benefits made available to the elderly, “all those persons who have attained the age of 60 years or above have been defined as elderly in India”.

The legal protection accorded to the various rights of the elderly in the Indian set-up can be studied under the following heads:

 

3.1. CONSTITUTION OF INDIA

The Constitution of India is the fundamental law of the land that provides protection to all fundamental rights and freedoms of all members of the society. Likewise, the rights of the elderly have also been addressed to certain extent under the Constitution of India.

The Constitutional provisions that are relevant to the elderly people are as follows:

Article 41 of the Constitution of India provides as follows:

  • “The State shall, within the limits of its 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”.
  • Entry 24 in the List III of Schedule VII to the Constitution of India (Concurrent List) deals with the “Welfare of Labour, including conditions of work, provident funds, employer’s liability, workmen’s compensation, invalidity and Old age pension and maternity benefits”.

Some of the other constitutional provisions that are also applicable to the elderly are as follows:

  • Fundamental Rights under Part III of the Constitution of India (with exception of Articles 21A and 24 which deal with the rights of children specifically)
  • Articles 39A, 42 to 44, 46 and 47 under Part IV of the Constitution
  • Entry 9 in List II of Schedule VII to the Constitution of India (State List) which deals with the “Relief of the disabled and unemployable”.
  • Entries 20 and 23 in List III of Schedule VII to the Constitution of India (Concurrent List) that deal with “Economic and Social Planning” and “Social Security and Social Insurance; employment and unemployment” respectively.

3.2. LEGISLATIONS AND OTHER LEGAL PROVISIONS

All the legislations in India pertinent to the elderly focus upon the maintenance and welfare of these people. The laws protecting the right to maintenance of the elderly and their welfare in India are as follows:

3.2.1. Personal Laws

The maintenance of parents is the moral duty of the younger generations and is a widely recognised fact. However, the degree of responsibility of such maintenance varies from community to community, at least so far as the law is concerned.

Hindu Law (Hindu Adoption and Maintenance Act, 1956 under Section 20)

The Hindu Adoption and Maintenance Act, 1956 provides the statutory recognition of the duty of the children with respect to the maintenance of their parents. Section 20 of the Act imposes an obligation on every Hindu to maintain his/her aged or infirm parents during his/her lifetime. Thus, it is the duty of both sons as well as daughters to maintain their aged or infirm parents. However, it is to be noted that such obligation extends only when the parent(s) is (or are) unable to maintain himself or herself.

Section 20 OF HINDU ADOPTION AND MAINTENANCE ACT, 1956

  • (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
  • (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
  • (3) The obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property

Explanation- In this section “parent” includes a childless stepmother.

Mohammedan Law

The duty of the children to maintain their parents is also recognised under the Muslim Law. However, the duty of maintenance extends so long as the parents are unable to provide for themselves. Under Muslim Law, mothers are given preference over fathers when it comes to maintenance. But, under Shia Law, both parents are treated equally. Further, as under the Hindu Law, both sons and daughters have a duty to maintain their parents. However, this obligation of the children is dependent on their having the means to do so and is proportionate to their means.

MAINTENANCE OF PARENTS UNDER MUSLIM LAW

According to Mulla,

  • Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.
  • A son though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm.
  • A son, who though poor, is earning something, is bound to support his father who earns nothing.
  • According to Tyabji, under Hanafi Law,

‘Parents and grandparents in indigent circumstances are entitled to maintenance from their children and grandchildren who have the means, even if they are able to earn their livelihood.

Christian and Parsi Law

The Christians and Parsis have no specific provision for the maintenance of parents under their personal laws. However, the elderly belonging to these communities are entitled to claim maintenance from their children under the provisions of the Code of Criminal Procedure, 1973.

3.2.2. Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973 provides for the maintenance of parents under the provisions of Section 125 of the Code. According to this section, it is the obligation of the children to maintain their parents in the times of necessity. Both sons and daughters, including married daughters are responsible for the maintenance of the parents under the Code. However, it is essential for the parent to establish that the other party has sufficient means and has neglected or refused to maintain the parent, who is unable to maintain himself/herself to obtain maintenance under this provision.

It is important to note that, the Code of Criminal Procedure, 1973 is a secular law and is applicable to all communities and religions.

3.2.3. Maintenance and Welfare of Parents and Senior Citizens Act, 2007

An initiative of the Ministry of Social Justice and Empowerment of the Government of India, the Maintenance and Welfare of Parents and Senior Citizens Act was enacted in the year 2007. The Act received the assent of the President of India on December 29, 2007. The Act came into effect in different states when the respective states notified the same in their official gazette. While some states have already implemented the Act, few others are yet to implement it.

According to this Act, parents and grandparents who are unable to maintain themselves are entitled to claim maintenance from their children. In case of childless persons, the specified relatives of the aged childless persons are obligated to maintain them. In other words, the children or the specified relatives, as the case may be, are to fulfil the basic needs of the aged parents, provide them care during their old age and enable them to lead a normal life without deprivation or neglect of basic needs. In case of violation of the provisions of the Act, the person who is guilty of such violation is punishable with an imprisonment up to 3 months or fine up to Rs. 5,000/- or both.

Apart from providing the duties of the children or specified relatives, the Act also provides for the roles and responsibilities of the Government in the maintenance of senior citizens like setting up of old age homes and makes provisions for medical care of senior citizens and protection of their life and property. The Act also makes the rights provided under the Act justiciable through tribunals established under the Act.’

DEFINITIONS UNDER THE

 

MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

 

Section 2

  • “children” includes son, daughter, grandson and grand-daughter, but does not include a minor
  • “maintenance” includes provision for food, clothing, residence and medical attendance and treatment
  • “minor” means a person who, under the provisions of the Majority Act, 1875 is deemed not to have attained the age of majority
  • “parent” means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen
  • “prescribed” means prescribed by rules made by the State Government under this Act
  • “property” means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property
  • “relative” means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death
  • “senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above
  • “State Government”;, in relation to a Union territory, means the administrator thereof appointed under article 239 of the Constitution
  • “Tribunal” means the Maintenance Tribunal constituted under section 7
  • “welfare” means provision for food, health care, recreation centres and other amenities necessary for the senior citizens

The provisions of the Act may be summarised as follows:

3.3. ADMINISTRATIVE SET–UP

The Ministry of Social Justice and Empowerment of the Government of India is the nodal agency for the issues concerning the elderly. The Ministry has been adopting various policies and welfare schemes for the benefit of the elderly time and again. The programmes of the ministry aim at the welfare and maintenance of the elderly, with special focus on the older persons belonging to the indigent groups.

3.4. POLICIES AND SCHEMES

Various policies and schemes have been formulated and implemented by the Ministry of Social Justice and Empowerment, Government of India, which is the nodal agency for the issues concerning the elderly. A brief account of some of the policies and schemes in place in India for the welfare of the elderly are as follows:

3.4.1. National Policy on Older Persons, 1999 (NPOP)

A National Policy was initiated by the Ministry of Social Justice and Empowerment, Government of India in the year 1999 to promote the health, safety, social security and well-being of senior citizens in India and to strengthen their legitimate place in the society and help them to lead a dignified life. The Policy for the first time clearly recognised a person above 60 years of age as a senior citizen. The Policy aimed at making the elderly completely independent citizens of the nation.

National Council for Older Persons (NCOP)

In the pursuance of the National Policy on Older Persons, 1999, the Ministry of Social Justice and Empowerment, Government of India constituted a National Council for Older Persons in the year 1999 to operationalise and oversee the implementation of the National Policy on Older Persons of 1999. The Minister of Social Justice and Empowerment of the Government of India will be the chairperson of the Council. The National Council for Older Persons is not only the implementation agency of the 1999 Policy but also the highest body to advise the Government regarding the formulation and implementation of policies and programmes concerning the elderly. The Council was reconstituted in the year 2005 to include representatives of Central and State Governments, NGOs, citizens’ groups, associations of senior citizens and experts in the fields of law, social welfare and medicine as members of the council.

Inter-Ministerial Committee on Older Persons (IMCOP)

Inter-Ministerial Committee on Older Persons comprising of 19 Ministries of the Government of India is another mechanism instituted for the implementation of the National Policy on Older Persons, 1999. The Secretary of the Ministry of Social Justice and Empowerment, Government of India heads the Committee.

LIST OF MINISTRIES

  • Ministry of Social Justice and Empowerment
  • Ministry of Health and Family Welfare
  • Ministry of Finance
  • Ministry of Rural Development and Employment
  • Ministry of Urban Affairs and Employment
  • Ministry of Human Resource Development
  • Ministry of Labour
  • Ministry of Personnel, Public Grievances and Pensions
  • Ministry of Law Justice and Company Affairs
  • Ministry of Home Affairs
  • Ministry of Information and Broadcasting
  • Ministry of Communication
  • Ministry of Railways
  • Ministry of Agriculture
  • Ministry of Surface Transport
  • Ministry of Civil Aviation
  • Ministry of Petroleum and Natural Gas
  • Ministry of Food and Consumer Affairs
  • Ministry of External Affairs

3.4.2. Integrated Programme for Older Persons (IPOP)

The Scheme of Integrated Programme for Older Persons was initiated in the year 1992 by the Ministry of Social Justice and Empowerment, Government of India to improve the quality of life of senior citizens by providing the basic amenities like food, water, shelter, health care etc. for this purpose, the scheme provides for capacity building of government and non-government agencies, Panchayat raj institutions and other local bodies and the community at large. Further, financial assistance up to 90% of the project cost will be provided to NGOs for establishing and maintaining old age homes, day care centres and mobile medicare units. The Scheme was revised in the year 2008 to increase the financial assistance and include other innovative projects concerning elderly. The Scheme has been further revised in the year 2015 (w.e.f 01.04.2015) to make it flexible to include the diverse needs of the elderly.

The eligibility criteria for beneficiaries of some important activities or projects supported under the IPOP Scheme are:

  • Old Age Homes – for destitute older persons
  • Mobile Medicare Units – for older persons living in slums, rural and inaccessible areas where proper health facilities are not available
  • Respite Care Homes and Continuous Care Homes – for older persons seriously ill requiring continuous nursing care and respite

3.4.3. Assistance for Construction of Old Age Homes

  • A Non-Plan Scheme of Assistance to Panchayati Raj Institutions, voluntary organisations, self-help groups for the construction of Old Age Homes or Multi Service Centres for Older Persons was started in 1996-97. Aid up to 50 % of the construction cost subject to a maximum of Rs. 15 lakhs was given under the scheme. However, due to wide-spread discontent, the scheme was discontinued at the end of X Plan (2006-07).
  • After the enactment of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, formulation of a new scheme under Section 19 of the Act, which provides for the provision of old age homes for indigent elderly, is underway.

3.4.4. National Policy for Senior Citizens

The increasing population of the elderly, the heterogeneity of the elderly community, changing economy, social transformations, advancement of research, science and technology and the failure in the effective implementation of the existing policies and schemes all led to the formulation of a new policy concerning the elderly. Accordingly, the Ministry of Social Justice and Empowerment, Government of India formulated a new policy titled National Policy for Senior Citizens which revises the existing 1999 National Policy on Older Persons. The draft of the new policy was released by the Ministry in the year 2011. The Policy is currently under finalisation and is yet to be implemented.

The proposed new policy is devised to overcome the flaws of the existing policy and tries to include comprehensive set of rights of the elderly. The policy values an age-integrated society and aims at strengthening the inter-generational integrity, understanding and support. The policy seeks to reach out to the elderly living in rural areas, in particular, who are dependent on family bonds.

The policy along with focusing upon nine areas of intervention, the policy also provides the mechanism for effectively implementing the policy.

3.4.5. Other Schemes

Some of the other schemes that are aimed at improving the quality of life of the elderly include,

  • A Scheme of National Award for Citizens
  • National Initiative on Care for Elderly
  • Old Age Social and Income Security Scheme under AADHAR

4. CONCESSIONS AND FACILITIES AVAILABLE TO THE ELDERLY

The elderly/ Senior Citizens in India are provided various welfare benefits to enable them to lead a happy, peaceful and dignified life without any neglect of any basic amenities. Some of such benefits include:

5. SUMMARY

The legal protection of the welfare and rights of the elderly in India can be summarised as follows:

The NPOP, 1999 is being reviewed and revised and a new National Policy on Senior Citizens is formulated. The new policy is yet to be implemented and is under finalisation.

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Reference: 

  • The Government of India declared the year 2000 as the National Year of Older Persons.
  • The State of Himachal Pradesh was first to enact a legislation concerning the maintenance of the elderly, called the “Himachal Pradesh Maintenance of Parents and Dependents Act, 2001.
  • A portal named “Old Age Solutions” (http://www.oldagesolutions.org) on technological solutions for elderly has been initiated by the Ministry of Science and Technology for enhancing the well-being of elderly.
  • Know Your Rights – Elderly People, 2011, National Human Rights Commission of India http://nhrc.nic.in/Documents/Publications/KYR%20Elderly%20English%20Final.pdf
  • 39th Report of the Standing Committee of Social Justice and Empowerment, Government of India on the Implementation of Schemes for Welfare of Senior Citizens (2013-2014) http://164.100.47.134/lsscommittee/Social%20Justice%20&%20Empowerment/15_S ocial_Justice_And_Empowerment_39.pdf
  • Human Rights of Older People in India – A Reality Check http://social.un.org/ageing-working-group/documents/fifth/AgewellFoundationHumanRightsofOlderPeopleinIndia.pdf
  • Facilities Extended to Senior Citizens http://www.indianrailways.gov.in/railwayboard/uploads/directorate/traffic_comm/ pdf/Facility_Sr_Citizen.pdf
  • http://socialjustice.nic.in/
  • http://www.helpageindia.org/aboutus/publications.html
  • http://socialjustice.nic.in/pdf/dnpsc.pdf