13 Access to Justice and Senior Citizen

Dr. Bharti Yadav

Introduction:

With the advancement in medical technology the human life expectancy has increased over past few years. This has led to a substantial increase in the population of old aged people in the country. In addition to this, Urbanisation, industrialisation and modernisation has led to the trend of nuclear family. The tradition of care and respect for elder is on decline. This has made senior citizens more vulnerable to crimes. On the top of all this, lack of cooperation from police; long, complicated and expensive judicial procedure also restrains elder people from lodging complaint against the criminal. Sometimes even senior citizens do not cooperate with the investigating agency. They do not provide details of their domestic helps and tenants for verification. They want their problems redressed without any action against the wrong doer who are often their own children relative or servant. Their casualness towards security advisers and fear of revenge from the accused is also contributing in rise of crime against them. Need of special provisions for the protection and welfare of senior citizens has been widely recognized both in international law and domestic law which is evident from the flow chart below.

International Law:

The question of welfare and security of elderly people has been a matter of concern even at international level which is evident from the following provisions for promoting the rights of senior citizens:

The UN General Assembly declared to observe the year 1999 as the International Year of the older persons in the year 1992.

The UN General Assembly declared 1st  October as the “International Day for the Elderly”. Now it has been renamed as the “International Day of the older person”.

The UN General Assembly on December 16, 1991 adopted 18 principles which are divided into five clusters which are independence, participation, care, self-fulfillment and dignity of the older persons.

Universal Declaration of Human Rights, 1948 under Article 3 provides right to life and security of person.

Universal Declaration of Human Rights, 1948 under Article 25(1) provides right to adequate standard of living for every person and his family.

International Covenant on Civil and Political Rights, 1966 under Article 6(1) and 9(1) provides right to life, liberty and security for every person.

International Covenant on Economic, Social and Cultural Rights, 1966 under Article 11 provides right to an adequate standard of living for himself and his family.

Constitution of India:

Constitution of India equally supports the need of senior citizens for special protection.

The enabling provisions for protection of senior citizens are as follows:

Article 41 provides for public assistance in case of old age. This provision is a part of directive principles so it is not enforceable but fundamental in governance of the country. So, State in under an obligation to keep in mind the question of public assistance to elderly people while governing country.

Item 9 of State list and Item 20, 23 and 24 of concurrent list relates to old age pension, social security, social insurance, economic and social planning. So it shows that protection of elderly people was there in the mind of Constitution framers while distributing the legislative subject matters.

Hindu Adoption and Maintenance Act, 1956:

Hindu Law also recognises some special rights for senior citizens. The statutory provision for maintenance of parents under Hindu personal law is contained in Section 20 of the Hindu Adoption and Maintenance Act, 1956. Some important features of the Act are as follows:

Both son and daughter are equally responsible to maintain their parents.

Only those parents who are financially unable to maintain themselves from any source, are entitled to seek maintenance.

Parent of any age can claim maintenance from children.

Muslim Law:

Under Muslim Law also children are bound to maintain their parents. According to Mulla:

Children having resources to maintain are bound to maintain their poor parents, even if parents are in position to earn something for themselves.

A son even if not having resources to maintain, is bound to maintain his mother, if the mother is poor irrespective of her capability of earning.

A son who is poor but earning something, is bound to support his father not earning anything.

According to the Muslim law, both sons and daughters have a duty to maintain their parents.

Christian and Parsi Law:

The personal laws of Christians and Parsis does not provide for maintenance for the parents. so they can apply under provisions of the Criminal Procedure Code.

Code of Criminal Procedure, 1973:

The Cr.P.C 1973 is a secular law and governs persons belonging to all religions and communities. The provision for maintenance of parents under the code was introduced for the first time in Section 125(1) of the Code of Criminal Procedure in 1973. Some important features of the provision are as follows:

Daughters, including married daughters, also have a duty to maintain their parents.

The code imposes an obligation of children to main their parents only if neglects or refuses to maintain despite of having sufficient means to maintain their parents.

Parents can claim maintenance from children only if they are unable to maintain himself or herself.

Age of parent is immaterial for claiming the right to maintenance.

Specific Relief Act, 1963:

Specific relief Act also under section 31 consists of enabling provision for protecting rights of senior citizens. Some important features of the provision are as follows:

If a written instrument, originally valid, becomes inefficacious by subsequent events, and its existence casts either an ambiguity upon the title of the other party or subject him to the danger of some future litigation.

Under such circumstances, although the written instruments have become void, courts interpose to prevent injustice or hardship and will decree a delivery and cancellation of the instrument.

Thus helping out a senior citizen to recover his/her property from someone who in reality is not the owner of the property.

Indian Contract Act, 1872:

The Indian Contract Act, 1872 under section 16 deals with instance of undue influence. It is of much use for senior citizens as generally people in dominant position take advantage of their position and tends to enter into contract disadvantageous for senior citizens. Important features of the provisions are as follows:

One of the essential ingredients for proving undue influence is if the other party is in a dominant position and takes advantage of the dominant position.

Under such circumstances if any contract is entered, then it’s a voidable contract. Thus giving right to senior citizen to get contract set aside.

Protection of Women from Domestic Violence Act, 2005:

This is another enabling Act under which senior citizens can take assistance for protection and claim compensation for the violence inflicted on them. Senior citizen who is a woman can complain against the domestic violence inflicted upon her by the person who is in domestic relation with her. Domestic relation includes relationship by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as joint family.

Legal Services Authorities Act, 1987:

This Act came into force in 1995 and proved to be a golden gift for poor people. The objective of this Act is to promote equal access to justice by providing legal aid. Lack of legal awareness and high litigation chargers are some of the reasons which restrains people from taking legal action against wrong doer. Many States under the rules framed under this Act, have made senior citizens entitled for free legal aid which includes free legal counselling, waiver of court fees, and free legal representation in court.

High Court Case Flow Management Rule:

Another factor which restrains people from filing case against the wrong doer is the delay in disposal of suit. To handle this problem as far as it concerns the elderly people, the Chief Justice of India has advised all the Chief Justices of High Courts to give priority to cases involving older people and ensure expeditious disposal. Punjab and Haryana High Court Case Flow Management Rules, 2007 provides that senior citizen cases should be tried in fast track courts and all efforts should be made to decide such cases with in six months.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007:

This Act under section 2 provides right and obligation for maintenance on the following person:

A parent, who is unable to maintain himself from his own earning or from his own property, can claim maintenance from one or more of their children.

A senior citizen who does not have children and is above the age of 60 years, and is unable to maintain himself from his own earning or from his own property, can claim maintenance from his relative who is his legal heir and is either in possession of his property or would inherit his property after his death.

The Act, defines parent broadly so as to include both father or mother either biological or adoptive or step.

Point to be noted here is that parent under this Act need not be above 60 years of age.

The term ‘children’ also has been defined broadly and covers both son or daughter or grandson or grand-daughter (excluding a minor). Therefore, even grandfathers can claim maintenance from their grandson or grand- daughter.

When it comes to children, the Act is not concerned about their financial capacity to provide maintenance.

But with regard to relatives, only those relatives that have sufficient means are entitled to maintenance.

Application for Maintenance:

Application for maintenance under the Act can be made by following person:

The senior citizen or the parent.

Any person or organisation that is authorised by the above in case he is incapable. Suo moto cognisance may be taken by the Tribunal itself.1

Procedure for claiming Maintenance:

The maintenance claim has to be decided by the Tribunal, which is headed by the Sub Divisional Officer of a State, within 90 days from date of issuing notice regarding the application to the children or relative.

This provision is important as it provides a time limit for dispensation of justice, something which is absent in section 125 of Cr.P.C.

The Act also provides that a parent or senior citizen can claim maintenance either under the Act or under section 125 of Cr.P.C but not under both.

The amount of maintenance that the Tribunal can order shall be according to the prescriptions of the State Governments but cannot exceed Rs. 10, 000/- per month.

The proceedings under the Tribunal are not expensive as the Act bars the representation of parties by legal practitioners.

But a maintenance officer, who is appointed by the State Government, can represent a parent or senior citizen if he/she desires.

An interesting provision of the Act is that it provides for the process of conciliation before hearing any application of maintenance wherein, the conciliation officer would try to bring about an amicable settlement of the dispute and submit his findings and the Tribunal shall pass an order accordingly.The intention behind such a provision is to maintain the sanctity of the family as an institution.

Establishment of Old age homes:

The Act talks about establishment of old age homes, wherein discretion has been given to the State Government to establish and maintain old age homes at accessible places, which should accommodate at least 150 indigent senior citizens.

Also, State Governments have been given discretion to prepare a scheme for management of old age homes, which is to include standards to be maintained and services to provided by such old age homes.2

Provisions for Medical care of senior citizens:

The Act provides for medical support for senior citizens, wherein State Government shall ensure that government hospitals, or hospitals funded fully or partially by the Government to provide beds for all senior citizens, separate queues for senior citizens, facility for treatment of chronic, terminal and degenerative diseases, expansion of research activities for chronic elderly diseases and ageing, and facilities for geriatric patients in every district hospital headed by a medical officer with experience in geriatric care.3

Protection of life and property of senior citizen:

There are many cases where a senior citizen transfers his property to his relatives and who after taking possession of the property throw him out on the streets leaving him all alone.

To provide protection from such activities the Act provides that after the commencement of the Act, if a senior citizen transfers his property by way of gift or otherwise under the condition that the transferee will take care of his basic needs and if the transferee fails to do so then such a transfer would be deemed to be made by fraud or coercion or undue influence and declared void at the option the transferor.4

Offences and Procedure for Trial:

If any person having the responsibility for care and protection of a senior citizen, leaves such senior citizen in any place with the intention of abandoning such senior citizen shall be punished with imprisonment for of term of three months or with fine up to Rs 5000 or both.

Every offence under this Act shall be cognizable and shall be tried summarily by a Magistrate.

Government Policies and Schemes for Older Persons5:

The government has launched various schemes and policies to promote the health, well-being and independence of senior citizens around the country. Some of these programmes have been enumerated below:

National Policy for Older Persons:

The central government came out with the National Policy for Older Persons in 1999 to promote the health, safety, social security and well being of senior citizens in India. The Policy recognizes a person aged 60 years and above as a senior citizen. This policy strives to encourage families to take care of their older family members. It also enables and supports voluntary and non-governmental organizations to supplement the care provided by the family and provide care and protection to vulnerable elderly people.

The policy has identified a number of areas of intervention ~ financial security, healthcare and nutrition, shelter, education, welfare, protection of life and properly etc. for the wellbeing of older persons in the country. The main objective of this policy is to make older people fully independent citizens.

This policy has resulted in the launch of new schemes such as-

Strengthening of primary health care system to enable it to meet the health care needs of older persons

Training and orientation to medical and paramedical personnel in health care of the elderly.

Promotion of the concept of healthy ageing.

Assistance to societies for production and distribution of material on geriatric care. Provision of separate queues and reservation of beds for elderly patients in hospitals. Extended coverage under the Antyodaya Scheme with emphasis on provision of food at subsidized rates for the benefit of older persons especially the destitute and marginalized sections.

National Council for Older Persons:

A National Council for Older Persons (NCOP) has been constituted by the Ministry of Social Justice and Empowerment to give a backbone to the National Policy on Older Persons. The basic objectives of the NCOP are:

to advise the Government on policies and programmes for older persons,

to provide feedback to the Government on the implementation of the National Policy on Older Persons as well as on specific programme initiatives for older persons advocate the best interests of older persons,to provide a nodal point at the national level for redressing the grievances of older persons which are of an individual nature provide lobby for concessions, rebates and discounts for older persons both with the Government as well as with the corporate sector to represent the collective opinion of older persons to the Government to suggest steps to make old age productive and interesting to suggest measures to enhance the quality of inter-generational relationships. undertake any other work or activity in the best interest of older persons.

Conclusion:

We have ample legal provisions for safeguarding the interests of elderly people. The only need of the hour is the effective implementation of these provisions. Spreading of legal awareness among senior citizens and encouraging the senior citizens to cooperate with the police by following the security measures like sharing details of their tenants and servants with the police, can actually help in better implementation of these provisions

References:-

• ‘A Second Innings, (Nov.1, 2013), available at http://www.thehindu.com/todays-paper/tp-national/a-second-innings/article5303141.ece.
• Aimee R. Fagan, An Analysis of the Convention on the International Protection ofAdults, 10 Elder L.J. 329 (2002).
• Anuradha Thakur, Care of Senior Citizens and the Role of the State, ECONOMIC AND POLITICAL WEEKLY 11 (2008), available : http://www.epw.in/system/files/pdf/2008_43/17/Care_of_Senior_Citizens_and_the_Role_of_ the_State.pdf.
• Art Lee, Singapore’s Maintenance of Parents Act: A Lesson to be Learned from the United States, 17 LOY. L.A. INT’L & COMP. L.REV 671 (1995), available at: http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1362&context=ilr.
• Dr. Shashi Nath Mandal, Protection of Rights of Old age Person in India: A Challenging Facet of Human Rights, Global Journal Of Human Social Science, Volume 11, Issue 5, Global Journals Inc. (USA), August 2011, available at https://globaljournals.org/GJHSS_Volume11/4-Protection-of-Rights-of-Oldage-Person-in-India.pdf.
• Elderly People, Know Your Rights Series, National Human Rights Commission, New Delhi, 2011, available at http://www.nhrc.nic.in/Documents/Publications/KYR%20Elderly%20English%20Final.pdf
• HelpAge International 2009, Why it’s time for a convention on the rights of older people, written by Bridget Sleap, HelpAge International, London, viewed 1 May 2012, available at www.helpage.org/download/4c3cfa0869630/
• Human Rights Of Older Persons In India – A National Study, Agewell Research & Advocacy Centre, April 2011, available at http://www.globalaging.org/elderrights/world/2011/Study%20on%20Human%20Rights%20i n%20india.pdf.
• Maintenance Tribunals: A Ray of Hope, (May 19, 2013), available at http://www.thehindu.com/news/cities/Delhi/maintenance-tribunals-a-ray-of-hope/article4729821.ece, (Nov.23, 2013, 11.47 PM).
• Partha Sarathi Adhya, The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Requires Serious Amendments,19 HELPAGE INDIA-RESEARCH & DEVELOPMENT JOURNAL 40(2013), available at: http://www.helpageindia.org/helpageprd/index.php?option=com_publishing&view=authorart icle&Itemid=10&name=Partha%20Sarathi%20Adhya.
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• Ret v. Murgia 427 U.S. 307 (1976) 43
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