Matree devo bhava, Pitree devo bhava-these Sanskrit proverbs rightly reflect and emphasize the importance of parents. In our Vedas and Upanishad the principle is enshrined that parents must be worshiped as God and Goddess and should be placed in a very high position.

Senior citizens are the treasure of our society. They link with past, present and future. They can pass family values to the upcoming generation. As they lived their lives they can easily predict some truths of life. When the storm of change and new trend blows all around, it necessitates newer responsibility and newer responses to achieve the ultimate objective. With the progress of medical science and technology there has been a remarkable as well as appreciable increase in the rate of life expectancy.

As a result of this, the issue of the protection of elderly person’s right becomes very sensitive. Although in our present days there is a random upliftment of our lives towards a modern and globalised society, the traditional norms and status of senior citizen are randomly degraded. They lack physical, financial and emotional support. They are totally exposed to such a vulnerable situation where there is no one to act as a balm to their wounded souls, not even their own children. To eradicate this agony some legislative measures are taken into force, but to some extent these are inadequate to cope up all the complicated and problematic situations.

In present Indian society, there is an emerging trend of making nuclear families. Sometimes it is happening by choice and sometimes it is accelerated by the lust of Modernization, by compulsion, or occupational need. In every case senior persons are bound to live a lonely life. The moral duty under divine law to take care of one’s parents is recognized in all communities. But unfortunately there is a constant degradation of the said value system and automatically government has no other option but to poke its nose into one’s family matter.

Hence, there is a real need to help them, to make their lives prestigious, dignified and to inject confidence into themselves to improve their lives in every sense.

This very article is done with an object to highlight all those provisions of law, which are provided as the protective measures of the rights of elderly persons and at the same time to unveil some grey areas, which are filled with insufficiency, incompleteness. It is a try to analyze the existing legal position and to give some suggestions to improve the situation.

Constitutional Measures:
However, Constitution of India does not specifically as well as particularly provide the rights for senior citizens of our country but in general all the fundamental rights can be availed by all the citizens of India. Therefore, from this one can conclude that indirectly all those rights can be used as the protective measures by senior citizen. An infringement of those rights is subject to judicial review. Some fundamental rights and some directive principles of state policies can be vividly used by senior citizens to establish their rights. Those are discussed in the following manner.

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Article 21

Article 21 of Indian constitution protects life and personal liberty of an individual. But the judicial intervention expands the scope of Article 21 by which if paves way to include the various types of rights including right to enjoyment of pollution free and healthy environment[1], the right to health and medical care[2] ,emergency aid to medical facilities[3], right to livelihood[4], right to live a dignified life[5], right to social security[6] and right to live with proper or just reputation of a person in his valuable asset[7].

Apart from these above, there are so many landmark judgments, which directly do help to uplift the vulnerable position of the deprived senior citizen. Right to have shelter[8], right to free legal aid[9], right to speedy trial[10], right against in human treatment[11], are some of those. It is noteworthy to mention here that in a landmark judgement[12], the Apex court has held that the state is bound to protect the life and liberty of every human being where he is a citizen or non-citizen.

In Another landmark judgement, the Apex court has held that the people who are starving because of their inability to purchase food grains have right to get food under Art. 21 and therefore they ought to be provided the same free of cost by the States out of surplus stock lying with the states particularly when it is unused and rotting. The court held that under such a situation food grains be provided to all these who are aged, infirm, disabled, destitute women, destitute men etc.

Accordingly, the court directed the states to make surplus food grains lying in godowns available to all of them immediately through PDS shops to avoid starvation and mal nourishment. In this context, two recent judgements are noteworthy to be mentioned.

1. Firstly, right to electricity is included in right to life and
2. secondly court held that the wife could not object to the donation of an organ by husband to his ailing father on the ground of violation of her fundamental right to life under Article 21 of Indian Constitution.

Article 41:

Article 41 is in the part IV of the Constitution i.e., Directive Principles of State Policy. According to this Article, the State shall, within the limits of its economic capacity and development, make effective provision for securing right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Therefore, this Article 41 has particular relevance to old age social security.

Article 309:

Article 309 of Indian Constitution says that the acts of appropriate legislature may regulate the requirement and conditions of service of persons appointed to public services in connection with the affairs of union or of any state. The governments concerned frame rules and regulations from time to time laying conditions of service including retirement benefits to its employees.

This very article provides that the recruitment procedure, appointment and service condition rules of Union and States will have to pass through the test of ‘Constitutional validity’ .That means the union and state legislatures cannot frame out any regulation which clashes with the fundamental rights of a citizen.

So from the above discussion one can say that if the conditions for retirement whether it is compulsory or voluntary or any other service condition which affects the rights of an aged person can be challenged and struck down. Our Apex court has laid down that if a compulsorily retired person has not been provided the reasonable opportunity to defend, the principles of natural justice, the sine-qua-non of every proceeding and the requirements of Article 21, the signature true of Constitution of India have not met with, the retirement order cannot be said to be valid on the touch stone of judicial review.

In the constitution of India, entry 24 in list III of schedule VII deals with the concept of welfare of labour, including condition of work, provident funds, liability for workmen’s compensation, invalidity and old age pension scheme etc. Therefore, Union and State both can make separate pension rules to provide social protection and security to the aged. The story does not end here. Our Constitution also empowers the states under the entry no. 42 to frame the laws, rules and schemes separately for the aged. Item No. 9 of the state list and item no. 20, 23 and 24 of concurrent list relate to old age pension, social security, insurance, social and economic planning.

The parameters laid down in the Preamble and the concepts of welfare states are the guiding principles. For security and protection through the means of socio-political-economic justice, the state shall strive to reduce the inequalities in income, status and provide facilities and opportunities. In order to achieve these goals some statutory provisions are provided for the upliftment of aged persons or senior people in every sphere of their lives. Senior Citizen Act is most prominently one of them.

Historical Background of the Maintenance And Welfare of Parents And Senior Citizens Act, 2007

In pursuance of the understanding at International level, the Govt. of India initiated and declared National Policy on Older Persons in 1999. This NPOP recognized certain rights of the aged people and further declared government’s responsibilities towards providing economic and social security along with healthcare facilities and protection of life and property of the aged people. In spite of the declaration of said policy in 1999, even after decade no steps were taken to implement it. There was strong and consistent pressure from different organizations, NGOS on the Govt. regarding the implementation of it. This resulted in the passing of the legislation in 2007.

Salient Features of the Act:

This is an unique Act dealing with the issue of senior citizens and having following important features.

ž This legislation provides for the maintenance of parents and senior citizen. The definition of maintenance covers all necessities and requirements of life.

ž It also includes childless senior citizen. He can claim maintenance from other relative who is a legal heir of that senior citizen or who is in possession of or would inherit his property after his death.

ž The State Govt. has to constitute the Tribunal. The Tribunal can take cognizance suo-moto as well as upon receipt of application by senior citizen. So, it’s jurisdiction is very wide.

ž The maximum maintenance allowance may be prescribed by the State Govt. and which shall not exceed Rs. 10,000/- per month.

ž The person against whom an order is passed has to comply with the order within one month.

ž In holding inquiry, the Tribunal may follow summary procedure. And it has all the powers of Civil Court.

ž Copy of the order should be provided to the parents or senior citizen at free of cost.

ž Appeals are required to be filed within 60 days But appeal can be entertained by the Appellate tribunal beyond this period with sufficient explanation.

ž The party cannot be represented by legal practitioner.

ž State Govt. has to establish and maintain old age homes at least in each district which shall have minimum 150 senior citizens who are indigent.
ž This Act is having provisions for medical care for senior citizens.

ž A senior citizen who has transferred his property either to his children or any near relative by virtue of a will or gift, can cancel the same by applying to the tribunal, if he/she is neglected or refused to provide basic amenities.

ž If they are abandoned with an intention by a person to take care and protection then he is liable to punishment.

žThis Act, bars the jurisdiction of a civil court and further provides that no injunction shall be granted by any Civil Court in respect of anything done or intended to be done by or under this Act.
From the above features it appear that senior citizen is now protected from all sides. After the passing of this enactment, various bills came into force to rectify or improve the existing legislation. Recently another bill comes into being in 2017. Some recommendations are made viz. constitution of National Commission and its functions[13] etc.

Legislative drawbacks And Suggestions: A Comparative Analysis

The legislative draftsmen have taken a adequate care and caution to protect the rights of old parents and senior citizens. But there are many grey areas for which the proper and effective implementation cannot be made possible. Some of these are discussed as follow:

1. First of all maximum monetary relief of Rs. 10,000/- is provided under this Act which is not adequate to the person who is residing in city or who is suffering from any illness where medical expense is huge. Not only that sometimes it appeases that against whom the order is made the person concerned is rich enough to bear more burden. So, this is a great loophole of this Act. It must be amended.
    
2. Secondly, total exclusion of legal professionals and total exclusion of the jurisdiction of civil court is not at all beneficiary.
   
   The participation of legal professionals must be optional. The old persons who are indigent, can avail the benefits of legal aid.
   
   The Act mentions that Sub-divisional officer is to be presided as the officer of Tribunal, He is already overburdened by his administrative works. Some legal technicalities may arise or some situation may also arise where the presiding officer has to declare any right, title or interest in favour of the aggrieved party, which is beyond the power of an administrative officer.
   In those situations the court can handle it more maturity and excellencies. Therefore, total exclusion of court’s jurisdiction is not justified.
    
3. The Act allows the state Govt. to establish old age homes, it does not make it mandatory.
    
4. The Act does not clear the view regarding the taking of responsibility of senior citizens who do not have children or any relative. In that situation whether state will take the burden or not and what will be the extent. If the son is indigent, how can he maintain his parents or grandparents? How would the Tribunal adjudicate such disputes? So all those provisions should be inserted by new amendments.
    
5. A situation may arise where parents who have no son but only daughter and they reside with their daughter and son-in-law. Then can Son-in-law be included in the definition of children u/s 2(a) when the daughter is nonearning. The purview of the definition should be wider.
   
   Another point is worthy to mention here that when the son is rich NRI and his parents are living in India what would be international as well as municipal law by which the rich NRI would have no other option to maintain his parents properly. Therefore, these grey areas should be clarified by effective and proper implementations.
    
6. According to the provisions of this Act, liability can be imposed on a person who happens to be a relative of that senior citizen on the stipulation that in near future that person will inherit the property of that senior citizen. It is totally unreasonable because there is no guarantee that the said relative will get the property. The senior citizen can sell the property to any other person or he can make any will in favour of any other person before his death. Therefore, change must be there regarding this point.
    
7. State Govt. should make provisions for selling up the counseling centers, help lines and organize seminars, programmes to increase confidence among the old persons and to make them aware regarding their rights and the protection available in the statutory provisions.
    
8. The legislations, which are beneficiary to the rights of senior citizen and old parents, need more publicity. NGOS, various organizations and Corporate sectors through their CSR (Corporate Social Responsibility) should play active role to encourage the public participation in this regard.
    
9. The senior Citizen Act is passed by the Central Govt. but still it has not been implemented by many states and the states which implement this enactment, they do not pay any heed to redress the present problem with serious efforts.
    
10. Whatever may be the laws without effective implementing machinery, the very object cannot be achieved. Senior citizen cells should be established by the state govt. Police patrolling should be intensified in areas to decrease the crimes against elderly persons.
     

Concluding Remarks:
Though there are several numbers of laws and govt. policies made for the protection of rights of senior citizens and old parents but nothing much have been achieved so far. As we all know that our Indian society is blended with culture and emotion it is really very difficult for parents to drag their children to the doors of court or tribunal and in most of cases they start forgiving as well as sacrificing their rights. Because of this, the next generation does not have to face the proper lesson.

The other side of the story is that when the technicalities of legal procedure enter into a house, love, affection or bonding between the two generations fades away. Until the total mindset of our society is changed, unless they do believe in the notion that they are complementary and supplementary to each other no law can change the scenario.

It is noteworthy to conclude this article with the words of S. S Hooper-
I slept and dreamt that life was Beauty,
I woke and found that life was Duty.

So, without performing the sacred duty one cannot see the real beautiful life. Sometimes it sounds like a cheerless performance but somehow in the end it will give queer sort of satisfaction.

End-Notes:

1. (1999) 2 SCC 718 and (1991) 1 SCC 598.
2. (1997) 2 SCC 83.
3. (1989) 4 SCC 286.
4. (1985) 3 SCC 545.
5. (1981) 1 SCC 608.
6. 1991 Supp (1) SCC 600.
7. (2009) 7 SCC 559.
8. (1994) 6 SCC 349.
9. (1978) 3 SCC 544.
10. (1980) 1 SCC 93.
11. (1981) 1 SCC 503.
12. (1996) 1 SCC 742.

References:

1. Jain M.P., Indian Constitutional Law, Wadhwa and Wadhwa Co. Nagpur, 5th edn. Rep. 2007
2. Pandey J.N., The constitutional Law of India, Central Law Agency, Allahabad, 48th edn. 2011
3. Rai Kailash., The Constitutional Law of India, Central Law Publications, Allahabad, 11th edn. Rep. 2015
4. Basu DD, Introduction to the Constitution of India, Wadhwa Nagpur, 19th edn., Reprint 2004
5. The Maintenance And Welfare of Parents And Senior Citizens Act, 2007 (No. 56 of 2007)
6. The Maintenance And Welfare of Parents And Senior Citizen (Amendment) Bill, 2017.
7. http://dx.doi.org/10.21013/jems.v3.n3.p19 (visited on 1st June, 2018)
8. http://www.helpageindia.org/downloads/seniorguide.pdf (visited on 4th June 2018)
9. http://www.legalserviceindia.com/article/print.asp?id=170 (visited on 11th June 2018)
10. http://www.thehindu.com/2007/03/21/stories/2007032102181500.htm (visited on 5th July 2018)

Written By: Suravi Ghosh
B.A. (English Hons),Ll.B, Gold Medalist Ll.M, Gold Medalist, Dept of Law University of Burdwan, Guest faculty Member in Law Dept of Law, University of Burdwan, Advocate at Burdwan District And Sessions Judges’ Court, Dist. Purba Bardhaman. PIN. 713101, West Bengal.
Contact Details: 9735864662, Email Id: [email protected]