“HOW IS THE INDIAN LEGISLATION HONOURING THE RESPECT AND DIGNITY OF THE GOLDEN AGERS AGAINST THE ABUSIVE CONDUCT OF THE CHILDREN?”
By- Dr. Navpreet Kaur
- In this article, we explore the legal framework in place to combat elderly abuse and neglect, aiming to foster a society where the elderly are treated with the respect, care, and honor they deserve.
Unmasking the Hidden Reality: Elderly Abuse in a Changing World
The issue of aging has been raised at the United Nations from time to time since 1948. The World Assembly on Ageing was held in Vienna in 1982 where an International Plan of Action on Ageing was adopted with the objective to strengthen the ability of individual countries to deal effectively with the aging in their population, keeping in mind the special concerns and needs of the elderly. In 1991, the UN General Assembly adopted certain principles aimed at independence, participation, care, self-fulfillment, and dignity of older persons.
In certain situations, contrary to the above mentioned instead of being respected and honored, the senior citizens are being abused financially, physically, emotionally tortured, negligent, etc. which lacks the basic human rights for their fragility of age.
But often older adults do not report any complaints of fear of detachment, embarrassment, loyalty, isolation, cognitive impairment, lack of awareness, etc.
Understanding Elderly Abuse: Definition, Consequences, and Impact
According to World Health Organization, elder abuse can be defined as “a single, or repeated act, or lack of appropriate action, occurring within any relationship, where there is an expectation of trust, which causes harm or distress to an older person.”
Elder abuse can lead to devastating consequences, including physical and/or emotional harm and even death. Such abuse isn’t of just one action or inaction and it can take many forms including:
- Physical abuse
- Sexual abuse
- Emotional or psychological abuse
- Financial abuse
How does Indian Legislation stand against the abuse of the elderly?
- PROTECTION UNDER THE INDIAN CONSTITUTION: –
The Preamble declares to secure to all its citizens social, economic, and political justice, liberty of thought, expression, belief, faith, and worship; equality of status and opportunity and to promote among them fraternity to secure the dignity of the individual and the unity and integrity of the nation.
Art. 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Art. 38 (1) provides that, the State shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of the national life.
Art. 39 provides that the State shall, in particular, direct its policy toward securing
(a) That the citizens, men, and women equally, have the right to adequate means to livelihood,
(b) That there is equal pay for equal work for both men and women,
(c) That the health and strength, of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocation unsuited to their age and strength;
Art. 41 makes the provision for the well-being of the Older Persons has been mandated in the Constitution of India.
Article 41 of the Constitution provides that, the State shall “make effective provisions for securing the right to work, to education and public assistance in case of unemployment, old age, sickness, and disablement and other cases of undeserved want within the limits of its economic development and capacity”.
Art. 46: Promotion of educational and economic interests of ……. and other weaker sections: The State shall promote with special care the educational and economic interests of the weaker sections of the people…..and shall protect them from social injustice and all forms of exploitation.
Art. 47 states that the State must raise the level of nutrition and the standard of living and to improve public health.
These provisions are included in Chapters III and IV i.e., Fundamental Rights and Directive Principles of the Indian Constitution, respectively. The Directive Principles, as stated in Article 37, are not enforceable by any court of law.
But Directive Principles impose positive obligations on the state, i.e., what it should do. The Directive Principles have been declared to be fundamental in the governance of the country and the state has been placed under an obligation to apply them in making laws.
Item No. 9 of the State List and item 20, 23, and 24 of the Concurrent List relates to provisions of old age pension, social security, social insurance, and economic and social planning and reliefs to the disabled and the unemployed.
The Government of India is committed to providing an enabling environment to secure the goals of economic and social security for the elderly population. The non-governmental organizations, citizens, and the community have to be partners in the campaign toward securing a society for all ages.
LEGAL PROTECTION UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007
The Maintenance and Welfare of Parents and senior citizens 2007 is a major law presented by the Ministry of social justice and Empowerment. This law establishes a quick and inexpensive process for senior citizens and parents to request monthly maintenance. Additionally, this Act permits the construction of nursing facilities to care for the elderly.
- Who is a Senior Citizen, Parent, Child, or Relative under the Act?
“Senior citizen” is any citizen of India of 60 years and above whether living in India or not. “Parent” is the father or mother even if not 60 years yet. “Children” are adult sons, daughters, grandsons, and grand-daughter “Relatives” are those who are either in possession of the property of the senior citizen or would inherit it.
- Who can demand maintenance under the Act?
Parents and grandparents who are unable to maintain themselves from their income can demand maintenance from their children as defined above and “Childless Senior Citizens” who are unable to maintain themselves from their income can demand maintenance from their relatives as defined above.
- What is Maintenance?
Maintenance includes provision for food, clothing, residence, medical attendance, and treatment. The maximum amount which may be ordered for maintenance of a senior citizen by the Tribunal shall be such as prescribed by the State Government which shall not exceed Rs. 10,000/- per month.
- Who is entitled to Maintenance?
Parents, grandparents, and senior citizens who are unable to maintain themselves from their income and property are entitled to demand maintenance from their children and specified relatives respectively with sufficient means.
- Whose obligation is it to maintain the elderly?
It is the obligation of the children and specified relatives with sufficient means to provide maintenance for their parents and childless senior citizen respectively.
- How is an Application for Maintenance made and decided under the Act?
Application for maintenance may be made by the senior citizen or parent to the Tribunal under Section 4 in layperson’s language giving names, full details, and addresses of the persons from whom they are demanding maintenance.
If there is more than one child or relative, they may claim maintenance from one or all of them depending on their means of income. Maintenance proceedings may be initiated against any child/children or relative in any district where the parent or senior citizen lives or last lived or where the child/children or relative live.
If such applicants are incapable of making an application themselves, any other person or registered voluntary organization authorized by him/her can make the application; or the Tribunal can take suo motu cognizance and proceed. Upon receipt of the application, the Tribunal would issue notices to the children, conduct hearings, take evidence, and order maintenance.
The tribunal may also refer the case for reconciliation or pass interim orders for maintenance. If the children or relatives failed to pay the ordered maintenance without sufficient reason for 3 months after its due date, the senior citizen can approach the Tribunal again and may impose a fine or order imprisonment of the child/relative for up to a month or until payment is made whichever is earlier.
- What if the elderly themselves and their children and specified relatives do not have sufficient means to maintain them?
State Governments may establish, in a phased manner, sufficient senior citizen homes and maintain the same for indigent or abandoned and neglected (by their kith and kin) beginning with at least one Old Age Home in each district sufficient to accommodate a minimum of 150 elderly.
State Government may also prescribe schemes for the management of old age homes, set standards and prescribe minimum services for medical care and entertainment of the elderly in the Old Age Homes.
Conditional Transfer of Property
An important provision has been made for the elderly to claim their property back from children if given conditionally after the commencement of the Act on the promise of looking after their needs and amenities if such promise is not fulfilled.
Under Section 23, if after the commencement of the act, any parents or senior citizens have transferred their property to their children or relatives on the condition that they would provide certain maintenance and amenities to the senior citizen but subsequently neglect or refuse to do so the parents or senior citizens can get such transfers voided (canceled) at their option by having such transfer treated as a fraudulent or coercive acquisition and seek the return of their property so transferred.
PROTECTION UNDER CRIMINAL LAW
If any person having sufficient means neglects or refuses to maintain his father or mother who is unable to maintain themselves can make an application to the Magistrate of first class.
PROTECTION UNDER THE PERSONAL LAWS
- PROTECTION UNDER THE HINDU ADOPTION AND MAINTENANCE ACT, 1956
Section 20 of the Hindu Adoption and Maintenance Act, 1956 emphasizes the maintenance of aged persons. The provision mentions that a Hindu is bound, during his lifetime to maintain his aged or infirm parents to the extent unable to maintain out of their earnings or property. Both the son and daughter are liable for the maintenance of their aged parents.
- PROTECTION UNDER MUSLIM PERSONAL LAW
According to Tyabji’s Muhummadam Law principles, parents and grandparents who need maintenance have a right under Hanafi Law to receive it from children and grandchildren who have means, even if they can support themselves.
Even if parents can support themselves financially, children must care for their destitute parents.
Even in difficult situations, a son has the right to support his mother. even when the mother is healthy.
Even if he is not making money, a son must support his father.
INITIATIVES TAKEN BY THE GOVERNMENT FOR THE SENIOR CITIZENS
Main Key Points of NALSA (Legal Services to Senior Citizens) Scheme, 2016:
- Objective: The ultimate objective of the Scheme is to ensure that senior citizens live a life of dignity and enjoy all the benefits and facilities due to them.
- Basic Rights and Benefits: The scheme aims to outline the basic rights and benefits that should be accorded to senior citizens.
- Strengthening Legal Aid: It focuses on strengthening legal aid and representation at national, state, district, and taluka levels for senior citizens entitled under Section 12 of the Legal Services Authorities Act, 1987. This helps them avail benefits from various legal provisions.
- Access to Governmental Schemes: The scheme ensures that senior citizens have access to various governmental schemes and programs designed for their welfare and well-being.
- Establishment of Institutions: It facilitates the establishment of authorities and institutions, such as Tribunals and Appellate Tribunals under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, as well as old age homes for senior citizens.
- Awareness Creation: NALSA aims to create and spread awareness about the rights and entitlements of senior citizens under various laws and governmental schemes. This awareness campaign is conducted through District Legal Services Authorities, Taluka Legal Services Committees, panel lawyers, para-legal volunteers, students, and legal services clinics.
- Capacity Building: The scheme works towards enhancing the capacities of panel lawyers, para-legal volunteers, volunteers in legal services clinics, government officers, service providers, police personnel, and non-governmental organizations. This is achieved through training, orientation, and sensitization programs.
- Research and Documentation: NALSA undertakes research and documentation to study the various schemes, laws, and other aspects concerning senior citizens. The goal is to identify gaps, and needs, and make appropriate suggestions to the authorities for better implementation.
- INTEGRATED PROGRAMME OF OLDER PERSONS:
The Ministry of Social Justice and Empowerment serves as a focal point for the protection of senior citizens. The program’s primary goal is to enhance the quality of life for seniors by providing access to necessities including housing, food, medical treatment, and entertainment.
- RASHTRIYA VAYOSHRI YOJANA:
The initiative is overseen by the Ministry of Social Justice and Empowerment and funded by the Senior Citizens’ Welfare Fund. The fund was notified in 2016.
The RVY program assists and assisted living gadgets to older adults classified as BPL. These adults experience age-related issues such as low vision, hearing loss, tooth loss, or locomotor impairments.
The program is carried out by the Artificial Limbs Manufacturing Corporation of India (ALIMCO), a public sector organization under the Ministry of Social Justice and Empowerment.
- RASHTRIYA SWASTHYA BIMA YOJANA:
Beneficiaries of this program receive family floater insurance coverage up to Rs. 30,000 a year, covering a total of five family members—the head of the home, their spouse, and up to three dependents.
- NATIONAL PROGRAMME FOR THE HEALTH CARE OF THE ELDERLY:
By the UN Convention on the Rights of Persons with Disabilities, the government’s international and domestic commitments are articulated in the National Programme for the Health Care for the Elderly.
The program has achieved the following outcomes:
- Establishment of Regional Geriatric Centres (RGC): Eight Regional Medical Institutions now have dedicated Regional Geriatric Centres with specialized Geriatric OPD and 30-bed Geriatric wards. These centers cater to the management of specific geriatric disorders, providing specialized healthcare services to elderly patients.
- Training of Healthcare Professionals: Healthcare professionals have undergone specialized training in geriatric health care. This training equips them with the necessary skills and knowledge to provide quality medical care to senior citizens.
- Research Initiatives: The program has facilitated research in the field of geriatric medicine. This research helps in gaining a deeper understanding of geriatric health issues and finding effective solutions for the elderly population.
- Promotion of Geriatric Medicine Education: Sixteen graduate students in geriatric medicine have been trained at local medical schools. This initiative aims to promote and strengthen geriatric medicine education in the country.
- District Geriatric Units: The program has established District Geriatric Units in 80-100 District Hospitals. These units have dedicated Geriatric OPDs and 10-bed Geriatric wards to address the healthcare needs of elderly individuals at the district level.
- Geriatric Clinics and Rehabilitation Units: Geriatric Clinics and Rehabilitation units have been set up to provide domiciliary visits. These units offer specialized medical services and rehabilitation support to senior citizens in the comfort of their homes.
Overall, the program’s outcomes demonstrate significant progress in enhancing geriatric healthcare services, education, and research in India. The establishment of specialized centers, training of healthcare professionals, and setting up of geriatric units across districts have collectively contributed to improving the quality of life and well-being of the elderly population.
“Matru Devo Bhava” and “Pitru Devo Bhava” are phrases from our Vedas that refer to treating and worshipping one’s parents as Gods, but the very same is not being followed in its true spirit. Instead of abusing elder people physically, emotionally, and financially, neglecting them, and committing abduction they should be honored and worshipped.
India is a country that has a great culture of respecting and worshiping the elders and the same is being deviated in the wrong path in the world of urbanization.
The number of old age homes is rising, and the children who should be guided by their grandparents are been thrown into hostels in the name of Education. In the age of fragility, senior citizens deserve peace, security, and love.
- World Health Organization (WHO), Elder Abuse, Definition. Retrieved from https://www.who.int/ageing/projects/elder_abuse/en/
- The Constitution of India, Ministry of Law and Justice, Government of India.
- The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Ministry of Social Justice and Empowerment, Government of India.
- Criminal Procedure Code, 1973, Ministry of Law and Justice, Government of India.
- Hindu Adoption and Maintenance Act, 1956, Ministry of Law and Justice, Government of India.
- Muslim Personal Law, Tyabji’s Muhummadam Law, and Mulla principles.
- NALSA (Legal Services to Senior Citizens) Scheme, 2016, National Legal Services Authority, Government of India.
- Integrated Programme for Older Persons, Ministry of Social Justice and Empowerment, Government of India.
- Rashtriya Vayoshri Yojana, Ministry of Social Justice and Empowerment, Government of India.
- Rashtriya Swasthya Bima Yojana, Ministry of Health and Family Welfare, Government of India.
- National Programme for the Health Care of the Elderly, Ministry of Health and Family Welfare, Government of India.
- Varishtha Pension Bima Yojana, Ministry of Finance, Government of India.