Subject:-

Human Right Law & Practice

TOPIC:-
Human Rights of the Aged Persons:
with Special Reference to Senior
Citizens Act.

Pritam Muhuri
B.Com. LLB (08)
10th Semester, 5years.

INTRODUCTION
 Population aging is a worldwide phenomenon, and India is no exception. Indian
population has approximately tripled during the last 50 years, but the number of elderly
Indians (60+) has increased more than four folds.

With fast changing socio-economic scenario, industrialization, rapid urbanization, higher

aspirations among the youth and the increasing participation of women in the workforce,
roots of traditional joint family system has been eroding very fast. In urban areas of the
country traditional joint family system has become thing of past. In such changing situations,
majority of older people, who have passed most part of their life with their joint/extended
families are on the verge of isolation or marginalization in old age. At this age, when they
need family support most, they have to live on their own. Even basic needs & rights of many
of them are not addressed. Social marginalization, loneliness, isolation and even negligence
in old age lead violation of Human Rights of Older people.

Ironically, in India older generations are not aware of their human rights due to high
prevalence of illiteracy and lack of awareness. On the other hand, due to comparatively high
physical as well as psychological vulnerability their cries for help remain within four-walls,
that’s why only a few cases of violation of human rights of elderly come out. Ever-increasing
numbers of distress calls from older people clearly indicate disturbing condition of Human
Rights of Older people in India.

Rights of the Elderly

In general, the rights stipulated for the older persons in international instruments stem
from the principles of dignity and non-discrimination. The rights of older persons can be
divided into three main categories: protection, participation and image. Protection refers to
securing the physical, psychological and emotional safety of older persons with regard to
their unique vulnerability to abuse and ill treatment. Participation refers to the need to
establish a greater and more active role for older persons in society. Image refers to the need
to define a more positive, less degrading and discriminatory idea of who older persons are
and what they are capable of doing.

Definition as per Art. 25 of Universal Declaration of Human Rights

Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.
Older people face particular difficulties
in the following key areas:
 Physical & Mental Health
 Community Care;
 Social Care
 Housing
 Transport
 Employment Income
 Education And Leisure
 Safety & Security
 Utilities & Consumer Protection
 Access to information and
 Decision-Making

Human Rights of Older People

i. Right to life shall be protected by law.
ii. Right not to be subjected to inhuman
treatment “No-one shall be subjected to torture or to inhuman or degrading treatment
or punishment”.
iii. Right to liberty “Everyone has the right to liberty and personal security.
iv. Right to a fair hearing “In the determination of his civil rights and obligations...
everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law”.
v. “Civil rights and obligations”.
 The right to respect at home, within family and in private life
 The right to freedom of thought and conscience.
 The right not to be discriminated against age
 The right to property - everyone is entitled to the peaceful enjoyment of his
possessions
 The right to education

PROBLEMS OF THE AGED

 Economic problems
Economic problems include such problems as loss of employment, income deficiency
and economic insecurity.

 Physical and physiological problems

Physical and physiological problems include health and medical problems, nutritional
deficiency, and the problem of housing etc.
 Psycho-social problems
Psycho-social problems include problems related with their psychological and social
maladjustment as well as the problem of elder abuse etc.

 Mistreatment and Harassment of Older Persons in India

Elder abuse, mistreatment and torture of older people are a manifestation of the
timeless phenomenon of interpersonal violence
is prevalent in India. Still, there is no
systematic collection of statistics or prevalence
studies, crime records, journalistic reports,
social welfare records and studies to provide
evidence on existence of abuse, neglect and
financial exploitation of elders.

Being mistreated, verbally abused, and

denied proper food, proper medication and care
by younger members of family, older people
are indeed in a very helpless situation. With
eroding social values in India, cases of elder
abuse and mistreatment in every neighborhood
are daily routine. With nuclear family further
getting reduced to single parent family,
increasing number of old people have to head
towards the Old Age Homes. In a still
developing country like India, there is no guarantee that they are not experiencing severe
abuse in Old Age homes as well.

Protection of Rights of Elderly

Constitution of India

Art. 41: Right to work, to education and to public assistance in certain cases: The
State shall, within the limits of 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.

Under Personal Laws:

The moral duty to maintain parents is recognized by all people. However, so far as
law is concerned, the position and extent of such liability varies from community to
community.
Hindu’s Law:

Amongst the Hindus, the obligation of sons to maintain their aged parents, who
were not able to maintain themselves out of their own earning and property, was
recognized even in early texts. And this obligation was not dependent upon, or in any way
qualified, by a reference to the possession of family property. It was a personal legal
obligation enforceable by the sovereign or the state. The statutory provision for
maintenance of parents under Hindu personal law is contained in Sec 20 of the Hindu
Adoption and Maintenance Act,1956. This Act is the first personal law statute in India,
which imposes an obligation on the children to maintain their parents. As is evident from
the wording of the section, the obligation to maintain parents is not confined to sons only,
and daughters also have an equal duty towards parents. It is important that only those
parents who are financially unable to maintain themselves from any source, are entitled to
seek maintenance under this Act.

Muslim Law:

Children have a duty to maintain their aged parents even under the 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, parents and grandparents in indigent
circumstances are entitled, under Hanafi law, to maintenance from their children and
grandchildren who have the means, even if they are able to earn their livelihood. Both
sons and daughters have a duty to maintain their parents under the Muslim law. The
obligation, however, is dependent on their having the means to do so.

Under the Code of Criminal Procedure:

Prior to 1973, there was no provision for maintenance of parents under the
code. The Law Commission, however, was not in favor of making such provision. The
Cr. P. C is not the proper place for such a provision. There will be considerably difficulty
in the amount of maintenance awarded to parents apportioning amongst the children in a
summary proceeding of this type. It is desirable to leave this matter for adjudication by
civil courts. The provision, however, was introduced for the first time in Sec. 125 of the
Code of Criminal Procedure in 1973. It is also essential that the parent establishes that the
other party has sufficient means and has neglected or refused to maintain his, i.e., the
parent, who is unable to maintain himself. It is important to Cr. P. C 1973 is a secular law
and governs persons belonging to all religions and communities. Daughters, including
married daughters, also have a duty to maintain their parents.
Governmental Protections:

a. The Government of India approved the National Policy for Older Persons on January
13, 1999 in order to accelerate welfare measures and empowering the elderly in ways
beneficial for them. This policy included the following major steps :

 Setting up of a pension fund for ensuring security for those persons who have
been serving in the unorganized sector,
 Construction of old age homes and day care centers for every 3-4 districts,
 Establishment of resource centers and re-employment bureaus for people above
60 years,
 Concessional rail/air fares for travel within and between cities, i.e.,50% discount
in train and Indian Airlines.
 Enacting legislation for ensuring compulsory geriatric care in all the public
hospitals

b. The Ministry of Social Justice and Empowerment has set up of a National Council for
Older Persons in the process to make life easier for older persons.
c. Attempts to sensitize school children to live and work with the elderly. Setting up of a
round the clock help line and discouraging social ostracism of the older persons are
being taken up.
d. The government policy encourages a prompt settlement of pension, provident fund
(PF), gratuity, etc. in order to save the superannuated persons from any hardships. It
also encourages to make the taxation policies elder sensitive.
e. The policy also accords high priority to their health care needs.
f. According to Sec.88-B, 88-D and 88-DDB of Income Tax Act there are discount in
tax for the elderly persons.
g. Life Insurance Corporation of India (LIC) has also been providing several scheme for
the benefit of aged persons, i.e., Jeevan Dhara Yojana, Jeevan Akshay Yojana, Senior
Citizen Unit Yojana, Medical Insurance Yojana.
h. “Annapurana Yojana” for the benefit of aged persons was launched. Under this
yojana unattended aged persons are being given 10 kg foods for every month.
i. It is proposed to allot 10 percent of the houses constructed under government schemes
for the urban and rural lower income segments to the older persons on easy loan. The
policy mentions
j. The layout of the housing colonies will respond to the needs and life styles of the
elderly so that there is no physical barriers to their mobility; they are allotted ground
floor; and their social interaction with older society members exists
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is a legislation
enacted in 2007, initiated by Ministry of Social Justice and Empowerment, Government of
India, to provide more effective provision for maintenance and welfare of parents and senior
citizens. This Act makes it a legal obligation for children and heirs to provide maintenance to
senior citizens and parents, by monthly allowance. This Act also provides simple, speedy and
inexpensive mechanism for the protection of life and property of the older persons. After
being passed by the parliament of India received the assent of President of India on
December 29, 2007 and was published in the Gazette of India on December 31, 2007.Some
states have already implemented the act and other states are taking steps for implementing
this Act

Objective
This Act provides in-expensive and speedy procedure to claim monthly maintenance
for parents and senior citizens. This Act casts obligations on children to maintain their
parents/grandparents and also the relative of the senior citizen to maintain such senior
citizens. The main attraction of this Act is there are provisions to protect the life and property
of such persons. This Act also provides setting up of old age homes for providing
maintenance to the indigent senior citizens and parents. This Act extends to the whole of
India except Jammu & Kashmir state.

Maintenance of Parents and senior citizens

A senior citizen including parent who is unable able to maintain himself from his own
earning or out of the property owned by him, is entitled to get relief under this Act.
Children/grand children are under obligation to maintain his or her parent, father, mother or
both. Likewise, relative of a senior citizen is also bound to look after the senior citizen. If
such children or relative is not maintaining his parents or senior citizen respectively, then the
parents/senior citizen can
seek the assistance of
Tribunal constituted under
this Act, to enforce the
remedy of maintenance.
Such parents/ senior citizen
can file an application before
the Tribunal, claiming
maintenance and other reliefs
from their children/relatives
as the case may be.

Such application for

maintenance can be filed by
the senior citizen or a parent himself, or if such person is incapable, then by any other person
or any registered organization authorized by him. The Tribunal can also suo motu take
cognizance of the case. After receiving the application the Tribunal may issue notice to the
respondent-children/relative and provide them time to furnish their reply. Such application
for maintenance should be disposed of within 90 days from the date of service of notice of
application to the respondent. However, the Tribunal can extend time for a maximum period
of 30 days in exceptional circumstances after recording reason. The Tribunal is having power
to allow interim maintenance pending disposal of the case. Even though the application can
be filed against any of children/relative as the case may be, such respondent-children/relative
can imp lead other persons who are liable to pay maintenance.

If such children/relative who is directed to pay maintenance fail to comply with the
order of tribunal without sufficient cause, the Tribunal may issue warrant for levying the due
amount from them in the manner levying fines and can also sentence the erring respondent to
imprisonment that may extend to one month or until payment made whichever is earlier. The
Tribunal will not issue Warrant to execute the order of maintenance, if such petition for
execution is filed after a period
of 3 months from the date on
which the maintenance is due.
The application under this Act
can be filed before the Tribunal
in any district, where the
applicant resides or last resided
or where children or relative
resides. The evidence of
proceedings shall be taken in the
presence of children/relative
against whom relief is sought and
if such respondent is wilfully
avoiding service of summons or
neglecting to attend the Tribunal,
the Tribunal may proceed and
determine the case ex parte. If
the Tribunal is satisfied that such
children/relative against whom such application for maintenance is pending, neglect or
refuses to maintain the parents/senior citizens as the case may be, may order such
children/relative to pay monthly allowance to such applicant. The maximum amount of
maintenance that can be allowed by the Tribunal is Rs.10,000 per month The tribunal has
power to alter, modify or cancel the order in appropriate circumstances. The Tribunal has also
power to levy interest on the maintenance amount, which shall be not less than 5% and
greater than 18%. Aggrieved by the order of Tribunal, senior citizen/parent can file appeal
before Appellate tribunal within a period of 60 days and if the Appellate tribunal is satisfied
that there occurred some delay in filing appeal due to sufficient cause, the appeal can be
entertained
Protection of life and property of Senior citizen
If a senior citizen after the commencement of this Act, has transferred his property
either moveable or immovable, by way of gift or otherwise, subject to the condition that the
transferee shall provide him basic amenities and physical needs and thereafter such transferee
reuses or fails to provide such promise, such transfer of property shall be deemed to have
been made by fraud, coercion or undue
influence and the Tribunal can declare such
transfer as void. Before the enactment of
this law, a senior citizen's only remedy in
such a case was to approach the court for
maintenance from the children to whom he
had given the property by way of gift or
otherwise and such property would be the
exclusive property of the transferee and the
senior citizen had no right in such property.
But after the enactment of this Act, a senior
citizen can reclaim his property from the
transferee the concerned police personnel
will also ensure priority in dealing with
these types of cases.

Abandoning a senior citizen in any

place by a person who is having the care or
protection of such senior citizen is a
criminal offence and such person shall be
punishable with imprisonment for a term
which may extend to three months or fine
which may extend to five thousand rupees
or both.

This Act also provides that state governments may establish old age homes at least one
in one district to accommodate indigent senior citizens. State governments may also ensure
proper medical care for senior citizens.
 CONCLUSION

Level of awareness about human rights of older people in Indian society, particularly
among older persons is very low. Being a developing country, despite fast increasing elderly
population, there is no special focus on rights of elderly. Therefore protection of human rights
of older people is still not a major issue for most Indians. Largely, over the years, India has
developed into a complex society, with a wide mix of traditional values and modern lifestyle.
Older people have acute sense of rights and wrongs, but they generally don‟t ask for specific
provisions and applications for themselves.

Housing in old age

Most old people live in their own houses, with their families, but their living conditions are
not comfortable and their harassment/mistreatment has become a common phenomenon.
Housing conditions of most elderly are not healthy and comfortable. In urban areas there is an
emerging trend of institutional care of older people living alone. There is a striking increase
in destitute, abandoned and dejected elderly, mostly in big cities, forced to live in pathetic
conditions without any support system.

Food in old age

Proper and nutritious food is one of the major concerns in old age for many older people of
India. Safe drinking water is another core concern in old age.

Financial status of older people

There is a contradiction so far as financial status of older people is concerned. Many older
people have higher net worth value but they are hardly financially independent. They have to
depend on their family members for their financial matters due to factors like financial
illiteracy, declining health status, dependence on family members, etc.

Gainful engagement in old age

Despite willingness and ability to work in old age, there are hardly any gainful engagement
opportunities for older people to get decent job and keep them active. In urban areas elderly
people are suffering a lot due to non-availability of gainful engagement in old age.

Social security system

Status of old age social security system including old age healthcare facilities is dismal as
many older persons still have no access to primary healthcare in old age.

Safety and security in old age

Safety and security in old age matters most for older persons as most of them find themselves
marginalized and isolated. In urban areas since social interaction of older people is limited,
they are more prone to become soft target of antisocial elements.
Disability in old age

Disability is a common phenomenon in old age, particularly in prime old age. Accidents and
chronic illness are major causes of disability in old age. Disabled elderly need special
attention and care.

Elder abuse

With popularity of nuclear family older people have become victim of elder abuse including,
misbehave /Mistreatment, restricted social life, abuse/mental torture, denial of basic needs,
physical harassment /assault, etc. Since most of the elderly spend their life within four-walls,
they are primarily abused/harassed by their own family members with various excuses.

Age discrimination

Though age discrimination is prevalent throughout the Indian society, still it is not considered
as big challenge by concerned stakeholders in India. In fast changing demographics and
socioeconomic scenario, older people have now started raising their voice against age
discrimination.
THANK
YOU