This article has been written by Piyush Bajaj. Piyush is currently a BCom LLB student at Amity Law School, Noida.
Our seniors are our responsibility. Intergenerational equity is a principle of natural justice. A generation which neglects its elders and aged commits crime and shall be mate with same fate in their elder years. Ageing is a natural process, which inevitably occurs in human life cycle. It brings with a host of challenges in the life of the elderly, which are mostly caused by the changes in their body, mind, thought process. Ageing refers to a decline in the functional capacity of the organs of the human body, which occurs mostly due to physiological transformation. The senior citizens constitute a precious reservoir of such human resource as is gifted with knowledge of various sorts, varied experiences and deep insights. May be they have formally retired, yet an overwhelming majority of them are physically and mentally capable of contributing to the well being of the society. Hence, given an appropriate opportunity, they are in a position to make significant contribution to the socioeconomic development of their nation.
Problems of the aged as follows:
(i) Economic problems include such problems as loss of employment, income deficiency and economic insecurity.
(ii) Physical and physiological problems, include health and medical problems, nutritional deficiency, and the problem of adequate housing etc.
(iii) Psychosocial problem which cover problems related with their psychological and social maladjustment as well as the problem of elder abuse etc.
(I) Constitutional Protection:
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.
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.
However, these provision are included in the Chapter IV i.e., Directive Principles of the Indian Constitution. 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. The courts however cannot enforce a Directive Principle as it does not create any justiciable right in favour of any individual. It is most unfortunate that state has not made even a single Act which are directly related to the elderly persons.
(II) Legal Protections:
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.
(I) Hindus Laws:
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 to note that only those parents who are financially unable to maintain themselves from any source, are entitled to seek maintenance under this Act.
(II) Muslim Law:
Children have a duty to maintain their aged parents even under the Muslim law.
(a) Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.
(b) A son though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm.
(c) A son, who though poor, is earning something, is bound to support his father who earns nothing.
(III) Christian and Parsi Law:
The Christians and Parsis have no personal laws providing for maintenance for the parents. Parents who wish to seek maintenance have to apply under provisions of the Criminal Procedure Code.
(III) 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 favour of making such provision.
According to its report:
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 note that 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.
(IV) Governmental Protections:
- 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 :
(i) Setting up of a pension fund for ensuring security for those persons who have been serving in the unorganized sector,
(ii) Construction of old age homes and day care centres’ for every 34 districts,
(iii) Establishment of resource centres’ and reemployment bureaus for people above 60 years,
(iv) Concessional rail/air fares for travel within and between cities, i.e.,30% discount in train and 50% in Indian Airlines.
(v) Enacting legislation for ensuring compulsory geriatric care in all the public hospitals.
It may be conclude by saying that the problem of the elderly must be addressed to urgently and with utmost care. There is urgent need to amend the Constitution for the special provision to protection of aged person and bring it in the periphery of fundamental right. With the degeneration of joint family system, dislocation of familiar bonds and loss of respect for the aged person, the family in modern times should not be thought to be a secure place for them. Thus, it should be the Constitutional duty of the State to make an Act for the welfare and extra protection of the senior citizen including palliative care.
The December book bucket