Welfare & Care of Senior Citizens - Legal Provisions and Need to Fill in Gaps
Raman Sharma, Advocate
High Court Seat:
Room No. 18, New Bar Complex, Punjab & Haryana High Court Premises, Section 1 Chandigarh
Date : 18/03/2019 - Off. : H. No. 1043, Sector 37-B,
Welfare & Care of Senior Citizens - Legal Provisions and Need to Fill in GapsIndia, a Welfare State, has been enjoined upon the responsibility under the Constitution to promote the welfare of the 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. The State is obligated to regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. One of the most deserving segments of population which need special attention is of "Senior Citizen". As per data available on the Government websites, in 2011 Census there were approx.104 million senior citizen in India (53 million females and 51 million males). According to an estimate this number must have grown to approx. 150 million which is about 9% of the total population. About 70% of the elderly population resides in rural areas whereas 30% resides in urban areas. The life expectancy is between age group 65 to 70 exception being certain States like Kerala and Punjab where it is little more. During 2013 the age specific death rate per 1000 population for the age group 60 - 64 years was 19.7 for rural areas and 15.0 for urban areas. The old - age dependency ratio climbed from 10.9% in 1961 to 14.2% in 2011 for India as a whole. In rural areas, 66% of elderly men and 28% of elderly women were working, while in urban areas only 46% of elderly men and about 11% of elderly women were working. The percent of literates among elderly persons increased from 27% in 1991 to 44% in 2011.The literacy rates among elderly females (28%) is less than half of the literacy rate among elderly males (59%).Most common disability among the aged persons was locomotor disability and visual disability as per Census 2011. In the age - group of 60 - 64 years, 76% persons were married while 22% were widowed. Remaining 2% were either never married or divorced.
Hindu Adoption & Maintenance Act, 1956:Prevailing statutory provisions were highly inadequate. Section 20 of the Hindu Adoption & Maintenance Act, 1956 makes a provision for maintenance of children and aged parents. The provision makes it mandatory for a Hindu, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. The obligation of a person to maintain his or her aged or infirm parent in so far as the parent is unable to maintain himself or herself out of his or her own earnings or other property.
Code of Criminal Procedure, 1973:Similarly, Section 125 of the Code of Criminal Procedure, 1973 makes a provision that in case a person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. The provisions contained in Hindu Adoption & Maintenance Act related only to Hindus and that too for aged or inform parents. It did not contain provision to take complete care of Senior Citizen. Similarly, Code of Criminal Procedure makes provision only in respect to those parents who are neglected or refused to be maintained and/or is unable to maintain himself.
National Policy on Older Persons, 1999:In the year 1999 Government of India adopted the National Policy on Older Persons, 1999 in pursuance of the UN General Assembly Resolution 47/5 to observe 1999 as International Year of Older Persons and in keeping with obligation contained in Article 41 of the Constitution. The international endeavour i.e. The Madrid Plan of Action and the United Nations Principles for Senior Citizens adopted by the UN General Assembly in 2002, the Proclamation on Ageing and the global targets on ageing for the Year 2001 adopted by the General Assembly in 1992, the Shanghai Plan of Action 2002 and the Macau Outcome document 2007 adopted by UNESCAP formed the basis for the global policy guidelines to encourage government to design and implement their own policies from time to time. The Government of India is a signatory to all such documents demonstrating its commitment to address the concerns of the elderly. The policy and plans were put in place by central and state governments for the welfare of older persons. Pensions, travel concessions, income tax relief, medical benefit, extra interest on savings, security of older persons through an integrated scheme of the Ministry of Social Justice and Empowerment as well as financial support was provided for Homes, Day Care Centres, Medical Vans, Help Lines etc are extended currently. The Ministry of Social Justice and Empowerment coordinates programmes to be undertaken by other Ministries in their relevant areas of support to older persons. The Social Defence Division of the Ministry mainly caters to the requirements of Senior Citizens. The Ministry develops and implements Acts, Policies and Programmes for welfare of Senior Citizens in collaboration with State Governments/ Union Territory Administrations to ensure that Senior Citizens may lead a secured, dignified and productive life. The laws and policies which are applied to achieve this laudable objection need to be discussed.
Maintenance & Welfare of Parents and Sr. Citizens Act, 2007:Having been confronted with the problem of taking care of senior citizen Central Government enacted Maintenance & Welfare of Parents and Sr. Citizens Act, 2007 (hereinafter called 2007Act) to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto. Government of India, Ministry of Social Justice and Empowerment, Department of Social Justice and Empowerment has set up a Senior Citizen Division. Section 2(h) of 2007 Act defines a "senior citizen" means any person being a citizen of India, who has attained the age of sixty years or above. The 2007 Act makes it obligatory upon the "children" i.e. son, daughter, grandson and grand-daughter excluding a minor and a "relative" i.e. any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death to provide maintenance of upto Rs.10,000/- per month, if so claimed by the parents and grand-parents. A Tribunal constituted under the Act has to fix monthly allowance of interim maintenance, payable from the date of order or from the date of application. Failure to comply without sufficient cause can invite issuance of warrants for fine on application to be made within three months and also for imprisonment, which may extend to one month for every default. Maintenance order can be enforced anywhere where children or relatives reside. Besides making it obligatory upon the children and relatives to provide maintenance to Senior Citizen, the Government has also been obligated to set up old age homes and also to provide for medical care of senior citizen. The Act further lays obligation upon the Government to provide comprehensive action plan for providing protection of life and property of senior citizens. The provision goes to the extent that even if senior citizen has transferred his property to his children or relative such transfer shall be rendered void if transferee fails to provide basic amenities and basic physical needs to such senior citizen. Those who abandon the senior citizen are punishable upto three months or fine upto 5000/- or both.
National Policy on Senior Citizens 2011:In line with its continuous endeavour to ameliorate the lot of the Senior Citizen and to make their lives easy, Central Government adopted National Policy on Senior Citizens 2011. Endeavour is to provide quality of life in old age and health care. Increase in life span results in chronic functional disabilities creating a need for assistance required by Older persons. Special emphasis was laid to target women who are in precarious state having suffered lifetime of gender based discrimination, often stemming from deep-rooted cultural and social bias and compounded by discrimination based on class, caste, disability, illiteracy, unemployment and marital status. Over 50% of women over age 80 are widows. It was recognized that the rural poor would need social security in large measure at later years of life. The objectives of this policy were to include the demographic explosion among the elderly, the changing economy and social milieu, advancement in medical research, science and technology and high levels of destitution among the elderly rural poor. The prime object of the policy was to develop a formal and informal social support system, so that the capacity of the family to take care of senior citizens is strengthened and they continue to live in the family. The policy seeks to reach out in particular to the bulk of senior citizens living in rural areas who are dependent on family bonds and intergenerational understanding and support. The focus of the policy was to mainstream senior citizens, especially older women. To promote the concept of "Ageing in Place" or ageing in own home, housing, income security and home care services, old age pension and access to health care insurance schemes and other programmes and services to facilitate and sustain dignity in old age. The thrust of the policy was to be preventive rather than cure. The institutional care was to be the last resort. The policy recognised that care of senior citizens has to remain vested in the family which would partner the community, government and the private sector. Senior citizens were to be recognized as a valuable resource for the country and create an environment that provides them with equal opportunities, protects their rights and enables their full participation in society. By ensuring their social security, health care, shelter and welfare, their abuse and exploitation could be protected. The policy required to provide income security in old age by launching Old Age Pension Scheme. Public Distribution System was to reach out to cover all senior citizens living below the poverty line. Income Tax rebate for senior citizens, to make available loans at reasonable rates of Interest to start small businesses. Senior citizens have to cope with health and associated problems some of which may be chronic, of a multiple nature, require constant attention and carry the risk of disability and consequent loss of autonomy were to be given high priority with focus on preventive, curative, rehabilitative health care. Efforts would be made to strengthen the family system so that it continues to play the role of primary caregiver in old age. This would be done by sensitizing younger generations and by providing tax incentives for those taking care of the older members. RSBY (Rashtriya Swasthya Bima Yojana) is promoted and senior citizens are compulsorily included in the coverage. Special programmes were to be developed to increase awareness on mental health and for early detection and care of those with Dementia and Alzheimer?s disease. Restoration of vision and eyesight of senior citizens will be an integral part of the National Programme for Control of Blindness (NPCB). The prevailing National Programme for Health Care of the Elderly (NPHCE) was to be expanded and in partnership with civil society organizations, scaled up further. Public private partnership models will be developed wherever possible to implement health care of the elderly. Services of mobile health clinics would be made available through PHCs or a subsidy would be granted to NGOs who offer such services. Health Insurance cover would be provided to all senior citizens through public funded schemes, especially those over 80 years who do not pay income tax. Provision was to be made for safety and security of senior citizens with a direction to the Police to keep a friendly vigil and monitor programmes which will include a comprehensive plan for security of senior citizens whether living alone or as couples and to promote mechanisms for interaction of the elderly with neighbourhood associations. Ten percent of housing schemes for urban and rural lower income segments were to be earmarked for senior citizens. Special arrangements for travel of senior citizen. A welfare fund for senior citizens was to be set up to generate revenue through a social security cess besides larger budgetary allocations to be made, which could be used for the welfare of the senior citizen. The policy was to have focus on promoting bonding of generations and multigenerational support by incorporating relevant educational material in school curriculum and promoting value education. Block Development Offices, Panchayat Raj Institutions and Tribal Councils/Gram Sabhas Block Development offices would appoint nodal officers to serve as a one point contact for senior citizens to ease access to pensions and handle documentation and physical presence requirements, especially by the elderly women. This shows that the Government has already launched its policies and enacted 2007 Act with laudable object of taking all round care of the senior citizen. However, despite all these provisions, it seems that the true effect of these policies and statutory provisions has not percolated down to the most needy. Government has made provision for financial assistance by giving old-age pension to the senior citizen so that they are able to meet their financial needs but considering the large number of senior citizen, especially the poor ones, the quantum of pension of say Rs.1000/- or so per month given is hardly sufficient to meet dire needs of senior citizen in distress. It would have been one of the basic parameters to ascertain social structure of our Society. Because of impact of family planning norms, the family units comprising of husband, wife and children is reduced in size. There has also been more stress on education as a result of which the children become financially and socially independent during their twenties and are supposed to move out of their homes leaving senior citizen invariably alone. This phenomena is higher in rural areas as compared to urban areas. So by the time a person attains age of a "senior citizen" the children are no more living under one roof. It creates a situation where own children are not available to take care of the needs of senior citizen. Even though the children may be able to financially assist their old parents, they are not present to take personal care. Though the Govt. aims at family care to senior citizen but that is not at times possible due to small size of families and the children moving away from their homes for better avenues. Therefore, the despite all policy trust of the Government, the majority of senior citizen are not getting physical care from family. Further wherever family is available to take care of senior citizen invariably they are not trained to do so. Therefore, the Government shall have to make available adequate and trained manpower which takes care of senior citizen.
NATIONAL HEALTH MISSION :It would be appropriate to make reference to another policy of the Government; namely, National Health Mission. National Health Mission (NHM) was started by the Hon'ble Prime Minister of India in the year 2005 with following objectives:-
The Vision of the Mission
• To provide effective healthcare to rural population throughout the country with special focus on 18 states, which have weak public health indicators and/or weak infrastructure.
• To raise public spending on health from 0.9% GDP to 2-3% of GDP, with improved arrangement for community financing and risk pooling.
• To undertake architectural correction of the health system to enable it to effectively handle increased allocations and promote policies that strengthen public health management and service delivery in the country.
• To revitalize local health traditions and mainstream AYUSH into the public health system.
• Effective integration of health concerns through decentralized management at district, with determinants of health like sanitation and hygiene, nutrition, safe drinking water, gender and social concerns.
• Address inter State and inter district disparities.
• Time bound goals and report publicly on progress.
• To improve access to rural people, especially poor women and children to equitable, affordable, accountable and effective primary health care.
GOALS, STRATEGIES AND OUTCOMES OF THE MISSION :The National Rural Health Mission (NRHM) has been launched with a view to bringing about dramatic improvement in the health system and the health status of the people, especially those who live in the rural areas of the country. The Mission seeks to provide universal access to equitable, affordable and quality health care which is accountable at the same time responsive to the needs of the people, reduction of child and maternal deaths as well as population stabilization, gender and demographic balance. In this process, the Mission would help achieve goals set under the National Health Policy and the Millennium Development Goals. To achieve these goals NRHM will:
• Facilitate increased access and utilization of quality health services by all.
• Forge a partnership between the Central, state and the local governments.
• Set up a platform for involving the Panchayati Raj institutions and community in the management of primary health programmes and infrastructure.
• Provide an opportunity for promoting equity and social justice.
• Establish a mechanism to provide flexibility to the states and the community to promote local initiatives.
• Develop a framework for promoting inter-sectoral convergence for promotive and preventive health care.
THE OBJECTIVES OF THE MISSION :
• Reduction in child and maternal mortality
• Universal access to public services for food and nutrition, sanitation and hygiene and universal access to public health care services with emphasis on services addressing womens and childrens health and universal immunization
• Prevention and control of communicable and non-communicable diseases, including locally endemic diseases.
• Access to integrated comprehensive primary health care.
• Population stabilization, gender and demographic balance.
• Revitalize local health traditions & mainstream AYUSH.
• Promotion of healthy life styles.
• Improved access to universal immunization through induction of Auto Disabled Syringes, alternate vaccine delivery and improved mobilization services under the programme.
• Improved facilities for institutional deliveries through provision of referral transport, escort and improved hospital care subsidized under the Janani Surakshya Yojana (JSY) for the below poverty line families.
• Availability of assured health care at reduced financial risk through pilots of Community Health Insurance under the Mission.
• Availability of safe drinking water.
• Provision of household toilets.
• Improved outreach services to medically under-served remote areas through mobile medical units.
• Increase awareness about preventive health including nutrition.In the year 2013, the Govt. of India decided to aim eradication of defects at birth, diseases, deficiencies and developmental delays including disabilities i.e. 4 Ds amongst the children and therefore, launched Rastriya Bal Swasthaya Karyakarm (RBSK). A detailed guidelines were set out for implementing this programme known as Child Health Screening and Early Intervention Services under National Rural Health Mission initiated by the Ministry of Health and Family Welfare. The target group under this Programme is to cover all children from 0 to 18 years of age. For implementing the Programme, the Govt. decided to set up District Early Intervention Centres throughout the country. The DEICs were to work under the National Health Mission as a Special Project. Various aims and objectives of DEICs and infrastructure/posts created thereunder are set out in guidelines laid down in this regard. A team consisting of Paediatrician, Medical Officer, Staff Nurses, Para-medics, Early Interventionist-cum-Special Educator-cum-Social Worker-cum Manager etc., a total of 13 posts in each district of the country was created.
GAPS NEED TO BE FILLED :The emphasis of National Health Mission is on services addressing womens and childrens health. Special emphasis also needs to be laid on taking physical care of "senior citizen" on the similar lines which is altogether missing for which the existing infrastructure and trained personnel already appointed by the Governments under National Health Mission could be utilised. National Programme for Health Care of the Elderly needs to be synthesized with National Health Mission so that major aspect of physical health and care of senior citizen could be addressed in a more effective manner.
Lacuna in Maintenance & Welfare of Parents and Sr. Citizens Act, 2007:Situations are emerging in courts that senior citizen move to the authority under the Act for seeking maintenance and for relief under section 23 of the Act and despite the fact that favourable orders are passed in favour of senior citizen, the same remain unimplemented due to delay in execution of such orders invariably due to challenge being made to such orders in higher forums and in the meantime senior citizen being of advanced age, in distress and at times ailing, passes away, the benefit thus accrued in favour of senior citizen remains unexecuted and bestows back upon the children/ relatives who were responsible for not maintaining the senior citizen. Thus legal heirs become beneficiary of their own wrongs. Why should they be allowed taken benefit of their own wrongs. On this proposition of law, in case reported as Indian Council for Enviro-Legal Action v. Union of India (SC), 2011(8) SCC 161, Hon'ble Supreme Court laid down following principles of law:-
"223. The other aspect which has been dealt with in great details is to neutralise any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.In the event of failure of children/relatives to take care and maintain senior citizen it is the Government which is toiling hard to do so, it must be ensured by the Government that benefit of orders passed in favour of Senior Citizen does not automatically revert back to such wrong doer children/relatives upon death of senior citizen when orders remain unimplemented. The benefits accruing upon execution of such valid orders should go to public exchequer which is funding the infrastructure being created by the Government for care and maintenance of senior citizen. Law relating to succession needs to be amended suitably to make statutory provision. Even Immediate amendments in this require to be made in the 2007 Act. It's my ardent feeling that in case these gaps are not filled up immediately, the aimed outcome would be hazy and vague. There should be zero possibility why even single senior citizen in need should not get service. Responsive mechanism is the site need of the hour.
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