Archi Agarwal pursuing B.A., LL.B. (Hons.) from Aligarh Muslim University.
LEGAL PROTECTION OF RIGHTS AND DIGNITY OF ELDERS IN INDIA – A CRITICAL COMPARATIVE STUDY
Though ageing is the ordinary stage of human life, it brings with it numerous issues for those people who have grown old. The elders usually worried about three matters, viz. Deceases, poverty, and loneliness. No aging person can escape from the first problem as it is the aggregate of natural process of aging. Second issue arises either due to poverty or poor management of finance during earning time which resulted in the absence of savings or income yielding, investment in the sunset years and the third issue is either due to loss of spouse or having NRI children.
A detailed analysis of the major problems of the aged in the light from various studies is –
Economic Problem – As far as economic problems are concerned, they are very basic to all the other problems faced by aged. A person has to retire from the service with superannuation and it results not only in loss of Employment but also a substantial reduction in his income level. Almost all the elderly people faced acute financial problems and it makes them economically insecure.
Physiological Problem – With growing age, elder persons experience various anatomical and physiological changes. These changes brings many psychological, behavioural, and attitudinal changes in them. Consequently, they have to suffer various sorts of physiological problems such as loss of physical strength and stamina, which become more acute as a person grows older.
Health Problem – It had been said that “ we start dying the day we are born ”. The aging process is synonymous with failing health. While dying in young people in countries such as India is mainly due to infectious diseases. Older people are mostly vulnerable to non-communicable diseases. Failing health due to advancement of age is complicated by non availability to good food, aid sensitives, health care for larger proportion of older persons in the country.
Housing Related Problems – Housing for the aged should be suitable not only to the living pattern which they have to established in optimum health, but also to conditions of failing health and illness. On this pattern, the housing available to a majority of the senior citizens may be found inappropriate and unsuitable to their requirements.
Problem of Elder Abuse – Elder Abuse is usually defined as any I’ll treatment to an aging person. It refers to “ infliction of physical, emotional, or psychological harm on an elder person ” According to Help Age India’s recent report verbal abuse have to face by elderly people (around 81 per cent), while 53 percent of elderly faces neglect followed by material abuse (37 per cent) and physical abuse (23 percent).
Economic Insecurity – Elderly people come across with this problem when they are not able to sustain themselves financially. With the time the competition becoming more and more tough with the younger people or individual, family and psyche of Society, chronic malnutrition and slowing of the physical and mental faculties, lack of resources and was not aware of their rights and entitlement, these factors play a very important role in reducing the ability of the elderly to remain financially productive and Independent.
Isolation – Isolation or deep sense of loneliness, is a common complaint of many elderly. While some of them impose it on themselves, but most often isolation is imposed purposefully or intentionally by the families and/or communities where the elderly live.
Neglect – The elderly, particularly those who are weak and/or depends upon others , need physical, mental and emotional care and support. When they are not provided with this, they suffer from neglect or abandonment, a problem which occurs because a person is left uncared for and often it linked with isolation. Changing lifestyles and values, demanding jobs, distractions such as television, a shift to nuclear family structures and redefined priorities have led to increased neglect of the elderly by families and communities.
Boredom – Boredom is a result of being poorly motivated to be useful or productive and occurs when a person is unwilling or unable to do something meaningful with his/her time. The problem occurs due to forced inactivity withdrawal form responsibilities and lack of personal goals.
Article 38 of the Indian Constitution under the head of Directive Principles of the State Policy, covered under Part IV of the Constitution –
Article 38 embody the jurisprudential doctrine of “ distributive justice ”. The Constitution permits and even directs the State to administer what may be termed “ distributive justice ”. The concept of distributive justice in the sphere of law making connote, inter alia, the removal of economic inequalities rectifying the injustices resulting from dealings and transactions between unequal’s in society.
Article 38(1) of the Constitution, provides that the State shall endeavour to advance the people’s welfare by securing and protecting effectively, social order in which justice – social, political and economic – shall inform all the institutions of national life. This directive only reaffirms what has already been said in the Preamble according to which the function of the Republic is to secure to all its citizens social, economic and political justice.
The Constitution (44th Amendment) Act, 1978 inserted clause (2) in Article 38. It provides that the State shall endeavour to minimise inequalities in income, status, facilities and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations. The new clause aims at equality in all spheres of life. It would enable the State to have a national policy on wages and eliminate inequalities in various spheres of life.
Article 41 of the Indian Constitution
Article 41 of the Indian Constitution direct the state to make Provisions in order to ensure the people within the limit of its economic capacity and development : (a) employment, (b) Education, (c) public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want.
Article 42 of the Indian Constitution
Article 42 of the Indian Constitution directs the State to make provisions for securing just human conditions and for maternity relief.
Article 47 of the Indian Constitution
Article 47 of the Indian Constitution impose duty upon the State to raise the level of nutrition and the standard of living of its people and the improvement of Public health. In particular, the State should bring about prohibition of the consumption except for medical purposes of intoxicating drinks and if drugs which are injurious to health.
All these Provisions are covered under Directive Principles of the State Policy. The Directive Principles of the State Policy contained in Part IV of the Indian Constitution which sets out the aims and objectives to be taken up by the State in the governance of the country. The idea of the welfare State envisaged by our Constitution can only be achieved if the States endeavour to implement them with a high sense of moral duty. The Directive Principles are the ideals which the Union and State Government must keep in mind while they formulate Policy or pass a law. It impose certain obligations on the State to take positive action in certain directions in order to promote the welfare of the people and achieve economic democracy.
PROTECTION UNDER HINDU LAW
Sec. 20 casts a duty on a Hindu, during his (or her) lifetime to maintain his (or her) Legitimate as well as illegitimate children and his (or her) aged or infirm parents. Further, a legitimate child can claim maintenance from his or her father or mother, So long as the child is a minor. The term ‘parent’ also includes a childless step mother.
This obligation extends only so far as such parent or unmarried daughter is Unable to maintain himself (or herself) out of his or her own earnings or property. It may be noted that the obligation of a Hindu to maintain his wife, minor sons, Unmarried daughters and aged parents (whether he himself possesses any property Or not) is personal and legal in character, and arises from the very existence of the Relationship between the parties.
PROTECTION UNDER MUSLIM LAW
A child, male or female, who has sufficient property ( whether minor or adult ) is responsible to maintain his parents and grandparents. If poor, irrespective of whether they are capable of earning their livelihood or not.
A son in every circumstances is bound to maintain his mother.
A son who, though poor, is earning something, is bound to support his poor father who earns nothing. When the children have sufficient means, they are to provide maintenance proportionate to their means.
Thus above mention heads signifies the rights and liability of maintenance of parents.
PROVISIONS UNDER CODE OF CRIMINAL PROCEDURE
Sections 125 to 128 provide for a speedy, effective, and rather inexpensive remedy Against persons who neglect or refuse to maintain their dependant wives, children and Parents. Though the subject-matter of these provisions is civil in nature, the primary Justification for their inclusion in the Criminal Procedure Code, 1973 (CrPC) is that a remedy more speedy and economical than that available in civil courts is provided for by these sections for the benefit of needy persons mentioned therein. It may also be said that these provisions are aimed at preventing starvation and vagrancy leading to the commission of crime. By providing a simple, speedy but limited relief, the Provisions seek to ensure that the neglected wife, children and parents are not left beggared and destitute on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The provisions contained in Sections 125 to 128 are applicable to all persons belonging to all religions and have no relationship with the personal law of the parties. It may also be noted that as the exercise of the powers to grant maintenance is of a judicial character, only judicial Magistrates of The First Class have been empowered to deal with such matters of maintenance. Sections 12.5 to 128 prescribe a self-contained speedy procedure for compelling a man to maintain his wife, children and parents. Though the relief given under this chapter is essentially of a civil nature, the findings of the Magistrate are not final and the Parties can legitimately agitate their rights in a civil court even after the order of the Magistrate.
POLICIES / SCHEMES / PROGRAMMES FOR WELFARE OF THE ELDERLY
1 . National Policy On Older Persons – In January 1999 The National Policy on Older Persons was implemented by the Government of India, which provides the support of the State to provide financial security and food security, proper health care, shelter and other basic needs of older persons on order to improve the quality of their lives.
2 . Integrated Programme for Older Persons (IPOP)
An integrated programme for older persons (IPOP) is a Central Sector Scheme and was in force since 1992, the objective of the scheme is to improve the living style of senior citizens by providing them basic necessities of life like food, shelter, medical care treatment, and entertainment opportunities.
3 . National Programme for Health Care for Elderly (NPHCE)
From the year 2010 – 11 Ministry of Health and Welfare implemented the National Programme for Health Care for Elderly with an acceptable expenditure of Rs. 288 crore for the remaining period of the 11th Five Year Plan. It also provides several senior citizens clinic and the separate queues system for older citizens in government hospitals.
4 . Indra Gandhi National Old Age Pension Scheme (IGNOAPS)
The Ministry of Rural Development implemented Indra Gandhi National Old Age Pension Scheme, in which the Ministry provide central assistance by providing pension to persons above age of 60 years,@ Rs. 200/- per month and to senior citizens who are of 80 years and above @ Rs. 500/- per month, belonging to a household below poverty line.
5 . Separate Ticket Counters
The Ministry of Railways provides for Separate Ticket Counters for senior citizens who is of 60 years of age and above at various passenger reservation system centres if the average demand per shift is more than 120 tickets. The Ministry also provides 30% and 50% concession in rail fare for male and female citizen respectively of 60 years and above.