Dr.

Ram Manohar Lohiya

2017

Final Draft
Human right

Topic-“Challenges and rights of old aged group ”

Submitted To: Submitted By:

I would like to take this opportunity to thank Dr Aparna singh for his guidance

and support in the making of this research project. I would also like to thank the

huge library and it’s assisting staff for helping me to complete this project.
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. The 2011 census has shown that the elderly population (60+) of India accounted for 98.3

million, which was projected to cross the 100 million mark during the same year. It took more than 100

years for the aged population to double in most of the countries in the world, but in India it has doubled in

just 20 years. The life expectancy has also gone up to over 70 years today. Better medical facilities, care

and liberal family planning policies made the elderly the fastest growing section of the society in India.

By 2025, the world will have more elderly than young people and cross two billion mark by 2050. In

India also, the population of elder persons‟ population mark will cross 18% by 2025. 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.
OVERVIEW

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 Right to life shall be protected by law. Right not to be subjected to inhuman

treatment “No-one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Right to liberty “Everyone has the right to liberty and personal security. 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”.

“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, most 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. 6 7 6 Agewell Research &

Advocacy Centre www.agewellfoundation.org Protection of Rights of Elderly - Indian Perspective

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 to note

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 : (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. 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.

Christian & Parsi Law: The Christians and Parsis have no personal laws providing for maintenance for the

parents. Parents who wish to seek 8 6 Agewell Research & Advocacy Centre

www.agewellfoundation.org maintenance have to apply under provisions of the Criminal Procedure

Code. 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.

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.

Governmental Protections: i. 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 : a. Setting up of a pension fund for

ensuring security for those persons who have been serving in the unorganized sector, b. Construction of

old age homes and day care centers for every 3-4 districts, c. Establishment of resource centers and re-

employment bureaus for people above 60 years, d. Concessional rail/air fares for travel within and

between cities, i.e.,50% discount in train and Indian Airlines. e. Enacting legislation for ensuring

compulsory geriatric care in all the public hospitals ii. 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. iii.

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. iv. 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. v. The policy also accords high priority to their health care needs. vi. According to Sec.88-B, 88-

D and 88-DDB of Income Tax Act there are discount in tax for the elderly persons. vii. 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. viii.

„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. ix. It is proposed to allot 10 percent of the houses
constructed under government 9 156 9 6 Agewell Research & Advocacy Centre

www.agewellfoundation.org schemes for the urban and rural lower income segments to the older

persons on easy loan. The policy mentions. x. 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 Despite all these attempts,

there is need to impress upon the elderly about the need to adjust to the changing circumstances in life

and try to live harmoniously with the younger generation as for as possible. 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. Objects of the Act 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. Definitions Children- Include son, daughter, grandson, granddaughter but does

not include a minor Maintenance includes provision for food, clothing, residence, medical attendance

and treatment Parent- means father or mother whether biological, adoptive or step father or step
mother, whether or not father or mother is a senior citizen Senior citizen- means an Indian who attained

the age of 60 years or above Relative- means any legal heir of childless senior citizen who is not a minor

and is in possession of or would inherit his property after his death Welfare- means provision for food,

healthcare, recreation centers and other amenities necessary for senior citizens 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. 106 Agewell

Research & Advocacy Centre www.agewellfoundation.org 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 willfully 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 116 Agewell Research & Advocacy Centre

www.agewellfoundation.org 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. The United Nations Principles on Rights of Elderly Demographic trends

worldwide create unique challenges for all people, particularly for the governments of nationstates

around the globe. Elderly individuals are often subjected to discrimination and abuse because they are

perceived as easily taken advantage of. There is also a prevalent belief among many that elderly persons

are worthless in today‟s fast-paced, globalize and increasingly industrialized world. Obviously, with the

number of elderly people on earth at any one time rising rapidly, there is an increased urgency to

address the rights and roles of elderly persons in our world. The United Nations principles provide a

broad framework for action on ageing. Some of the Principles are as follows : i. Older Persons should

have the opportunity to work and determine when to leave the work force. ii. Older Persons should

remain integrated in society and participate actively in the formulation of policies which effect their

well-being. iii. Older Persons should have access to health care to help them maintain the optimum level

of physical, mental and emotional well-being. iv. Older Persons should be able to pursue opportunities

for the full development of their potential and have access to educational, cultural, spiritual and

recreational resources of society. v. Older Persons should be able to live in dignity and security and

should be free from exploitation and mental and physical abuse 126 Agewell Research & Advocacy

Centre www.agewellfoundation.org Elder Abuse in India Progress of human civilization, advancement in

medical science and healthier lifestyle of people has obviously increased life of Old Age. Ironically,
changed socio-economic conditions have completely changed living conditions of older persons in the

country. In changed set up, old people face increased incidences of age discrimination, ageism, elder

abuse and mistreatment of older community, which are strictly against any civilized society. Indian

society is the only society, where people bless their dear ones with blessings like “live for 100 years”,

”May god add my years to your life”, “May god bless you with 100 years of health and happiness”, etc.

In India Old Age is a great Celebration in itself. Even today the concept of Elder Abuse is difficult to

comprehend in Indian circumstances. But unfortunately it has become an ugly fact of life even in Indian

society. Older persons are emotionally abused by Intimidation through yelling or threats, humiliation

and ridicule, habitual blaming or scapegoat, ignoring the elderly person, isolating an elder from friends

or activities, terrorizing or menacing the elderly person, etc. Ignoring health conditions of elderly,

financial exploitation of elderly, sexual abuse are found as other major forms of elderly abuse. Major

Consequences of elder abuse are as frequent arguments or tension between the caregiver (mostly

relatives) and the elderly person & also changes in personality or behavior of the elderly person. Older

persons are respected in society in general but within their individual families, majority of older persons

feel isolated on many occasions. Property related issues, interference in family matters, interpersonal

relations, unemployment in old age, excessive medical expenses, dispute among siblings, greediness of

younger generation, fall of morals, etc. are major reasons of disrespect or mistreatment of older

persons. Surprisingly, older men are more prone to mistreatment in their respective families and

societies. “Old Age has become hell for us due to mistreatment by our daughter in-law with us. For sake

of happiness of our son and grandchildren, we prefer to keep quiet and ignore her (daughter-in-law’s)

misbehavior.” -Pankaj Luthra (75), New Delhi