SENIOR CITIZENS AND HUMAN RIGHTS:

vis-à-vis MAINTENANCE AND WELFARE OF PARENTS AND

SENIOR CITIZENS ACT, 2007

Abstract:

Human rights are for all, regardless of age. The elderly are seen as vulnerable because biological,
psychological and social ageing predispose the ageing person to infirmity, and in many cases
dependency, setting the older person apart from the rest of the population in need of special
protection and rights. Although implementation of legislation, policies, and a package of
integrated programmes and projects to cater to the needs of older persons had helped them to
uplift their status, more has to be done. The population of the aged has been increasing over the
years. The estimated population growth rate of elderly increased to 10 crores as per 2011 census
reports i.e. 8.6per cent of the total population1. India has the second largest global population of
ageing people. In the years to come, the number of elderly persons may increase, but our country
lacks basic expertise to support and respond to the needs of this section.

The scope of this assignment shall be limited to the study of rights of the elderly at both, national
and international levels, with a special reference to Maintenance and Welfare Of Parents And
Senior Citizens Act, 2007 (hereafter ‘MWPSCA’). Through this assignment, the author hopes to
find out loopholes at these levels and draw a conclusion as to what is still left to be done.

1
Chandramouli C. Census of India 2011 Registrar General & Census Commissioner, India. Ministry of Home Affairs.
2013.

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Concept :

Why are senior citizens such a vulnerable section of the society ?

 According to the global demographic trend, with the passage of time, countries have
experienced ageing of population. Due to economic well-being, better health care system,
good medicines, etc. there is substantial reduction in mortality in the society. It started in
the last century with developed countries, and is now encompassing developing countries
too. India, by no means, is an exception to this phenomenon.
 Over the years, the structure of population has changed. Percentage share of elderly
persons in the population of India is ever increasing since 1961. While in 1961, 5.6 per
cent population was in the age bracket of 60 years or more, the proportion has increased
to 8.6 per cent in 2011. The trend is same in rural as well as in the urban areas. In rural
areas while the proportion of elderly persons has increased from 5.8 per cent to 8.8 per
cent, in urban areas it has increased from 4.7 per cent to 8.1 per cent during 1961 to 2011.
It is observed that the difference of percentage share of elderly population in whole
population in rural and urban areas is narrowing.
 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 has increased form nearly 2 crores
in 1951 to 7.2 crores in 2001. In other words about 8% of the total population is above 60
years. The figure will cross 18 % mark by 20252.
 Population ageing has profound social, economic and political implications for a country.
The increasing number of older persons put a strain on health care and social care
systems in the country. In case of large number of elderly persons in the population, the
country needs more and more health and medical services, facilities and resources.
Government spending on health care is increased with the increase of average age of
population. Very old people, due to their reduced mobility and debilitating disabilities,
need other people to do things for them. With the increasing trend of nuclear families in

2
http://www.socialjustice.nic.in/pdf/report-nationalconferenceonageing.pdf A Report on Natioanal
conference on aging.

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 the society and with fewer children in the family, the care of older persons in the families
gets increasingly difficult.
 Social security spending of Government also increases with the increase of old age
population. Due to increased longevity of life, pension bills increase. On the other hand,
lesser people of working age means lower number of working people leading to lower tax
base and lower tax collection. Economy grows slowly as less money is available for
spending on things that help economy grow. A sizeable portion of money is spent on
meeting requirement of old age population. On one side the resources are shrunk, on the
other, expenditure is increased3.
 To face the challenges of ageing population, the country needs to be well prepared.
Appropriate social and economic policies need to be made to mitigate its ill effects.
Social policy development for the elderly needs to be critically examined for society to
adapt to ageing as well as for older population to adapt to a changing society. New
priorities must be added to the scarce resources for social programs for elderly, while still
having to deal with the problems of the younger populations.
 Regardless of the many positive impacts, the cumulative implications of industrialization,
urbanization, globalization have imparted changes of irreversible nature into the structure
of families in India. This has resulted in psychological distress and isolation of aged
persons. In earlier times, the expertise and experience of the aged people was utilized.
However, with improved education, modernization and rapid technological changes, have
rendered their knowledge and wisdom obsolete. Once they are about to retire, they are
unclear about their role and this leads to loss of status, worthlessness and loneliness. It
leads to various other problems when parents are economically dependent on their
children. The result of such disintegration of families and increasing influence of
modernization has thus resulted in the increasing concerns about the human rights of the
elderly.
 In the Age Well Foundation’s, “Human Rights of Elderly in India Survey”, conducted in
association with ECOSOC in 20154, it was found that the elderly in India suffers the
following problems: Lack of gainful engagement opportunities, Declining health status,
3
Cobb, S. (1982, February). An approach to the relation- ship between social networks, the sense of social and
health.
4
www.agewellfoundation.org

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 Lack of respect in family/society, Loneliness/isolation, Psychological issues, Financial
problems, Legal issues, Interpersonal problems.

Issues faced by the Elderly Population:

 ECONOMIC PROBLEMS:
a) A great anxiety in old age relates to financial insecurity. When the issue is seen in
the context of the fact that one-third of the population is below the poverty line
and about one-third are above it, but belong to the lower income group, the
financial situation of two-thirds of the population 60+ can be said to be fragile5.
b) In India the retirement age is fixed at 58 in most Governmental jobs, and 60 years
in the Universities. In academic research, retirement age is often taken as an index
of aged status. The chronological age of 58 or 60 is considered to be the
beginning of old age6.Migration of younger generations from rural to urban areas
and from one urban center to another as well as transnational migration results in
the elderly being left to fend for themselves at a time when family support
becomes more crucial.
c) In Indian society the economic position of elderly women are particularly at risk
because most of them live in the shadow of the males throughout their lives -
father, husband, son or male relatives like nephew, brother, uncle7.
 HEALTH PROBLEMS:
a) A major issue of societal concern is the health status of the aged. After infants and
children, old people are most vulnerable to morbidity and mortality as health
impairment is a function of ageing process. Decline in mental ability makes them
dependent. They no longer have trust in their own ability or judgements.
b) In addition to this they suffer from the chronic diseases like cardio vascular
illness, cancer, arthritis, hyper tension, diabetics, kidney problems, loss of vision,
memory loss etc.
5
Nayar, P.K.B., “Problems and Needs of the Aged in India. A Macro Perspective”, Jr. ofSocial Research, 31.
6
Anupama Datta, “Older Women In India: A Case of Multiple Jeopardizes”, BOLD, vol.15 No.2, 2005, p. 1.

7
A. Asharaf, “Economic Security for Older Women in India”, BOLD, vol. 15 No.2, 2005, p.9.

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 c) Emergence of nuclear family leads to marginalisation of the elderly. Social
isolation, loneliness and desertion from society will lead to adverse effects on
mental health8.

 HOUSING PROBLEMS:
a) Housing for the senior citizens should be suitable not only to the living pattern
which they have established in optimum health, but also to conditions of failing
health and illness, commonly associated with later years of life such as, failing
eye sight, hearing, slowing and upsurges, diminishing energy and more acute
disabilities, such as blindness, forgetfulness etc. On this pattern, the housing
available to majority of the senior citizens may be found inappropriate and
unsuitable to their requirement9.

8
Indira Jai Prakash “Ageing In India” World Health Organization, Geneva, April 1999, p.8.

9
Tyagi, Renu, and Satwani Kapoor. “Ageing in structural and functional dimensions among institutionalized and
non-institutionalized senior citizens.” anthropologie (1962-), vol. 42, no. 2, 2004, pp. 141–146. jstor,
www.jstor.org/stable/26292683.

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 RIGHTS OF SENIOR CITIZENS: As per Indian Laws

 CONSTITUTIONAL PROVISIONS:
a) Constitution of India envisages protecting the rights of the citizens of India, which
include senior citizens as well. Under Part IV (Directive Principles of State Policy),
Article 41 which directs the state to make effective provisions for securing Right to work
and public assistance in certain cases which includes old age and Article 46 which directs
the state to protect the economic interests of the weaker sections are the provisions.
b) The DPSP are fundamental in the governance of the country, but they are not enforceable
in the Court of Law. Every citizen has the right to work over a certain period of time.
They cannot be retired from doing their work whether in the private or the public sphere.
After the Forty-first amendment, the age for retirement of a chairman and its members
under public service commission’s were raised from 60 years to 62 years.
 PERSONAL LAWS:
a) Hindu Adoption and Maintenance Act, 195610: Under Section 20 of Hindu Adoption and
Maintenance Act, 1956 parents are entitled to claim maintenance from their son as well
as their daughter if they are unable to maintain themselves. This right extends to both
natural and adoptive parents. However step parents having their own children cannot
claim maintenance from their step-children.
b) Muslim Personal Law: Under the Muslim personal law, both son and daughter are bound
to maintain their parents who are poor if they have means to do so. Since the concept of
adoption does not exist in the muslim community, the personal law is silent on the right
to maintenance of adoptive parents.
c) Christian and Parsi Laws: No provisions for maintenance are mentioned under Christian
and Parsi personal laws regarding parents. The Christian and Parsi parents who wish to
seek maintenance from their children need to claim it under Code of Criminal Procedure.
d) Code of Criminal Procedure, 197311: Parents irrespective of the community they belong
to can claim maintenance from their children (son and daughter including married

10
Act No.78 of 1956
11
Act No. 2 of 1974

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 daughter) under section 125 of CrPC. The children must have sufficient means to
maintain their parents and the parents must lack means to maintain themselves.

 MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

(MWPSCA):
a) The MWPSC, 2007 seeks to make it a legal obligation for children and heirs to provide
sufficient maintenance to senior citizens, and proposes to make provisions for state
governments to establish old age homes in every district. The Act places an obligation on
children and relatives to maintain a senior citizen or a parent to the extent that they can
live a normal life.
b) This obligation applies to all Indian citizens, including those residing abroad12. The Act
defines “children” as sons, daughters, grandsons and granddaughters13 and “parents”
includes biological, adoptive or step parents14. A senior citizen who is unable to maintain
himself based on his own earnings or property shall have the right to apply to a
maintenance tribunal for a monthly allowance from their child or relative15. If he is
incapable of filing the application on his own, he may authorise any other person or
registered voluntary association to apply on his behalf. The maintenance tribunal may
also, on its own, initiate the process for maintenance16. In case of childless senior
citizens, relatives are obliged to provide maintenance.
c) The Act defines “relative” as someone who is in possession of or would inherit a senior
citizen’s property. The Act, however, doesn’t seek to make it an absolute obligation on
the relatives of a senior citizen; it states that a relative from whom such maintenance is
being claimed must have sufficient means to maintain such claimant. Further, the Act
also attaches a proviso to it, which states that such person should either have the
possession of the property of such senior citizen, or he would inherit the property of such
senior citizen. If more than one relative would inherit such property, the Act proposes

12
S.2(h), Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
13
S.2(a), Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
14
S.2(d), Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
15
S.5(1)(a), Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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 proportionate payment by all relatives where the maintenance shall be payable by such
relative in the proportion in which they would inherit his property. It is only fulfillment of
the above-mentioned conditions that a relative can be asked to maintain the senior citizen.
However, the Act fails to address instances where the senior citizen sells his property to a
third party or if the relative who is said to inherit the property intends on refusing to
accept it. Further, as wills are changeable, it is unclear how one would determine who
would inherit the property after death, and therefore who would be obliged to maintain
the senior citizen. The Act mentions various duties of the State Government.
d) The Act mandates that the maximum maintenance paid will be Rs 10,000 per month17.
The maintenance amount is determined by the needs of the claimant and the aim is to
provide maintenance for the person to lead a normal life.
e) The Act states that the state government may establish and maintain at least one old age
home per district with a minimum capacity of 150 senior citizens per home18. The state
government may also prescribe a scheme for the management of such homes which shall
specify standards and services to be provided including those required for medical care
and entertainment of residents of these old age homes. It shall ensure separate queues for
senior citizens, expand facilities for treatment of diseases and expand research for chronic
elderly diseases.
f) Further, the Act is silent regarding management and administration of such Old Age
Home. Taking into account the current destitute conditions of old age homes established
prior to this Act, it is clear that if no legal obligation or responsibility is specified, these
provisions will not be fulfilled.

17
S. 9(2), Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
18
S. 19, Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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RIGHTS OF SENIOR CITIZENS : ON THE INTERNATIONAL FRONT

 PROTECTION IN EXISTING HUMAN RIGHTS DOCUMENTS:

a) The 1982 Vienna International Plan of Action on Ageing is the first international
document on ageing, created by the first World Assembly on Ageing, and later endorsed
by UN General Assembly resolution 37/5119. It is developmental in focus, outlining
principles and recommendations on areas such as the family, social welfare, health and
income security. The Plan focused on ways to assist and protect the elderly and was later
implemented through the five principles of independence, participation, care, self-
fulfillment, and dignity by the United Nations Principles for Older Persons
b) The UN Principles for Older Persons were adopted by UN General Assembly resolution
A46/91 of 199120. The Principles are divided into five sections, which closely correspond
to the rights in the ICESCR. "Independence" refers not only to the basic provisions of
food, water, shelter, clothing, and health care, but also to the right to work and to have
access to education and training21. "Participation" refers to the rights of older persons to
form associations and movements so that they can actively participate in the formulation
and implementation of policies that affect their well-being. "Care" refers to the right to
enjoy human rights protection regardless of whether the elderly person is living in their
own home, in a treatment facility, or in a shelter.22 "Self-fulfilment" [sic] refers to the
right to the full development of elderly persons' potential through access to cultural and
educational facilities and resources. Finally, "dignity" refers to the right to live in security
and free of exploitation, abuse, and discrimination.
c) The 2002 Madrid International Plan of Action on Ageing (MIPAA) was adopted by the
Second World Assembly on Ageing. It contains three priority themes: development;
health and well-being; and enabling environments. Eliminating age-based discrimination

19
Rodriguez-Pinz6n & Martin, at 947.
20
G.A. Res. 46/91, U.N. GAOR, 46th Sess., 74th plen. mtg., Annex 1 paras. 1-18, U.N. Doc. A/RES/46/91 (1991).
21
Id. paras. 1-5.
22
Id. paras. 7-9; see General Comment 6, supra note 1, para. 5 (explaining that, as contained in the General
Assembly Resolution, the "[p]articipation" principle encourages older persons to actively participate in their
communities).

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 and promoting the human rights of older people are issues that do emerge in this
nonbinding document. However, as the report of the United Nations High Commissioner
for Human Rights to the Economic and Social Council noted in July 201223,
implementation of the Plan of Action “does not systematically consider linkages to the
obligations of the State parties under international human rights instruments.” Regional
action plans have been created, however, monitoring of implementation has been weak.

 BINDING INTERNATIONAL HUMAN RIGHTS LAW:

a) Although it is technically a declaration, the Universal Declaration of Human Rights
(part of the Bill of Rights) is generally considered customary law, and thus legally
binding. Of particular significance to old age is Article 25(1) of the UDHR that
states that everyone has the right to security and a ‘standard of living adequate for
the health and well-being of himself and his family’. Whilst not binding, the UDHR
provides the basis, language and moral force for subsequent human rights
instruments.
b) The International Covenant on Economic, Social, and Cultural Rights itself does not
contain any direct references to older persons. Important specific rights in the
ICESCR are the work-related rights (Articles 6–7) and the rights to social security
(Article 9), to an adequate standard of living (Article 11), to education (Article 13)
and to the highest attainable standard of physical and mental health (Article 12). In
1995, the Committee on Economic, Social and Cultural Rights (CESCR) released
General Comment No. 624 on ‘the economic, social and cultural rights of older
persons’. The comment provides a legal interpretation of how the ICESCR ought to
apply to older persons. General Comment 6 expands the scope of the ICESCR and
provides insight into different mechanisms needed to protect the rights of elderly
people worldwide. It has structural divisions that can serve as a blueprint for further
analysis and elaboration of a comprehensive set of rights of the elderly.

23
Report of the United Nations High Commissioner for Human Rights (E/2012/51), April 2012, pursuant to General
Assembly resolution 48/141.
24
Adopted at the Thirteenth Session of the Committee on Economic, Social and Cultural Rights, on 8 December
1995 (Contained in Document E/1996/22).

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c) In the ICCPR, ‘participation rights’ of special concern for older persons are the
commitment of states to ensure freedom of expression, assembly and association
(Articles 18–19, 21). Article 25 recognises the right of all to participate in the affairs
of their own country. Article 26 states ‘All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law’. The article
includes race, colour, sex, language, religion, origin ‘or other status’ as prohibited
grounds of discrimination. ‘Age’ is not mentioned explicitly, yet might be said to be
included in the ‘and other status’.
d) Articles 1.1 and 7 of the International Convention on the Protection of the Rights of
All Migrant Workers and Members of 4 Their Families (ICRMW, 1990) prohibit
discrimination on the basis of age.
e) Article 11.1.e of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW, 1979) provides for the equal right of women to social
security including in old age.
f) Article 25.b and 28.2.b of the Convention on the Rights of Persons With Disabilities
(CRPD, 2008) require States to provide services to prevent and minimise further
disabilities among older people, and to ensure older people with disabilities have
access to retirement benefits and programmes. Four other provisions in the CRPD
require “age-appropriate” or “agesensitive” measures for people with disabilities that
could be interpreted to include old age, related to access to justice, prevention of
abuse, and information on reproductive rights.

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GAP BETWEEN NATIONAL AND INTERNATIONAL LAWS:
 Awareness of human rights of senior citizens in the society, particularly among
older persons is an uphill task, on both, national and international levels.
 The world, especially developing countries like ours, today has a very large
population (and ever increasing) of old people. Rights of an individual in old age
are considered as more of a moral responsibility of the family members and less
of an actual responsibility by the states. On the national front, transformation of
traditional joint family system into nuclear or small family system is one of the
factors responsible for violation of human rights of older persons.
 Prior to 1973, there was no provision for maintenance of parents (senior citizens)
in mainstream Indian laws. 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 centers for every 3-4 districts,
(iii) Establishment of resource centers and re-employment 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 is pertinent to note that, though, these measures and MWPSCA were
inspired by international treaties, there has not been an efficient use of the them on
the national front. As per a survey conducted by the Times Group, only 35 persons

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 had been benefitted from the said Act as of September, 201525, which is
considerably a very meager portion of the actual elderly population.

CONCLUSION AND SUGGESTIONS:

 The most common form of improvement is by creating group-specific conventions.

Once it is accepted that older people suffer specific forms of abuse, such as social
ageism, in health care and in housing need, for example, then it is argued there
would be no reason to deny them a specific instrument as has been granted to other
disadvantaged groups. For example, the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW, 1979).

 There are normative and implementation gaps that make the current laws inadequate.
A normative gap ‘exists when a recurrent event (or act or structural factor) deprives
human beings of their dignity’26. Such a gap requires a more comprehensive
instrument that can frame the rights of the affected group more clearly, even when
existing instruments already provide some protection. For example, children’s rights
were also covered in the UDHR and the 1959 UN Declaration on the Rights of the
Child. Yet, the reality of their vulnerability led to the recognition of children as a
distinct group whose human rights required special attention. Like the rights of older
persons, the children’s rights were scattered among a multitude of legal instruments
and it was evident that they were applied inconsistently.

25
https://timesofindia.indiatimes.com/35-elderly-persons-benefited-under-Maintenance-and-Welfare-of-Parents-
and-Senior-Citizens-Act/articleshow/17940865.cms?referral=PM
26
Reports of the first and second sessions of the open-ended working group,UN A/AC.278/2011/4 and
A/AC.278/2011/5 respectively.

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  Publicity and education may serve to increase their awareness and encourage use of
legal remedies. Even when cases of elder abuse are recognized, they are often not
addressed due to the absence of "proper legal instruments to respond and deal with
them."27To address this issue, it would be beneficial to have an international set of
standards for prevention of elder abuse developed as part of a binding international
treaty addressing the specific needs and rights of the elderly.
 On the national front, the MWPSCA mandates that old age homes be set up in every
districts28. However, only states like Andhra Pradesh, Karnataka, West Bengal,
Madhya Pradesh, among others have done so. Therefore, proper checks are required
by both, Central and State governments to address this issue.

27
A Global Response To Elder Abuse And Neglect: Building Primary Health Care Capacity To Deal With The Problem
Worldwide: Main Report 1 (2008), available at http://www.who.int/ageing/publications/ELDERDocAugust08.pdf
28
See supra note 18.

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