AMITY UNIVERSITY, LACKNOW

ASSIGNMENT SUBMITTED TO THE PARTIAL FULFILLMENT OF THE SUBJECT OF COMPARATIVE

PUBLIC LAW

ON
CONSTITUTIONALISM AND RIGHTS OF AGED PERSON

SUBMITTED TO: SUBMITTED BY:

DR.(PROF.) J.P YADAV DIVYA

(FACULTY OF ‘COMPARATIVE PUBLIC LAW) (MASTER OF LAW)

A810820219

AMITY UNIVERSITY, LACKNOW

DECEMBER, 2020

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 ACKNOWLEDGEMENT

Any project completed or one in isolation is unthinkable. This project, although prepared by me, is a
culmination of efforts of a lot of people. Firstly, I would like to thank our Professor, Mr. Kumar Gaurav for
his valuable suggestions towards the making of this project.
Further to that, I would also like to express my gratitude towards our seniors who were a lot of help for the
completion of this project. The contributions made by my classmates and friends are, definitely, worth
mentioning.
I would like to express my gratitude towards the library staff for their help also. I would also like to thank
the persons interviewed by me without whose support this project would not have been completed.
Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.
DIVYA
Enrolment no-A810820219
MASTER OF LAW (1ST SEM)

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 TABLE OF CONTENTS.
INTRODUCTION .......................................................................................................................... 4
MEANING OF CONSTITUTIONALISM ..................................................................................... 6
RIGHTS AND LEGAL PROTECTION OF THE AGED PERSON. ............................................ 8
SOCIAL SECURITY OF OLD AGE PERSON : INTERNATIONAL EFFORTS. .................... 14
CONCLUSION AND SUGGESTION ......................................................................................... 16
Primary Sources .......................................................................................................................... 17
1. Hindu Adoption and Maintenance Act, 1956. ....................................................................... 17
2. Criminal Procedure Code. 1973. ........................................................................................... 17
3. Maintenance & Welfare of Parents and Senior Citizens Act, 2007. ..................................... 17
Secondary Sources ...................................................................................................................... 17

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INTRODUCTION

Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes,
and patterns of behavior elaborating the principle that the authority of government derives from
and is limited by a body of fundamental law". A political organization is constitutional to the extent
that it "contain[s] institutionalized mechanisms of power control for the protection of the interests
and liberties of the citizenry, including those that may be in the minority". As described by political
scientist and constitutional scholar David Fellman: It may be said that the touchstone of
constitutionalism is the concept of limited government under a higher law.

Constitutionalism’ means limited government or limitation on government. It is antithesis of

arbitrary powers. Constitutionalism recognizes the need for government with powers but at the
same time insists that limitation be placed on those powers. The antithesis of constitutionalism is
despotism. A government which goes beyond its limits loses its authority and legitimacy.
Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and
personality, the Constitution should be permeated with ‘Constitutionalism’; it should have some
inbuilt restrictions on the powers conferred by it on governmental organs.

Political, Economic and Social Justice are the most extraordinary strengths of our Indian Constitution but
in this 21st Century these concepts have to be reinvented and researched. Especially the concept of Social
Justice which the Constitutional framers thought was only about providing equal opportunities 1 but today
has to focus on recent demands of the society i.e. the rights of Aged persons 2to live with dignity. The Indian
Constitution through Article 21, 39 and 41 i.e. fundamental right and direvtive principles of state policy do
recognise few of the rights and concerns but the right to health, shelter, sustenance and dignity of aged
persons is ignored or unforseen.3 Globally several International Conventions4 and declaration 5have
recognised significant human rights for the Aged persons6 but because International laws are not mandatory

1
Jain, M.P., Indian Constitutional Law ( Lexis Nexis 2016)
2
Chandra, U., Human Rights (Allahabad Law Agency, 2017).
3
Justice A.D. Mane’s, Lectures on Human Right. (Hind Law House ,2007)
4
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations,
Treaty Series., UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16
December 1966, United Nations, Treaty Series.
5
UN General Assembly. (1948). Universal declaration of human rights (217 [III] A). Paris.
6
Anand, V.K., Human Rights (Allahabad Law Agency, 2003).

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and their implemntation is weak adherence to it has been ignored , violated and overlooked in many
countries and India is no exception to it. Only the Apex Court through its numerous Precedents has given
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recognition to several rights and invented right to live with dignity through is its interpretation under
Article 21 of Constitution.9

7
. AIR 1981 S.C. 746
8
(2016) 7 SCC 761.
9
. Sarda, M., Deshpande, B., Deo, S., Karanjkar, A comparative study on Maslow’s theory and Indian Ashrama
system, International Journal of Innovative Technology and Exploring Engineering ,2018

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MEANING OF CONSTITUTIONALISM
Today, constitutionalism has become as important an issue as that of goodgovernance. In ordinary
parlance, constitutionalism may be defined as a‘belief in constitutional government.’ But what
does constitutional government refer to? Does is it refer to a government with a constitution or
government established according to a constitution, or a government acting according to a
constitution? The concept seems to lack clarity.

Constitutionalism can be defined as the doctrine that governs the legitimacy of government action,
and it implies something far more important than the idea of legality that requires official conduct
to be in accordance with pre-fixed legal rules.1 In other words, constitutionalism checks whether
the act of a government is legitimate and whether officials conduct their public duties in
accordance with laws pre-fixed/ pre-determined in advance.
The latter definition shows that having a constitution alone does not secure or bring about
constitutionalism. Except for a few states which have unwritten constitutions, today almost all the
nations/states in the world have constitutions. This does not, however, mean that all these states
practice constitutionalism. That is why constitutionalism is far more important than a constitution.
Features (Characteristics) of Constitutionalism

According to Barnett, constitutionalism embraces limitation of power (limited government),

separation of powers (checks and balances) and responsible and accountable government.2
Henkin3 identifies popular sovereignty, rule of law, limited government, separation of powers
(checks and balances), civilian control of the military, police governed by law and judicial control,
an independent judiciary, respect for individual rights and the right to self-determination as
essential features (characteristics) of constitutionalism.
We shall thus focus on the following basic elements:
1. Popular sovereignty
2. Separation of Powers (checks and balances)
3. Responsible and accountable government
4. Rule of law
5. An independent judiciary
6. Respect for individual rights
7. Respect to self-determination
8. Civilian control of the military

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9. Police governed by law and judicial control

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RIGHTS AND LEGAL PROTECTION OF THE AGED PERSON.
There are various rights and protection of aged person like constitutional rights and human rights
which is as follow;
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.10

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.11
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:

10
Article 41 of the constitution of India
11
Art 42 of the Constitution of India.

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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. 12This 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. 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.

(III) Christian And Parsi Law:

12
Section 20 of the Hindu Adoption and Maintenance Act, 1956

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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 1973.13 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:

1. 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.

2. The Ministry of Justice and Empowerment has announced regarding the setting up of a

13
Section 125 of Code of Criminal Procedure.

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National Council for Older Person, called agewell Foundation. It will seek opinion of aged on
measures to make life easier for them.
3. Attempts to sensitise 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.
4. 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.
5. The policy also accords high priority to their health care needs.
6. According to Sec.88-B, 88-D and 88-DDB of Income Tax Act there are discount in tax for the
elderly persons.
7. 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.
8. Former Prime Minister A.B.Bajpai was also launch 'Annapurana Yojana' for the benefit of
aged persons. Under this yojana unattended aged persons are being given 10 kg food for every
month.
9. It is proposed to allot 10 percent of the houses constructed under government schemes for the
urban and rural lower income segments to the older persons on easy loan.

The policy mentions:

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.
It may be pointed out that recently the Madurai Bench of the Madras High Court has ruled that
the benefits conferred on a Government employee, who is disabled during his/her service period,
under Section 47 of Persons with Disabilities (equal opportunities, protection of rights and full
participation) Act, 1995 cannot be confined only seven types of medical conditions defined as
'disability' in the Act. The seven medical conditions are blindness, low vision, leprosy-cured,

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hearing impaired, locomotor disability, mental retardation and mental illness. A Division Bench
comprising Justice F.M.Ibrahim and Justice K.Venkataraman said : We feel that the court cannot
shut its eyes if a person knocks at its doors claiming relief under the Act. In a welfare State like
India, the benefits of benevolent legislation cannot be denied on the ground of mere hyper
technicalities. It may be noted that this Act is not directly related to aged person but seven
medical conditions which prescribed in this Act are the common symptom of the aged person.

Need For A Change In Approach:

In the older times, after the completion of 50 years of life, one had to detach oneself from the
responsibilities of a 'Grihastha' and switch over to the third stage of human life which was known
as 'Vanpristha' which referred to the devotion of the next 25 years of life by the 'Vanpristhi' by
mana, vachana and karma to the selfless service of the suffering humanity and the larger society
in return to the services received form society during the first 50 years of life.14

Certain strategies and approaches at different levels of policy making, planning and
programming etc. will have to be adopted in order to harness this vast human resource for
promoting the involvement and participation of senior citizens in socio-economic development
process on a much larger scale.

This participation must result in an end to their social isolation ad an increase in their general
satisfaction with their life. Any attempt to secure the help of the elderly in offering their service
to the nation must simultaneously ensure some sort of package of services aimed at arranging for
them a better quality of life and a well-designed social security network for the senior citizen.
The society and the state in India need to accept the challenge of their effectively focusing their
attention on the following twin issues of:

(i) How to provide a fair-deal to the senior citizens so that they are able to peacefully,
constructively and satisfactorily pass their lives; and

14
Ramachandran R. Hinduism In The Context Of Manusmriti, Vedas & Bhagavad Gita (English), Vista Publication

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(ii) How to utilize the vast treasure of knowledge and rich life experience of the older people so
that they are able to utilize their remaining energies and contribute to the all round development
of their nation.

Palliative Care: Need of the hour : According to a pilot survey, 70% of city's elderly population
is undergoing some kind of medication. The average spending per day ranges between Rs. 3 to
200. However, nearly half of the money goes waste. The reason is absence of proper palliative
care in the country. World Health Organization has marked October 7 as a day to create
awareness about the importance and need for hospice and palliative care. Access to the best
quality care, while facing terminal illness is a human right. Ironically, many people in the world
are denied this right. The bitter side is that government in many countries does not even realize
the important of this right said geriatric physician Dr. Abhishek Shukla.

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SOCIAL SECURITY OF OLD AGE PERSON : INTERNATIONAL
EFFORTS.
International norms for the protection of old age person are settled in human rights documents.
The United Nations is deeply involved in the development of international legal framework on old
age security. The Universal Declaration of Human Rights recognized the old age security as a
human rights issue.15 However, Argentina has the credit to raise discussion on aged at first before
the General Assembly of the United Nations in the year 1948. The issues was again raised by Malta
in 1969. The General Assembly in 1971 asked the Secretary General to prepare a comprehensive
report on the elderly and to suggest guidelines for the national and international action.

The United Nations in 1977 adopted convention on ageing recognizing the right to live with dignity
and security and freedom from exploitation and abuse of aged. The World Assembly on Ageing
was convened in Vienna on 26th July, 1982 and ‘the International Plan of Action on Ageing’ was
adopted. The World Assembly resolved that fundamental and inalienable rights contained in the
Universal Declaration to be applied fully to ageing and that the quality of life is as much important
as the longevity. The aged should be enabled to enjoy a life of fulfillment, health, security and
contentment and that they should be treated as integral part of the society.

On 16th December, 1991 basing on ‘International Plan of Action on ageing’ the General Assembly
of the United Nations adopted the UN Principles for Older Persons for better existence of aged
persons. These principles are concerning to maintenance of independence, active participation,
information and implementation of policies, family care, development, dignity of life and self
fulfillment of the older persons. Principle 1 asserts that older persons must have access to adequate
food, water. Shelter, clothing and health care through the provisions of income, family and
community support and self-help. These principles further provided that older persons should be
able to live with dignity and security. Older persons sholud be free of exploitation and physical or
mental abuse. The UN urged the Governments of different nations to incorporate these principles
in their national programmers.

15
Article 25(1) of the UDHR provides that every one has the right to standrad of living adequate for the health and
welbeing 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, widowhood, old age or other lack of
livelihood in circumstances in his control.
.

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The UN Resolution, ‘Proclamation of Ageing’ (1992) noted that UN activities must consider
ageing in the context of human rights, employment, education, health and housing. The Habitat
Agenda, in paras 17 and 40 proclaims that older persons are entitled to lead fulfilling and
productive lives and should have opportunities for full participation in their communities and
society and all decision making regarding their wellbeing especially their shelter needs.

Under the aegis of the UN various international conventions are adopted which consists provisions
for the betterment of the aged 16. Regional Conventions on Human Rights also have attempted to
protect the spirit of these international documents 17.

16
United Nations Charter (Art.55)
UDHR-1948 (Articles-2,3,22,25 and 27)
17
Regional Conventions which recognised rights of older persons.

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CONCLUSION AND SUGGESTION
At national and international level, there are various measures initiated to provide a life of dignity
to old age persons. But lot of old age person remains outside the preview of these measures because
of lack of awareness of these security measures and ineffective enforcement of the same. There
should be social security network for old age person which ensures assistance to old age person
and old age security should be recognized as fundamental right in the Indian Constitution. The
States can adopt effective policy for childless old. At the same time, present approach towards old
age person is required to be changed. It is essential to develop a value based social system where
parents are considered as God in mortal form. After all one should not forget that he is formed
from the flesh and blood of their parents and his achievements are the result of sacrifice, suffering
and toil hard of his parents.

Aged persons are vulnerable groups in the society and easily exposed to atrocities and
exploitations. Aged people are not mere objects to be thrown or dumped, as they grow older they
need good people to take good care but reality is very harsh and the Government of India and
people at large should work hand in hand to erradicate the violtion of basic rights of aged persons.
The Union Government must continuously supervise the working of State Governments and union
Territories in spreading the awareness about rights of aged amongst the society, monitor the
measures adopted for implementation of provisions of MWP Act and support in implementing the
plan of action for the publicity of MWP Act.

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 BIBLIOGRAPHY

Primary Sources

1. Hindu Adoption and Maintenance Act, 1956.

2. Criminal Procedure Code. 1973.
3. Maintenance & Welfare of Parents and Senior Citizens Act, 2007.

Secondary Sources

1. Websites.

2. Books

 Dr. Nandita Adhikari. Law and medicine, Central Law Publications, Allahabad, 2007.
 Jain MP. Indian Constitutional Law, Wadhwa Pub. Nagpur. 2008.
 Ramachandran R. Hinduism In The Context Of Manusmriti, Vedas & Bhagavad Gita (English),
Vista Publication.
 Marthe Fredvang, Simon Biggs. The Rights of Older Persons, Brotherhood of St Laurence and
University of Melbourne Centre for Public Policy, 2012.

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