Rights of Elderly

DR NAVJEET SIDHU KUNDAL

Introduction

 United Nations, which is the modern day master of protection of human rights and
peace at the international level, has time and again considered the issue of elderly
rights. Accordingly, various efforts have also been made by the organisation to
protect the human rights of the aged.
 Universal Declaration of Human Rights, 1948 The Universal Declaration of
Human Rights of 1948, which is the foundation of the contemporary human rights
law, for the first time, recognised the right to security of the elderly under the
provisions of Article 25. This recognition of the rights of the elderly served as the
basis for the formulation of various other documents in this direction.
Contd…

 Vienna International Plan of Action on Ageing, 1982 The initial coordinated

efforts for the recognition and protection of the rights of the elderly on the basis of
the Universal Declaration of Human Rights, 1948 were made in the year 1980
when the issue was incorporated in the United Nation’s agenda.
 Consequently, a World Assembly on Ageing was organised in the year 1982 for
the first time at Vienna, where 124 nations of the world were represented. An
International Plan of Action on Ageing was adopted in this Assembly, known as
the “Vienna International Plan of Action on Ageing”, to assist and protect the
elderly community.
UN Principles for Older Persons, 1991

 The Vienna International Plan of Action on Ageing of 1982 was followed by the
adoption of the UN Principles for Older Persons in the year 1991 by the UN
General Assembly vide Resolution No. 46/91. The principles were adopted to
facilitate the implementation of the Vienna Plan of Action of 1982 by clearly
identifying the various rights of the elderly persons. The UN Principles for the
elderly comprises of 18 Principles grouped under 5 themes. The Principles
acknowledge that the diversity in the elderly community, healthy advancement of
age and the ageing of population imposing a strain on the family life and thus,
there is a necessity to support the elderly as well as those providing care to them.
Madrid International Plan of Action on
Ageing, 2002
 The International Plan of Action on Ageing was criticised by many scholars for
the lack of age-based perspective. Later, in the year 2002, the document was
revisited by the United Nations in the Second World Assembly on Ageing held in
April, 2002 at Madrid. A revised International Plan of Action on Ageing,
commonly known as the Madrid Plan was adopted in this Conference with the
consensus of 159 nations. The plan called for
 Promotion of all human rights and fundamental freedoms of the elderly, including
their right to development
 Combating the issue of ageism
 Including the ageing concerns in the global agenda
 Elimination of Neglect, Abuse and Violence towards Older People
Open Ended working group on Ageing

 The Open-Ended Working Group on Ageing (OEWG) aims to discuss concrete ways
to strengthen the protection of our human rights as we age. It is the only group in the
United Nations (UN) that brings together Member States, National Human Rights
Institutions (NHRIs), NGOs and UN agencies on this issue. It was established by the
UN General Assembly in 2010.
 Every year the OEWG meets at the UN headquarters in New York. It considers
problems older people face in accessing two areas of rights, for example: the right to
autonomy or the right to housing. The year after discussing the gaps, the group
considers the content of these rights, that is to say: how to define each right, and what
measures States should take to realise it (the content of these rights is usually referred
to as ‘normative elements’).
New Independent Expert on Enjoyment of
All rights of ELderly
 The Independent Expert on the enjoyment of all human rights by older persons is
one of the thematic special procedures overseen by the United Nations Human
Rights Council.
 The mandate holder addresses existing human rights law and its implementation
regarding the rights of older persons. The Independent Expert identifies best
practices and pinpoints gaps in the implementation of existing law, working with
States to promote and protect the rights of older persons. Part of the Independent
Expert’s duties is to raise awareness, not only to spread knowledge about the
challenges faced in the realization of older persons’ rights, but also to make sure
that elderly persons know about their rights.
Day of the Older persons

 Every year October 1 is Celebrated as the International Day for the Older persons
 On 14 December 1990, the United Nations General Assembly designated October 1
as the International Day of Older Persons resolution 45/106
 The 2021 theme for the day was “Digital Equity for All Ages” This affirms the
need for access and meaningful participation in the digital world by older
persons.
 The United Nations Decade of Healthy Ageing (2021-2030) is a global
collaboration, aligned with the last ten years of the Sustainable
Development Goals, that brings together governments, civil society,
international agencies, professionals, academia, the media, and the private
sector to improve the lives of older people, their families, and the
communities in which they live.
Indian Position
 Article 41 and Article 46 are the constitutional provisions for elderly persons. Although directive
principles are not enforceable under the law, but it creates a positive obligation towards the state
while making any law.
 Article 41 The State shall, within the limits of its 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.
 Entry 24 in the List III of Schedule VII to the Constitution of India (Concurrent List) deals with the
“Welfare of Labour, including conditions of work, provident funds, employer’s liability, workmen’s
compensation, invalidity and Old age pension and maternity benefits”.
 Section 20 of Hindu marriage and adoption act, 1956 makes it obligatory provisions to maintain an
aged parents. It is the duty of both sons as well as daughters to maintain their aged or infirm
parents. However, it is to be noted that such obligation extends only when the parent(s) is (or are)
unable to maintain himself or herself.
 Under Section 125 of Criminal Procedure Code, the elder parents can claim maintenance from their
children. According to this section, it is the obligation of the children to maintain their parents in the times of
necessity. Both sons and daughters, including married daughters are responsible for the maintenance of the parents
under the Code.
Contd…

 Senior Citizens Constitute 8.6% of total Indian population . This is expected to

increase to estimated 19% by turn of the century
 This would represent significant number of socio-economic and healthcare
challenges.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007

 An initiative of the Ministry of Social Justice and Empowerment of the Government of

India, the Maintenance and Welfare of Parents and Senior Citizens Act was enacted in the
year 2007. The Act received the assent of the President of India on December 29, 2007.
 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, seeks to make it
legal for the children or heirs to maintain their parents or senior citizens of the family.
 Maintenance of Parents/senior citizens by children/ relatives made obligatory and
justiciable through Tribunals
 Revocation of transfer of property by senior citizens in case of negligence by relatives

• Penal provisions for abandonment of senior citizens

• Establishment of Old Age Homes for Indigent Senior Citizens
• Protection of life and property of senior citizens
• Adequate medical facilities for them.
Contd…

 It consists of 7 chapters and 32 sections. It defines a senior citizen as any Indian

citizen aged 60 years or more. The Act addresses issues related to the maintenance
of parents and senior citizens, the establishment of old-age homes for indigent
senior citizens, provisions for improving health care services for senior citizens,
and measures to protect their lives and property. These issues are vital for the
dignity and well-being of senior citizens.
 According to this Act, parents and grandparents who are unable to maintain
themselves are entitled to claim maintenance from their children. In case of
childless persons, the specified relatives of the aged childless persons are
obligated to maintain them.
Contd…

 The MWP Act, 2007, has enabled the provision to secure maintenance support through the
tribunal (notified as assistant commissioner/sub-divisional officer of the state) with the powers of
a Civil Court under this Act.
 This Act has simplified the process of seeking maintenance by removing the necessity of a
lawyer to represent the case. There is also an option for the complaint to be made by an
authorized representative or organization. The tribunal can also take cognizance of the complaint
suo motu.
 It mandates time-bound resolution of the complaint with the possibility for securing interim
relief and appeal to the appellate authority (district magistrate). The Act enabled the possibility
of securing maintenance from relatives eligible to inherit the property if they do not have
children. There is also a provision for facilitating amicable settlement through the assistance of a
conciliation officer
 What is Maintenance?

 Maintenance is defined in the Act as including “provision for food, clothing, residence and
medical attendance and treatment”.
 Who Can Claim Maintenance?
 Parents
 Parents means biological, adoptive and step parents. The age of parents is irrelevant to claim
maintenance.
 Grandparents
 Grandparents includes both maternal and paternal grandparents.
 Senior Citizen
 A senior citizen is an Indian citizen who is 60 years of age or olde
 The only condition for claiming maintenance under this Act is that the persons must be unable
to maintain themselves from their own earnings and property.
Who is Legally Obligated to Pay
Maintenance?
 Adult Children and adult grandchildren, both male and female, are responsible for paying
maintenance to parents and grandparents. An application can be filed against any one or more of
them.
 Senior citizens who do not have children or grandchildren can claim maintenance from a relative
who is either possessing their property or who will inherit their property of the senior citizen
after their death. The relative must not be a minor and must have sufficient means to provide
maintenance. If more than one relative is entitled to inherit the property, then maintenance must
be paid by relatives in proportion to their inheritance of the property.
 How much Maintenance Must be Paid?

 The Act mandates that the maximum maintenance paid will be Rs 10,000 per month. 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.
 Filing Maintenance Proceedings:

 The application for maintenance must be filed before the Maintenance Tribunal in any district where

 the parent, grandparent or senior citizen resides; or

 the parent, grandparent or senior citizen has last resided; or
 the person against whom maintenance is claimed resides.
 If the person herself cannot file the maintenance application, then any other person or organisation
authorised by her can file the application on her behalf. Additionally the Maintenance Tribunal has the
power to take action on its own without any request by the parties.

 The Act states that no party to a proceeding before the Maintenance Tribunal will be represented by a
lawyer. However, parents or senior citizens can avail the services of the State Government appointed
Maintenance Officer to represent their interests during proceedings before the Maintenance Tribunal.
Enforcing the Maintenance Order:

 Once an order is passed by the Maintenance Tribunal, a copy of the order must be provided free
of cost to the person who will receive maintenance. If the other person is ordered to pay a sum,
such amount must be deposited within 30 days of the announcement of the Tribunal’s order.

 The failure to pay maintenance without sufficient reason will result in a warrant for collecting the
due amount. If the person does not pay maintenance even after the warrant is executed, the person
is liable to imprisonment for a maximum of 1 month or until the amount is paid, whichever is
earlier. The application for enforcement of maintenance must be filed within 3 months from the
date on which it became due. Otherwise the application will be dismissed.

 The order can also be revised to alter or cancel the maintenance amount if there is any material
change in circumstance of the claimant, misrepresentation (an innocent, unintentional, false
statement) or mistake of fact (wrong belief about a fact).
Protection of Senior Citizens

 Any person who is responsible for the protection and care of a senior citizen and intentionally
abandons the senior citizen completely is liable to pay a fine of Rs 5,000 or be imprisoned for 3
months or both.

 Additionally, senior citizens can file an application before the Maintenance Tribunal to declare
the transfer of property void. The following conditions apply:

 The transfer of property, irrespective of whether it is a gift or not, must be after the
commencement of the Act.
 The property must be transferred by attaching some conditions that require the person to whom
the property is transferred to provide basic amenities and physical needs to the senior citizen.
 The other person must have failed to or refused to provide the amenities and physical needs to
the senior citizen.
Issues and Challenges in Availing the
Maintenance Support
 Financial Limit for Maintenance The important constraint of this provision is the specification of Rs. 10000 as
the maximum amount of maintenance that can be claimed per month. The fixation of a ceiling amount is
arbitrary and hinders securing an appropriate maintenance amount for those with higher economic capacity.
This will discourage individuals from seeking relief under this provision.
 Lack of Awareness and Stigma
 Many senior citizens do not have awareness about this provision and the MWP Act, 2007, in general. LASI
reports that 12% of the elderly are aware of the Act even after a decade of its implementation. The elderly are
also likely to hesitate to seek relief even if they have awareness about the Act due to the perceived stigma in
complaining formally about their children. Senior citizens with physical or mental incapacity may not get
adequate assistance to seek relief through this provision.
 Establishment of Old-Age Homes
 Chapter III of the MWP Act, 2007, and sections 19 (1) and (2) address the issue related to the need for
old-age homes for indigent senior citizens and a scheme for the management of old-age homes.
However, The MWP Act, 2007, has no provision to make the State executive accountable for
implementing these provisions, as the Act has used “may” instead of “shall” in the abovementioned
sections addressing this issue.
 Lack of adequate recognition of the need for residential care under a rights-based perspective and
concerns about the economic capacity of Governments to provide such care could have led to leniency
Contd…

 The mandate from the MWP Act, 2007, for the state governments to start at least one old-age
home in each District to accommodate 150 indigent senior citizens appears to be a target not
realized in majority of the states as reported in the proceedings of the Public Interest Litigation
(PIL) Dr. Ashwani Kumar versus Union of India and others (Writ petition (C) No.193 of 2016).
 There is no streamlined mechanism to facilitate easy access to senior citizens requiring
admission in an old-age home. There is no standard process for ensuring the quality of care in
old-age homes and protecting senior citizens’ rights. There is a strong potential for elder abuse in
the institutions without a proper mechanism for quality assurance and safety even in settings
with much higher resources and oversight processes.
 Promoting Medical Care of Senior Citizens
 Health care is one of the main concerns for senior citizens because of the high prevalence of
physical and mental health conditions. The MWP Act, 2007, has recognized the importance of
this aspect and addressed this in Chapter IV. This Act has mandated the provision of an adequate
number of beds, separate queues, facilities for managing chronic, terminal, and degenerative
conditions, promoting research and improvement of dedicated geriatric health facilities.
Contd…

 Protection of Life and Property

 Section 23 of the MWP Act, 2007, safeguards the interest of senior citizens who transfer their
property by setting a precondition that the transferee should always give care and protection to
them post-transfer. If the transferee does not provide the necessary support per this condition, the
senior citizen can reclaim the property by declaring this transfer null and void by the tribunal.
This provision has attracted wide attention, and several cases have been filed under this section.
 Role of Police
 Rule 20 under this chapter has provided an action plan for the implementation of this provision
by defining the role of the police. This rule has mandated the need for each police station to
maintain the list of senior citizens living in that jurisdiction with a specific emphasis on those
living alone. It has also mandated regular interaction with senior citizens through social workers
or volunteers to enable timely assistance if required. Considering the limitations in the available
resources for the police department, the implementation of this provision has remained
inadequate
Proposed Amendments

 An amendment bill was introduced in the Lok Sabha in Monsoon Session in

2021 but is yet to be cleared by the Parliament. The bill was intended to provide
for the maintenance and welfare of parents and senior citizens ensuring their
overall physical and mental wellbeing.
 Under the new bill, the definition of the children has been expanded to include
biological and adopted sons, daughters, step children, son-in-law and daughter-
in-law, grandson, granddaughter and legal guardian of minor children.
 Likewise, the definition of parent would now include biological and adoptive
father and mother, grandparents, father-in-law and mother-in-law as well.
 The term “maintenance” has been defined as provision for food, clothing,
housing, safety and security, medical attendance, healthcare and treatment
necessary for the parents to lead a life of dignity. According to the 2007 law,
maintenance only included the provision for food, clothing, residence and
medical attendance and treatment.
 In a major amendment, the bill seeks to remove the upper limit of ₹10,000 as the
monthly maintenance amount. Earlier, in the 2007 act, the maximum limit was set
at ₹10,000 per month. If the amendment bill is passed and becomes a law, senior
citizens might receive more than the amount.
 However, the tribunal to look after these affairs, would consider the standard of
living of the parent or the senior citizen, their earnings and also the earnings of the
children or the person responsible.
 While the 2007 act requires the children to pay the maintenance amount within 30
days of the order by the tribunal, the current amendment bill seeks to reduce that
time limit to 15 days.