RIGHT STEP FORWARD
The Senior Citizens Act, 2007, requires amends to protect the elderly from the whiplash effect of changing family structures, writes Animesh Upadhyay
With modernisation, the Indian society has seen tremendous changes which have been both good and detrimental. The elderly have always been an important component of Indian society and were protected and cared for within the traditional family setup. The very same traditional family setup is the worst affected by the changes. Demographic statistics reveal that India is ageing at a rapid rate with people in the age group of 60 years and above increasing by 326 per cent and those in the age group of 80 and above increasing by 700 per cent.
National development, of which the elderly are undeniably an integral part, requires governmental planning which, in turn, requires legislative enactments for their validation and implementation. It is time for the government to draw up a robust policy that consciously protects senior citizens from the vulnerabilities of old age and cushion them from the whiplash effect of changing family structures.
Article 41 of the Constitution of India provides that the state “shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of old age”. The Hindu Adoption and Maintenance Act, 1956 also requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves. In light of the constitutional mandate, Parliament came up with ‘The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007’. It was introduced in the Lok Sabha on March 20, 2007, and finally received the Presidential assent on December 29 of the same year. The stated aim of the legislation is to provide
effective provisions regarding the maintenance and welfare of parents and senior citizens which is guaranteed and recognised under the Constitution. The bill also strives to create an effective mechanism for senior citizens to ensure that their children perform their moral obligation towards their parents.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted with the noble objective of ensuring the right to live with dignity, the right to life and the right to shelter guaranteed under Article 21 of the Constitution but the legislative intent of protecting the rights of senior citizens does not seem to have been borne fruit.
Section 32 of the Act states that the state government will make rules for the effective implementation of this Act. Chandigarh has taken the lead by issuing the Chandigarh
Maintenance and Welfare of Senior Citizens Rules, 2009 which recognises the jurisdiction of a maintenance tribunal to evict family members, including sons and their spouses if the property of a senior citizen has been unlawfully occupied by them. But such directives that clarify the jurisdiction of the maintenance tribunal are missing in other states.
While the Act states that the “State Government shall prescribe a comprehensive action plan for providing protection of life and property of Senior Citizens”, there has been no consistency in the decisions of the high courts, whenever the issue of parents’ eviction of their children from self-acquired property following the latter’s failure to maintain them had arisen before them.
In C.K. Vasu v. The Circle Inspector of Police, an eviction
order by a maintenance tribunal in favour of an aggrieved senior citizen was set aside by a single judge of the Kerala High Court on the grounds that the Act does not mention whether the tribunal has the jurisdiction to order an eviction. In M.P. Tej Babu v. The State of Telangana and Others, the court held that the only provision under which the tribunal is conferred with the jurisdiction to intervene in property matter involving senior citizens is under Section 23 of the Act and eviction is outside the jurisdiction of the court.
On the other hand, there are a whole host of judgments from the High Court of Punjab & Haryana where with the help of the Chandigarh Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, it has ordered children to vacate the property of aggrieved
elderly parents. In Hamina Kang v. District Magistrate, for instance, the High Court in the light of Rule 3 of Chandigarh Maintenance and Welfare of Parents and Senior Citizens Act, 2009, upheld the eviction orders passed by a maintenance tribunal.
If the elderly are to be protected from neglect in their own homes, then it is crucial that state governments specifically empower maintenance tribunals to decide disputes relating to properties owned by the elderly. Rather than wait for individual states to make rules that empower maintenance tribunals, the Act itself must be amended to provide for eviction remedies to senior citizens if they are being mentally and physically harassed by their children.
It is crucial that state governments empower maintenance tribunals to decide disputes related to properties owned by the elderly. Rather than wait for states to make rules that empower maintenance tribunals, the Act itself must be amended to provide for eviction remedies