Despite Supreme Court judgments, UN conventions and schemes, the rights of the elderly to live a life with human dignity and care are being bypassed. How serious is the centre and states about them?
By Dr Abhishek Atrey
Recently, the Kerala High Court in Jagdish Ramachandran versus Maintenance Tribunal allowed a senior citizen suffering from dementia to reside with her sister instead of her children. It said that the old lady was much more comfortable with her sister rather than her children or in her home where she was attended by nurses 24/7. The High Court recognised
that in old age, the company of loved ones is important.
The number of elderly people in India increased from 1.98 crore in 1951 to 7.6 crore in 2001 and 10.38 crore in 2011. It is projected to go up to 17.3 crore in 2026. The Constitution-makers were also aware of the problems of aged people and mandated their proper care and well-being. Social justice in the Preamble of the Constitution has been given a place of pride. Article 41, which is part of the Directive Principles of State Policy, says that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, education and public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want.
With the development of law, the definition of “right to life” given under Article 21 was enhanced from time to time by the Supreme Court, and under its sphere, many facets of life were added. In the case of Francis Corelie Mullin 1981, it was stated by the Supreme Court that the right to life includes the right to live with dignity and all that goes with it. This includes the bare necessities of life such as adequate nutrition, clothing and shelter, facilities for reading, writing and expressing oneself in diverse forms and freely moving about and mixing with fellow human beings.
In the case of Shantistar Builders 1990, it was stated by the Supreme Court that the right to life would take within its sweep the right to food, clothing, decent environment and a reasonable accommodation to live in. Further, in Chameli Singh 1996, the Supreme Court said that the right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads, etc. Therefore, the right to shelter does not mean a mere right to a roof over one’s head, but the right to all the infrastructure necessary to enable old people to live and develop as human beings. The right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure for its citizens all this, of course, subject to its economic budgeting.
Article 25(1) of the Universal Declaration of Human Rights declared that everyone has the right to a standard of living adequate for the health and well-being of himself and his family. This includes food, clothing, housing, medical care and necessary social services. Article 11 (1) of the International Covenant on Economic Social and Cultural Rights lays down that State parties to the covenant recognise that everyone has the right to a standard of living for himself and his family, including food, clothing, housing and to the continuous improvement of living conditions.
The right to life ensured under Article 21 has been interpreted by the Supreme Court to include meaningful right to life and not merely animal existence as elaborated in several judgments. Such a right would be rendered meaningless if an aged person does not have the financial means to take care of basic necessities and has to depend for it on others. Therefore, it is necessary that all elderly persons must be granted adequate pension so that they are able to sustain themselves with dignity.
The right of parents to be maintained by their children was protected under Section 125 CrPC. This right was recognised by our lawmakers authoritatively in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Under this Act, a senior citizen above 60 years can claim maintenance up to Rs 10,000 per month from his son, daughter, grandson, granddaughter or any other relative who would inherit his property after his death. Under this Act, maintenance tribunals are being established in the entire country and a senior citizen can file an application at any place where he resides or where his children or such relative reside. It will be duty of the maintenance tribunal to decide such an application within 120 days. A senior citizen can also file an appeal under Section 16 of this Act before the appellate tribunal, but there is no right to file an appeal to such children or relative against any order of the maintenance tribunal.
Under Section 19, it is duty of a state government to establish at least one old age home in every district for accommodation of a minimum of 150 senior citizens. Section 20 casts a duty on the state government to provide preferential treatment to senior citizens for medical facilities.
If a senior citizen transfers his property to any person by way of gift or otherwise with the condition that the transferee shall provide basic amenities and physical needs to the transferor, but later on he refuses or fails to provide, such transfer can be declared void by the maintenance tribunal on the application by such a senior citizen. This Act further provides that if any person abandons any senior citizen, hecan be punished with imprisonment up to three months.
For fulfilling its social responsibility, the central government issued various schemes. The National Social Assistance Programme was introduced in 1995, and in 2007, the Indira Gandhi National Old Age Pension Scheme was started. Under this scheme, Rs 200 per month is being given to those from 60 years to 79 years and Rs 500 per month to those above 80 years. But such a meagre amount is nothing, but a mockery of elderly people.
In Ashwani Kumar versus Union of India 2018, a writ petition was filed before the Supreme Court for ensuring pension, shelter, geriatric care and medical facilities for elderly people and effective implementation of the Maintenance and Welfare of Parents and Senior Citizens Act 2007. In this matter, it was argued that the monthly pension of senior citizens should be increased up to at least half of the minimum wages. The Supreme Court discussed at length as to what is included in the right to life with human dignity. It recognised the right to dignity and adequate pension, right to shelter, right to health, medical care and assistance as a part of right to life under Article 21 of the Constitution.
The Supreme Court also considered various provisions of the 2007 Act and held that while enacting it, the Parliament was fully aware of the financial impact of the law. Therefore, the argument of states about economic budgeting cannot be considered a valid argument and any excuse of lack of finances by the government or states in strictly implementing the provisions of the Act of 2007 cannot be considered to be a valid excuse. The Supreme Court issued a continuous mandamus to keep a watch on the directions passed under this matter from time to time.
It is therefore apparent from various decisions of the Supreme Court, UN conventions, the Act of 2007 and schemes of the centre and state governments that the rights of elderly people to live a life with human dignity with proper maintenance and care is recognised at all levels. Still, they are being abandoned by their children. And in the absence of knowledge about their rights and various schemes, they are bound to die in a poor condition without proper care, assistance, love or affection.
In comparison to the population of India, one old age home in every district with the facility of accommodating 150 persons is not a tall order. In fact, this should be increased to at least one in every city or town with the facility of accommodating at least 500 people. Also, the pension of elderly people should be increased to at least Rs 10,000 per month and medical facilities be provided to them free of cost in all government hospitals. Is that asking for much?
—The writer is Advocate-On-Record, Supreme Court