2.
OLDER PERSONS (MAINTENANCE, CARE AND PROTECTION)
BILL, 2005
INTRODUCTION/CONTEXT
Everyone has a right to a standard of living adequate for the health and well-being of
himself and his family, including food, clothing, housing and medical care and necessary
social security and the right to security in the event of unemployment, sickness, disability,
widowhood, old-age or other lack of livelihood in circumstances beyond his control1. Article
21 of the Constitution of India also echoes the same. It says, 'no person shall be deprived
of his life or personal liberty except according to procedure established by law'. Further,
Article 39 (a) of the Constitution of India says, 'the State shall, in particular, direct its policy
towards securing (a) that the citizen, men and women equally, have the right to an
adequate means of livelihood'. Article 41 of the Indian Constitution enjoins upon the state
to make effective provisions for public assistance, within the limits of its economic capacity
and development, in cases of unemployment, old-age, sickness and disablement and in
other cases of undeserved want. Both the Central and State Governments are empowered
under Entry 23 of List III (Concurrent List) to make provisions with regard to social security
and social insurance.
The population of senior citizens, aged sixty and above, in India has increased from 42.5
million in 1981 to 55 million in 1991 and is now placed at 70.6 million in the 2001 census.
They comprise about 6.9 per cent of the total population2. There is greater life expectancy
of citizens at birth and the life expectancy at age sixty is also increasing3.
Family has been the most vital non-formal social security for senior citizens in India. Most
senior citizens reside with one or more of their children, particularly when independent
living is no longer feasible4. The Joint family system, prevalent in the Country, ensured that
the needs of the elderly are taken care of, at a stage where they are unable to look after
1
Universal Declaration of Human Rights, Article 25(1)
2
Tenth Five Year Plan 2002-2007, Vol. 2, Planning Commission, Government of India. The projected population of
senior citizens for the year 2016 is about 11.2 million.
3
In the period 1989-93, life expectancy at age sixty was 15 years for males and 16 years for females. Para 1, National
Policy on Older Persons, Ministry of Social Justice and Empowerment, Government of India
4
Para 80, National Policy on Older Persons, Ministry of Social Justice and Empowerment, Government of India
themselves, both financially and otherwise. However, over the years joint families are
gradually disappearing and nuclear families, taking their place.
The Traditional Indian value system inculcates respect for elders. Elders are
considered an intrinsic part of the family. Children turn to their elders for advice on
every aspect of their life. This also results in senior citizens playing an important
role in their families and society. In the current scenario, these values are fast
eroding. The breaking up of traditional joint families into nuclear families has
resulted not only in the separation of families but also in the severance of family
ties. Many senior citizens no longer have the same role in their families as was
traditionally played. While it is inevitable in the current scenario that the family unit
will remain nuclear, this should not result in the breaking of ties and familial
responsibilities. Efforts must be made to retain traditional values in this regard
despite modernization of society.
A great anxiety in old age relates to financial insecurity. When the issue is seen in the
context, one-third of the population (1993-94) 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 of people aged sixty and above can be said to be fragile.5 High costs of
bringing up and educating children affects the transfer of a share of income for the elderly6.
Due to the shortage of space in dwellings in urban areas and high rents, persons migrating
to urban areas prefer to leave their parents in their native [Link] changes have led
to a number of senior citizens being left to live alone, with insufficient resources to meet
even their most basic requirements of food, clothing, housing and medical care. Lack of
social support, breaking up of the joint family system and changing lifestyles aggravate the
health and nutritional problems of the elderly8. Thus, there is need for making provisions to
ensure that the basic requirements of senior citizens are met and that they can enjoy their
right to live with dignity as is envisaged by Article 21.
5
Para 24, National Policy on Older Persons, Ministry of Social Justice and Empowerment, Government of India
6
Para 11, National Policy on Older Persons, Ministry of Social Justice and Empowerment, Government of India
7
ibid.
8
Tenth Five Year Plan 2002-2007, Vol. 2, Planning Commission, Government of India.
Across the globe, steps have been taken by various countries such as the United States,
Canada, the United Kingdom, New Zealand and Germany to provide social security
systems for the elderly and other disadvantaged groups. Such systems ensure that senior
citizens are not deprived of their most basic needs when they lack the resources to fulfil
them. In India, provisions have been made under legislations such as the Code of Criminal
Procedure, 1973 and the Hindu Adoption and Maintenance Act, 19 to enable aged-
parents, with insufficient resources to meet their needs. However, the process under
these legislations is cumbersome and time consuming. Some States like the State of
Himachal Pradesh have enacted legislations enabling the elderly and other dependants to
claim maintenance. However, there is no such uniform legislation at the central level,
hence the need for the proposed Bill.
NECESSITY / NEED / URGENCY
Over the years it has been noticed that a sense of financial and social insecurity is
growing large with the older citizens. The proposed Bill is a welcome step and is a must
because of the following reasons:-
• Rise in Life expectancy
• Breaking of joint family system
• Rise in cost of living
• Blind copying of western culture
• Lack of education to respect elders and erosion of traditional values
• Financial and social insecurity of older persons
SCHEME OF THE BILL
TITLE: A more appropriate title for the proposed Bill would be “The Senior Citizens
(Maintenance, Care and Protection) Bill, 2005”. Referring to Senior Citizen as ‘older
persons’ by and large is not appreciated and not acceptable to most. It hurts their self-
esteem.
APPLICABILITY: The Senior Citizens (Maintenance, Care and Protection) Bill is intended
as a social welfare legislation to enable senior citizens to obtain maintenance from their
children so as to meet their basic requirements and lead a life with dignity. Therefore, the
proposed Bill must be made uniformly applicable to all persons irrespective of their caste,
creed race, religion or sex. This being a social welfare legislation for the benefit of senior
citizens of the country its applicability has to have a wider dimension/ horizon. Economic
and Social security are basic to all community irrespective of their religious
affiliation.
OBJECT: The object/purpose of the proposed Bill should be
a) To provide an effective mechanism for senior citizens to claim need-based
maintenance from their children including foster children, adopted children,
step-children, grandchildren and also from such relatives to whom they have
provided financial support
b) To make provisions for maintenance to be provided or steps to be taken by
the government for the benefit of such senior citizens, who do not have
children, grandchildren or relatives from whom they can claim maintenance
c) To provide a proper mechanism for protection and care of senior citizens on
the part of the government
ELIGIBILITY
The proposed Bill should provide the said benefits/maintenance for senior citizens aged
sixty or above, who do not have sufficient financial resources/property, etc. to meet their
basic needs or have incomes below the poverty line.
EXCEPTIONS:-
a) Destitute widows below the age of sixty and
b) Indigent unemployed men, women (unmarried) below the age of sixty
would have the right to be maintained by their adult earning children.
An explanation may be added providing that if such senior citizens are taking benefit under
any other state or central law, they would not be entitled to the remedies/benefits provided
under the proposed Bill.
AUTHORITY/RESPONSIBILITY– CENTRAL / STATE
ESTABLISHMENT OF A TRIBUNAL
A tribunal in the line and pattern of ITAT (Income Tax Appellate Tribunal) may be
established to which application may be made by Senior Citizens for maintenance or any
other relief or remedy available under the Act. Persons to be appointed for the tribunal
have to have requisite educational qualification coupled with knowledge of law and Human
Rights and preferably having experience of handling delicate issues related to older
persons and other weaker section of society and having a humanitarian approach.
further specific provision should be incorporated providing that the tribunal shall exercise
jurisdiction and entertain claims at the place where the senior citizen/claimant resides
PROCEDURE / POWERS / FUNCTIONS / JURISDICTION OF THE TRIBUNAL
STANDARDISED FORM: A centralised, standardised form should be provided to be filled
by the senior citizens entitled to avail remedies/claim benefits under the provisions of the
proposed Bill,and other weaker section of society providing details of
a) Their income and property,
b) Their children and children’s respective incomes,
c) Health status of the applicant, specifying health problems,
d) Such other details as necessary
The form should be simple and easy to understand (like the Saral income tax form).
Similarly, the children of such senior citizens must be required to give a declaration
specifying incomes, property, number of dependent, etc.
MAINTENANCE OFFICER
A maintenance officer should be appointed to assist senior citizens in filing the
appropriate forms for claiming maintenance or other benefits under the proposed
Bill, particularly when the applicant is unable to make applications by reason of
physical/mental infirmity or any other reason.
CONCILIATION OFFICER
A Conciliation Officer shall be appointed for the purposes of the Bill. Conciliation officer
must be competent in conciliating skills. To put it in other words he/she should be well
qualified and should have a humane approach.
FIXING THE AMOUNT OF MAINTENANCE
The Tribunal appointed under the proposed Bill, after verifying the details provided by both
parties and holding such summary enquiry as it may deem necessary pass order paying
the amount of maintenance to be provided to the applicant. In fixing the amount regard
may be given to:
a) The status of the applicant and the respondent/s,
b) The reasonable requirements of the applicant,
c) The value of the property of the applicant (if any) and income derived therefrom (If
any),
d) The incomes of the applicant and the respondent,
e) If the applicant is living separately, his justification for so doing,
f) The number of dependents of the respondent,
g) The contribution and provisions, financial or otherwise, made by the respondent
with regard to the maintenance of the applicant.
If the senior citizen making the application has more than one adult earning children, the
amount of maintenance fixed may be apportioned between such children in such manner
as may be just.
The order of the tribunal fixing the amount of maintenance will become final and
enforceable after 30 days from the date of the passing the order if no review has been filed
against the order.
INTERIM MAINTENANCE
A provision must be made for interim maintenance to be paid to such senior citizens who
are in urgent need of maintenance, for the period for which their application is pending or
till the final decision is made. It must be pointed out that the applications made by senior
citizens must be decided within the prescribed time and without undue delays. This
provision must only be resorted to in case the application made cannot be decided
immediately and the applicants are in urgent need of maintenance.
REVIEW: The aggrieved party may file a review petition against the order of the
tribunal within Thirty Days from the date of the pursuing the order. The tribunal may
then, refer the petition to the conciliation officer, who after looking into the matter
and discussing, if necessary, with both the parties their respective pleas will make
its recommendations to the tribunal. The tribunal will take note of the suggestions
and recommendations made by the conciliation officer before giving its final
decision on its review petition
MAINTENANCE AMOUNT TO BE DEPOSITED IN BANK
The tribunal while passing the final order may direct the respondent to deposit the
maintenance amount in a designated Bank in the first week of every month on
regular basis or a lump sum amount collectively for several months.
ISSUANCE OF CARD
The Tribunal, after the Review procedure is over and final decision is taken on the amount
of maintenance or where no review application has been made should issue to the
applicant a card to be known as the Senior Citizens Maintenance Card, which the
applicant may use at the designated Nationalized bank to obtain the amount of
maintenance awarded. The record of the amount of maintenance to be paid to the
applicant should be maintained by the Bank.
EFFECTUATION OF ORDER: A maintenance order made under the proposed Bill should
have the same force and effect as an order passed under Chapter IX of the Code of
Criminal Procedure, 1973 and shall be executed in the manner prescribed for execution of
such order by the code.
FAST TRACK COURTS
In case of delay in execution of the order, the matter may be referred to a fast track court
which shall decide the matter within one month.
NOTIFICATION OF DEATH
The death of the applicant or respondent should be notified to the tribunal, upon which the
order of maintenance would expire or be modified accordingly.
PERIODIC REVIEW OF AMOUNT OF MAINTENANCE
Provisions must be made for a yearly review of the amount of maintenance payable to any
senior citizen. At such reviews, changes in circumstances such as the health of the senior
citizen, the receipt of some income by such senior citizen that was not previously received,
loss of employment of the respondent etc should be taken into consideration and the
amount of maintenance fixed accordingly. Further, a provision may be made for
maintenance to be paid to the senior citizen from the fund to be created for the
welfare of senior citizens in case of any emergencies or other circumstances in
which the respondent is unable to pay maintenance for a particular period of time.
Further, in case of any stoppage of maintenance by the children on any pretext
including any court proceedings, the maintenance should be paid from the fund
created
COMPLAINTS OF NEGLECT, INJURY OR CRUELTY:
In addition to the scrutiny of forms and fixing of amount of maintenance, the tribunal should
also be empowered to look into complaints of neglect, physical injury, mental cruelty,
separation from families and its restoration or other occasions or matters requiring
redressal. Provisions should be made however, for such complaints to be referred at first
instance, to the mediator/conciliation officer appointed. If no settlement is reached in such
proceedings, the complaints may be referred back to the tribunal for decision, who would
take note of the suggestions of the above said officer.
SPECIAL CASES
a) Gift of property of Senior citizen
If the property of any senior citizen is transferred by way of gift or otherwise to any
other person, subject to the condition that the transferee shall provide the transferor the
basic amenities and requirements and if the said transferee fails to do so, then the
transfer of property may be deemed to be made by fraud, coercion or under undue
influence and should be declared void at the option of the transferor, by the tribunal.
The application to declare the transaction void must be decided within one month.
Provision must be made to declare the person to whom such gift of property has been
made as a person liable to pay maintenance under the proposed Bill
b) Senior Citizens having no Children / Single Senior Citizen
Provision must be made for the maintenance / care of such senior citizens who do not
have children, grandchildren or any other person from whom they can claim
maintenance and lack the means to meet their basic needs from the fund created for
the purpose. There must also be provisions for payment of maintenance to those
senior citizens whose children, grandchildren or other relative have insufficient
resources to provide for their maintenance.
SUGGESTIONS/ RECOMMENDATIONS
CREATION OF A FUND
A fund should be created for providing maintenance and looking after the other needs of
the senior citizens to whom the proposed Bill is to be made applicable. The contributions
made by individuals (family members of applicants) may be deposited in the said fund.
There should also be some budget allocation by the Centre, State or both, towards the
said fund. The National Policy on Older persons recognizes that larger budgetary
allocations from the State will be needed and the Rural and Urban Poor will be given
special attention. However, it is neither feasible nor desirable for the State alone to attain
the objectives of the National Policy. Individuals, families, communities and institutions of
civil society have to join hands as partners9. In keeping with this policy, efforts must be
made to encourage contributions to this fund by corporations, societies, institutions as well
as individual citizens, NRI's with resources. Further, all contributions made to this fund
may be given the benefit of Income Tax exemption. Funds must be dispersed to
nationalized banks from the said fund, where it can be accessed by senior citizens, using
the card provided to them.
HOMES FOR SENIOR CITIZENS
The Central and State governments should be required to set up homes in every district
with adequate facilities for men, women and couples. Such homes shall particularly be set
up for senior citizens who are lonely and who do not have a home or any adequate shelter.
Facilities should be provided to meet their nutritional, medical, recreational and spiritual
facilities.
PROTECTION OF SENIOR CITIZENS
Senior Citizens have become soft targets for criminal elements. The National Policy on
Older persons at Para 67 provides that police will be directed to keep a friendly vigil on
elderly couples/single persons living alone and promote mechanisms of interaction with
neighbourhood associations. Provisions should be made for mechanisms of protection of
their lives and property. In every police chowki/Thana, a special cell must be provided for
the protection of senior citizens. An area wise list of senior citizens must also be
maintained. Involvement of NGO's, public spirited people, Residents Association,
9
Para 22, National Policy on Older Persons, Ministry of Social Justice and Empowerment, Government of India
Scheme like Bhagedhari should be encouraged, and recognised by the Government
by giving awards, certificates etc. to these associations.
OTHER MEASURES
Other measures for the welfare of senior citizens must also be taken. Awareness
programmes relating to traditions of the country, importance of values, morals, ethics etc.
should be organised frequently to educate the younger generation to respect and care
their seniors. Prevention is always better than cure. It is high time for us to once again
introspect and to give due recognition to the strength, inspiration, and experience of elderly
citizen of the country. Steps may be taken to promote schemes such as the ‘adoption of
senior citizens’ by persons or families having means as a welfare measure. Such a
scheme would not only provide financial security to senior citizens, it would also create a
sense of belonging.