Protecting the Elderly in India: Hits and misses under the recent legislative and judicial framework

The United Nations Educational, Scientific and Cultural Organization (UNESCO) has asserted that the population of the world's elderly (those aged above 60) is likely to cross the two billion mark by 2050. As per the Indian government, the number of elderly persons in India has increased from 1.98 crore in 1951 to 10.38 crore in 2011. It is projected that the number of senior citizens in India will increase to 14.3 crores in 2021 and 17.3 crore in 2026.

The growing elderly population is now faced with a host of challenges, especially in rural India. With the withering away of the Joint Family System, issues such as financial insecurity, isolation, and emotional neglect at the hands of their own kin have become the order of the day for our elderly.

The Global Age Watch Index (GAWI), which ranks countries by how well their older populations are faring, ranked India at 71 out of 96 countries. India ranks lowest in the health domain (87). The recent outbreak of the Coronavirus pandemic has further added to the woes of the elderly population, exposing them to unprecedented health hazards.

According to an advisory for the elderly population released by the Union Health Minister, the elderly population is at a higher risk of COVID-19 infection owing to decreased immunity and body reserves. Further, multiple associated co-morbidities such as diabetes, hypertension, chronic kidney disease and chronic pulmonary disease add to their vulnerability.

The ones facing such dereliction in their twilight years will have to resort to protections and safeguards under the applicable laws.

The Government of India enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 in an attempt to further the constitutional mandate of securing the interests of elderly under Article 41 of the Constitution of India.

The protections accorded to the elderly under the 2007 Act are of particular contemporary significance, especially when Delhi High Court has recently taken judicial notice of the fact that domestic violence cases in India have seen a significant increase during the nationwide lockdown imposed by the government.

Moreover, the Delhi High Court had previously recognised in Vinay Verma v Kanika Pasricha and Anr. that disputes between parents-in-law and their children have arisen significantly and raised complex legal issues as to the interpretation and balance between the the 2007 Act and the Protection of Women from Domestic Violence Act, 2005.

In cases of disputes between the parents (or parents-in-law) and children, the elderly may be concerned with peaceful enjoyment of their property or in other cases, demand a fair sum from their kin towards maintenance for a decent lifestyle.

Safeguards under the 2007 Act and judicial iinterpretations expanding its scope

The 2007 Act enables any ‘Senior Citizen’ (defined as a citizen of India who has attained the age of sixty years or above) or a ‘Parent’ to make an application for ‘maintenance’ (defined as including provisions for food, clothing, residence and medical attendance and treatment) before a ‘Maintenance Tribunal’.

Such an application can be preferred at the instance of:

(i) A (childless) Senior Citizen against any of his relatives (defined as any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit the his property after his death) or

(ii) A parent or grand-parent against one or more of his children not being a minor.

The 2007 Act therefore casts an obligation on persons who inherit the property of their aged relatives to maintain such aged relatives.

In a plethora of decisions involving the interpretation of the 2007 Act, the Delhi High Court has gone the extra mile to enlarge the scope of the legislation to even confer the rights of eviction upon the elderly (which were provided only by way of the concerned state rules).

In Smt. Darshna v. Government of NCT of Delhi and Ors. the Court held that the 2007 Act (and the rules framed in New Delhi under the Act) entitle a Senior Citizen to evict his son, daughter, or legal heir from his property irrespective of whether it is an ancestral or self-acquired property;

In Sandeep Gulati v. Divisional Commissioner, it was held that the mere fact that parents do not wish to have their children staying with them is enough to invoke the Act and the Rules, and there is no strict requirement to show that he/she needs maintenance (in order to obtain an eviction order);

In various judgments as cited in Vinay Verma, it has been held that even daughters-in-law can be evicted under the provisions of the 2007 Act.

The above decisions clearly suggest that the Delhi High Court has adopted a liberal interpretation while construing the 2007 Act, and a remedy of eviction/maintenance can be forthwith granted to an aggrieved elder person.

It is, however, arguable that the 2007 Act provides for a (meagre) upper limit of Rs. 10,000 towards maintenance, which can be ordered by the maintenance tribunal. The upper limit is now proposed to be done away with by virtue of the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019.

However, it needs to be further examined whether the Central and state governments have complied with the provisions of the 2007 Act for it to remain an effective tool in the hands of several elderly persons, in the face of the Coronavirus pandemic.

Directions of the Supreme Court in Ashwani Kumar v. Union of India

The Supreme Court in the Ashwani Kumar case passed various directions to the Central and state governments while citing non-compliance with the provisions of the 2007 Act. These include:

(i) The Union of India was to obtain necessary information from all the state governments and the union territories about the number of old age homes in each district of the country and file a Status Report in this regard [Section 19 of the 2007 Act requires establishment of old age homes, at least one in each district, to accommodate a minimum of one hundred fifty senior citizens who are indigent].

(ii) The Union of India was further directed to obtain from all the state governments the medical and geriatric care facilities that are available to senior citizens in each district and file a Status Report in this regard. [Section 20 of the 2007 Act provides for the state government to ensure that government hospitals or hospitals funded fully or partially by the government shall provide beds for all senior citizens as far as possible, otherwise earmarked services for geriatric care].

(iii) On the basis of the information gathered by the Union of India as detailed in the Status Reports, a plan of action should be prepared for giving publicity to the provisions of the 2007 Act and making senior citizens aware of the provisions of the said Act.

It is noteworthy that the Apexe Court was pleased to issue a ‘continuing mandamus’ in relation to the aforesaid directions, and matter was thereafter adjourned to January 31, 2019. A perusal of the order sheets reflects that the matter was thereafter only taken up on November 29, 2019 and December 13, 2019. However, it remains unclear whether the Central and state governments have complied with the directions.

In the wake of the Coronavirus pandemic, the time is ripe for the Supreme Court to take suo motu cognizance of the matter to see if the directions contained in the Ashwani Kumar judgment have been complied with.

More importantly, with the number of Coronavirus cases touching close to 1.3 lakh, the Supreme Court should ensure that the state governments are funding the healthcare expenditure of the Senior Citizens, as is the mandate under Section 20 of the 2007 Act.

India is in immediate need of strategic measures towards building a robust social security system for its elderly population. Otherwise, there is a grave risk of the demographic dividend that India currently enjoys changing into demographic burden. The lack of adequate social security or old age pension for India’s elderly population is a matter of serious concern, and deserving of necessary attention by our policy-makers.

Vipul Kumar is an advocate practising before all courts and tribunals in New Delhi and may be contacted at ‘vipul.rmlnlu@gmail.com’.

Shireen Moti is an Assistant Professor of Law at Jindal Global Law School, where she teaches courses on Constitutional Law.

Views are personal.