This is a long document consisting of discussions based on a Note from Sri RN Mital, reactions / replies of Dr Sugan Bhatia and others. Given in chronological order. Those who would like to respond kindly add them as comments. Thanks Vyasamoorthy 6/1/2014
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Assessment
of the Present State of implementation of the
MWPSC
Act 2007-
Submitted by R.N. Mital and Dr.
S.P. Kinjwadekar, Past Presidents of
All India Senior Citizens’
Confederation (AISCCON)
Though
the MWPSC
Act is more than 6 years old yet only 20 States/Ut’s out of 35 have so far
completed all the formalities under it and
9 only have actually
operationalised it but not one State or UT has fully implemented it. This
poor compliance on part of the States and UT’s is partly due to the
indifference shown by States towards issues concerning senior citizens and
partly due to certain lacunae in drafting the Act.
In the following we have highlighted the lacunae, acts of
indifference by the State Governments and the suggested amendments to make its
implementation effective.
1]
The major lacuna in this Act is the conditional legislation -
It is stated in Section 1 (3) that the Act shall come into force “in a State on
such date as the State Government may, by notification in the Official Gazette,
appoint.”
This clause provides discretionary
powers to the State Governments to bring the Act into force at their sweet will
or not to bring the Act into force at all.
There are examples of such conditional legislations which were enacted
way back in 1947 and which are yet to be brought into force by the Government.
2] Punishment for not taking Care of one’s Parents
[Chapter VI Section 24 ] – The
punishment which can be awarded for the above is a maximum fine of Rs 5000/- and/ or imprisonment of 3
months. These are not sufficient deterrents. Neglect and abandonment of
dependent senior citizens is a very serious inhuman crime. The imprisonment should be extended to
5 years instead of three months and fine to Rs 50,000/- instead of Rs. 5000/-
According to surveys conducted by Help Age large number of senior
cutizens are tortured and ill treated because the family members try to usurp
their property and assets, or sometimes consider them as a burden. There
is no punishment provided in the Act for
cruelty and torture which is often meted out to elders to usurp their assets or
when they are regarded as a burden.
The
MWPSC Act should be made more stringent for those who do not look after their
elders. Instances of cruelty including ill treatment by the family members and
caregivers by way of denying basic
facilities, beating or even sexual
misbehaviour are increasing. These may even lead to the extreme act of cruelty
that is physical torture and even
abandonment. Such crimes against dependent
elders should be made non-bailable, non-compoundable and a cognizable offence
as in case of the Domestic Violence or Dowry Prevention Act, section 498A of
IPC, or the Act for prevention of atrocities against SC/ST.
3] Chapter III
section 19 provides for establishment of Old Age Homes
and the State Governments have been given complete discretion to establish such
Old Age Homes “as it may deem
necessary”. So far no Old Age Homes have
been built by the States under this provision. The request by MOSJE to Planning
Commission to allot funds for this purpose so t hat MOSJE could help the States
to build such Old Age Homes, was turned down.
Adequate funds
should be allotted for this purpose and building of Old Age Homes for the
indigent should be made obligatory for the States.
4]
Chapter IV Section 20 lays down that all Govt.
Hospitals or Govt
assisted Hospitals shall provide beds for all senior citizens, arrange separate
queues, expand facilities for terminal diseases and research facilities for
elderly diseases. Moreover, it is further provided that these facilities should be headed by a medical
officer with experience in geriatric care.
To the best of our knowledge no Govt Hospital
has set up these facilities so far.
We suggest that effort
should be made to persuade the States to set up these facilities and the Act be
amended to make compliance obligatory.
5a] Chapter V Section 21
provides for wide publicity both through electronic and print media to be
given to the provisions of this Act. We find that no State has given any
publicity in this regard. MOSJE have made now provision in their planning to
comply with this provision and did issue one or two advertisements about this
Act, but no concerted effort has so far been made by any State. Compliance should be made obligatory.
5b] Section 22 (2) It prescribes a comprehensive plan for providing protection of life and
property of senior citizens. It is a matter of common knowledge that senior
citizens are regarded as soft targets by anti social elements According to NCRB the crimes against them
particularly those living alone are rising.
The directions said to
have been issued by the Home Ministry to the States have still not been
implemented. Provision should be made for deterrent punishment in cases of
violence against the dependent elders. (Kindly see item2 above).
6] Section 16 deals
with “appeals” to Appellate Tribunal. Sub Section (1) provides a right to appeal
only to the senior citizens or parents “aggrieved by the order of the
Tribunal”. Obviously, therefore this
section does not provide a right to appeal to the children or the relative
against whom an order was passed.
Therefore, there is a danger that this section may be challenged as
arbitrary and opposed to the principle of equality enshrined in Article 14 of the
Constitution of India.
Although it is not in the interest of the senior
citizens or the parents, such a right of appeal may be given to the children or
relative also.
Normally it would be in the interest of both the parties that a right of
appeal is granted to both parties This will confer a
greater credibility, besides bringing about a finality to the order passed by
the Appellate Tribunal.
7] Section 30
empowers the Central Government to give directions to the State Government as
to carrying into execution of the provisions of this Act. Under this provision the Central Government
may direct all the State Governments which have not yet brought this Act into
force to enforce this Act immediately and thus ensure that this Act is brought
into force throughout the country.
8] Chapter
1 Section 2a - to include daughter-in-law if son has expired
or in his absence.
Section 2b - include “ conveyance” also
These are
recommendations of RN Mital & Dr SP KInjawadekar to National Human Rights
Commission. – Jan 2014 sent as an attachment to others as well with following
message dt 3/1/2014. Discussions on this are in following pages:
Kind Attn : Mr.
J.S.Kochher, IAS,
Joint
Secretary (Trg&Res), NHRC,
DS(R)
Unit, PRP & P Division, Delhi
Dear
Sir,
Kindly
accept our best wishes for a Happy New Year
During
the meeting of the Core Advisory Group on Elderly Persons on December 20, 2013
there was a detailed discussion regarding assessment of the present status of
implementation of the MWPSC Act 2007. A number of suggestions were made by Dr.
S.P. Kinjwadekar and myself, both past Presidents of the All India Senior
Citizens Confederation, concerning the lacunae in the Act, present
status of implementation and suggested amendments in view of the present
rampant cases of Abuse and Cruelty against the Elderly. We were asked by Shri
S.C. Sinha to submit our suggestions in writing. They are accordingly attached.
The
legal contents are based on the observations of Dr. N. Rangaiah, ex Professor
of Law,
University
of Guntur, AP.
Pl.
regard our co-operation at your disposal if any more information is required.
With
regards,
R.N.Mital
Imm.
Past President,
All
India Senior Citizens' Confederation
==
Dear Shri Mital,
Thanks for joining the debate on the vital issue of destitute and
abandoned senior citizens. Dr. Asha Patil of SNDT Women's University
responded before you and argued in favour of nationwide interaction on the
subject in the form of local Seminars on the subject. I welcome such
suggestions and continued interaction. "Dispossession, Destitution and
Abandonment - the Senior Citizens in India" is the title of a recent book
of mine published by Sonali Publications (2014). I continue to be a student of
this subject and document and analyze the latest incidents and thought
processes; I will be very glad to learn from your efforts in the form of a
paper.
It is essentially an issue where the economics of life takes over the very
critical filial duty that all human beings have been taught by parents and
senior ciitzens. As a teacher all my life, I am inclined to believe that what
the teacher has not taught, or has poorly taught, the learner has not learnt.
The cruelty towards the elders represents a mismatch, in the mind of the
younger members of each family, in balancing the filial duty and harsh economic
realities of poverty.
If you want to see the destitute and abandoned senior citizens, please
visit an NGO known by the name House of Hope, located on the
outskirts of Bengaluru, where they embrace their life ending within 15 to 20
days of their finding a place after being left mercilessly on the roadsides and
highways. I am inclined to believe that the street is kinder to them than their
own kith and kin; the street gives to them a lot than what they received in
their own homes, that they raised and built so lovingly. Street is far more
pious than some of us; it willingly parts with small change and other things,
which are very precious to the destitute and abandoned.
The elders either surrender or are forced to surrender, in some families in our
country, cash, other saved assets, and sometimes even the very social position
that they have earned and nurtured by their hard work and exemplary conduct.
Some of them may not have succeeded, may have been unfortunate, in the
area of exemplary conduct in life. However, the rate race of becoming overnight
well-to-do, if not filthy rich, has somehow managed to smother the filil
duty in many of us. I believe that the clan, neighbourhood and
community must step in to provide life-saving relief to such persons on
the spot and instantly. The State is awakened to the crisis, it is probably
looking for evidence and data to formulate a meaningful response to it. I did
suggest to the National Human Rights Commission, in its recent Core Group
Meeting on Elderly Persons, that they should hold Public Hearings to document
such evidence and data. I found the response from the NHRC somewhat lukewarm
and half-hearted; they are probably not inclined to undertake an exploratory
effort in an area that is largely uncharted and of grave significance to the
very edifice of human rights - denial of survival with dignity rights.
I must commend the State for taking note of the crisis of dispossession,
destitution and abandonment of senior ciitzens within the framework of the
Maintenance and Welfare of Parents and Senior Ciitzens' Act, 2007. The relevant
section in the law on this subject is a chilling reminder to children and other
beneficiary relatives that their conduct is being watched. The clan,
neighbourhood and community, along with the various civil society groups, must
supplement this effort by building psychological and social pressure on the
children and beneficiary relatives of the parents or senior citizens to accept
their elders as the part of their families and maintain them at whatever
psychological, economicand social level that they are maintaining their own
children or themselves. I am somewhat uncomfortable with the thought that civil
society's duty ends by either placing trust in making the laws more
stringent, and at times inhuman, or blaming
governmental slow response measures.
The Ministry of Social Justicfe & Empowerment is in the process of
finalizing a nationwide Awareness Raising Plan in regard to this law. I
hope that the plan will formulate an Awareness Raising plan which is
section-wise in regard to the legal response to the human miseries that senior
citizens have been subjected to, not just a bland newspaper or television
commercial about the fact of the law having been put in place. I had
articulated a view in the meeting of the Experts Group on the subject that an
Awareness Raising Plan must be based on the content of the law and the case law
emerging gradually in this regard. The Awareness Raising stories in the media,
as also in the advertisements, should be based on actual stories of denial of
maintenance, destitution of parents and senior citizens through
grabbing/fraud/etc., abandonment of parents and senior citizens and the
consequential denial of life, lethargy of the concerned Ministries and
other responsible agencies to put in place the shelter, health and economic
security protocols, etc.
I think that like-minded persons must continue their fight.
Sugan Bhatia
Delhi
98112 25103
Dear
Dr. Sugan Bhatia,
I thank
you for your mail. You have expressed difference of opinion with the suggestion
that the punishment for cruelty and abandonment of the elderly be raised to Rs
50,000 fine and/or 5years imprisonment. In your opinion probably it will be far
too stringent.
Perhaps
you have not come across cases of abandonment, It is not uncommon that when an
elder is considered to be a burden he or she is taken to a hospital or a temple
and abandoned there. We have even come across cases where the elders were
found lying abandoned on highways.
According
to a news item in The Hindu on an average two senior citizens are found daily
in Chennai abandoned.
This no
doubt generally happens in the low income group families but there can be
nothing more cruel than this and no punishment will be too severe. I
agree that mere punishment will not stop such practices, some socio- economic
steps have to be taken. I discussed this issue in my paper which I presented in
the recent Udaipur Conference. I can send it to you should you be interested.
In any
case I will be happy if a public debate is stated on this subject as I am
interested in creating awareness of this emerging evil.
Regards,
R.N.Mital
This
e-mail from Shri RN Mital has also been marked to me, although hidden, in Bcc.
I have some views in this matter and I am sharing these views with the
intention that we will start a public debate on the subject.
The most stringent suggestion made in Shri Mital's letter relates to
the punitive section relating to a delinquent provider of maintenance - he
would like the punishment to be raised to Rs. 50,000/- and/or 5 years. Let us
realize that it is part of a problem that arises within a family, not a generic
problem that views all such delinquent children as generic or a class. Let
us also realize that more cases of delinquency in providing maintenance is
visible among families affected by extreme poverty, though there are cases
where well-to-do children have defaulted. Tbe burden in case of the
suggested amendment would hurt the poor most, though some well-to-do will also
get a salutary lesson. The approach to the question of delinquency in providing
maintenance should be on "persuasive pressure from the clan and the neighbourhood,
even the community", rather than a very harsh law that hurts the poor
most. I am just wondering if we are adopting a "trigger-happy"
attitude in dealing with what is essentially a psychological and social
problem. Granted that providers of maintenance become delinquent our of
greed, ill-will or an ego-trip, or a mis-match in human relations
within the family, apart from widespread poverty, the corrective burden should
be on the social forces - clan, neighbourhood and community - rather than on
the law and its punitive force. When the lawmakers envisaged a fine of Rs.
5000/- and/or imprisonment for 3 months, they had largely the poor
families, who have so far participated in a majorith before the
Maintenance Tribunals. The lawmakers had also laid considerable premium by the
provision of Conciliation that they provided in the law. We should have laid
emphasis on training of such conciliation process and the use of psycho-social
methodologies to generate socially meaningful results. We need to give a chance
to the full potential of the law and the various legal provisions, before we
make demands for amendments.
Delinquent behaviour on the part of the children and other beneficiaries
of the senior citizen's assets has also to be analyzed in the context of
role models that senior citizens have set for their children in their younger
days. A Canadian longitudinal research study (spread over a period of 15
years) has pointed out that abuse takes place, mainly, in homes where children
were witness to abusive behaviour on the part of their parents and other
elders. The inescapable inference from such a study should help us to take a
more humane view of the phenomenon of delinquent behaviour and involve social
beings in the clan, neighbourhood and community to work towards lessening
the incidence of the phenomenon of such delinquency.
The provision of stringent punishment and sky-rocketing fine tends to ignore
the plight of those senior citizens who do not have any beneficiary relatives.
The State must accept responsibility to provide support in the form of survival
with dignity rights including income security, shelter security, food security
and health security. Our emphasis in the next few years should be on the
rigorous implementation of what the law has christened as "obligations of
the State" as articulated in a large number of Chapters. A Welfare State
must make sufficient provision for the survival rights of the dispossessed,
destitute and abandoned senior citizens.
The right of aggrieved children has not been made a subject of Appellate
Tribunals largely on account of the primacy that the law accords to the right
of the aggrievedd parents and senior citizens. Such aggrieved children have a
right to approach the higher courts; in fact, some cases of this nature
have cropped up in the State of Kerala and the aggrieved children have
sought adjudication at the level of the High Court.
Lastly, let us recognize that the country has a federal constitution which
accords considerable importance to the wisdom of the State Governments to bring
their wisdom to bear on the enactment of the law and framing of rules. The
Central Government cannot be accorded such extreme powers to ignore the
wisdom of the State Governments. Let us not posit a situation where the Central
Government assumes the role of sole repository of human wisdom.
Social legislation has unfortunately lagged behind in its implementational
force, largely on account of its intent behing ahead of the time or of social
recognition of such delinquent behaviour. We need to go after "nuts and
bolts" of the implementation process in case of social legislation, not
chase the very spirit and structure of law through recommended amendments.
I submit these few points in all humility, and, in the interest of a
harmonious working of the institution of family, clan, nighbourhood and
community that has so far kept our communities and society together. Such a
plea need not negate the critical significance of the principle of "rule
of law" in our personal and public transactions of life.
Sugan Bhatia
98112 25103
From:
Sugan Bhatia
Dear
All
Congratulations
to all for entering into a debate on an issue which could find a place very low
in the common as well as systematic parlance.
The
efforts made so far are essentially in the direction of opening the
possible routes of intervention for all categories of stakeholders for the
larger purpose of social/ economic protection and not limiting one or
the other by placing the stringency of punitive measures at the top. The cases
are not uniform. Very recently an old person was spotted lying in a park in
Delhi. When he was contacted by a student of mine he asked for a shelter and place
to work only and no complaint against his kith and kin rather he was willing to
work and help these people. The issue of punishment need to be handled very
carefully. The economic and social requirements of elderly persons are
currently exceeding the personal, community or state provisions. The
articulations in the proposal/Act need to be watched by the vigilant eyes of
advocates while in their implementation by state and the lesson learnt before
looking for any major corrections as far as punishment are concerned.
Dr.
J P Dubey
Associate Professor
DACEE,
University of Delhi
Mob. 09313744686
This
e-mail from Shri RN Mital, Immediate Past President, All India Senior Citizens'
Confederation, has also been marked to me, although hidden, in Bcc. I have
some views in this matter and I am sharing these views in the hope
initiating a public debate on the subject.
The most stringent suggestion made in Shri Mital's letter relates to
the punitive section relating to a delinquent provider of maintenance - he
would like the punishment to be raised to Rs. 50,000/- and/or 5 years. Let us
realize that it is part of a problem that arises within a family, not a generic
problem that views all such delinquent a class by themselves. Let us
also realize that more cases of delinquency in providing
maintenance are visible among families affected by extreme poverty, though
there are occasional cases in media where well-to-do children have defaulted.
Tbe burden in case of the suggested amendment would hurt the poor most,
though some well-to-do children and other beneficiary relatives will also get a
salutary lesson. The approach to the question of delinquency in providing
maintenance should be on "persuasive pressure from the clan and the
neighbourhood, even the community", rather than on a very harsh law that
hurts the poor most.
I am just wondering if we are adopting a "trigger-happy" attitude
when we suggest harsh measures in dealing with what is essentially a
psychological and social problem. Granted that providers of maintenance become
delinquent out of greed, ill-will or an ego-trip, or a mis-match in
human relations within the family, apart from widespread poverty, the
corrective burden should be on the social forces - clan, neighbourhood and
community - rather than on the law and its punitive force. When the
lawmakers envisaged a fine of Rs. 5000/- and/or imprisonment for 3 months, they
had largely the poor families, who have so far come before
the before the Maintenance Tribunals in a majority. The lawmakers had also
laid considerable premium by the provision of Conciliation that they provided
in the law. We should have laid emphasis on training of such conciliation
officers and conciliation process and the use of psycho-social methodologies to
generate socially meaningful results. While some States need to complete the
"nuts and bolts' of enforcing the legislation, we also need to back up the
legislation in terms of training of its personnel at various levels. We need to
give a chance to the full potential of the law and the various legal
provisions, before we make demands for amendments.
Delinquent behaviour on the part of the children and other beneficiaries
of the senior citizen's assets has also to be analyzed in the context of
role models that senior citizens have set for their children in their younger
days. A Canadian longitudinal research study (spread over a period of 15
years) has pointed out that abuse takes place, mainly, in homes where children
were witness to abusive behaviour on the part of their parents and other
elders. Refusal to maintain one's own parents or other senior citizens by the intended
beneficiaries of their saved assets and resources is a very grave abuse, apart
from the fraudulent practices by which parents and senior citizens are deprived
of their hard-earned resourcess. The inescapable inference from such a study
should help us to take a more humane view of the phenomenon of delinquent
behaviour and involve social beings in the clan, neighbourhood and
community to work towards lessening the incidence of the phenomenon
of such delinquency.
The provision of stringent punishment and sky-rocketing fine tends to ignore
the plight of those senior citizens who do not have any beneficiary relatives.
The State must accept responsibility to provide support in the form of survival
with dignity rights including income security, shelter security, food security
and health security. In this regard, most of us seem content with a gradual
approach to putting the programmes and supportive practices in place. The
Ministry of Health & Famioly Welfare has done reasonably well through its
National Programme of Health Care for the Elderly. However, they have yet to do
work relating to a National Mental Health Programme and Care Initiatives for
the senior citizens, particularly the palliative care for those senior citizens
who have reached a stage of being beyond cure. Such senior citizens must be
ensured dignity in their dying days. The Ministry of Home Affairs has again
done well in communicating protocols, to the various State
Governments, for protection of life and property of senior citizens. The
Police Authorities in various Metropolitan cities have done a good job of
computer-based networking of their infrastructure; some southern cities have
done exceedingly well in quick outreach to the thana-level personnel. Senior
Citizens facing abuse or threats to life and protection of property have gained
from such computer-based networking insofar the caring face of the Police is
visible to them without any signicant loss of time. The Ministry of Rural
Development needs to seriously consider providing shelter rights to the
destitute and abandoned senior citizens.
Our emphasis in the next few years should be on the rigorous implementation of
what the law has christened as "obligations of the State" as
articulated in a large number of Chapters. A Welfare State must make sufficient
provision for the survival rights of the dispossessed, destitute
and abandoned senior citizens.
The right of aggrieved children has not been made a subject of Appellate
Tribunals largely on account of the primacy that the law accords to the right
of the aggrieved parents and senior citizens; the aggrieved children have not
been given the right to contest the amount of maintenance ordered by the
Maintenance Tribunal. Such aggrieved children have a right to approach the
higher courts for contesting the matter on other substantive issues; in fact,
some cases of this nature have cropped up in the State of Kerala and the
aggrieved children have sought adjudication at the level of the High Court
arguing that they cannot be classified as legitimate children or beneficiary
relatives of the aggrieved senior citizen.
Lastly, let us recognize that the country has a federal constitution which
accords considerable importance to the wisdom of the State Governments to bring
their wisdom to bear on the enactment of the law and framing of rules. The
Central Government cannot be accorded such extreme powers to ignore the
wisdom of the State Governments. Let us not posit a situation where the Central
Government assumes the role of sole repository of human wisdom. The State
Governments are trying their best to find the required personnel for the
Maintenance and Appellate Tribunals and other resources required for putting
the law in place, apart from firefighting on the law and order front. The
Nodal Ministry at the Centre continues to cajole them in this regard and the
number of states that have put the law in place continues to increase. In
fact, the Nodal Ministry should bring out a Progress Report in regard to this
law as it spreads to several States and Union Territories. Smt. Jaya Bachchan,
Member of Parliament, has tabled a question in this regard; relevant
information would have been placed in the public domain had the last session
not ended abruptly.
Social legislation has unfortunately lagged behind in its implementational
force, largely on account of its intent behing ahead of the time or of
widespread social recognition of such delinquent behaviour on the part of
children and other beneficiary relatives. We need to go after "nuts and bolts"
of the implementation process in case of social legislation, not tinker
the very spirit and structure of law through recommended amendments.
I submit these few points in all humility, and, in the interest of a
harmonious working of the institution of family, clan, nighbourhood and
community that has so far kept our communities and society together. Some
children may have gone delinquent, the family in India still swears by concern
and solidarity for all its family members, including senior citizens. Such a
plea need not negate the critical significance of the principle of "rule
of law" in our personal and public transactions of life.
Sugan Bhatia
98112 25103
==================
