COMMENTARY

its responsibility towards senior citizens by framing a legislation that dictates terms of affection and care between family members. Browsing through the internet, one comes across several blogs and pieces on the central act and comments on it. It has generated much interest the world over. One blogger narrated how her grandparents felt it improper to live with their daughter, i e, her mother even though their sons were ill-treating them. She has lamented that given India’s great “son preference” and the fear of social ridicule, it was unlikely that the central act would be used too much, but that it did open space for positive action. The complexity of the whole issue of an ageing population requires different kinds of policies. It needs an approach that has a mix of fiscal instruments for social security, healthcare and a law that creates legal space for senior citizens and parents to demand their due from errant loved ones. For example, another of the new policies introduced recently by the government is the reverse mortgage system, which provides an ideal way for senior citizens to extract value out of their property for their well-being.

The Himachal Pradesh Experience

Doubts are also being raised about the efficacy of a law like this and whether its provisions will actually provide relief for its intended beneficiaries. Here it might be beneficial to take a look at the Himachal Pradesh Maintenance of Parents and Dependants Act, 2001. Himachal Pradesh was probably the first state to legislate on this issue in 1996 and the bill received presidential assent and became functional from 2001. Rules made in 2002 made the act operational in 2002 [Sujaya 2001]. In fact, a few other states and now the government of India have borrowed from the Himachal act while framing similar legislations. This act casts an obligation to maintain one’s dependants not only parents and to that extent has a wider focus than the union act. It provides relief not only to indigent parents but to wives, children and dependants who are in a similar situation. It empowers any person unable to maintain himself/herself, who is a resident of the state, to apply to the tribunal for an order directing children, grandchildren, husband, father, mother as the case may be, to pay a monthly allowance or any other periodic payment of a lump sum for his/her maintenance. The inability to maintain oneself is defined as a situation where one’s total or expected income and other financial resources are inadequate to provide basic amenities and look after basic physical needs including but not limited to shelter, food and clothing. The HP act has very attractive features, many of which have found their way into the national act. These include involvement of social organisations in the legal process, simplification of legal procedures, flexibility regarding age limits, ease of attachment of salaries, and conciliation process, among others.

The SDOs (civil) of the state have been notified as presiding officers of the tribunal authorised to pass maintenance orders in favour of the applicant. This has been done to ensure that applicants do not have to travel far for redressal. Lawyers have been kept out and the maximum time to decide the application by the tribunal is six months from the date of application in order to ease the burden of litigation on applicants. In fact section 14(5) of the act takes care of situations where the SDO (civil)/presiding officer may be unable to perform the duties under this act by allowing for conferment of the powers of presiding officer on any other person for a period of six months. It also makes it possible to attach the salary payable to any person against whom a maintenance order is passed and who is employed in the central, state government or a corporation established by it or a government company. For assisting the applicant the act makes the provision of a “maintenance officer” and “approved person or organisation”. District welfare officers are the maintenance officers under the act and they have powers to apply on behalf of the applicant, thereby giving the state a clear role for suo motu action in this regard.

The maintenance officer under section 12 of the act can apply on behalf of anyone in need (whether by reason of physical or mental infirmity or for any other reason) if he is satisfied that they cannot maintain themselves. Apart from that, he is to help the applicants in any legal proceedings and can also appear before the court on their behalf. He can play a very critical part in consulting both or all parties and bring about reconciliation as per section 13(3). Enforcement of the maintenance order under this act has been ensured by giving it the same force and effect as an order passed under chapter IX of the Criminal Procedure Code 1973. It is to be executed in the manner prescribed for the execution of such orders by that code.

Social Pressures and the Law

The act has been in operation since 2001-02 in Himachal Pradesh. The total number of applications received and decided since 2004 are shown in the table.

Table: Applications Received and Decided in HP

Year Previous Applications Cases Decided Numbers Pending Received during the Pending at the Cases during the Year Year End of the Year

2004-05 Nil 27 20 07

2005-06 07 21 17 11

2006-07 11 37 34 14

2007-08 (up to June) 14 5 04 14

Total 14 89 75 14

Source : Department of Social Justice and Empowerment, HP.

The applications received are a mere 89 in the whole state, although over the last three years there has been an increase. There were 27 applications received in 2004-05, 21 in 2005-06 and 37 in 2006-07. Between 2001 and 2004 the numbers were as few as three to seven cases in the whole state. This reveals that parents are loath to go to court against their children. It also shows that the expectations of the lawmakers have not really been met. Of the 75 cases in which decisions were taken a few were dismissed in default and the parents, after lodging the initial complaint, did not turn up to fight further. It highlights the fact that legislation alone cannot possibly be seen as the panacea for this malaise that is setting in. The need for a law exists and yet, the one state that did start this process has an experience of it not being used as much as it was probably expected.

Could it be that HP is fortunate enough to not have that many cases of neglect of the elderly? The answer to that would probably be yes and no. Yes, because it is a small society with close family and societal ties. Since people are strongly attached to their land few venture out of the state for jobs and most stay on with the extended family. In families where people

april 26, 2008

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Economic & Political Weekly

COMMENTARY

do go out of the state, there is almost always some other member in the village to look after the old. Yet, instances are on the rise where children/sons do not come forward to look after their parents. This fact is linked to and gets highlighted by the increase in the number of beneficiaries availing social security pension. This could further indicate either of the follo wing two things: one, that older people are being deserted, are living alone and therefore need the pension or two, despite having earning sons, there is a pressure to get included into the social security net since elders are uncared for. A recent evaluation study of the old age and widow pension scheme in HP (done by the economics and statistics department of the state) reveals cases where the pensioners had earning sons (hence ineligible for pension) but their incomes had not been taken into account because they had got themselves registered as separate families in the panchayat record. This arises from the general social milieu where it is acceptable to be taking dole from the state but it is disreputable to litigate against one’s children. This however vitiates proper targeting of the social security scheme and here this act can be used fruitfully.

A point of concern is that not even one of the 89 applications filed so far has been made by the maintenance officer. It is ironical that the same district welfare officer authorises and allows release of social security pension, verifies applications thereof but has not acted even once under this act, maybe even with knowledge of cases where vulnerable sections were not being looked after by their offspring. On being asked, welfare officers claim being overburdened with different types of work and difficulty in approaching different SDM courts throughout the state for action. While this may be a practical reason, it also brings one back to questioning the core role of and the extent to which the state and its machinery can and should act. Like any other legislation, especially in the social sector, implementation is a critical need. More critical, maybe, would be the role of social organisations, which need to assist senior citizens and other dependants to get relief under the act. This is especially important

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because our culture and social set-up restrains parents from taking their neglectful children to task.

Yet, the implementation of the act in Himachal also augurs well because whenever cases have been registered, time bound justice has been dispensed. In only five cases out of 89 applications it took more than the mandatory six months to pass the maintenance order. Decisions have been given in even one month and in all cases within six months. This dispels the notion and is reassuring to that extent, that the SDO (civil), being a very busy administrator would not find time to deliver time bound justice (though this could be the result of the very few number of cases). Of the total 75 cases decided, not a single one has been appealed against. This is heartening.

A reading of the decisions given by presiding officers under the act reveals relief in the shape of land for house, cash transfers, salary attachments and even food and clothing for the parents. Only in 14 cases could reconciliation be achieved between the contesting parties. What does this prove about our relationships? Either parents do not act against errant children or when they do the gulf is so wide that it cannot be easily bridged. The moot point of our social values and moorings is once again highlighted as well as the need to reinforce them from both sides, the need to establish strong bonds, based on reasonableness and independent yet supportive lifestyles, whether it be urban or rural areas.

Conclusions

Care of the elderly is definitely one of the important emerging issues to be addressed by societies the world over. The central government act is governed by the expectation that children will take on the role of care givers and nurturers gradually. Our study also shows that this expectation itself is governed by cultural mores that expect children to step into these roles. The new law gives this value and expectation of society a legal grounding which can be used by parents to demand care as a legal right. Welcome provisions of the act allow reclaiming of property bequeathed to children and also allow mortgaging such property to borrow money from banks. However, the Himachal Pradesh experience also shows that parents are reluctant to take this issue to a public forum. A World Health Organisation study ‘Missing Voices, Views of Older Persons on Elder Abuse’, 2002, substantiates the fact that very often the elderly prefer to suffer in silence rather than accept that they are being abused.

The fact therefore that a legal space is created for senior citizens to help themselves in situations of neglect is in itself a positive thing. The important issue emerging from this is whether this addresses the whole issue of welfare of the aged in adequate measure. Clearly, this is not adequate in terms of coverage because it covers only those who have some form of wealth or property or children in the first place and also in terms of degree of use of this law by senior citizens. The critical issue still is that of providing effective and adequate social security to all those who need it. Across the world there are efforts to provide financial security through a mix of long-term financial instruments for those who work in the organised sector and social security/insurance for those outside this net.

Asian countries by and large are still comfortable with the idea of children forming the major support system in old age. Increasingly, however, the role of the state is being called into question in terms of coverage of social security for seniors. Adequate coverage of healthcare is also core to the issue of senior citizen welfare, both in terms of home-based and institutionalised care. As a country we seem to be responding to this problem now, albeit slowly. Apart from this act, coverage under the national old age pension scheme for elders below the poverty line has been universalised. Our demographic profile gives the country some time as of now to address this problem because we are still a youthful nation. Other than the state, before time runs out, social organisations and citizens also need to take stock of the situation and address the general, financial and emotional security concerns of the aged in their full perspective.

Reference

Sujaya, C P (2001): ‘National Policy on Older Persons’, http://www.india-seminar.com/2000.