Elder Law in India

Preface

The Maintenance and Welfare of Parents and Senior Citizens’ Act, 2007 is the first attempt in India to consolidate elder law, bringing together various provisions for the welfare of parents and senior citizens. The law has also taken some half-hearted steps towards recognition of their rights insofar it has attempted to enunciate some obligations of the State towards the shelter, health and recreation rights of the concerned citizens. The steps are half-hearted since the law seeks to lay down the minimum that the State must do towards providing the shelter, health and recreation rights – a minimum of at least one Old Age Home in each district, and, provision of some geriatric care facilities.

It is a good beginning. Wherever the law has been enforced or implemented, it is reaching out to those senior citizens who have been deprived of both shelter and maintenance. One cannot say the same thing about the provision of healthcare facilities for them; the implementation process in this regard has been far too slow to become visible. The National Programme of Health Care for the Elderly is likely to take some more years before it makes its presence felt on the ground.

Several state governments are yet to implement the law in terms of it’s notification, framing of rules, appointment of Tribunals and Apex Tribunals, appointment of the concerned officers, designation of the Social Welfare officials associated with the implementation of the law, and other required steps.

The definition of concepts like shelter, health care, and recreational care has not been converted into Protocols or Standards that specify both the minimum and the maximum that one can expect as the contribution of the State towards such efforts. The Care Pathways for health care have not been enunciated; one does not know if the government/s would merely create infrastructure and minimum personnel to support the various programmes under health care.

How does the promise of health care for senior citizens respond to their critical concerns – Dementia and Alzheimer’s, Cardio-vascular ailments, respiratory ailments, etc.? Does it include within its ambit Palliative Care and Terminal Care? Does it make some provision for Continuing Critical Care for the senior citizens? Or, for that matter, does the provision ensure community support for responding to some of these concerns, like the ones that Kerala has given support to in terms of community-based establishment of care centres for the senior citizens?

The elder law relies, in regard to health care, too heavily on the government; it does not enunciate any specific roles for the community. The largest support to senior citizens, in shelter, health care and recreation, is provided by the family, and to a certain extent, by the community. Yet the law does not articulate responses at that level. It does not, for example, spell out the role of Family Education concerning Senior Citizens; it does not work towards equipping the family to know and understand the contours of new health care challenges that the senior citizens require. Some non-government organizations have taken feeble, yet effective, steps towards provision of Home Health Care for Senior Citizens; these steps usually combine both Education and Care, Senior Citizen members who have enrolled for such schemes receive not only basic diagnostic and testing services at home or at a place close to their homes, their family members also receive education to respond to their seniors in an appropriate manner in the event of both their day-to-day care and in moments of emergency.

While the primary credit for such an initiative goes to the Nightingales Medical Trust in Bengaluru, organizations in Pune and various other places have also launched such initiatives through provision of diagnostic and testing services, provision of assistive technologies on a minimum rental basis, support for blood transfusion, etc. Day Care Centres for their recreation are now becoming a norm, rather than exception, with local Municipal authorities providing their share of infrastructural and other support. Senior Citizens’ Associations are providing the required manpower and other support to the functioning of these Centres. Some cities are working towards utilizing the space and facilities available at the Day Care Centres for purposes other than recreation as well. Provision of Physio-therapy services, eye check up, and Family Education seem to be common concerns addressed by the Day Care Centres. Various state governments are beginning to provide both non-recurring and monthly recurring support for the Day Care Centres. The National Programme of Urban Renewal has also come forward to provide specific and committed funds for the purpose. It is good to find that the National Human Rights Commission has begun to address the question of amendments to the law in terms of more human rights being reflected in it, apart from its universal implementation within the country. The present obligation of shelter, health care and recreation must be deepened to reflect a comprehensive response to the Constitutional guarantee to Life with Dignity, and, hopefully Death with Dignity.

A petition with regard to inclusion of Terminal Care as part of the national health care programme for the elderly is pending in the Supreme Court of India. It should pave way for another meaningful aspect being included in the present elder law.

Alongside the present law, various state governments have been relying on development programmes to recognize rights such as Economic Security (through the provision of Old Age Pension that ranges from Rs. 200/- per month to Rs. 1500/- per month, depending upon the capacity of the concerned government), Health Insurance support for senior citizens below the poverty line, etc. The Central Government appears to be working towards provision of health insurance subsidy to the middle classes.

The primary stakeholders of the law are the senior citizens themselves, their Associations, Councils, Federations, and Confederations. Such individuals and bodies have rightly taken upon themselves to create awareness about the law, the manner in which it can help them articulate their grievances and obtain their legitimate due from their children and relatives and other beneficiaries of their assets. They have partnered with the Social Welfare Department or the Social Justice and Empowerment Department to take out rallies, hold camps and counseling sessions to acquaint the senior citizens about the law.

States like Maharashtra, Karnataka, Andhra Pradesh and Gujarat have taken up such activities to create demand for justice for the senior citizens. The Satara Senior Citizens Associations have taken up this task of creating awareness on a large scale; the upsurge of senior citizens has created hopes for greater and more empathy-led attention that senior citizens will receive from the local community. A number of retired judges of the Supreme Court, High Court and the District Courts have provided both leadership and counseling to the awareness raising movement concerning the law.

The environment for support to the rights of senior citizens appears to be positive in the country. The present law is likely to be a good base for articulating a more comprehensive perspective on. “development rights” in addition to the “welfare rights” well-recognized. One can only hope that the process will continue.

Sugan Bhatia

The aim of the International Plan of Action is to ensure that persons everywhere are able to age with security and dignity and to continue to participate in their societies as citizens with full rights.

-2nd World Conference on Ageing 2002

Particular efforts should be made to protect older persons, including those with disabilities, by: … Improving the situation of older persons, in particular in cases where they lack adequate family support…. Ensuring that older persons are able to meet their basic human needs through access to social services and social security, that those in need are assisted, and that older persons are protected from abuse and violence and are treated as a resource and not a burden…. Strengthening measures. to ensure that retired workers do not fall into poverty….”

Copenhagen Programme of Action