Kopal Mital

A critique of the Maintenance and Welfare of Parents and Senior Citizens Act (MWPSC), focusing on the inadequacy of social security system in India.

Introduction

The upcoming winter session of the parliament will likely see discussion on the 2019 MWPSC Amendment Bill, which had earlier been referred to a standing committee. In light of this upcoming development, this relevant social legislation needs to be revisited.

The Indian society hold the idea of filial piety, in high regard. It is assumed that during the old age of parents, it is the obligation of their children to care for them. This has not always been the case. In an attempt to resolve the social and economic problems resulting from the increasing apathy of heirs towards the elderly, the Maintenance and Welfare of Parents and Senior Citizens Act (MWPSC) was enacted in 2007. 

In this article, the author argues that the MWPSC Act is a palliative measure. It does not address the root cause, which is the dependence of the elderly,  exacerbated by the inadequate social security structures. 

The 2007 Act

One of the key changes that this legislation brought was that it provided for a separate tribunal for the redressal of grievances. Before this Act, the aggrieved could file a claim for maintenance under Section 125 of the Code of Criminal Procedure, 1973. This would mean that the aged person would have to approach the court for relief and incur heavy expenses to file and litigate the suit. The process was simplified under the MWPSC Act 2007. 

The premise of the MWPSC Act 2007 is based on the dependence of the elderly. While discussing the Act in Parliament, the Minister of Social Justice, Meira Kumar, herself admitted that the social security system in India is inadequate.  A perusal of the debate reveals that the main justification for this law was Indian culture, tradition and morality. This legislation aims to codify a moral obligation of the children to their parents. By doing this, the state has relegated its responsibility of providing social security.

The NSS Survey on the Condition of the Aged conducted in 2004, revealed that among economically dependent elderly men, in either rural or in urban part of the country about 6-7% were financially supported by their spouses, almost 85% by their own children, 2% by grandchildren and 6% by others. On the other hand, among rural and urban women, 16-19% were dependent on their spouses, 71-75% on their children, 3% on grandchildren and 6-7% on others including the non-relations. This means that a lot of the elderly are dependent on their family members for financial support. 

The data and the cultural values of filial piety do make this Act important. However, the state has used the Act to subvert its responsibility and duty to the elderly. This duty can be found in Article 41, a Directive Principle of State Policy which states that “the State shall, within the limits of its economic capacity and development, make effective provision for securing the right of public assistance in cases of old age”. There is no considerable investment in schemes which can be used as suitable alternatives for financial security. The absence of suitable alternatives makes these groups more vulnerable. 

An assessment of the current framework reveals that the process of securing maintenance from relatives is riddled with obstacles. Through a survey conducted by HelpAge, it was reported that petitioners faced a lot of difficulty in securing an order to their satisfaction. A key problem was implementation. After the petitioners got the order from the tribunal, it was not adequately complied with. They received their maintenance for a certain period but then it often stopped. The petitioners shared that it was difficult for them to approach the tribunal again and register a complaint of non-compliance. Out of the petitioners who tried to approach the tribunal again, they continued to be disappointed. They found that no forceful action was taken and their grievance was not resolved. It is not easy for the elderly to approach the Tribunal time and again. It also puts them in a difficult position because it is their maintenance which is at stake. 

The 2019 Amendment

The government is taking certain steps to improve this Act. One of the key changes the Amendment has proposed is that it would expand the definition of ‘children’ under Section 2 (a) of the present Act. The proposed definition includes a much wider range of relationships under Section 3(i)(a) of the Bill. It includes son-in-law, daughter-in-law, grandson, grand-daughter and the legal guardian of minor children. The previous definition only extended to children who were biological or adoptive. By expanding the scope of this definition, this Act would now impose an obligation on these relations to maintain the elderly. The other significant change proposed by the Amendment Bill 2019, is to remove the upper limit of Rs. 10,000 as maintenance amount that may be awarded by the Tribunal under this Act. This limit was arbitrary and it must be evaluated according to the needs of the elderly and the prevailing costs of living which can depend on a variety of factors and differ across regions.

Another prominent criticism of the current Act is that it has a very restricted view of ‘maintenance’ under Section 2(b). It is proposed that the phrase ‘to lead a life of dignity’ will be added to the definition of maintenance under s 3(i)(b) of the Bill. This addition flows logically from the Right to Life in Article 21 of the Constitution of India. The standard of ‘life of dignity’ sets an aspirational standard. It does not depend entirely on family dynamics like ‘normal life’. A life of dignity must encompass all aspects of wellbeing of a person. Given that currently the dependence on family for maintenance is very high, these changes are welcome and will create a better support system for the elderly. 

Inadequacy of Social Security and Dependence: A Vicious Cycle

Though a lot of the elderly are dependent on their families, a study by the Agewell Foundation found that social security does serves as the key source of income for 48% of elderly in India. The Indira Gandhi National Old Age Pension Scheme, the Varishtha Pension Bima Yojana, The Pradhan Mantri Vaya Vandana Yojana (PNVVY) are among the key financial schemes through which the state provides social security. The study showed that 77% of old men and 50% of old women are making use of some form of social security. The elderly in the unorganised sector are at even more of a disadvantage because they do not have benefits like Provident Fund which is available to the organised sector. This means they are heavily reliant on other avenues like familial support or social security for their financial needs.

Some key barriers can be identified here which are based on the inadequacy, inaccessibility and unsustainability of the social security structures in India.  First, there is a lack of knowledge about these schemes. Second, even if people are aware, they have problems accessing these schemes. It was reported in the study that 53% of the elderly find it difficult to access and utilize the social security schemes. Third, there is a problem of inadequacy. If they are able to cross all the structural barriers, the money they get is not enough to support them. 79% of the respondents found the schemes are insufficient to meet their basic needs.

Under the Indira Gandhi Old Age Pension Scheme, the Centre only provides Rs. 200 per month. States have not matched this amount. The average pension ranges from Rs. 200-Rs. 2000 depending on the states they live in. The inadequacy of this amount was also brought to the notice of the Supreme Court in Dr. Ashwani Kumar v. Union of India. This PIL was filed by Dr. Ashwani Kumar in 2016 for the enforcement of the rights of elderly persons under Article 21 of the Constitution. He prayed for the effective implementation of the MWPSC Act 2007 and the pension schemes for the elderly. In Dr. Ashwani Kumar, it was submitted that the amounts in these schemes were last revised in 2007. The amount provided for in the scheme could not be used by the beneficiaries to meet their basic needs. 

The Supreme Court in Ashwani Kumar issued a continuing mandamus to ensure that the Act is implemented effectively. They issued certain directions to the Union of India and state governments in this regard. Such an intervention is a welcome step.

Concluding Remarks 

The present inadequate social security system is perpetuating the dependence of the elderly. Therefore, the MWPSC Act, is a mere palliation of the symptom. It does not cure the root cause. The state must recognise its responsibility towards the elderly of this country. The idea of filial piety and state obligation should not be mutually exclusive. Rather, they should complement each other. 

Such a policy has been implemented in Taiwan. The state has collaborated with the family to maintain the elderly. Article 15 of the Senior Citizens Welfare Act 1980, provides subsidies to the families who need to provide long-term care to their elderly. Article 18 of the Act aims to provide ‘home-based services’ to the elderly to support the family to take care of the elderly. It aims to enhance the financial independence of the elderly. Such an incentive rather than sanction based system can also be considered in India.

The social security system in India needs to be strengthened to support the elderly and help them become more financially independent. The first step towards this is that the state must revise the allocations to the social security schemes. They should be indexed to meet the basic costs of living. While this would be the ideal solution, one cannot overlook the financial constraints of the Centre and the state. The aim should be to use the current resources efficiently to ensure that they reach the beneficiaries. The existing glut of schemes should be merged and accountability ensured to plug leakages.  India still has a long way to go in fulfilling its promise of a life of dignity to its elderly. 

The author is a II year B.A. LL.B. (Hons.) student at the National Law School of India University , Bangalore.

Image Credits: Times of India

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