Legislating family obligations

India may be a young country, with half the population under the age of 25, but it also has an ageing population, with about 75 million elderly persons, a large proportion of them poor and many of them uncared for by their immediate families. The existing pension programmes (such as the Employees Pension Scheme) are inadequate from the perspective of meeting the needs of people in their declining years, so it is not surprising that the government wants to find new ways to take care of this growing group. A number of new schemes are planned, from augmenting the old-age pension scheme, announced by the Prime Minister on Independence Day, to the Maintenance and Welfare of Parents and Senior Citizens Bill, 2007.

The Bill is well-intentioned but, as with many other attempts at helping citizens, it is likely to end up creating more problems than solutions. For instance, it says that children/other relatives will have to provide the parent(s) enough so that he/she/they can live a "normal life" (subject to a maximum of Rs 10,000 per month). It is not hard to figure out the harassment potential implicit in this, since each of the 2,000 or more tribunals that will be set up (one can be set up in each sub-division of the country) will determine what a "normal life" requires. And what if the children can't afford the money involved? A fine of up to Rs 5,000 and/or imprisonment of up to three months is what is stipulated; the logic of making into a criminal offence the failure to carry out what most (but not necessarily all) would consider a family obligation is hard to understand "" is there, for instance, a jail sentence prescribed if a parent does not educate a child? The harassment potential in the form of bribe-taking is also obvious, as also the difficulties of enforcement "" how many alimony cases are dutifully honoured, and how many times must an aged parent run to a tribunal for enforcement?

The Bill also talks of how those being given property by the elderly have an obligation to look after them, and says that, if maintenance is a condition for the gift/transfer of the property, the transfer can be declared null and void later. That is unobjectionable since a specific performance clause has not been honoured, but what is to be done with such property if the parent dies without bequeathing the property to someone else? In most cases, it would go back to the immediate relatives! Since the government has already said it will legislate provisions that allow reverse mortgage of properties, isn't that a better option to this rigmarole?

The government seeks to justify its provisions by arguing that various other countries have similar provisions (Sri Lanka and Canada, for instance, require children to pay maintenance to their parents), and that India's own Code of Criminal Procedure (CrPC) mandates this. That notwithstanding, it should be obvious that if taking care of the elderly, the sick and/or the unemployed is to be legally mandated, it should be the responsibility of the state (interestingly, there are only 1,018 Old Age Homes in the country run by various governments).

In mandating the Bill, the government is implicitly acknowledging that its old-age pension scheme is inadequate. Interestingly, the Bill does not allow for the possibility of children filing an appeal against the order of any Tribunal which gives a maintenance award. It is also relevant that a similar Bill has been in existence in Himachal Pradesh for the past six years, and just 70-odd cases for maintenance have been filed so far "" that is, either Himachal's aged are well taken care of, or they have little faith in the system.