The Maintenance & Welfare of the Parents and Senior Citizens Act, 2007 (the Act) with a laudable object, as is clear from its nomenclature, is an extremely poor piece of legislation which has unfortunately been passed by the Parliament. In fact, it is going to be used as a tool by a handful of bureaucrats to oppress, harass, blackmail and pressurise the public at large at their own whims and fancies.
A few provisions of the Act are oppressive, dictatorial and unconstitutional. Chapter II of the Act deals with maintenance of parents and senior citizens by their children and the Act also provides that a senior citizen who is childless can seek maintenance from a relative. The term ‘relative’ has been defined in section 2 (g) which states that ‘relative’ means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Section 5 of Chapter II provides that a senior citizen or a parent can seek maintenance by filing an application to the Tribunal formed under the Act and if he is incapable of moving the application, then any other person or organisation authorised by him can move the application and the Tribunal can take cognisance suo moto as well.
It is interesting to point out some of the provisions of the said Act which not only confer powers on the Tribunal, equivalent to that of a criminal court being presided over by a First Class Judicial Magistrate, but also give powers to hold an inquiry in summary manner. The said provisions also empower the Tribunal to call witnesses, record their evidence on oath, compel the discovery and production of documents as well as material objects and the Tribunal for this purpose shall be deemed to be a civil court for all purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
The most shocking provisions are section 27 and section 17 which are patently unconstitutional and illegal. section 27 bars the jurisdiction of civil courts in respect of any matter to which any provisions of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act. Section 17 mandates that no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal practitioner. Sanjeev Kaushik, Additional Advocate General, Haryana reiterates the sentiment, “If this legislation bars lawyers from appearing before the Tribunal, then it is defeating its own purpose. The Parliament, in passing this piece of legislation, has also not taken into consideration a lawyer’s right to represent clients in a court or tribunal. Thus, the legislative intent is clearly not going to be beneficial for anyone.”
It is strange that the draftsman actually expect senior citizens, who in all probability would be in distress, to draft a complaint and approach the Tribunal on their own and highlight their apathy without taking help from lawyers who would be better equipped to bring forth their plight as well as various prayers which could, if answered, redress their grievances. Equally condemnable provision of the Act is that it allows penal consequences to be attracted against children of senior citizens and that too, without allowing them to have lawyers by their side. Therefore, it runs against the basic tenet of criminal law that everyone has a right to be represented by a lawyer of his or her own choice.
Tthe Tribunal in Delhi is being presided over by an Additional District Magistrate who is well-versed with the provisions of law and is assisted by two other members who are law graduates.
The Appellate Tribunal does not even have the power to hear arguments and has to just go through the record and decide the appeal, thus making the right to appeal more of a mockery. The Act allows serious rights to be taken away and challenged just on the statements of the witnesses whom the Tribunal may summon without giving an opportunity for cross examination.
When lawyers are allowed to appear and defend their clients before the Debt Recovery Tribunal, Customs Excise and Gold Control (Appellate) Tribunal, Income Tax Appellate Tribunal, Monopolies and Restrictive Trade Practice Commission, Debt Recovery Appellate Tribunal, Board of Industrial and Financial Reconstruction among other Tribunals and even before the Consumer Fora, then the reason for not allowing lawyers before the Tribunal created under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is incomprehensible and also unjust to the beneficiaries as well as delinquents under the Act.
“If this legislation bars lawyers from appearing before the Tribunal, then it is defeating its own purpose. The Parliament, in passing this piece of legislation, has also not taken into consideration a lawyer’s right to represent clients in a court or tribunal. Thus, the legislative intent is clearly not going to be beneficial for anyone.”
The passing of such a law had become necessary. Almost 50 per cent of the complaints received on our NGO helpline are about children abandoning their parents and grabbing their property which has become an urban phenomenon. In rural places, due to no jobs, children migrate to bigger cities, often leaving their parents behind. In that regard, this Act promises to give pension to destitute, old people and set up old-age homes in every rural district of the country.
The Act also promises that the Tribunal will dispose of a complaint within 90 days to ensure that an aged person approaching it does not have to wait for justice indefinitely. Therefore, it is a fast-track process.
However, I do not think merely passing this legislation can create love for parents in children’s hearts as this is something that cannot be adjudicated. It is only meant as a deterrent. However, the number of cases filed under this Act so far is very less, which throws light on the Indian tradition and culture wherein parents do not prefer to file cases against their children and usually bear the ill-treatment for a long time.
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