Tuesday, 21 March 2017

Law on Maintenance for Parents & Senior Citizens

The parents and senior citizens, who are neglected by their children, can now claim need-based maintenance from their children on the strength of the law - Maintenance & Welfare of Parents & Senior Citizens Act, 2007. It is legally binding on children or relatives to look after the elderly. The law has come into force in the State of Kerala on 29.08.2009 when the state brought the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules 2009 into force.

The law provides for creation of Maintenance Tribunal for each revenue division to deal with application for such maintenance. The Tribunal is presided over by Revenue Divisional Officers (RDO). The act provides for appeals also. The Appellate Tribunal of each district is presided over by District Collectors. District Welfare Officers are designated as Maintenance Officers for each District. The Tribunal, before hearing an application, may refer it to a Conciliation Officer for amicable settlement of disputes. The panel of Conciliation Officers as per the law is yet to be prepared and published.

A senior citizen or parent unable to maintain himself/herself can file an application for maintenance to the Maintenance Tribunal. If a person cannot file the maintenance application, then any other person or organisation authorised by the person can file the application on his/her behalf. The kith and kin of the parent/senior citizen, who are in possession of the property of such parent/senior citizen or who would inherit the property of such parent/senior citizen also, have an obligation to provide such maintenance. The application for maintenance in the case of parent or grand-parent is to be filed against one or more of his children, but in the case of a child-less senior citizen the petition is to be filed against the relative who would inherit his property.

The application is to be filed in form No: A, as specified in the Rules. The Tribunal can suo-moto initiate proceedings for maintenance whenever necessary. The application for maintenance filed before the Tribunal, will be referred to the Conciliation Officer. The Officer in turn will hold conciliation between the two parties. Within one month of receipt of the reference the Conciliation officer will return the papers received by him with a report – carrying either a settlement formula if arrived at or a detailed account of steps taken by him for a settlement.

If the Conciliation Officers submits a settlement plan the Tribunal will pass a final order for settlement of the application. If no settlement is reported the Tribunal may pass an order for maintenance taking into consideration the amount needed by the applicant to meet his basic needs (such as food, clothing, accommodation and health care), income of the opposite party, and value of actual and potential income from the property, if any, of the applicant which the opposite party would inherit and/or is in possession of.
The application for maintenance has to be disposed of within 90 days. The maximum amount that the Tribunal can order at present is fixed as Rs 10,000/- . The aggrieved persons can prefer an appeal against the order before the Appellate Tribunal. The law prohibits the lawyers from appearing before the Tribunal.

If a person who received a property from a senior citizens fails to provide the basic amenities and physical needs to the transferor there is a provision of imprisoning the person for three months or with fine up to Rs 5000 or with both.

The law provides for not only maintenance but also welfare measures to parents and senior citizens. The law is a comprehensive one. The law holds the State responsible for the implementation of welfare measures for senior citizens. The High Court of Kerala last year ordered (W P (C) 4981/2015) the children to provide ‘welfare measures’ such as food, healthcare, recreation and other amenities even to the live-in partner of their mother.

Some ambiguities are there in the Senior citizens law. Senior citizen is defined as “any person above 60 years and includes parent, whether or not senior citizen”. That means a parent with less than 60 years of age but with a child of more than 18 years of age, is defined as a senior citizen. “Relative” means any legal heir, who is not a minor, of the childless senior citizen and is in possession of or would inherit his property after death. No doubt, the act is a significant step in dispensing of the insecurity of the elderly and paving way for their well being.

Maintenance under Criminal Procedure Code

The Code of Criminal Procedure, 1973 has a limited provision under its section 125 for maintenance of parents but is silent on welfare measures.  The application for maintenance is to be filed before the First Class Judicial Magistrate who can deliver an order for maintenance. The person failing in complying with the order of the court may get punishment of fine or jail term.

Can anyone opt for both reliefs?

Parents can claim maintenance either under Section 125 of the Criminal Procedure Code 1973 or under the law mentioned above – they cannot opt for both.  If an application under Section 125 is pending before the court, he/she have to withdraw the application before filing a petition before Maintenance Tribunal.

Saturday, 4 March 2017

Need for an All India Judicial Service

K Rajasekharan
Advocate, Thrissur Bar

No other reform is as important as establishing an All India Judicial Service (AIJS) in revitalising Indian judiciary. But the proposal for setting up an AIJS, in the lines of Indian Civil Service, is hanging fire for more than five decades despite there were several proposals and decisions including that of the apex court, in its favour. It is quite curious that a key judicial reform of such a magnitude remains wholly neglected at a time when more than 5000 judicial posts are lying vacant and as many as 2.3 crore cases are pending in the country. There is widespread hope that AIJS can deal with great many ills Indian judiciary face right now and revitalize it into a far more vibrant constituent of Indian governance and democracy.
The precise purpose of AIJS is to create a rigorous mechanism for appointment of persons of highest ability, impartiality and integrity to the district courts and to equip the subordinate judiciary in turn to serve as the feeder line for appointment of competent judges to the high courts or eventually the Supreme Court. The quality of judicial officers in the subordinate judiciary is a matter of concern.  The ever continuing decline in their quality will delay  delivery of justice, increase pendency of cases, impair quality of judgments, and in turn affect competence of higher judiciary as well.
The Constitution of India in its original form did not carry any provision on AIJS. The drafting committee of the Constitution was indecisive in creating AIJS under Article 312. The committee at last came out with Article 235 which puts the lower judiciary under the control of the High Court. Therefore the recruitment to lower judiciary in eleven states is being carried out by the High Courts and in seventeen states by the state level Public Service Commission.
In fact the administration of justice and organization of courts, except that of the High Courts and Supreme Court, had been a provincial state subject in the Government of India Act 1935. The Constitution later followed the same scheme by putting the subject as entry 3 of list II. It was under 42th amendment of the constitution the entry was transferred to the concurrent list as Entry 11A. In the Indian Constitution the judiciary and executive remained separate but the control of lower judiciary remains vested with the high courts.
The idea of formation of AIJS first came out as a proposal by the Law Commission of India. The first Law Commission in its 14th “Report of Reforms on the Judicial Administration”, submitted in the year 1958 ( Vol I Chapter IX para 59 page 184) states that if we are to improve the personal of the subordinate judiciary we must take measures to extend or widen our field of section in such a way we can draw from it really capable persons to man our higher judiciary. The report proposes to recruit the judicial officers by an all India competitive examination. The officers of the higher subordinate judiciary - the District Magistrates - were proposed to be selected by a national competitive test while the officers of the subordinate judiciary other than the District Magistrates by a state level test. 
The proposal was considered in the conference of law ministers held in the year 1960 where it was vociferously supported by some and fiercely opposed by some others. The proposal was hence shelved in view of the stern opposition of a section of them. Later the Conference of Chief Justices held in 1961, 1963 and 1965 favoured the proposal. But the proposal met with a natural death when some states and High Courts continue to oppose it.
In August 1963, the government sought the opinion of the Chief Justice of India (CJI) and the then Chief Justice opined that the proposal was not feasible. But in 1972, the CJI while proposing reforms relating to subordinate judiciary suggested considering the issue of AIJS.
Again the eighth law commission in its 77th report (Chapter IX para 96 page 32), while examining the excessive arrears in trial court, recommended that there was a compelling case for creating AIJS.
In 1976 a committee headed by Shri Swaran Singh recommended amendment to Article 312 so as to include the AIJS in its preview and exclude the lower subordinate judiciary from it. The committee referred the matter to the government for its consideration. The Constitutional amendment in 1977 brought in AIJS under Article 312 which stipulates that if Rajya Sabha passes a resolution with special majority a new All India Judicial Service can be created by enacting a law.
The proposal then figured in the Consultative Committee meeting of the Ministry of Law, Justice and Company Affairs held on 17th August 1978, again on 4th July 1979 and finally on 2nd November 1980 wherein the proposal was accepted in principle.
In 1982, the Conference of Chief Ministers approved the concept of AIJS. Most of the states were in agreement with the concept but a few - mainly three - issues were raised in opposition. The issues were lack of knowledge of local language by the incumbents, absence of avenues of promotion for them and erosion of control of high courts over subordinate judiciary. The eleventh law commission in its 116th report submitted in 1986 vividly describes how to address these three objections put forth against AIJS.
In the judgment in All India Judges case in 1992 ( AIR 1992 SC 165) the SC directed the Union government to consider settings up an AIJS for better selection through UPSC and to bring about uniformity in conditions of service for the District Magistrates in the country. The later verdict in the All India Judges case in 2002 also proposes AIJS and the need for bringing uniformity in service conditions.
A consultation paper prepared as part of the working of the National Commission to Review Indian Constitution in 2001 also favours AIJS. It clearly narrates how the problems that AIJS raises can easily be addressed.
The Parliamentary Standing Committee on Personnel, Public Grievance, Law and Justice in its 15th report tabled in May 2006 asked law ministry to set up AIJS to appoint district level judges.
The proposal for AIJS again came up in 2012 before the Union Government. A cabinet note along with a draft bill was prepared by a Committee of Secretaries and was circulated to gather suggestions from the stakeholders.  But the bill was again shelved due to opposition from the Chief Justices of High Courts. Eighteen out of twenty four High Courts responded but most of them opposed the move.
Again in 2013, the proposal for creation of AIJS came up as an agenda item in the conference of Chief Justices of the High Courts. Some of the state governments and the High courts were not in favour of the proposal while some others demanded some changes in it. Thus the revival move came to a close again due to divergence of opinion.
Two of the former law ministers - Shri Veerappa Moiley and Shri Aswin Kumar - had supported the proposal of AIJS but despite their interest they had also failed to push it further forward.
The first National Judicial Pay Commission and the National Advisory Council (NAC) also endorsed the institution of AIJS. In fact, the judicial side of the SC has been in favour of AIJS but the administrative side opposes it. In short, the proposal for AIJS is being discussed in multiple platforms for more than five decades but the unending wait still continues.
Now the present union government has revived the proposal so as to address the problem of vacancies in lower judiciary which has crossed 5000 right now. The government’s proposal now is to constitute AIJS for appointment of District Judges through an all India competitive examination to be conducted by the UPSC and to continue the appointment of civil judges and magistrates by the state governments under the guidance of the HC as of now. AIJS does not include any post below that of the district judge.
The proposal has great significance in revitalizing Indian judicial system. Now Judiciary finds it difficult to recruit professionals who possess requisite merit and talent required for a judge. The judiciary has a twenty percent vacancy all the time, mainly due to dearth of talented incumbents. No bright student of law right now joins the state judicial service which is not attractive in terms of career prospects including the hassles of transfer.  AIJS will bring to judiciary a promising section of young learned and talented law professionals, who otherwise may prefer private employment or job elsewhere.
The selection by UPSC, as experience shows, will most probably be fair, objective and transparent. Therefore the aberration, arbitrariness and nepotism in selection of judicial officers, which we notice in almost every selection process as of now, may decline. Then the quality of lower judiciary remaining now as just average with some exceptions will move upward. The incumbents joining AIJS may get a better chance to rise up to the level of HC and SC. Therefore AIJS is one way to attract better talents to judiciary and to make the judiciary more proactive and vibrant in dispensation of justice.

No doubt, AIJS is a sound idea to attract capable judicial professionals who can make our subordinate judiciary robust by speeding up disposal of cases, ensuring right decisions that do not lend themselves to appeal and thereby bringing down the possibility of appeals to the minimum. The competence and quality of the lower judiciary is crucial for revitalizing the entire edifice of Indian judiciary.