Laws Related to Old Age

“Growing Old” is a natural process that every human undergoes in one’s lifetime. It basically refers to the decline in the functional capacity that occurs due to physiological transformation. Senior citizens are an asset to a society with their pool of varied experiences, ideas, knowledge and expertise. Looking at the present scenario, where the roots of the joint family system are eroding and with the intrusion of more and more number of women in paid employments, the older citizens are facing a lot of difficulties in terms of loneliness and social maladjustments. In rural areas where the joint family system continues to prevail, the older members are respected more and are considered as an integral part of families.

Most senior citizens are unaware of their rights, either because of illiteracy or lack of alertness. Their biggest problems could be subdivided into the following categories –

  • Economic problem
  • Physical and physiological problem
  • Psycho-social problem

Various international attempts have been made by the U.N. General Assembly 1991 to address the concerns of senior citizens. 18 principles have been adopted, which have been grouped into five clusters namely, independence, participation, care, self-fulfillment, and dignity of the older person. United Nations have also declared 1st of October as International day of older persons.

Various national efforts have also been made to protect the interests of the old aged:-

1)   Constitution of India, Directive Principle of State Policy, Article 41 states that “the state shall, within the limits of its economic capacity and development, make effective provision for old age, sickness and disablement and in other cases of underserved want.”

2)   Code of Criminal Procedure (Chapter IX) , Section 125(1)(2) requires persons having sufficient monetary means to take care of their parents if the latter are unable to take care for themselves.

3)   Hindu Adoption and Maintenance Act,1956 Section 20 requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves.

India has also played a major role in safeguarding and protecting the vulnerable group of our country by granting various concessions and facilities and also by implementing various policies and programs for them:-

  1. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – It is a legislation initiated by the Ministry of Social Justice and Empowerment, Government of India and attempts to address the problems of the elderly population of our country in various ways.

This Act makes it obligatory for children and their heirs to provide as maintenance a monthly allowance to their parents and other senior citizens of the family. It also provides a simple, speedy, and inexpensive mechanism for the protection of their life and property. Mandate for setting up of old age homes is also included.

Senior citizens who are unable to maintain themselves have a right under this statute to make an application to the designated tribunal to effectively claim their maintenance amount from their errant children/heirs.

State government has the power under this Act to set up a maintenance tribunal in every sub-division that would have the power to decide upon the level of maintenance. All appeals from the maintenance tribunal would lie in the Appellate tribunal (established at the district level).

The Act caps the maximum monthly allowance at Rs 10,000 per month. The establishment of old age homes has significantly taken off, with at least one old age home per district[1].

  1. Reverse Mortgages– Under such scheme the senior citizen mortgages his property to a lender in the capacity of a borrower, the lender thereby makes periodic payments to the borrower during his lifetime[2].
  2. New Pension scheme– This scheme enables an individual to save a certain amount through his working life[3].
  3. Health– The Ministry of Health and Family Welfare provides separate queues for older persons in hospitals for procedures of registration and clinical examination. This is in addition to the concessions offered to them in the treatment of the diseases like cardiac problems, diabetes, kidney problem, blood pressure, joint and eye problem[4].
  4. Travel- i.) The Indian Railways gives 30% concessions in the ticket prices to all persons aged 60 years and above. It is 50% in case the senior citizen is a woman aged over 60 years. Other facilities like, priority for lower births, separate counter for booking (and cancelling tickets), ramps to roll in wheel chairs at the entry points (in few important stations), specially designed coaches with provisions for accommodating wheel chairs, handrails, and specially designed toilet for  disabled older citizen have also been put in place.                                                                                            While travelling by air, most elderly persons are encouraged to board first. Besides this, the Indian Airlines provides 50% concession on purchase of economy class tickets. And, Air India has been offering discount to senior citizen aged 60 years and above on international flights[5].
  5. Banking– Indian government gives high rate of interests to its senior citizens on certain savings plans which are run by the post offices and other private banks. They can also avail of Income tax rebate up to an income of Rs 1.85 lakhs per annum.[6]
  6. Housing-The Indian government provides housing facilities such as retirement homes and recreational or educational centers. These centers provide older persons with opportunities to spend their free time doing various activities. Most recreational centers have yoga clubs, fitness club, parks, spiritual session, picnic, food fests, libraries, art and craft, music classes and indoor games.[7]
  7. Miscellaneous- Courts in the country accord priority to cases involving older persons and ensure their expeditious disposal.[8]
  8. Annapurna scheme is being implemented since 2001 where 10 kgs of food grains are provided free of costs to old destitute people who are above the age of 65 years.[9]

International Comparison

Internationally also various laws have been developed for securing the interests of the old aged:-

  1. United States: Older American Act of 1965- created the administration on ageing within the department of health, education and welfare; authorized grants for the research and training in the field of ageing, for community planning, for implementing services for the elderly.[10]
  2. South Africa: Older Person Act no. 13 of 1996- provides strict control for registration of various kinds of facilities for the older people, makes abuse of the elderly a criminal offence; creates social and culture community- based services for the elderly.[11]
  3. Sri Lanka: Protection of Rights of Elder’s Act 2000- has established a National Older Persons’ Council, which requires children to provide care for their parents[12].
  4. Canada: Parents Maintenance Act, 1978 and 1993 respectively- mandates children to pay maintenance to dependent parents. The amount of maintenance has an upper limit, fixed at $20 per week[13]
  5. China: Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly Act 1996- places responsibility on family members to care for the elderly members; establishes a state based old age insurance system, increases legal protection available to the elderly (the most important being, speedy trials and other court procedures).[14]

Conclusion:

 The government has tried its best to provide for the upliftment and protection of older persons (that could make their everyday living better) by drafting various governmental concessions, schemes and policies specifically for them. However the implementation of these well-intended instrument is very poor.

The other concern that has not been adequately addressed by legal instruments is the increased crime rate against the elderly populace on the streets and within the confines of their homes, robbery and dacoity being the primary reasons for their attack. Proper police patrolling, SOS facilities seem to be the urgent needs of this hour along with the implementation of the instruments that are already in place.

Photo Courtesy: https://www.google.co.in/search?q=old+age+rights+india&biw=1366&bih=623&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMI8PmdiL_uxwIVzRuOCh1vvASJ#imgrc=BZbt0A0qIlbGOM%3A

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[1] Information obtained from http://www.prsindia.org/billtrack/the-maintenance-and-welfare-of-parents-and-senior-citizens-bill-2007-441/

[2] Information obtained from http://indiatogether.org/seniors-laws

[3] Information obtained from http://indiatogether.org/seniors-laws

[4] Information obtained from http://socialjustice.nic.in/consd.php

[5] http://socialjustice.nic.in/consd.php

[6] http://socialjustice.nic.in/consd.php

[7] http://socialjustice.nic.in/consd.php

[8] http://socialjustice.nic.in/consd.php

[9] http://pib.nic.in/infonug/infyr2000/infoaug2000/i010820001.html

[10] Information obtained from  http://indiatogether.org/seniors-laws

[11] Information obtained from http://ossafrica.com/esst/index.php?title=Summary_of_the_Older_Persons_Act%2C_no._13_of_2006  and  http://indiatogether.org/seniors-laws

[12] Information obtained from http://www.socialwelfare.gov.lk/web/index.php?option=com_content&view=article&id=131&Itemid=106&lang=en and

http://indiatogether.org/seniors-laws

[14] Information obtained from http://indiatogether.org/seniors-laws

Reference Guide for opening new Commercial Establishments

 

Introduction to Idea of Shops, Establishments and the Licenses Required

This blog post aims to serve as a one-time reference guide with regard to opening new shops and commercial establishments in India. It deals with various licenses and registrations that one has to compulsorily acquire in order to set up a business. Every state in India has the jurisdiction to enact its own Shops Act to regulate every business that exists within their territories. It is one of the most powerful tools to ensure that all legal businesses are recorded with the respective state governments. Only after successful compliance with the shops registration act, the existence of the business is confirmed.

This blog post deals specifically with the license requirement for opening shops and commercial establishments in Mumbai. There is no specific reason for choosing Mumbai as a model city except that it requires one of the maximum numbers of permits from different departments of the Municipal Corporation. Giving an account of the licenses required in Mumbai would almost definitely cover the licenses required in other states in India.

Depending on the type of business one is in, the licenses vary. For example, someone who wishes to venture into the food industry, by opening a restaurant requires permits from the Food and Drug Inspector, the Fire Department, the Police Commissioner and the local municipal authorities; for a normal grocery shop, one needs approvals from the fire department, municipality and health department. This blog will cover the general requirements for opening a shop or any commercial establishment under the meaning of the Bombay Shops and Establishments Act, 1948.

Application Procedure

Any citizen who wishes to open a shop or a commercial establishment in Maharashtra must be registered under the Bombay Shops and Establishments Act, 1948. For the purposes of registration, every business owner must send the relevant application form along with the fees to the Inspector appointed under Section 48 of the Act. The default authority under the Act is “local authority” that can be the following entities as per Schedule 1A of the Act –

  1. Any corporation under the Bombay Municipal Corporation Act, 1888
  2. A Municipality under the Bombay Municipal Boroughs Act, 1925, Bombay District Municipal Act, 1901, the Central Provinces and Berar Municipalities Act, 1922 or the Hyderabad District Municipalities Act, 1956
  3. A local board constituted under the Local Boards Act, 1923

An application sent to the local authority along with the following mandatory documents and registration fees would complete the registration process.

  1. Address proof of the premises where the shop or commercial establishment shall be set up (electricity bill/sale deed/tax receipt are considered valid for this purpose);
  2. Identity proof of the owner (in case of a firm/trust, then that of the partners/trustees);
  3. Nature of business verification – this can be of the following types:
  1. If Bar and Restaurant, Wine Shop or Beer Shop, then State Excise License has to be attached;
  2. If Medical Stores, then Food and Drug Administration License needs to be attached;
  3. If Cyber Café, then NOC from the Police Department -, Police Commissioner License and Man Power Supplier copy of the Work Order of the Principal Employer has to be attached;
  4. If Entertainment, then copy of the Collector’s permission has to be attached;
  5. If Transportation/Tour and Travel Agency, then RTO Transport Permit needs to be attached;
  6. If Import/Export/Clear Forwarding/Shipping/Cargo Industry, then licenses from the concerned department to be attached;
  7. For a share brokering business, SEBI Enrolment Form to be attached;
  8. For Trading Business, copy of the financial transaction to be attached;
  9. For Fire Works Shops, Municipal Corporation NOC, Fire Brigade NOC, Collector’s NOC and Police Department NOC must be attached.

Once a shop is registered under the Shops and Establishments Act, there are some basic conditions relating to work and employment that the employer has to adhere to. The objective of the Bombay Shops and Establishment Act was to regulate the conditions of work and employment in shops, commercial establishments, hotels, restaurants, eating houses, theatres and other establishments. Opening and closing hours of shops/residential hotels/restaurants/theatres, their daily weekly work hours, interval for rest, holidays. It prohibits the working of children in establishment. General rules regarding leave, paid leaves and other benefits accorded to employees are also laid down. Health Safety and precautions in case of emergency also have to be observed. Penalty for not complying with any of the provisions of the Act attracts a maximum fine of Rs 5000.

These requirements are more on part of the employer to accord certain basic work conditions to his employees. The workers have been left completely out of the purview of this legislation. Rightly so, the author feels, since the requirements of the employee differs from case to case basis, and it is the employer who can best decide the qualification of his employees. It is important to understand the legislative intent behind the enactment of Shops Act; it is not to balance the rights of employers and employees, it is a clear pro-worker legislation aimed at regulating various details about the business like work hours, holiday’s list, overtime rule, joining and termination criteria etc. Therefore, it is a democratic jurisdictional act that is established by every state in India in order to guide their business segments.

License Requirements for opening a Small-Sized Restaurant in Mumbai

Just to give a perspective, it would be interesting to take a look at the licenses/permits/certificates to be obtained by a small-sized restaurant in Mumbai.

There are five major departments that need to be approached – Brihanmumbai Municipal Corporation (BMC), Police Department, State Government, Excise Department and Sales Department. The Central Government also needs to be approached for Food Safety and Standards Authority of India license and recorded musical performance licenses.

Sr No Department License/NOC
1. BMC Shops and Establishment Certificate
2. BMC Health License (to serve food)
3. BMC Madira License (to serve Liquor)
4. BMC Grading Certificate, Sign Board License under License Department, Medical Certificate of Kitchen Staff, Water Connections, Drainage Inspection Certificate, Neon Sign certificate, Pollution Clearance Certificate, Weights and Measures Certificates etc.
5. BMC Permission to operate more than two gas cylinders at a time (fire department and health department), permission to operate heavy machinery (PWD)
6. State Government Professional Tax Certificate of employees and employers
7. Police Department Police Registration Certificate and under the Bombay Police Act, Noakarnama
8. Sales Tax Department Sales Tax Registration Certificate under Bombay Sales Tax Act
9. Income Tax Department PAN for Restaurant Business
10. Excise Department Dance Permits (if any), Accounts Register, Customer’s Drinking Permit etc.

Critique of the Application Procedure and Suggestions

Shops and Establishments Act has been one of the effective tools to protect the illegitimate and illegal acts in the employment segment of particular state jurisdiction. It is compulsory for all business houses to register under various authorities mentioned under the Act before starting their business. Waiver under the Act is not an option under the Indian Laws.

Most of the other states have their own Shops and Establishments Act that lay down the long list of authorities to be approached for opening a single shop. While each of these licenses are necessary keeping in mind the safety and regulatory aspect, the actual procedure of procuring a license from so many departments is very cumbersome.

India is counted among the fastest growing economies in the world today, and if we are to live up to our name, it is imperative that we incentivise the domestic production, manufacturing and service sectors. Opening a restaurant, or a hair-saloon or a simple grocery store would definitely contribute to the GDP of our country, albeit in a smaller scale. Therefore, the process of acquiring licenses by these small scale enterprises must be made easier and hassle-free. Some of solutions are suggested below.

  • A much needed reform in the system is to create a centralised nodal agency for procuring licenses, where all forms can be submitted together, and the approval would also be given from that nodal centre. This would ensure a one stop solution for the license seekers while at the same time not compromising with any of license requirements.
  • Another solution can be to create different sets of licenses, with each set pertaining to the licenses required by one particular entity, for example, all the licenses required to open a restaurant will be in Set-A, all licenses required to open a medical store in Set-B, for a cyber café Set-C and so on. This would help the license seekers get a clearer and cleaner understanding of all the regulations they are supposed to comply with. This would also aid the concerned government department to regulate the licensees according to their establishment-type.

More than the above mentioned solutions, it is the present system that needs to be strengthened; the extent of red-tapism existing in our bureaucratic framework is staggering. The culture of collecting files needs to be replaced with a positive culture of clearing files. Every department needs to be proficient in its working, so much so that prospective business houses should feel hopeful about their licenses getting approved at the earliest and believe that their government is supportive of their ventures. It is only with a change in attitude can we really expect a change for real.

Photo Courtesy: https://www.google.co.in/search?q=registration+of+a+shop&biw=1366&bih=667&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMI_YfY_dzYxwIV1wmOCh0qKQo4#tbm=isch&q=shop+registration&imgrc=9KpB503Eg8V6TM%3A