Index
- Introduction
- Objectives Of The Act
- Population Projections And Welfare Measures
- Key Features Of The Maintenance And Welfare Of Parents And Senior Citizens Act
- Controversy Surrounding The Maintenance And Welfare Of Parents And Senior Citizens Act
- Court Judgements
- Conclusion
Introduction
On 30 March 2021, the Kerala High Court’s two-judge bench, comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, passed a landmark judgement. The court allowed a writ petition filed in 2011, challenging the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. In this case, Section 17 was declared ultra vires of the Constitution and void, being repugnant to Section 30 of the Advocates Act, 1961. This controversial issue is the central focus of the article. The judgement underscores that the provisions of one Act should not violate the rights established by other Acts. The controversy hinges on the contradiction between Section 17 and the rights of advocates to practise under the Advocates Act, 1961. Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, mandates that no legal practitioner shall represent any party before a Tribunal or Appellate Tribunal. The controversy stems from this restriction, as it limits the ability of senior citizens to have professional legal representation in their appeals.
Objectives Of The Maintenance And Welfare Of Parents And Citizens Act, 2007
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, aims to provide financial security, protection, and welfare for senior citizens. It mandates that children are responsible for maintaining their parents, while the government is required to provide old age homes for senior citizens as specified in the Act and highlighted in the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019. This Act is designed to ensure the welfare of senior citizens by safeguarding their life and property.
Population Projections And Welfare Measures
According to the technical group’s report on “Population Projections” by the National Commission on Population, the estimated population of citizens above 60 years of age is projected to be 173.18 million by 2026. This projection highlights the increasing need for the provisions and protections outlined in the Act. As per Section 9(2) of the Act, Maintenance Tribunals can direct children to pay up to Rs 10,000 per month as maintenance to their parents. However, the recent Amendment of 2019 removes this upper limit on the maintenance amount, further enhancing the Act’s effectiveness in providing for senior citizens.
Key Features Of The Maintenance And Welfare Of Parents And Senior Citizens Act
The primary objective of this Act is to ensure maintenance for parents or grandparents based on their needs. Effective implementation necessitates the establishment of tribunals to resolve maintenance claims promptly. Notably, claimants can file suits and raise issues without the involvement of lawyers, as Section 17 prohibits lawyers from participating in tribunal proceedings.
Tribunals can order children or relatives to provide monthly allowances on an interim basis to senior citizens. During ongoing proceedings for monthly maintenance allowance, tribunals may issue orders for periodic payments to senior citizens by children or relatives. Section 5(4) specifies that maintenance claims and related expenses must be resolved within 90 days from the notice date, with a possible extension of up to 30 days under exceptional circumstances, provided reasons are documented in writing.
The Central Government periodically reviews the Act’s implementation with state governments to monitor progress. The Act includes penal provisions to deter abandonment of parents or grandparents by children, with penalties including imprisonment for up to 3 months, a fine of Rs 5,000, or both.
Controversy Surrounding The Maintenance And Welfare Of Parents And Senior Citizens Act
The Act clearly defines its objectives and the individuals who can initiate proceedings. However, a major controversy arises from its prohibition of lawyers’ participation in tribunals at any stage, explicitly stated in Section 17. This section bars any legal practitioner or advocate from representing parties in tribunal proceedings.
This prohibition has sparked legal debate, as it appears to violate Section 30 of the Advocates Act, 1961, which grants advocates the right to practise. According to the Advocates Act, any advocate whose name is listed in the state roll has the right to practise across the country, including in courts, tribunals, and before any authorised person or authority.
The framers of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, included these provisions to prevent exhaustive arguments and facilitate swift case resolution through brief discussions. The government’s objective is to maintain cost-effectiveness. However, Section 17’s restrictions conflict with Section 30 of the Advocates Act, 1961, denying parties the option to choose legal representation and infringing on advocates’ right to practise.
This issue has persisted since the Act’s inception. The recent Amendment to the Maintenance and Welfare of Parents and Senior Citizens Bill, 2019, still does not adequately address the restriction on advocates. Legislators merely reiterated that the restriction aims to reduce parties’ expenses, without providing thorough justification.
Court Judgements
In the landmark judgement of Adv KG Suresh v. The Union of India on March 30, 2021, the Kerala High Court declared the restriction on lawyers representing parties before maintenance tribunals under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as unconstitutional. The two-judge bench, comprising Chief Justice S Manikumar and Justice Shaji P Chaly, ruled in favour of the writ petition. The court held that Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is ultra vires the Constitution and void, being repugnant to Section 30 of the Advocates Act, 1961.
Section 30 of the Advocates Act outlines the rights of advocates to practise across all territories to which the Act extends, encompassing all courts from district courts to the Supreme Court, as well as any tribunal or authority legally authorised to take evidence.
The writ petition was filed by a practising advocate from the Pathanamthitta Court, raising two main issues. First, it sought to declare Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 unconstitutional and null and void, as it limits the rights granted under Section 30 of the Advocates Act, 1961. This section empowers registered lawyers to practise throughout the areas recognized by the Act. The second issue requested the issuance of a writ of mandamus or other appropriate orders.
The petitioners challenged the constitutional validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, arguing that it conflicted with the legal rights of practitioners as described in Section 30 of the Advocates Act, 1961. They contended that the right to practise under Section 30 is contradicted by the restrictions imposed by Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
In the case of Tarun Saxena v. Union of India, the Delhi High Court delivered a significant judgement on April 16, 2021, providing major relief to lawyers. The judgement, pronounced by Justice Pratibha M Singh, was noted for its clarity and cogency. The court ruled that Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which prohibits legal professionals from participating in tribunal proceedings, is contrary to the law.
Section 17 explicitly states that legal practitioners should not be directly involved in the proceedings of petitions filed under this Act. The Delhi High Court referred to the precedent set in Adv KG Suresh v. The Union of India, which declared Section 17 ultra vires of Section 30 of the Advocates Act, 1961. Accordingly, the court ruled that advocates have the right to represent parties before the tribunal.
In this case, the petition was filed against an order issued on March 26, 2021, by the ADM of the Kookardama Court under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The petitioner raised two main issues:
- Advocates Not Permitted to Appear Before the Tribunal: The court relied on the Adv KG Suresh v. Union of India & Ors case, which concluded that Section 17 of the Act is ultra vires of Section 30 of the Advocates Act, 1961.
- Evidence Not Permitted Before the Tribunal: The court noted that the tribunal allowed the parties to file applications for the evidence they wished to present. This was deemed consistent with the law and the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
The primary legal controversy centred on the right to practise, with the court referencing the Adv KG Suresh case. The right to practise is also enshrined in Article 19 of the Indian Constitution, which guarantees the fundamental right to practise any profession, thereby enabling advocates to appear before any court or tribunal. Consequently, the order was passed enabling advocates to appear in the tribunal.
Conclusion
The right to practise granted to an advocate is a crucial right that must not be undermined. Although conflicts can arise among sections of various Acts, the ultimate objective of these Acts is to operate in accordance with the Constitution of India. The objectives and salient features of the Acts underscore their purpose. This Act aims to ensure the speedy disposal of cases. Consequently, the court resolved the controversial issue, affirming the right to practise as valid and declaring the restrictions on lawyers void. Advocates are entitled to practise in all courts and represent parties.
