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Age Discrimination and Elderly Abuse within the Family in India

By Akshyat Das; 2nd year; Soa national institute of law (SNIL)


Ageing is an overarching phenomenon, its effects felt across a multitude of facets of life, such as region, gender, class and caste, as well as other identifiers, ageism is the set of stereotypes, prejudices and discriminations that are centered around the socio-economic and physical conditions of the elderly. These discriminatory practices often result in destitution, abandonment and abuse of the elderly. This article throws light on the growing concern of ageism in India, which is set on the same trajectory as those parts of the world which have systematically neglected their elderly population.


Demographic Changes

Population ageing is an ongoing demographic phenomenon globally due to a commendable decline in the mortality rate, leading to increased life expectancy, coupled with decreasing fertility rate, which consistently works to invert the demographic pyramid. According to the United Nations ageing report (2017), the total older population (60 years and above) was 962 million in 2017 worldwide and the estimate indicates that the older population could grow to around 2,1 billion by 2050, this dramatic shift in age structure is affected by social and economic changes in any society experiencing ageing in the 21st century (Maurya, Sharma and Muhammad, 2022). This transition is quite fast in the western and far-eastern developed countries. This change, leads to consequential challenges to the existing intergenerational family support system, healthcare system, social structure for support such as pensions, retirement and other benefits and manpower, not adequately trained for elderly care. Health and associated medical costs in older age is another issue since older people tend to be more vulnerable to chronic conditions, resulting in negative attitudes in old age.


Background

People over 60s, are often considered as feeble with declining mental and physical capacities, reducing their prospects of any gainful employment and hence halting their productivity. This causes discrimination against them since in an efficiency and productivity economy, they are considered undesired economically non-contributing burden on the shoulders of the economically contributing younger population. Traditionally, Asian and South-Asian societies have been sympathetic and respectful towards the special needs and disabilities of the elderly, unlike Western individualistic societies with a weak family structure and insufficient intergenerational support system. The elderly in India in particular, have been venerated as epitome of wisdom, piety and spirituality, the younger relatives on whom they were dependent, were restrained by Shastric injunctions from abusing them either by words, violence or economic fraud. However, it is disappointing to learn that India ranks considerably high in cases of elderly abuse, abandonment and neglect. Poverty, strenuous and inviable economic production systems, disintegration of the joint family, have resulted in adverse attitude towards the elderly


Problems Faced by the Elderly

Discrimination can be both perceived and actual. A cross-sectional study conducted using a large representative survey data from the Longitudinal Ageing Study in India, during 2017-2018 with participants including 31,464 older adults aged 60 years and above, revealed that 10.33 percent older adults perceived their age as the main reason for discrimination, which was 11.86% among the oldest old. Older adults with more than 10 years of schooling were 32% less likely to perceive age discrimination compared to their uneducated counterparts. The odds of perceived age discrimination were higher among older adults who earlier worked as compared to those who never worked. Further, having difficulty in instrumental activities of daily living (IADL) and having one chronic condition were associated with increased odds of perceived age discrimination among older adults. Perceived discrimination is the perception or subjective feeling of the person, that due to certain unreasonable classification he is been adversely treated and discriminated against, this general sense of negative treatment is often not unfounded on concrete objective realities in the case of the elderly. The statistics of actual abuse corroborate, and often show a graver picture than the subjective perceived discrimination.

Crime against and abuse of the older people are major areas of concern for their wellbeing. The elderly are victims of grievous hurt, murder, and abuse and isolated by neighbours, family members and domestic servants . They are more vulnerable as they are old, frail and are not able to defend themselves . As per NCRB report (Crime in India 2022) Crime against senior citizens rose by 9.3% to 28,545 cases compared to 26,110 cases in 2021. A bulk of these cases (7,805 or 27.3%) related to hurt followed by theft (3,944 or 13.8%) and forgery, cheating, and fraud (3,201 or 11.2%).Not only crime but also fear of crime is regarded as one of the major concerns that primarily cause worry among the aged people . Several factors are associated with fear of crime such as location of the residence, previous victimisation experience, vulnerability and defensibility and crime rate of an area. Further, elder abuse as defined by WHO as a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person, is overwhelmingly perpetrated by the family members. 93 % of elderly in India stay with their family, including relatives and distant heirs. However, yet the elderly are susceptible to various forms of abuse such as physical, verbal, financial, sexual, medical, neglect and abandonment . One in every six people age 60 and above, accounting for 141 million people globally, suffered from one or another form of abuse in 2017 (United Nations, 2020) . Gender differences were observed in the source of abuse faced by older adults; the main source of abuse for men were outsiders while abuse mainly occurred within the family for women (except disrespect) (UNFPA, 2012).Experience of verbal abuse appears to be more common among both elderly men and women. The elderly are more abused within the family than outside. While the son is a major perpetrator (59.6%) of elderly abuse or source of quarrel followed by neighbours and daughters-in-law in rural areas, neighbours are the main source of elderly abuse (47.6%) in urban areas, followed by sons and relatives. (UNFPA, 2011). A more recent report on elder abuse in India by Help age India revealed that Bhubaneswar, the capital city of Odisha leading the country in terms of prevalence of elderly abuse as 87% of the survey participants disclosed having faced some form of abuse (The Indian Express, 2018). The report also shows that in majority of cases (52%) the perpetrators of abuse are sons followed by daughters-in-law (34%) .(Times of India, 2018).

Further, a recent HelpAge India report also shows that while elderly abuse is common all over the world, in India the forms of abuse that have been reported are disrespect (56%), verbal abuse (49%) and neglect (33%). While disrespect may not be covered under any particular law, verbal abuse and neglect certainly are covered under the definition of domestic violence (A HelpAge India Report 2010). The main abusers are the sons (52%) and the daughter-in-law (34%) and about 82% of the persons abused did not report the matter because of two major reasons to maintain confidentiality, since it was a family matter (52%) or because they did not know how to deal with the problem (34%) (A HelpAge India Report 2018, p. 3).

In a case study of India on domestic violence against older people by Govil and Gupta (2016), it is noted that about 93% of older persons live with their families (77% with families, 14% with spouse and 2% with other relatives) and very few live alone or in assisted living arrangements. They point out that half of the elders have personally experienced abuse and 83% reported that elder abuse was prevalent in society. Women faced abuse more than men and abuse was largely emotional and economic.

The Longitudinal Survey of India in its analysis shows varying percentages with abuse of older persons in different States in India with Bihar at the highest (11.7%) and the North Eastern states having the lowest (Mizoram recording 0.1%, Nagaland 0.3% and Meghalaya 0.8%).

The Agewell Foundation report during the pandemic that said as many as 71% (Chandra Sharma 2020) of the nation’s elderly believed mistreatment had increased towards them during the pandemic and points towards how important research on this issue is and how vulnerabilities are heightened during the current pandemic.


Legal and Policy Frame-works

The welfare and protection of senior citizens in India has been a longstanding concern, addressed through various legal and policy measures. However, implementation challenges and gaps in existing frameworks continue to pose hurdles in ensuring their well-being and dignity. India's legal landscape concerning the elderly spans international conventions, constitutional provisions, personal laws, and specific legislations. While international instruments like the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights lack explicit provisions for the elderly, their rights are implicated through broader standards of social security, adequate living standards, and healthcare. Domestically, the Constitution, through Articles 14, 15, 16, and 21, upholds the principles of equality, non-discrimination, and the right to life and livelihood, laying the groundwork for protecting the elderly's rights. However, the lack of explicit mentions of age as a prohibited ground for discrimination has led to varying judicial interpretations, as seen in the cases of John K Love v Australia (2003) and Albareda v Uruguay (2007).

Personal laws, like Hindu and Muslim law, have traditionally placed the onus of maintaining aged parents on their children, with the quantum of maintenance often tied to outdated notions of the Ashrama system or limited to the period of marriage and iddat, respectively. While modern statutory reforms, such as the Hindu Adoptions and Maintenance Act and the Muslim Women (Protection of Rights on Divorce Act), 1986, have extended maintenance obligations, implementation remains a challenge due to societal attitudes and financial constraints.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (MWPSC Act) emerged as a landmark legislation, overriding other laws and placing a legal obligation on children and heirs to maintain senior citizens, including provisions for food, clothing, residence, and medical treatment. However, the Act's effectiveness has been hampered by a lack of awareness, inadequate implementation, and the limited functionality of maintenance tribunals established under it.

The Supreme Court's landmark judgment in Ashwani Kumar vs. Union of India (2018) highlighted these shortcomings and directed the government to develop a comprehensive action plan addressing issues such as old-age homes, geriatric care, medical facilities, and the effective implementation of the MWPSC Act. The court recognized the right to shelter and healthcare as fundamental rights under Article 21 and emphasized the need for realistic schemes to fulfil the elderly's needs.

In response, the government has proposed amendments to the MWPSC Act, expanding the definition of "children" to include stepchildren, "parents" to include parents-in-law, and broadening the scope of "maintenance" to encompass healthcare, safety, security, and overall well-being. The proposed amendments also seek to enhance the role of maintenance officers, remove the cap on the maintenance amount, and expedite the decision-making process.

While these legislative efforts and judicial interventions aim to strengthen the legal framework for the elderly's welfare, challenges persist. Financial constraints, familial dynamics, lack of caregiving skills, and insufficient state support continue to impede the effective implementation of these measures. Addressing these multifaceted issues requires a holistic approach, involving awareness campaigns, capacity building, and the creation of robust support systems that uphold the dignity and rights of India's aging population.

 

 

 

 

 

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