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Orphanage laws in India : protection of orphan children

November 23, 2021

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This article is written by Adhila Muhammed Arif, from Government Law College Thiruvananthapuram. This article explains the various laws in the Indian legal system that seek to protect orphans and govern the functioning of orphanages.

Introduction

India, being the second-most populous country in the world, is home to a large number of orphaned children. As India struggles with poverty, hunger and corruption, many children either lose their parents or are abandoned by their families. According to UNICEF, there were around 25 million orphaned children in India in 2007. With the onset of the Covid-19 pandemic in 2020, the number of orphans in India has rapidly increased. Hence, it is important to explore the existing legal framework in India that seeks to protect orphans.

According to Article 39(f) of the Indian Constitution, the state can make policies to ensure that children are provided with adequate opportunities and resources, which are essential to their growth and to protect them from exploitation and abandonment. In most circumstances, only an orphanage can provide orphaned children with basic necessities such as food, shelter, clothing and education till the age of 14. Therefore, the state is empowered to make laws to ensure that orphanages in the country are well-maintained and receive adequate funding in order to protect the rights of orphaned children.

Existing legal rights of orphans

Right to life

Article 21 of the Indian constitution guarantees the protection of the life and liberty of every person. This would protect orphans as they are extremely vulnerable. Article 21 upholds their right to live and exercise liberty just like everyone else.

Right to health

The interpretation of Article 21 is inclusive of the right to health. Every orphan child has the right to good physical and mental health.

Right to citizenship

Part II of the Indian Constitution elaborates on the right to citizenship. Every orphan has the right to have a name that is legally recorded and citizenship to any country. This ensures that any state would protect their welfare.

Protection from exploitation

Articles 23 and 24 of the Indian Constitution guarantee to protect the orphans from trafficking, forced labour and employment in hazardous places if they are below the age of fourteen.

Right to education

Article 21-A promises all children between the age of six to fourteen that they shall receive free education. This puts the responsibility on the state to ensure that orphans receive basic education just like other children.

The Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960

The most important legislation in India that governs the functioning of orphanages is the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960. This Act empowers the state governments to monitor and supervise orphanages or child care institutions and create a Board of Control for this purpose.

Powers and functions of Board of Control

The following are the powers and functions of the Board of Control:

According to Section 5 of the Act, the Board shall consist of three members of the state legislature, five members of the managing committees in the state, the officer in charge of social welfare work in that state and lastly six other members nominated by the state government, where half of the officers have to be women.
According to Section 7, the Board has the power and duty to issue directions regarding their functioning and management of these institutions.
The board also possesses the power to impact these institutions to ensure that they comply with the directions, as mentioned in Section 9 of the Act.
They also have the power to issue certificates to these institutions without which it is illegal to run them, as per Sections 13 and 14.
It may even revoke the certificate due to lack of compliance with the rules or due to unsatisfactory management. When such institutions are shut down, the orphans will be either relocated to other orphanages or sent to their distant legal guardians, as per Section 17.

Though the Board has many powers regarding the validity and management of orphanages, Section 18 provides that these institutions have the recourse to the courts of law and the state government if the Board acts unjustly.

Other relevant laws and statutes

Various other statutes that are relevant to the protection of orphans are the Juvenile Justice (Care and Protection of Children) Act, 2015, the Immoral Traffic (Prevention) Act, 1956, the Right of Children to Free and Compulsory Education Act, 2009, the Child Labour (Prohibition and Regulation) Act, 1986 and the POCSO Act, 2012.

The Juvenile Justice (Care and Protection of Children) Act, 2015

This Act is concerned with children in conflict with law and children in need of care and protection. It prescribes institutional care for children through shelter homes, children’s homes etc. and non-institutional care through foster care, adoption, sponsorships and after-care organizations. In 2021, the Parliament of India amended the Act, bringing changes to the provisions concerning adoption. Prior to the amendment, civil courts were entrusted with the power to issue adoption orders. With the amendment, only District Magistrates can issue such orders.

The Immoral Traffic (Prevention) Act, 1956

This Act criminalizes prostitution and trafficking, particularly the keeping of certain premises as brothels and living on the income earned through prostitution, though it doesn’t criminalize prostitution done independently and voluntarily. This Act is relevant as it protects orphans from trafficking and prostitution.

The Right of Children to Free and Compulsory Education Act, 2009

According to Article 21-A of the Indian Constitution, it is a fundamental right of every child from the age of six to fourteen, to receive free education. This Act guarantees the protection of that right and allocates responsibilities to the governments at different levels. This Act ensures that orphans are not deprived of their fundamental right to free and compulsory education. As it is a requisite for orphanages to provide education, the Board of Control can inspect whether these institutions keep up with it and is empowered to revoke their certificate if they don’t.

The Child Labour (Prohibition and Regulation) Act, 1986

This Act was enacted to give effect to the Constitutional provision enshrined in Article 24. According to Article 24 of the Indian Constitution, every child below the age of fourteen has the right to be protected from any sort of hazardous employment. It was enacted on the basis of Article 39(e), which empowers the state to make policies that protect children from forced employment that is not suitable for their age and skills. If any orphanage subjects orphans to any form of labour, a strict penalty will be imposed.

The POCSO Act, 2012

The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to protect children from all forms of sexual abuse, regardless of their gender. The Act prescribes strict punishments for those who subject children to any kind of sexual harassment. This Act protects orphans who are extremely vulnerable to sexual exploitation.

The Orphan Child (Provision for Social Security) Bill

The Orphan Child ( Provision for Social Security ) Bill was introduced in Lok Sabha in 2016. However, the bill has not been passed yet. It contains many provisions that were formulated with the intention of securing the welfare of orphan children. The following are the provisions formulated in the Bill :

According to Section 3, the central government has to conduct surveys on orphan children every ten years.
Section 4 provides for a national policy for the welfare of orphans to be formulated.
Section 6 states that the central government shall constitute a fund for the purpose.
Section 8 provides for the establishment of foster care homes.

Position in other countries

United States of America

In the United States of America, traditional institutions like orphanages have ceased to exist in modern times. Instead, they have a government-funded foster care system and adoption carried out by both public and private agencies. This facilitates a more personalized form of attention and care for orphans. The USA is known for having Child Protective Services (CPS) which rescues children from abusive environments and provides them with foster care. Thus, children placed under foster care are not always orphans. Often, they wait to return back to their parents and if that becomes impossible, they are put up for adoption. Orphaned children are protected under foster care until they get adopted. The US legal system harshly punishes those who abuse children and provides effective adoption policies to safeguard the interests of orphaned children.

United Kingdom

Orphanages have become a thing of the past even in the United Kingdom and many countries in the EU. Most countries now follow the modern system of foster care. Many people claim that institutionalisation affects the well-being of children and hampers their personal growth whereas foster care can provide a more supportive environment for children. The statute that deals with the welfare of orphans in the UK is the Child Care Act, 1980.

Impact of Covid-19

The pandemic had devastating effects on children, leading many of them to be orphaned. Around 3621 children were orphaned and around 274 children were abandoned between April 1, 2020, and June 5, 2021, according to the National Commission for Protection of Child Rights (NCPCR) in an affidavit to the Supreme Court. A suo motu petition on protecting children in child care homes from Covid-19 was heard in the Supreme Court and the affidavit was filed in response to a query that arose in the hearing. NCPCR informed that a web portal named ‘Bal Swaraj’ has been set up to upload data on children who lost both their parents, those who lost one parent and those who were abandoned during the pandemic from each district. NCPCR also keeps track of whether these children receive financial assistance. The central government and state governments have set up various welfare schemes for the protection of these children.

It is crucial to ensure that orphaned children receive either institutional or kinship care as they are highly vulnerable to exploitation and abuse during these trying times. Sometimes extended relatives of the orphan belong to low-income groups, making them ineligible to care for the child unless they are provided with financial assistance. It is necessary that children orphaned due to the pandemic receive professional help to help them cope with parental loss.

The Boards of Control have to ensure that the orphanages follow the necessary steps to protect orphans from Covid-19 and have an adequate supply of essentials like sanitisers. They should also ensure that Isolation wards are set up within orphanages to protect the children.

Suggestions

Though foster care is an option and is legally recognized under Section 42 of the Juvenile Justice Act, it is still a relatively new concept in India. Many believe that for temporary sheltering of orphans, foster care is more suitable than orphanages as it will provide a more friendly environment to children. A personalized and friendly environment is a requisite for a child’s holistic growth.
Adoption laws in India are known for being cumbersome, though many argue that it is to protect children from exploitation. Due to the overwhelming number of children orphaned due to the pandemic, it is more ideal to relax the adoption procedure with stringent regulatory checks after adoption, to ensure that orphaned children are not exploited or abused.
Even though consensual homosexual acts have been decriminalized in India, laws pertaining to matters like marriage and adoption remain hetero-normative, making it impossible for same-sex couples to adopt. Hence, it is high time that we revise our discriminatory adoption policies.
Children who grow up in institutions like orphanages rather than a family or community environment are much more likely to suffer from mental health issues. Orphanages and other child care institutions must be equipped with counsellors, psychologists and psychiatrists to check up on their mental health. Orphanages must be capable of providing them with a healthy environment, helping them grow just like other children.
Not having legislation that is exclusively meant for orphans is another hindrance. We need separate comprehensive legislation to protect the rights of the orphans.

Conclusion

Orphaned children are one of the most vulnerable groups in India. Like every other child, they too have rights and interests which need protection. As they are more likely to be exploited and abused, they require extra attention and care. It is not enough to provide them with just food, shelter, clothing and education. They are also required to be loved and cared for as they are assets of our nation. It is essential to provide them with a healthy environment so that they can grow and develop like other children.

Though orphans in India can be protected by their distant relatives or foster care, institutional care provided by orphanages is the most preferred mode as India is a developing and low-income country. It is obvious that despite having regulatory bodies and guidelines for regulation, these institutions are not regularly inspected. The physical and mental health of orphaned children often goes unchecked. Many institutions suffer from a dearth of skilled and trained staff. The poor infrastructure at orphanages makes it even more crucial for us to promote foster care and facilitate an easier adoption process.

References

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