The Legal Rights of Orphan Children in India

The article 'The Legal Rights of Orphan Children in India' by Sukriti Verma will try to enlist the various legal rights and schemes available to orphan children in India. It is very little we as citizens can do, without going out of our way, to adopt these orphan children and donate to improve these uncared lives. We can also volunteer to teach them the basic skills and education of life whenever we find the time. We can visit some of the orphanages and foster homes to cheer them up. However, only about 1.35% of the orphans stay in such childcare institutions, the rest are on their own.

Introduction

India is the second largest country in terms of population and seventh largest in terms of area. Here, according to UNICEF, there are around 29.6 million orphan children, and after the Covid-19 Pandemic, the number only rose. This number is very huge, and it amounts to four per cent of the youth population. Out of these 29.6 million orphan children, only 4,00,000 children are being cared for in institutional care, the rest of them are by themselves.

This is why most of them are vulnerable and can easily be pushed into crimes and human trafficking. The saddening part about this is that no one cares for them, therefore, no one would even look for them when they go missing, and their cases will never be investigated by the police. This makes them the most easily exploited and vulnerable group. This calls for the utmost stringent laws for their social and physical security.

If we see globally, India has the largest number of orphan children living in institutional care, there are around 9,500 Child Care Institutions (CCIs), housing 4,00,000 orphan children. After India ratified the UN Convention on the Rights of the Child, Changing the Way We Care India (CTWWC) MacArthur Foundation's Bold Solutions Networks is primarily focused on preventing the separation of children from their respective families and institutionalization of the orphaned children, using a family-strengthening approach. This organization is primarily active in the state of Odisha.

Existing Legal Rights of Orphan Children

An orphan child is a human being first and then anything else. He shall be guaranteed all the fundamental rights under part III of the constitution, like the right to life, equality, education, freedom of speech and expression, right against exploitation, right to constitutional remedies, etc. In addition to this, as this orphan child is a vulnerable section of society, the law tries to provide him extra legal rights for his equal protection and sustenance in society. The legal rights of an orphan child are no less than a normal child with parents. Apart from the protection given to orphans by virtue of Fundamental rights, the legislature has enacted special statutes and some of the existing legal rights of orphans in India are:

1. Right To Live in a Safe Environment:

It has to be ensured that the place they are living is safe for them, for this purpose, the Orphanages and Other Charitable Homes (Supervision and Control) Act, of 1960 was enacted. It primarily dealt with the constitution of a board by the State Governments to supervise and control orphanage homes under section 5. It also construes the fact that the no orphanage come shall not be run without obtaining a certificate from the Board under section 13. It shall be in the power of the board to grant it or not under section 15. The board can also revoke this certificate for the reason that the conditions as prescribed in the certificate are being violated or that the conduct of the board is unsatisfactory and unsuitable under section 17.

2. Right To Be Protected Under The Juvenile Justice Act, 2015

In the case of the exploitation of Children in Orphanages in the State of T.N., In re it was held that the Juvenile Justice Boards aren't silent spectators and they can pass orders even when a matter hasn't come before them. They should take note of the situation if it comes to their knowledge that a child has been detained in the judicial prison or police prison. It is the duty of the Juvenile Justice Boards to ensure that the child is immediately released on bail or he is sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police.

The act also provided for certain principles under section 3 to be followed while administering the act like Principle of presumption of innocence, Principle of presumption of innocence, Principle of best interest, Principle of best interest i.e. the primary responsibility of care, nurture, and protection of the child is of the biological family or adoptive or foster parents, Principle of safety, Positive measures, Principle of non-stigmatising semantics, Principle of non-waiver of rights i.e. No waiver of any of the right of the child is permissible, Principle of equality and non-discrimination, Principle of right to privacy and confidentiality, Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process, Principle of institutionalisation as a measure of last resort, Principle of repatriation and restoration with his family at the earliest, Principle of fresh start, Principle of diversion, Principles of natural justice.

Section 8 ensures that the child's rights are protected at all times during the inquiry, aftercare, and rehabilitation.

3. Right To Be Protected Against Human Trafficking

Originally the immoral traffic (Prevention) Act, of 1956 was enacted by the legislature for the protection of women and girls it was called the Suppression of Immoral Traffic in Women and Girls Act, and it aimed mainly at protecting girls that were being forced into this. However, later on, the word women and girls was changed to human beings in the Act.

4. Right To Free And Compulsory Education

The Orphan and also any other normal child below the age of 14 years have the right to compulsory education and this right is free of any cost. This Free education is guaranteed to them by the state under article 21-A. The same right is also protected under section 3 of the Right of Children to Free and Compulsory Education Act, 2009.

5. Right To Be Protected Against Child Labour

An Orphan or any other child below the age of fourteen years has to be protected against child labour except helps his family or family enterprise and works as an artist in an audio-visual entertainment industry, including an advertisement, films, television serials, or any such other entertainment or sports activities, but not the circus, this is subject to the fact that the child's education is not affected by these exceptions. This is protected under the Child and adolescent labour (prohibition and regulation) act of 1986.

6. Right Against Sexual Exploitation:

The Right against sexual exploitation is guaranteed under Article 21, which is the right to life and personal liberty. But the same wasn't enough, so the Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted by the legislature. The act classifies the different types of sexual assault, like penetrative sexual assault and aggravated sexual assault, and provides rigorous imprisonment for the same, and such a fine is imposed that can be used for taking corrective measures for the victim.

Future Steps to be taken in India to Protect the rights of Orphans

The Orphan Child (Provision for Social Security) Bill talks about the social security of orphans. The Bill, for the first time, introduces the survey of orphans that should be done every ten years, and their social-economic, demographic data, etc. be published, this way, it will also act as a checking procedure and might also encourage people to adopt them.

Section 4 of the Bill talks about orphans' reunion with parents, a robust system of institutional care, universalizing the Cradle Baby Reception Centre scheme and its mandatory inclusion in every public health centre in the country, training & capacity building to health workers so that they can cater to the complex psychosocial needs of orphan children, specialized attention to orphan children suffering from vulnerable diseases, etc. it emphasizes the creation of a fund for orphan children by the central government under section 6 of the Bill.

Section 8 of the bill focuses on creating foster homes, whereas section 10 talks about the state government being provided with funds to complete the actions stipulated under this act. This bill if turned into an act and if implemented effectively, has the potential to do wonders for orphan children, and they might never feel as neglected as a minority.

Schemes for the Orphan Children

Let us look at some of the schemes that the government has launched for the benefit of orphan children:

Prime Minister Shri Narendra Modi, on 29th May 2021 launched the PM Cares for Children Scheme for comprehensive support of children who lost both of their parents due to the COVID-19 pandemic.

The Ministry of Women and Child Development is working on a nationwide Child Protection Services (CPS) Scheme, aimed at providing institutional care to Children in need of care and protection (CNCP) and Children in Conflict with the Law. It also aimed at providing non-institutional care and support like adoption, foster care, and sponsorship. Under this scheme, the maintenance granted for children in homes was Rs 2160/- per child every month. The Scheme was run by the States/UTs and funded by the Central Government.

The scheme of assistance to voluntary organizations for homes (shishu greh) for infants and young children for promoting in-country adoption was being launched by the Central Adoption Resource Agency, Ministry of Social Justice and Empowerment. The Scheme aimed to provide homes within the country to children who become destitute at a very early age and to promote In-country adoption. It was also supervised by the Central Adoption Reserve Agency (CARA). The scheme helped in providing 90% of the cost under approved norms to build homes where the minimum number of orphans is 10 between the age group of 0-6 years.

When Covid-19 Pandemic hit, as many as 10,878 children lost their parents. The National Commission for Protection of Child Rights (NCPCR), in furtherance of its function as a monitoring authority under section 109 of the Juvenile Justice Act, 2015 was ordered to set up a portal called the "Bal Swaraj" where the data about the number of orphan children, abandoned children and children with a single parent was uploaded. Thereafter, NCPCR continuously tracks all the children who lost their parents (either one or both) for any reason and the children who have been abandoned after 1st April 2020.

Conclusion

What we are doing for the orphan children is good, but not good enough because our resources are insufficient to provide for those 29.6 million children in India. Around 29 million are not living in any childcare institution, not getting any form of education and care. Orphans have no one to care for them, if something happens to an orphan child, nobody will be concerned. NGOs and child welfare agencies cannot handle the load of caring for such a huge number of orphan children. We would need to get them adopted if we want them to rise from the dust they are living in.

Suggestions

There are around 28 million couples that are incapable of having their children because of biological reasons. Even after going trying with Invitro Fertilization (IVF), these couples are unsuccessful in having their kids. But surprisingly, they still choose to remain childless rather than adopt one. So, there is nearly the same number of childless couples as orphaned children. This way, all the orphaned kids will get parents, and childless couples will get a child.

I would change the rigid thinking of the people and break the social stigma that having their blood in their children is necessary to carry their legacy forward. However, there is no point and valid reasoning in thinking in such a manner. Why would a parent need a child for their love? For the emotional and physical support they could require when they get old? For living their childhood again with the kids? I think an adopted child would love them more because by adopting him/her, they changed his life, on the other hand, their own child might not be as thankful to them for looking after him as an adopted child would be. Hence, despite having their child just for the sake of having it, people should also think about adopting one. Alternatively, adopt a child after having one of their own.

However, the adoption law in India is strict and stringent, and therefore some couples, even after trying to adopt, cannot do so. The female partner cannot adopt a child all by herself, her husband can do so. A couple that adopted a son must not have a son, son's son or son's son's son, either by legitimate blood relationship or by adoption, this provision is very much unreasonable. Similarly, while adopting a daughter, the couple must not already have a daughter, or a son's daughter, either by legitimate blood relationship or by adoption. Also, adoption is a long process, including many family background checks and registration. Therefore, families hesitate to adopt.

Looking at it from the legal perspective, the government should increase the number of childcare institutional homes, so the rest of the 29 million orphan children have a safe place to live. The government should also maintain a country-wide database for orphaned children as stipulated in the Orphan Child (Provision for Social Security) Bill so that the general public has a look at it and is motivated to adopt a child. All the measures stated in the bill should be implemented, and the legislature should try to pass the bill as soon as possible.

References

1. Welfare Schemes for Orphan Children,  Available Here

2. Lancet Article Sophisticated Trickery Intended To Create Panic Among Citizens, Divorced From Truth And Ground Reality, Available Here

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