Legal Rights of Orphan Children in India
By Ranjul Malik, 1st Year, B.A., LL.B. student at Army Institute of Law, Mohali
CONTEXTUAL BACKGROUND AND INTRODUCTION
While everybody was lamenting over numbers posed by the much-dreaded Covid wave 2.0 in India, one of the statistics, in particular, shocked everyone and garnered eyeballs from across the globe. In its report presented to the Supreme Court of India, the National Commission for Protection of Child Rights stated that, between 1st April 2020 to 5th June 2021, which is roughly the span of the pandemic in the country, at least 3621 children lost both their parents to Covid- 19, and over 26000 had lost at least one parent.
As tales of the plight of these orphaned children started pouring in on social media and news outlets, many came forward to offer financial help, some even willing to offer them a new family by adopting them. While the initiatives taken by the people might seem to be in uberrima fides, they are clearly not in line with the legal principles and procedures as laid down by laws, which just goes on to prove the ignorance prevailing to rights bestowed upon onto orphans by the law, which in words of Prashant Kanungo (Chairperson NCPCR), “the law is not so lax in India”.
Various legislatures define the term child in India, laws related to labour and employment like The Child Labour (Prohibition and Regulation) Act, 1986, The Plantation Labour Act 1951 among others claim a child to be under 14 years of age, while the recently amended Juvenile Justice Act states that children in age 16-18 can be treated as adults in case of heinous crimes. All this said India had also ratified The United Nations Convention on the Rights of the Child (UNCRC) in 1992, which defines a child as a person under 18 years of age. Hence there seems to be a prevailing ambiguity on one accepted definition of child.
The ambiguity is not exhaustive to the definition of children, the term orphan too does not find a correct explanation in Indian legislatures, a lacuna that has acted as a hindrance before.
Although UNICEF defines an orphan as an “individual under 18 years of age, who has lost one or both parents”, but the generally existing notion within the country restricts an orphan to a child who has lost both the parents or one who has been abandoned and taken over to a CCI.
RIGHTS AND PROTECTIONS
There is no separate legislation governing the rights of orphans in India per se, as a result, the rights enshrined upon children by the constitution along with other laws protecting the rights of children in India and the UNCRC are also possessed by an orphan.
Article 14 and 15 of the constitution gives the right of equality to all the citizens and right to be not discriminated respectively, including orphan children too, Article 15(3) also gives the state the authority to make special privileges to empower women and children. Article 21 of the Indian constitution also grants the right of life and liberty to all individuals, and in Mohini Jain v. State of Karnataka[i], the Apex Court held that the Article also includes other rights important for personality and not mentioned in Part 3 of the constitution, such as the right to education. Further, Article 21A, as inserted after the 86th amendment also grants the right to all children aged 6 to 14 years and Article 23 and 24 also prohibit trafficking and child labour for children under 14 years of age respectively. Articles in Part 4, encompassing Directive Principles of State Policy. Orphans are also entitled to study in educational institutes run or funded by the state under Article 29(2) and education and care until age 6 under Article 45. Article 39(e) and (f) direct states to ensure healthy citizens are healthy and are not abused while being provided conditions and opportunities ensuring freedom and dignity. Article 47 also directs the state to raise living standards by increasing the nutrition of all (hence including orphans).
Apart from these, India being a member of UNCRC, also recognises the rights provided in 41 Articles of the convention. The Articles revolve around 4 basic principles, i.e. Non-discrimination in Article 2, Best Interest of the Child in Article 3, Right to Life Survival and Development in Article 6, Right to be Heard in Article 12. All 41 Articles pronounce a different right, but are generally categorised into 4 broad themes based upon the principles, i.e. i) Survival Rights, catering to basic needs and necessitates of a child essential for survival, ii) Development Rights, catering to the holistic development of children, iii) Protection Rights, providing for the protection of children from exploitation, abuse, forced labour and providing protection to the children in need, and iv) Participation Rights, ensuring rights of children to participate in citizens and to express their opinions and concerns. The 41 Articles in their totality emphasise these broader themes, which are in consonance with rights enshrined by our constitution.
Along with these, many legislatures which protect children also protect orphans. Prohibition of Child Marriage Act, 2006 in Section 12 for example, makes void marriage of boys under 21 and girls under age 18. The POCSO (Protection of Children from Sexual Offences) Act 2012 has provisions to protect children from sexual offences, Child Labour (Prohibition and Regulation) Act, 1986 regulates the minimum age of children to be employed as workers, along with these other statutes like The Indian Penal Code for protection against offences also protect orphans.
The Juvenile Justice (Care and Protection of Children) Act, 2015, is of utmost significance to the rights of orphans. It contains provisions to regulate adoption, provide registration to the CCIs (Child Care Institutions). It also grants monitoring mechanisms for the CCIs through Monitoring Committees as prescribed under the Act, this had been reiterated by the Apex Court, in the Exploitation of Children in Orphanages four state of Tamil Nadu versus the Union of India & Others[ii], where it had directed all CCIs to be registered and regulated as per provisions of Section 43 of the Act. Hence the Act can be seen as the most significant contributor to orphan rights. among other statutes.
Adoption is regulated for Hindus by The Hindu Adoptions And Maintenance Act, 1956, and other religions by the Guardians and Wards Act, 1890. While The Juvenile Justice Act carried the regulations in place regarding adoption procedures within the nation. Section 56 of the JJ Act, allows a single parent or a couple to adopt an orphaned child. The eligibility of parents for adoption is laid in Section 57 of the Act.
However, in addition, the Central Adoption Resource Authority (CARA) acts as the statutory authority in overseeing procedures and steps for adoption of children, and issues updated guidelines which are to be followed mandatorily, this had been mandated under Section 68 of The Juvenile Justice Acts. Section 38 of the JJ Act also makes it mandatory for the CARA to declare a child legally free to be adopted, before adoption.
Though the orphans enjoy most rights enjoyed by any other child in India and also are protected from exploitation and discrimination by various statutes, the situation of orphans remains pitiable. The Juvenile Justice Act and The Orphanages and other Charitable Homes (Supervision and Control) Act, 1960 contain provisions relating to care and safe environment in the CCIs, but the administrative failures, lack of monitoring by State the Ministry of Women and Child Development and fewer stakeholders in lives of orphans, often leads to inhumane conditions prevailing in CCIs and guidelines and provisions being overlooked in day-to-day operations. Hence the hour requires strict checks and balances to oversee the working of these CCIs and ensure the rights of orphaned children are not compromised. The State also needs to provide more economic stimulus, so that the improvements in the overall quality of life of these is maintained, just like the recently announced fixed deposit scheme by the Central Government. The overarching message being, though e-rights exist in a place for orphaned children by means of the Constitution, the UNCRC and other statutes, the challenge lies in ensuring these rights are not diluted in the channels existing in between and reach to serve their end purpose, which is to ensure benefit to children.
(Disclaimer- The views expressed in this article are those of the author and do not necessarily reflect the views or policies of the Child Rights Centre.)