Legal Rights of Orphan Children in India

By Pritha Lahiri* & Ayush Kumar**

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“…. We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait. The child cannot. Right now, is the time his bones are being formed, his blood is being made, and his senses are being developed. To him we cannot answer ‘Tomorrow,’ his name is today.”

- Gabriela Mistral

Introduction

An orphan is someone who has lost his/ her parents. There are other definitions of orphans such as paternal orphans (a child who has lost his father), maternal orphans (a child who has lost his mother) or double orphans (a child who has lost both the parents). However, the Indian Legislation makes no such distinction. As per Section 2(k) in The Juvenile Justice (Care and Protection of Children) Rules, 2007 defines an Orphan as “a child who is without parents or willing and capable legal or natural guardian”. In India, there is no specific legislation that talks about the rights of an orphan. There are no rules and regulations which explicitly mention their welfare.

As per a 2005-06 record available, there are more than 20mn orphans in India, which is almost equal to 4% of the country's total population. This is a considerable number. Furthermore, during the Covid-19 pandemic, the situation got aggravated. So much so that, during April-May 2021, 577 children lost their parents. This data is very problematic when looked at for the last one year.

Considering the current plight of the orphans in India, in this article, we have tried to understand the legal rights of orphans in India, which are encapsulated in the existing legislation governing their rights. The article further discusses how law and policy revolving around this special population of children must evolve in order to ensure that their well-being is ensured.

Existing Legal Rights of Orphans

Usually, when we talk of an orphan, we mean a child who has been either abandoned deliberately by their parents or a child who has lost his/ her parents in an accident or mishap. As per the United Nations Conventions on Rights of the Child (UNCRC), a child is anyone who is below the age of 18 years or unless under the law applicable to the child, the majority is attained earlier.

Every child has the right to family care. This provision is found in the Convention on the Rights of the Child, 1989 (“CRC”), the UN Guidelines for Alternative Care 2009, the Indian Constitution and the jurisprudence of the Indian Supreme Court on child rights. There are certain rights that a child possesses. These are as follows:

1. The Right to Identity

Children have the right to a legally recognised name as well as a nationality (to belong to a country). They must also have the right to a public record that serves as their identity. This record guarantees both national support and access to social services.

2. The Right to Health

The right to health covers medical care, nutrition, protection from bad habits such as drugs, etc., and safe working environments, with articles 23 and 24 of The United Nations Convention on the Rights of the Child (UNCRC), detailing access to special care and support for children with special needs, as well as quality health care (including drinking water, nutrition, and a safe environment).

3. The Right to be protected from exploitation

Children should not be forced to labour in hazardous or demanding settings. Children can only volunteer to work on tasks that do not jeopardise their health, education, or playtime. Sexual exploitation, which is another form of exploitation, is also forbidden as an activity that exploits people. Article 23 of the Indian Constitution protects individuals from exploitation and guarantees human dignity. Survivors of abuse, neglect, and exploitation require specific assistance in order to recover and reintegrate into society. Even though it is under the jurisdiction of the court system, children cannot be punished brutally. Death or life sentences, as well as penalties involving adult inmates, are not allowed.

4. The Right to an Opinion

The Children have the right to express themselves without fear of being judged or ridiculed. In circumstances where adults are actively making decisions on behalf of children, the latter have the right to have their thoughts heard. While children's opinions are not always based on facts, they are nevertheless a valuable source of information for parents and should be considered. This, however, is dependent on the child's maturity and age. Children have the right to free expression as long as their thoughts and knowledge do not damage others.

5. The Child’s Right to a Family

“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.” The importance of alternative care based on family and community is recognised in child rights jurisprudence. This right is also recognised at the International Level. Article 4 of the UN Guidelines for Alternative Care of Children, 2009 states that “Every child and young person deserves to grow up in a nurturing, protecting, and caring environment that encourages them to reach their best potential.” Further, Article 5 states that “State has the responsibility to assure the safety, well-being, and development of any child placed in alternative care, as well as the regular examination of the appropriateness of the care arrangement given”. In India, Article 39(f) of the Indian Constitution states that “the state should ensure that children have the opportunity and resources they need to grow up healthy in a dignified manner in order to ensure that childhood and adolescence are protected against exploitation as well as moral and material abandonment.”

Making India Inclusive for Orphans - A Way Forward

Need for a Separate Legislation

In India, there is no separate legislation dealing with Orphans. Orphans and vulnerable groups are included under the Juvenile Justice Act. Fatalism and institutional neglect have resulted in them becoming dispersed political entities incapable of fighting for the rights guaranteed to them by the Constitution. According to the concept of Parens Patriae, the State is your parent if you have none. This statement is truer for no other category of citizens but orphans. Therefore, the Government should introduce legislation made exclusively for the Orphans to ensure that they are provided with their fundamental right to life, as guaranteed under our Constitution. In 2016, The Orphan Child (Provision of Social Security) Bill was introduced in the Lok Sabha. However, it never saw any light of the day. It is high time to pass the bill to formulate comprehensive legislation covering the needs of orphans.

Formulation of Policies Favouring Orphans

Apart from enacting separate legislation on this issue, the State shall make such policies that support the Orphans. The policy may provide for the following:

1. Recreational activities and innovations enhance the participation of children [orphans] and make sure that these children are provided leisure time.

2. Placing Orphans in a family setting through reunion or adoption and creating an effective system of institutional care for the Orphans.

3. Catering to the psychological needs of these children by way of counselling, training and capacity building.

4. Post-institutional support to ensure education, skill training and livelihood to orphan children after they turn.

5. Raising public awareness about orphans and other vulnerable children through speaking to children, parents, caregivers, service providers, and the general public.

Mechanism to Control the Orphanages

Section 41(1) of the Juvenile Justice Act, 2015 makes it mandatory for all the institutions for housing for Orphans to be registered under the Act. However, contrary to this, it has been found in a survey carried out by the Ministry of Women and Child Development that 4,000 of the total 9,000 child-care institutions were not registered under the Juvenile Justice Act, 2015, and were operating illegally. "Covid orphans " posed a unique challenge to the State and society in the aftermath of second covid waves. While the Government of India has announced creating a corpus fund to take care of such children, challenges remain. Therefore, there is an urgent need for a reliable mechanism to be put in place that can control orphanages. Furthermore, the Child Adoption Resource Agency (CARA) should play an active role in regulating in-country and inter-country adoptions.

Introduction of Uniform Civil Code

Adoption is a significant part of an Orphan’s life. However, adoption falls in the subject matter of Personal Laws. Since there is no uniform civil code in India for Personal Laws, there is a visible lack of uniformity in applying such laws across the country. Most of the time, religion poses a barrier for the parents to adopt a child. Even if adoption occurs, the parents are not legally allowed to call themselves the adopted child’s parents. Time and again, the Hon'ble Supreme Court has shown full support for introducing a Uniform Civil Code in the existing Personal Laws. In Mohammad Ahmed Khan v. Shah Bano Begum, Justice Y.V. Chandrachud observed that “A uniform civil code will aid in national unification by reducing divergent legal loyalties based on opposing ideologies”. Therefore, introducing a Uniform Civil Code will lead to the application of the same law for all the citizens in India, which will further ensure that there is no single childless parent in the country.

Conclusion

Summing up, the difficulties that the Orphans face are diverse and complex. In India, there is currently no legislation that specifically deals with the special portion of our population. While we have laws that penalise children, there is no contrary law that protects them. It is, therefore, the need of the hour to come up with policies and legislations that protect and empower these children and provide them with the love and warmth that they deserve.

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* 3rd Year, B. Com., LL.B. (Hons.) student at Institute of Law, Nirma University, Ahmedabad

** 3rd Year, B.A., LL.B. (Hons.) student at Chanakya National Law University, Patna

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(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of the Child Rights Centre.)