October 2, 2022

Orphan Child Rights in India

Orphans are those who are abandoned children and don’t know about their Parents or their Parents left their children Unattended or they died or who has been both deserted intentionally via way of means of their parents or a child who has misplaced his/ her dad and mom in a coincidence or misfortune.  According to THE ORPHAN CHILD (PROVISION OF SOCIAL SECURITY) BILL, 2016 defines an “orphan child” as a child who has been abandoned or has lost either parents or whose parents’ identity is not known and includes a child who is not part of a family either natural or foster. These Adolescents face emotional and behavioural problems. They are deprived of Affection and care. 

According to United Nations Children’s Fund (UNICHEF), India has 29.6million orphaned and Abandoned children. 

INTERNATIONAL CONVENTIONS ON CHILD RIGHTS 

The Government of India ratified the UN Convention on the Rights of the Child (UNCRC) in 1992.

The convention prescribes standards to be adhered to by all state parties in securing the best interest of the child. It emphasizes the social reintegration of child victims, without resorting to judicial proceedings. The UNCRC outlines the fundamental rights of children, including the right to be protected from economic exploitation and harmful work, from all forms of sexual exploitation and abuse, and from physical or mental violence, as well as ensuring that children will not be separated from their family against their will. The Constitution of India recognizes the vulnerable position of children and their right to protection.

The United Nations Convention on the Rights of the Child (UNCRC), detailing access, ‘The right to health’ includes medical care, nutrition and protection in the form of access to special care and support for children with special needs, as well as quality health care (including clean water, food and safe Environment) is described.

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 which applies same to Orphans and the UNCRC are also possessed by an orphan.
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 less than 18 years of age. Hence there seems to be a prevailing ambiguity on one accepted definition of child.

 STATUTORY OF CHILD RIGHTS IN INDIA 

CONSTITUTION OF INDIA

Article 14 and Article 15 of the constitution of India states the Right to Equality and the Right against discrimination. Besides children including orphans also have equal rights just as any other adult male or female. Article 15(3) gives the power to make special provisions for women and children.

Article 21: The Supreme Court has held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity.

 Article 21(a) provides free and compulsory education to all children of the age of six to fourteen years as along with Orphans too have the Right to study. Article 29(2) states that no person shall be denied admission into any educational institution maintained by state or receiving ad out of state funds on grounds only of religion, race, caste, language or any of them, in which orphans are also entitled to study in educational institute run or funded by the state.

Article 39(e) and (f) directs the state to make sure healthy citizens and children are given opportunities and facilities to develop in a healthy manner and children and youths to be protected against exploitation and against moral and material abandonment.  

Article 45 directs compulsory early childhood care and education for children. Article 47 also directs the state to raise living standards by increasing the nutrition of all (hence including orphans).

Article 24 provides “no children below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”

The supreme court in People’s Union For Democratic Rights v. Union Of India held that building Construction work was such hazardous employment where children below 14 years should not be employed, and the prohibition contained in Article 24 could be plainly and indubitably enforced against everyone, whether state or private individual. 

OTHER ACTS  

The protection of children from sexual offences (POCSO) 2012 lays down the procedure for reporting sexual crimes against children. 

The prohibition of Child Marriage Act 2006, where lawful age for marriage of girls is increased from 15 to 18 years and of boys from 18 to 21 years. This Act made child marriage voidable. 

The Parliament enacted the Child Labour Prohibition and Regulation Act, 1986 which specifically prohibits the employment of children in certain industries. In addition to legislation, many other laws enacted before and after the commencement of the Constitution, prohibit Child Labour, e.g., The Employment of Children Act, 1938; The Children (Pledging of Labour) Act,1933.  

Adoptions for Hindus are regulated by Hindu Adoption and Maintenance Act, 1956 and for the and for other Religions by Guardians and Wards Act, 1890

The Orphanage and Other Charitable Homes (Supervision and Control) Act, 1960 is to provide supervision and control of orphanages, homes for neglected women and children and other like institutions that for matters. 

The Juvenile Justice (Care and Protection) Act 2005, given much importance to Orphans and laid down certain procedures and guidelines regarding Adoption, provide registration to CCIs (Child Care Institutions). Section 58 of the Juvenile Justice (Care and Protection of Children) Act defines that any Indian citizen of India, irrespective of their religion if someone is interested to adopt an orphan or abandoned or surrendered child, he/she have to apply for the same to a Specialised Adoption Agency(SAA). Section 57 under the Juvenile Justice (Care and Protection of Children) Act tells about the eligibility of prospective adoptive parents. As per Section 57 of Juvenile Justice (Care and Protection of Children) Act, the adoptive parents should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing hi/her a good upbringing and both partners must consent for the adoption.

CARA (Central Adoption Resource Authority is the statutory body of the Ministry of women and child development, Government of India. It functions as the Nodal body for the adoption of India Children and is mandated to monitor and regulate in-country and inter-country Adoptions.  

GOVERNMENT GUIDELINES AND SCHEME ON RECENT COVID-19 ORPHAN VICTIMS 

  • With an objective of providing psychological and emotional support to children affected during Covid-19 Pandemic, National Commission for Protection of Child Rights (NCPCR) is providing Tele-Counselling to children through SAMVEDNA (Sensitizing Action on Mental Health Vulnerability through Emotional Development and Necessary Acceptance).
  • The state/UT required to take immediate action for Rehabilitation of Covid-19 Orphaned Children under the scheme for Child Protection Services.  
  • If someone has information about a child in need of care, then they must contact one of the four agencies: Child line 1098, or the district Child Welfare Committee (CWC), District Child Protection Officer (DCPO) or the helpline of the State Commission for Protection of Child Rights. The CWC will assess the child and place him or her in the immediate care of a Specialised Adoption Agency.
  • Article 39 of the Constitution prohibits the tender age of the children from being abused. Therefore, orphaned children who have lost both their parents or abandoned or surrendered due to the Covid-19 pandemic must not be neglected and left to face an uncertain future. They must be taken care of by the authorities entrusted with responsibilities under the Juvenile Justice Act.

CARA

Central Adoption Resource Authority (CARA) is a statutory body of the Ministry of Women & Child Development, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA is designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by the Government of India in 2003.
CARA primarily deals with the adoption of orphan, abandoned and surrendered children through its associated /recognised adoption agencies.

Conclusion

A major and broad area of children (orphans) is still neglected in India. There are only a few laws that support Orphans. Laws and Policies is the need of the hour for their welfare. There is a need for Separate Legislation. 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. The government also needs to provide a socio-economic stimulus for the overall development to give them a quality life. 

The author of this article is Aarti Gautam, she is a student of B.A.LLB.(Hons.) 3rd year at Panjab University Regional Centre, Ludhiana.