24, Jan 2023 | A Legal Researcher
There can be no keener revelation of a society’s soul than the way in which it treats children, said Nelson Mandela during the launch of the Nelson Mandela’s Children’s fund.  There are two sides to this statement. One is how the society in general treats the children, and what rights does it give them. The second side is how society’s most powerful agent- the state- treats children.
The Latin maxim parenspatrie is of significance in this context. It refers to the power of state to the intervene against an abusive or negligent parent. For children who have been abandoned or who saw the death of their parents, it is the state that becomes the natural protector.
Out of the approximate 147 million orphans in the world, 30 million orphans are there in India. UNICEF states that there are three distinct kinds of orphans- paternal orphans i.e., those who lost their father; maternal orphans i.e., those who lost their mother; double orphans i.e., those who lost both their parents. The passing of a parent(s) brings significant changes to a child’s life, including potential changes in living arrangements, influenced by factors such as cultural customs, decisions made by guardians or caregivers, and existing plans for raising the child after the death of a parent(s).Education plays a crucial role in shaping both personal growth and the advancement of a nation. It is the primary tool in instilling cultural values in children and is the most powerful force in moulding them into responsible, intelligent, and capable citizens. The loss of a parent can negatively impact a child’s educational enrolment and this can particularly impede the transition from primary to secondary education, as spending on education is significantly reduced. In this context, this article presents an overview of what framework guides the orphan protection regime in the country.
The Juvenile Justice (Care and Protection Of Children) Act, 2015(JJ Act) is the prime legislation dealing with children and another legislation that is part of the regime is the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960(Orphanages Act).
The JJ Act
The JJ act mandates that whoever is handed over a child who appears or claims to be abandoned or lost, or a child who appears or claims to be an orphan without family support shall within twenty-four hours (excluding the time necessary for the journey), give information to the Childline Services or the nearest police station or to a Child Welfare Committee or to the District Child Protection Unit, or hand over the child to a child care institution registered under this Act. Not reporting such fact is an offence. (Section 32)
Under JJ Act, “orphan” means a child—
(i) who is without biological or adoptive parents or legal guardian; or
(ii) whose legal guardian is not willing to take, or capable of taking care of the child;
To counter the abandonment of children, which is prevalent in the country, the JJ Act stated that those parents, who for physical, emotional and social factors beyond their control, wish to surrender a child, shall produce the child before the Child Welfare Committee and the Committee will decide as to whether child should be with parents or with a legal guardian or be sent to a specialised adoption agency or to a children’s home if the child is below 6 years of age. (Section 35)
The act also forms a Child Welfare Committee for each committee which will look after the welfare aspects and the Juvenile Justice Board for looking into the aspects of those children who are in conflict with the law. (Section 27)
While the JJ Act is designed to provide a legal framework for protecting the rights of children, it is not sufficient to solve all the problems faced by orphans in India.
Orphans in India face a wide range of challenges, including poverty, lack of access to education and healthcare, and discrimination. The JJ Act does not address all of these issues and does not provide a comprehensive solution for addressing the needs of orphans. Additionally, the implementation of the JJ Act is often inadequate, and there are reports of abuse and neglect in institutions for children. Furthermore, the JJ Act focuses mainly on children in conflict with the law, and not on children in need of care and protection, which are the majority of the orphan population.
The Orphanages act empowers the state governments to monitor orphan homes and child care institutions. For this purpose, the state government can form a board and that board will be the authority to frame rules and regulations for the orphanages and child care centres to follow. The boards also have the power to issue certificates without which the centre is not supposed to run. (Section 5, 15).
Additionally, the Constitution, in the form of Directive Principles, directs that state shall secure, with its policy, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
The Bill that never saw light- THE ORPHAN CHILD (PROVISION OF SOCIALSECURITY)BILL, 2016
The Orphan Child Bill, 2016 was a private member bill in the Lok Sabha, and had progressive provisions such a 3% reservation for Orphan Children within educational institutions and in postsand services under the Central Government. The bill was however very loosely worded without any particular framework. For example, it stated that the central government shall have initial Orphan welfare fund with corpus of Rs. 2000 Crore rupees and more money from the ratio as decided by the states and the centre mutually be added to the fund. This was merely directory and in that too, there were no directions as to how to arrive at the ratio of contributions of state and the centre, to the fund.
One important aspect of this bill is that one of the provisions mandated the conducting of a census every decade, of orphan children followed by the formulation and adoption of a National Policy for welfare of Orphan Children based on the findings of the census.
Covid-19 and Specific effects on Orphan Children
Supreme Court, in its suo moto matter dealing with the social and economic impacts pf the Covid-19 pandemic within child protection homes, asked the government to “help” the children affected during the pandemic. The union government has launched a website called Bal Swaraj under the aegis of National Commission for Protection of Child Rights (NCPCR) to record the orphan children and provide them care. The Bal Swaraj portal does not show the statistics of ‘Covid Care and Children’ while it shows the statistics of ‘Child in Street Situations’. However, a Ministry of Women and Child Development’s press release, which countered the Lancet Journal’s finding that there are 19 lakh children who were orphaned due to Covid-19, presented the Covid affected Children members, i.e., the statistics of those who lost their parents. The ministry data was released on March 2, 2022 and by then 1, 42, 949 children admittedly lost one parent and 10386 children lost both their parents, according to this data. The government launched the started a PM CARES- Children scheme provides support to these children through a ‘convergent approach’, gap funding for ensuring education, health, monthly stipend from the age of 18 years, and a lump sum amount of Rs. 10 lakhs on attaining 23 years of age. While the numbers contained in the union government press release reflect in the numbers that are registered on the portal Bal Swaraj, NCPCR figures on a sworn affidavit to the Supreme Court (June 2021) underestimates the total and states that only 30,071 children are orphaned. The exact data of how many children may have been orphaned is not just vague and certain, but the situation is exacerbated due to any lack of a framework to effectively maintain a database of those children who need protection.
Being an orphan can lead to multiple forms of discrimination, as they may not have the same access to resources and opportunities as those who come from a traditional family structure. They may also face emotional and psychological trauma due to the loss of their parents. Furthermore, if the orphan is also from a marginalised group such as a depressed caste group or other minority groups, they may experience discrimination on that basis as well. This can create a compound effect, as they may not only face discrimination for being an orphan, but also for their caste, or identity status. This can make it even more difficult for them to access education, employment, and other resources necessary for success.
The COVID-19 pandemic has had a significant impact on orphans, as it has disrupted their access to education, healthcare, and other essential services. Many orphans live in institutions or group homes, which have been forced to close or limit access as a result of the pandemic, cutting off their access to the support systems they rely on. Additionally, the economic downturn caused by the pandemic has led to increased poverty and food insecurity for many families, further exacerbating the challenges faced by orphans.
The pandemic has also made it difficult for international adoption and foster care processes to take place. This can prolong the time an orphan has to spend in an institution. Furthermore, the pandemic has limited the ability of social workers, volunteers and other helping professionals to check on them, increasing the risk of abuse and neglect.
While the situation created by the Covid-19 pandemic may be a special or rare situation, the lack of specific protections for orphans under the JJ Act necessitates a separate framework for orphans in general. Such a comprehensive legislation would ensure that the government and other organisations take responsibility for the welfare of orphans and other vulnerable children and provide them with the necessary resources and support to help them succeed in life. It would also ensure that the rights of these children are protected, and that they are not subjected to abuse, neglect, or exploitation.
Image Courtesy: ilmuk.org
 Nelson Mandela, Launch of the Nelson Mandela Children’s Fund, MahlambaNdlopfu, Pretoria South Africa, 08 May 1995, http://db.nelsonmandela.org/speeches/pub_view.asp?pg=item&ItemID=NMS250&txtstr=Mahla
 Shreya Kalra, Why India’s adoption rate is abysmal despite its 30 million abandoned kids, Business Standard, October 30, 2018, https://www.business-standard.com/article/current-affairs/why-india-s-adoption-rate-is-abysmal-despite-its-30-million-abandoned-kids-118103000218_1.html
KELLY, J.B. (2007), Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research. Family Process, 46: 35-52. https://doi.org/10.1111/j.1545-5300.2006.00190.x
Gertler, P., Levine, D.I. and Ames, M., 2004. Schooling and parental death. Review of Economics and Statistics, 86(1), pp.211-225.
 Article 39(f), Indian Constitution.
 Section 7
 Section 6
 Section 4
 Writ Petition (c) No.6 of 2021.
COVID-19 AND PROTECTING THE ORPHANED CHILDREN AND VULNERABLE POPULATION/GROUPS, LARRDIS NO. 1/2021/BN, July 2021.