Orphanage Laws in India: Protection of Orphan Children

Introduction:

An orphanage or a child care institution (CCI) in a designated place, devoted to taking care of orphans, who lost their parents or got abandoned by them. These children are considered orphans if they have no parents or legal guardians; they got separated from their legal guardians; they were deserted, or they were abandoned. Most children in the orphanages have a living parent or some extension of their family, and yet, they enter an orphanage due to poverty. These organizations provide such children with shelter, food, and education. India has more than 2 crores orphans and the orphanages, both government-owned and privately run, are distributed all across the country. These private orphanages are run by NGOs, Individual citizens, religious groups, etc. The government funds such organizations until there’s a certain number of children maintained. Some known orphanages include SOS Children’s Village, Boys town, etc.

Over the years, Indian orphanages have developed to a great extent. During the colonial era, orphans used to be exploited and sold as slaves. These children were separated from their parents and were then forced into labor. Orphanages that did exist and provided shelter for these children, weren’t necessarily governed by the stringent laws. Children weren’t educated or had their basic needs taken care of and these situations invoked dire concerns.

The Issues

In India, a large number of orphanages run on charities and thus, have an unstable income. This Act regulates the issuance of certificates, makes it easier to register a genuine Orphanage, and oversees the working of the same. Orphanages can be turned into a hub of criminal activities, such as human trafficking, rape, cruelty against children, the intoxication of children, child prostitution, child pornography, forced into begging, etc. The orphans can be sent to work as laborers instead of getting sent to school for education. There have been cases of human trafficking and forced labor in the past as well. Children, especially orphans separated from their parents or with no parents, are exploited on a large basis. People and/or Organisations, may force children into the sex trade, sell them as sex workers, use them for smuggling drugs, etc. Children are also murdered or made to commit suicide due to the intolerable situations around them. These orphans need to be shown extra care and love since their mental health is already affected in such institutions. The adoption laws should be stringent as well, to ensure a happy home to the orphans who get adopted, instead of signing them off to an unstable household with a bad environment. Since Orphans are usually the neglected group, criminals usually have the mindset that outraging their modesty would not result in dire repercussions. With no parents or people to claim guardianship, the orphans do not make up for the ‘voting percentage of the population’. Thus, the governments blatantly neglect this section of society. These Acts came into force intending to safeguard the orphans from any sort of injustice or oppression.

A large percentage of the children in CCIs have parents or guardians who can’t afford their upkeep or are unwilling to. Especially during these unprecedented times, where the day-to-day life of the workers has been affected, the poor especially, are bound to face some difficulties in feeding and take care of their families. Even the institutions for orphan children could face a shortage in supplies and would try to send the children back to their families. In midst of this, the children could face extreme pressure and that could affect the child’s mental and physical well-being.

The Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960

There are certain acts and laws laid down in the purview of the orphanages and their functioning in India. These laws were laid to provide regulatory oversight and care for children in orphanages.[1] One of the most prominent orphanage laws in India is ‘The Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960’. Through this decree, the state governments are given the power to create a Board of Control for monitoring and supervising all the ‘homes’[2] in that state and lay certain directions regarding the term, the constituency, and the functions of the Board. These Boards are responsible for overseeing the smooth functioning of all the homes in the state, conduct inspections, provide funds and resolve any and all the matters of the homes accordingly. Besides that, the Board of Control also checks the validity and legality of these established homes, accepts or rejects application for such legality in the form of a certificate of a new home, and also deal with the revocation of said certificates in cases of unsatisfactory management in terms of law and morality. Although, people or organizations, affected by the board’s decision, can always appeal to the higher authorities, such as the State Government or the Court. This act stood in effect from 1960 and repealed all the previous acts corresponding to the clauses of this act, i.e., The Women’s and Children’s Institutions Act, 1956.

To also ensure that the Board is diligent and follows the law, certain clauses were added that limit the terms of service of the members and also lays down directions for their duties. The Board has the Authority to keep these Orphanages in check and have the power to decide on various subjects related to the functioning of the orphanages under them. Despite all this, to prevent the autocracy of the board, there are also remedies available to the aggrieved people or organizations, to seek justice from higher authorities. However, if the discharge of such institution(s) is found to be reasonable, the organization would be shut down and it is the responsibility of the Board to send the children to a distant guardian or relocate them to a different Orphanage.

Other relevant Laws and Statutes

The Women’s and Children’s Institutions (Licensing) Act, 1956, laid down the provisions and the directions to be followed to acquire a license to operate an institution for women and/or children. This act laid down penalties and conditions under which, the licensing committee wasn’t satisfied, which could result in a license getting revoked. This act was succeeded by the ‘Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960.’

The Juvenile Justice (Care and Protection of Children) Act, 2015, doesn’t necessarily limit itself to orphans but is a law relating to children. In accordance with laws related to orphanages, this law encompasses aspects such as little kids, in need of care, protection, and nurturing, and caters towards their development, education, treatment, rehabilitation, etc. This act deals with crimes against children and crimes committed by children.[3]

The POCSO Act of 2012 has been of aid several times in past cases of sexual crimes committed against orphans. It is an Act that includes and recognizes sexual assault against children[4] in general. It involves harassment, such as ‘bad touch’, stalking, exposing the child, or exposing themselves. The Act lays down strict punishments for such crimes and is legally recognized throughout the world.

Rights of Children to Free and Compulsory Education Act, 2009, deals with the education of children and in reference to this article, primarily orphans. Established institutions, funded by charity or the government, for the upkeep of the children in their organization, can siphon out the funds for their personal use and not provide the compulsory education needed for the betterment of such children. This Act submits directions and grievances in cases like these. The Board of Control can also cancel the certificate of authentication and permission to run an Orphanage, upon trial.[5]

The Child Labour (Prohibition and Regulation) Act, 1986, puts a prohibition on employment of children, below the age of 15 years, in any sort of labor, and also bans several occupations to children who haven’t yet crossed 18 years of age. This Act prohibits the Orphanages from sending children to work as laborers or selling them as slaves.[6] The Children (Pleading of Labour) Act, 1933 states that no one can pledge labor, on behalf of a child. The strict penalty has been laid down for the ones who make such pledges and the one who employs a child through such a pledge. Even in the Contract law of India,[7] an agreement made, the object of which is a person is void.[8]

The Human Trafficking Act, 2014, puts a legal prohibition on trafficking of humans and the Immoral Traffic (Prevention) Act, 1987, specifically criminalizes the trafficking of children.[9] Buying or selling of children (or any person) is prohibited under various acts and laws.

The Information and Technology Act of 2000, codifies the provisions against child pornography.[10] Anyone who produces distributes, or causes to be published or transmitted any digital content portraying minors engaging in explicit sexual acts or behavior, would be held as a criminal by law and would face serious consequences.

Besides these acts, the Indian government also issued various welfare schemes for destitute children. The Child Protection Services (CPS), is a scheme launched by the Ministry of Women and Child Development, which aims to support and provide for these children in need. This scheme succeeded the previous child protection service scheme in terms of better care, increased funding, etc.

The government has also announced additional benefits and schemes for orphans, who lost their legal guardians to Covid. These children would be able to avail free education and will avail financial assistance, provided by the government.

Other Countries

The United States came forward with the initiative to introduce foster homes for orphans and other children, instead of keeping them in large institutions. The US felt like it was essential for any child to get the love, care, and personalized attention in a home. They wanted to keep the environment children-friendly and just like any other home. Adoption policies are strict; however, they don’t delay or unnecessarily stall the process. Essentially, there are no orphanages in the United States. These Foster homes are also regulated by the laws of the States and strict penal provisions have been laid down to safeguard the children and punish the wrongdoers. Besides that, the child protective services are extremely steading fast in rescuing children from homes where they face abuse, neglect, etc. These children are then sent to foster homes for adoption or for a limited time period, until which, a legal guardian is eligible to take care of that child.

Most countries in the west have adopted this system of foster homes, and Canada tops the list of the countries that are the most favorable to these children. Countries such as Singapore, Norway, Sweden, etc, are some of the countries which have achieved a commendable victory in establishing a children-friendly environment for these kids.

Economically weak countries, turn out to be unfavorable to children who don’t have any guardians, parents, and no one is willing to be responsible for their upbringing. Africa, Chad, South Sudan, etc., are some of the few nations where it is downright fatal for these children.

Comparatively, India is doing very well in terms of taking care of these children who need care; however, it should adopt the system of foster homes to provide a home-like atmosphere for the children to grow in. The licensing procedures should not take a long duration of time and funding should be done properly and overseen with utmost diligence.

Conclusion

Orphans, like every other individual, have rights. Moreover, being children, they are the future of a country. However, a lot of their rights get infringed due to their situations. In many cases, their right to movement, right to education, right to personal identity, etc gets infringed. And since they are children, they don’t even realize that their rights have been violated. Even though there has been significant progress in the subject of Orphanages, in the past few years, there are still institutions and children, in dire need of help. These Acts and Laws, award imprisonment and imposed fines on such assailants. All crimes against children can indeed be directly traced to the immaturity and frailty (both physical and psychological) that they have carried from their conception into maturity. Because the youngsters are completely oblivious to what has been happening around them, they are unable to challenge the offenders’ goals or objectives. It’s indeed unnecessary for crimes against minors to include any element of cruelty. Intoxicating kids, for instance, is illegal. Likewise, it’s indeed possible that somehow a kid is unlawfully adopted but then, they are well cared for by the adoptive families. However, adoption of this kind will be considered illegal. Our constitution contains provisions for harsh sanctions in crimes against minors but these penalties will need to become more severe over time in order to prohibit and discourage offenders from continuing to commit such offenses.

The laws in India, still need to focus on issues, such as the mental health and growth of the children in such Orphanages. We hope that the government works towards the advancement and happiness of these children, who are generally, the downtrodden and disadvantaged section of society.

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References:

[1] THE ORPHANAGES AND OTHER CHARITABLE HOMES (SUPERVISION AND CONTROL) ACT, 1960

[2] An orphanage, a home for abandoned women or children, a widows’ home, or any other name for an institution that is kept or intended to be kept for the reception, care, protection, and welfare of women or children.

[3] Here; anyone below the age of 18.

[4] Regardless of gender; IPC does not recognise sexual assault committed against boys

[5] THE ORPHANAGES AND OTHER CHARITABLE HOMES (SUPERVISION AND CONTROL) ACT, 1960 Section 17.

[6] Immoral Traffic (Prevention) Act, 1987 and the Prevention of Human Trafficking Act, 2014

[7] Indian Contract Act 1872

[8] Indian Contract Act 1872, Section 23.

[9] Under the age of 18.

[10] The information and technology Act, 2000, Section 67 B