How Constitution protects Orphans and their Homes

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An Orphan is a minor who has lost both his or her parents or is abandoned by his or her parents or is lost and has no knowledge of who his or her parents are. According to the Orphan Child (Provision of Social Security) Bill, 2016, a child is characterized as “a kid who has been deserted or has lost either guardians or whose guardians’ personality isn’t known and incorporates a kid who isn’t ‘considered’ important as a part of a family.” They are deprived of affection and care. Orphans are categorized widely into three major types which are listed below:

• Maternal Orphan: A child whose mother has died.
• Paternal Orphan: A child whose father has died.
• Double Orphan: A child whose both parents (mother and father) have died.

These children also need a place that helps them to survive as well as nurtures them until they grow enough to take care of themselves, known as an Orphanage (Anath Ashram), Orphanage home, or Child Care Institution. Children who are without families are most vulnerable because of this they enter into the world of crime for their survival. According to the Orphanages and Charitable Homes (Supervision and Control) Act of 1960, “home means an institution, whether called an orphanage, a home for neglected women or children, a widow’s home, or by any other name, maintained or intended to be maintained for the reception, care, protection, and welfare of women or children.”

In India, Orphanage homes or Child Care Institutions are addressed as the dens of cruelty to children due to sexual harassment, exploitation, psychological or physical violence, and abuse. In some of the orphanages, children are ruled with fear and are kept unaware of their rights, as a result, they sometimes become physically or mentally tortured or depressed patients. They are not provided with educational facilities such as infrastructure, equipment, and well-trained staff due to a lack of funding. An orphanage takes care of an orphan child until he or she turns 18 and after that, the orphan child has to take care of his or her own expenses. 

Protection of Orphans and Orphanages through the Constitution of India

In the Constitution of India, there are various rights related to the protection of orphans and their homes. According to Articles 14 and 15 of the Indian Constitution, the Right to equality, and the Right against discrimination, Orphan children also have equal rights as any other child irrespective of their gender. Special provisions for women and children can also be made under Article 15(3). 

Article 21 of the Constitution of India, Protection of Life and Personal Liberty, illustrates that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It ensures that every citizen has the right to life as a fundamental right which also includes orphan children or abandoned children. According to Article 21(a), free and compulsory education is provided to all children between 6-14 years of age. Moreover, Article 29(2) states that admission of any person into educational institutes should not be denied by the state maintaining it on the basis of caste, religion, language, race, or any of them. 

Articles 23 and 24 of the Constitution of India provide or guarantees protection to orphans from forced labor, trafficking, and employment in hazardous places in case a child is below 14 years of age. 

Article 39(e) guarantees that “the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.” This means that orphan children are also protected from being abused and are not forced to work in areas where their strength or age does not support them.

Article 39(f) ensures that every individual has equal opportunities and facilities for developing themselves in a healthy manner as well as protects the youth and childhood against material or moral abandonment as well as exploitation. 

Orphanages and other Charitable Homes (Supervision and Control) Act, 1960

According to the Orphanages and other Charitable Homes (Supervision and Control) Act of 1960, the State government has the power to control, supervise and manage Child Care Institutions or orphanages. It is defined as “An Act to provide for the supervision and control of orphanages, homes for neglected women or children and other like institutions and for matters connected therewith.” This Act is applicable all over India except Jammu & Kashmir and to all children who are less than 18 years of age. This Act may not be applicable to any hostel or boarding house attached to an educational institution, any protective home developed under the Suppression of Immoral Traffic in Girls and Women Act, and any home, school, or workhouse governed by any enactment. The Board of Control is established for supervising and maintaining provisions of the Orphanages and other Charitable Homes (Supervision and Control) Act, of 1960. Under this Act, the State government is empowered to create a Board of Control with a motive to supervise and monitor the ‘homes’ as well as direct them to pay attention to the functionality and consistency of the Board. The smooth functioning of the ‘homes’ or orphanages within a state is the primary objective of the Board of Control. Apart from this, the legality and validity of certificates of a home are also checked by them to ensure the protection of orphan children. 

Board of Control

To supervise and control homes, the State government elects the members of a board as listed below:

• Three members of the State Legislature are elected from which the Legislative Assembly elects two and the Legislative Council elects one.
• Five members of the managing committees are to be elected.
• Six members are nominated by the State Government including at-least three women and one to be a member of the Parliament.
• One other member is nominated by the State Government, who is the officer in charge of social welfare work in the State.
• The members of the Board elect the Chairman of the Board by themselves whereas, at the time of its first constitution, one of the members of the Board is to be elected as the Chairman.

Functions of the Board

The primary function of the Board is to supervise and control the matters related to the management of homes as well as issue directions for the same. The Board also possesses the power to issue certificates to Child Care Institutions or orphanage homes, without which it is illegal to run them as per Section 9 of the Orphanages and other Charitable Homes (Supervision and Control) Act, 1960. In addition, the Board can also revoke the certificate because of unsatisfactory management and lack of compliance with rules. In such cases, under Section 17 of the Act, the orphans are either sent to their distant guardians or relocated to other orphanages.

Certificates

After the commencement of the Orphanage and other Charitable Homes (Supervision and Control) Act, of 1960, “no person shall maintain or conduct any home except under, and in accordance with, the conditions of a certificate of recognition granted under this Act.” In short, any individual interested in running or maintaining a charitable home or orphanage should first apply for a certificate of recognition from the Board. The Board will then accept or reject the application after the necessary investigation. In case of rejection, grounds for such refusals should be communicated to the applicant in a detailed manner. In order to grant a certificate, the Board should not charge any fee and a certificate should not be transferable. 

Contents of the Certificate

• The name of the recognized home and manager as well as should include the location of the acknowledged home. 
• The nature of the home either for women, widows, children, orphans, or for more than one class, and the total number of inmates allowed in the home.
• The facilities provided by the home include clothing, boarding, health and hygiene, sanitation, and lodging as per the condition of the locality where the home is situated.
• To provide training and education to the inmates by defining accurate standards and other facilities as per the requirement of the inmates are compulsory to be mentioned within the certificate.

Some other relevant statutes and laws for the protection of orphans include the Immoral Traffic (Prevention) Act, 1956, the Women’s and Children’s Institutions (Licensing) Act, 1956, the Child Labor (Prohibition and Regulation) Act, 1986, the Human Trafficking Act, 2014, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Information and Technology Act, 2000, the POCSO (Protection of Children from Sexual Offences) Act, 2012, and the Right of Children to Free and Compulsory Education Act, 2009.

Conclusion

Child Protection Services or Child Protection Scheme, implemented by the Ministry of Women and Child Development, provides financial assistance to the State Government for managing Orphanage Homes (Anath Ashram) or Child Care Institutions. The funds provided by them help the organizations to provide a better lifestyle to the orphan children. However, by taking inspiration from other countries a better environment can be provided for ensuring their bright future. U.S.A has Child Protection Services (CPS) which plays a major role in rescuing children from abusive environments and providing them with foster care till they get adopted. Such activities should also be initiated in India for helping abandoned or orphaned children with all necessities, love, and care they need. Moreover, some philanthropists are trying to make the lives of these children happier by celebrating one of their occasions in orphanage homes

Also Read: Supreme Court Updates