A legal expert clarifies some key legal issues affecting the running of orphanages. We need to know what the laws require, and what they do not.
“Orphanages, though a sad reflection on our society, all the same function unselfishly to look after orphans and other destitute children; who, otherwise, would be thrown to the streets and turn into vagabonds, harmfully exposed to the vagaries of a cruel life,” said Justice K. Vinod Chandran.[1]
Perhaps Justice Chandran echoes the attitude and concern of the Christian Churches for orphans. For Jesus, the Kingdom belonged to little children (Matthew 19:14). In the Bible, God has a compassionate heart for orphans. God is their help (Psalm 10:14) and their holy habitation (Psalm 68:5) who ensures them justice (Deuteronomy 10:18). So, God commands His people to be gracious to the orphans (Exodus 22:22). Hence, the people of God will visit and care for orphans (James 1:27) and will share their time, energy and resources with orphans (Deuteronomy 14:29). In response to this call, the Churches have invested their time, energy and resources for the welfare of orphans.
Before the advent of the Juvenile Justice Care and Protection of Children Act (JJ Act) in India, orphanages carried on their services under the Orphanages Act[2]. Juvenile Justice Care and Protection of Children Model Rules, 2016 (MR) under the JJ Act prescribed norms and standards for the management of ‘child care institutions’ (CCI). Hence, it was mandated that all institutions housing children in need of care and protection must obtain registration under the JJ Act. The Supreme Court upheld the same by ordering the compulsory registration of all Child Care Institutions by December 31, 2017, for the purpose of ensuring general supervision and implementation of the other regulatory measures, so that the state can ensure the safety and welfare of the children in such institutions. The JJ Act enables even the state to take over the management of orphanages that fail to meet the standards under the Act.
In 2016, when Government was contemplating to take over the management of orphanages which failed to meet the standards laid down in the MRs, some orphanages and charitable institutions approached the Kerala High Court. In its judgement delivered on 20 December 2017, the High Court reiterated that those charitable institutions which are not established or maintained by the Government will have to apply for registration under the JJ Act, and the registration will ensure the due supervision of the institutions by the authorities constituted under the JJ Act. At the same time, they cannot be categorised as a CCI under the JJ Act.
Orphans are not “children in conflict with law.” The orphans, from families which do not have means to provide for their needs, find a shelter in orphanages. The phrase children in need of care and protection in JJ Act had to be read conjunctively with children in conflict with law, which means only those children who became in need of care and protection owing to their conflict with law. The Supreme Court[3] had given an illustrative definition to ‘children in need of care and protection,’ including children who are the victims of crimes and atrocities.
CCIs are different from orphanages. As defined in the JJ Act, they must come under one or more of 7 categories, namely, Children’s Home, Open Shelter, Observation Home, Special Home, Place of Safety, Specialized Adoption Facility and Fit Facility, as specified in the JJ Act. The orphanages run by private individuals or organizations without any aid from the government are not under the obligation to satisfy the requirements of MRs framed under the JJ Act.
The Court observed that the MRs are not realistic for the private orphanages. How is it possible for the charitable institutions, without any Government sponsorship, to provide the same facilities for housing orphans and destitute children who need care and protection? Charitable institutions, set up purely on charitable considerations without any Government aid, cannot be directed to provide for the facilities prescribed in the MRs. The obligation to provide such facilities to the ‘children in need of care and protection’ is on the Governments. “It would be disastrous to take a view that if the charity does not extend to such standards as prescribed by the Government in the MRs, then, such institutions would have to be closed down and the children thrown to the streets.”
Registration cannot be declined for reason of lack of facilities. If the facilities are found inadequate, then, it is for the Government to set them up, within a time frame, in accordance with CCIs of the standards prescribed under the MRs, and shift the children into such homes. There cannot be any immediate closure of the institutions, with the consequence that the children are sent out of the institutions on a closure. The Government is obliged not only to provide institutions of the standards as prescribed in the MRs, but also to transfer the children to such institutions, and, if the registration is declined, to take over the children and house them in appropriate institutions.
The orphanages cannot claim any right over the children housed in their institutions, who ultimately, for reason of being deprived of parental care, are the responsibility of the State. The JJ Act essentially is an enactment where the legislature reaffirms the traditional role of the State, the guardian of persons under legal disability.
“To take over the management by the Government of the institution as in MRs” means facilitating the takeover only of the children to be housed in places with standard facilities as prescribed. Hence, the state can only take over the control of the children and not the management of assets and properties of the private orphanages. The Court said, “The institutions are run in property owned by the managements or leased out by them and when such management committees take over the institutions, it infringes the valuable rights available under Article 300A of the Constitution of India”
[1]Judgement dated on 20 December 2017 in W.P(C) No. 14858 of 2016 (F), The Secretary Calicut Orphanage, Kalathara, Calicut &Anr Vs. The Union of India & 3 Ors
[2] The Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960
[3]In Re Exploitation of Children in Orphanages in State of Tamil V. Union of India. 2017 (5) SCALE 787
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