Death of 5 Orphans In MP Reveals How The Govt Punishes But Does Not Help Child Care Institutions

10 Jul 2024 8 min read  Share

In the first week of July 2024, five died and 30 were in critical care after suspected food poisoning in a child-care institution for disabled orphans and abandoned children in Indore, Madhya Pradesh. The government ordered remedial measures, but the juvenile justice law and a Supreme Court order place onerous management, developmental and recreational requirements on cash-strapped institutions but not on the State, which cares for no more than 1.4% of India’s 30 million orphans.

India’s juvenile justice law imposes hundreds of obligations on child care institutions but requires no financial or logistical support from government. Representative image/ OPENVERSE

New Delhi: In 1980, while granting the custody of a child to his maternal grandmother even when his father was alive, the Supreme Court invoked the doctrine of parens patriae, which means the State is the parent of the nation. 

“Under the feudal order, allegiance and protection went together hand-in-hand and the feudal lord assumed protection of his vassal in return for the latter's allegiance,” said the Supreme Court. 

“This is one of the legal principles that the advent of capitalistic legal order did not choose to replace, particularly in the case of minors who cannot be expected to express their intelligent preferences; the modern State assumes the ultimate responsibility for their welfare,” said the Court.

Courts and governments worldwide have relied heavily on parens patriae, an ancient Roman doctrine from 2 BC, in regulating adoption, guardianship, and custody of children in need of care and protection, among others based on the justification that the State is their ‘super parent’ and is best placed to decide their best interest.

It has been unequivocally settled in constitutional, legislative and judicial terms (here, here and here) that the State not only has the power to take decisions on behalf of children in need of care and protection, but also has a responsibility to actively work towards their welfare. 

However, the conditions of over 30 million orphans—one of the sub-categories of children in need of care and protection—in India suggest that while the State unabashedly exercises its powers, it does little to fulfil its responsibilities. 

The gravity of State absenteeism and dereliction towards orphans, recently came to light when five orphaned children with mental disabilities died in the first week of July in Yugpurush Dham Ashram, an orphanage—also referred to as a child care institution in juvenile law—run by an NGO, housing more than 200 abandoned and orphaned children with disabilities in Indore, Madhya Pradesh. 

The reported cause of death was food poisoning, prompting the district administration to send the samples of the food in the kitchen of the orphanage to a government and a private laboratory.

State ministers Kailash Vijayvargiya and Tulsi Silavat visited the hospital with survivors on 2 July 2024 and said that they had asked the district administration to prepare a master plan to develop the orphanage and promised that they would upgrade living standards and improve food quality to prevent a recurrence. 

More often than not, most State interventions with respect to orphans occur after an event like this. Not only have five children lost their lives,  30 were in critical care when we wrote this.

The Law’s Laudable Aims

One of the very few ex-ante—or before the event—measures taken to protect the interest of orphans is the codification of the Juvenile Justice (Care and protection of children) Act 2015 and the model rules framed under the Act. 

The juvenile justice act requires all child care institutions—voluntary and non-governmental organisations—to be registered as prescribed in the model rules, which lay down the criteria that allow the government to decide if a child care institution can be granted provisional registration.

Once the government registers such an institution, it inspects “the facilities, staff, infrastructure and compliance with the standards of care, protection, rehabilitation and reintegration services and management”. If the inspection reveals unsatisfactory compliance with the standards set, the government can cancel the registration and take over its management . 

The model rules provide a detailed list of personnel that child care institutions require to manage, among other things, physical infrastructure, clothing, bedding, toiletries and other articles; nutrition and diet; medical care; and mental health. 

The standards of care prescribed in the juvenile justice law and the model rules are well intentioned and adhering to them can be instrumental in ensuring care and protection of orphaned children. But these standards are onerous and prohibitive for child care institutions (here and here), which are run by donations from public-spirited individuals and organisations and are of different sizes and structures.

No Obligations On The State

For instance, these standards require child care institutions to hire teachers for physical training and art and craft; to provide a new pair of sports shoes to orphans every year; provide 250 ML of body moisturiser for orphans; arrange visits to “education fairs”, picnic and “outings” every quarter to a planetarium, museum, botanical or zoological garden, science fair etc, among other recreational activities.

The law requires child care institutions to maintain 16 rooms inside their premises, including a dining hall, recreational room and library; procure computer sets, photocopiers, printer, a scanner-cum-fax and a projector, among tens of other obligations under 13 heads. 

While the juvenile justice act imposes various obligations on child care institutions, it says nothing about imposing an obligation on the State to provide financial or logistical support.

These unilateral obligations on the CCIs were reinforced by the Supreme Court when in 2017 it ordered compulsory registration of private orphanages under the juvenile justice law, while addressing a  larger public interest litigation based on a letter  detailing the extent and plight of sexual exploitation of sexual abuse of children inside orphanages, received from a public spirited citizen. 

The Supreme Court further said that managements of orphanages would be held liable for negligence if they failed to register within the deadline.

During the proceedings, additional solicitor general of India Maninder Singh argued that even registered voluntary and governmental institutions could not meet the standards of care prescribed by the model rules due to a lack of finance. 

The court refused to accept this reasoning and criticised the union and state government for citing a lack of funds even though about Rs 3 lakh crore allocated to the states (this figure did not include money unspent by Andhra Pradesh and Uttarakhand) for the National Child Protection Scheme in 2013-14 on the day the judgement was pronounced. 

It is difficult to then imagine how privately funded  institutions with scattered and inconsistent funding from philanthropists are expected to implement them.

A Funding Decline

The ministry of child and women development has released funds to  states and union territories under Mission Vatsalya Scheme (formerly the Child Protection Services Scheme) to establish and run child care institutions. 

However, the allocation of funds under the scheme has numerous problems, as a 2021 report from Centre for Policy Research, a think tank, pointed out. 

First, only 2-3% of governmental funding to the ministry of child and women development is for the scheme,  a percentage that has stagnated for a decade, the CPR report said.

Second, out of the money set aside, the money disbursed to the states has also consistently declined over the years, falling, for instance, 5% between  2018-19 and 2019-20, the report said. 

Third, the money set aside is released after delays, usually during the last two or three months of the financial year, which leads to underutilisation, the CPR report said. 

In 2020, a parliamentary standing committee noted that only about 70% of funding was used for Mission Vatsalya by the end of 2020-21 financial year (FY). The data also indicate NGO-run child care institutions get money slower than those run by the government. 

For instance, no funds were released to NGOs in Rajasthan in FY 2018-19, indicating that privately run child care institutions were specially disadvantaged. 

No Legal Remedies

Mission Vatsalya does not create “entitlements” or legally enforceable remedies, which means it is subject to government discretion. That means judicial remedies against its inconsistencies and arbitrariness are difficult. 

Over the years, courts have repeatedly held (here and here) that the scope of judicial review in examining welfare policies of the executive is very limited.

This makes a strong case for statutorily mandating the state to provide financial support to child care institutions, including those run by private individuals, instead of a welfare scheme that is arbitrary on paper and hard to implement.

The juvenile justice act requires orphaned children in child care institutions that are shut down for not meeting State standards to be moved to government institutions. But that is an unlikely proposition because the budget allocation for such children has halved over the past decade. 

Only 1.3% Orphans In State Care

In a situation when, only 400,000 of India’s 30 million orphans, or 1.4%, are sheltered in child care institutions, while the rest are homeless, it appears prudent for the ‘parent of the nation’ to be mindful of its maternal duty to nourish such institutions with logistical and financial resources, —instead of being adamant in fulfilling its paternal duty to discipline and penalise those incapable of meeting unachievable standards of care.

This argument does not discount the need for the regulation of private orphanages to ensure the safety and development of the children in their charge. 

Indeed, it is the responsibility of the government to prescribe standards for protecting the rights of children under international conventions. In 1992, the government of India ratified the International Convention on the Rights of the Child (CRC), article 3 which requires “all actions concerning children undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies to have the best interest of the children as a primary consideration”.

Article 3(3) of the CRC specifically obligates nations that have signed the Convention to ensure that “institutions responsible for care and protection of children shall conform to standards laid down by competent authorities, particularly in areas of safety, health, staff and supervision”. 

However, a bald regulation without support is likely to render many well-intentioned institutions and individuals incapable of making small but significant contributions towards making the lives of these children more liveable. 

The union budgetary allocation for children remained below 2.35% in FY 2022-23, while in neighbouring Bangladesh, the corresponding figure was 15.33%. This difference is hard to justify given that children account for 39% of India’s population while they account for no more than 28% of Bangladesh’s population

In the pursuit of including the 30 million orphaned children in the government’s agenda of “sabka vikas” or progress for everyone, it will be useful to replicate the Prime Minister’s vision of a public-private partnership and maximum governance and minimum government in the realm of regulation of orphanages too. It seems prudent that the government works with them—instead of shutting them down.

(Jisha Garg is a recent graduate of the Rajiv Gandhi National University of Law, Punjab, and Anchal Bhatheja is a lawyer and research fellow at the Vidhi Centre for Legal Policy in New Delhi.)

Get exclusive access to new databases, expert analyses, weekly newsletters, book excerpts and new ideas on democracy, law and society in India. Subscribe to Article 14.