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“The Act makes no difference between orphaned and abandoned children,” said Justices Gautam Patel and Neela Gokhale while hearing an interim application in a pending petition by The Nest Foundation, a charitable trust that runs Angels Nest, a home for girls, in Marol, Andheri (east). The interim order was passed on February 9.
The foundation had urged the HC to direct the state to issue ‘orphan’ certificates to two inmates and also to consider them under the 1% orphan quota for admission to undergraduate health science courses. Both young women had been abandoned at a young age, the girls have been staying in the home since 2008, when they were 4 and 5 years old, respectively. Their mothers hardly visited them.
On February 9, HC had rapped the state for saying that benefits given to orphaned children cannot be given to abandoned children as the government resolution (GR) for allotment of 1% orphan quota makes a distinction between them. Making a careful reading of the Section 2 (42) sub-clause (ii) of the Juvenile Justice Act the division bench noted apart from the definition of the word “orphan”, the sub-clause states that an orphan is also a child whose legal guardian is not able or unwilling to take care of the child. The same simply requires inter alia a declaration as ‘abandoned’ by the Committee after due enquiry. The High Court looking at all the details of the two young women satisfied itself that both did indeed fit under the category of “orphaned” and could be declared as such so as to enable their admissions to institutes of higher learning.
“Para 5.We have also considered the provisions of the JJ Act and in particular, the definition of “abandoned child” in Section 2(1). This requires inter alia a declaration as ‘abandoned’ by the Committee after due enquiry. The definition states that an abandoned child is a child who is deserted by his biological or adoptive parents or guardians. We hold that there is no dispute about abandonment at all. What remains is the declaration that is required by the Committee “after due enquiry.”
Para 5..We have also considered the provisions of the JJ Act and in particular, the definition of “abandoned child” in Section 2(1).. We also note the definition of “orphan” in Section 2(42) of the Act. Interestingly, this definition in sub-clause (ii) states that an orphan is also a child whose legal guardian “is not willing to take or capable of taking” care of the child. The unwillingness in this case of the guardians of both young ladies is manifest from the record as it stands. 6. We must also make reference to the general principles of care and protection of children as set out in Chapter II of the Act. Almost all of them will apply to the case in hand.”
The duties and responsibilities of the Child Welfare Committee (CWC) under the JJ Act are laid out under Section 30. Sub-clause (xi) says that one of these is the declaration of orphan, abandoned and surrendered children as legally free for adoption after due enquiry (which was not a point of issue in this case. However, the Court held in Para 7, that the the Act itself does not seem to make a sharp distinction between a child who is abandoned and a child who is orphaned.”
The judges essentially concluded that making a distinction defeats the purpose of the 2015 Act, 2015, that does not distinguish between a child who is abandoned and a child who is orphaned. They directed the Child Welfare Committee (CWC) to take a decision on their applications.
State’s advocate Jyoti Chavan informed that the CWC has issued ‘abandoned child’ certificates to the girls. But the foundation’s advocates pointed out that under the GR, the educational reservation is for orphaned children and not for abandoned children.
It was then that the judges repeated that since the Act does not differentiate between both, and that the court would clarify the same. In the order, they noted that CWC “issued the certificates to the two young ladies, declaring them as abandoned children” and also the foundation’s submission that in the GR, the reservation (for education in certain institutes) only mentions ‘orphan’ children. “We believe there is an answer to be found within the statute. We do not expect statutory interpretation from the CWC,” the judges added, and posted the hearing on March 2.
Exercising the powers of high courts under Article 226 of the Constitution of India, the HC accepted the police report about the background of the young women in in question. Say the Judges,
“Para 4. The police report indicated that the mother of one of these two young ladies (again we are being extra cautious to avoid any possible identification) had a love marriage and had severed ties with her family. Her whereabouts are unknown. At the last known address of the other young lady’s birth mother, there was somebody else entirely. The police certify that the actual whereabouts of the two mothers are unknown. “
Furthermore, the Judges held,
“Para 8. Having regard to the facts as they have unfolded, we are satisfied that the necessary material for a declaration by the Child Welfare Committee (“CWC”) is already on record. At best, the CWC may wish to meet the two young ladies themselves and interview the head of the orphanage. We do not prevent that, and leave it open to the CWC to consider if that is even necessary.
Para 9… The enquiry by the Committee is directed towards a certification that the child is fit for adoption or other forms of child care. But these two ladies are not children any longer, as we noted at the forefront. What they seek really is a declaration that their childhood at the Petitioner orphanage was one that was spent in a state of their being under the provisions of the JJ Act especially as abandoned children and orphans. This isthe limited documentation that is sought. They need this certification for their future educational endeavours.
Cutting through the bureaucratic red tape of arguments put forward by the State, the Court had further clarified,
Para 10.The declaration and the report of the Committee does not, of its own, grant admission to an education course or certify eligibility for reservation. Those may be separate matters that the two young ladies must face once they have the certificate from the CWC and apply for admission against some form of reservation. 11. To put it differently, these two young ladies having been abandoned as children, have reached adulthood as abandoned children and orphans but without there being any certification of their status as such. They need that certification today to progress and get ahead in life. We ourselves are sufficiently satisfied with the factual material but the Act does contemplate an enquiry and declaration by the Committee. It is for this limited purpose that we direct the CWC to issue the necessary declaration after the limited enquiry that we have outlined above. To clarify: this enquiry does not relate to the two young ladies as children today but to their past as children until adulthood in the orphanage. The Committee is not to reject the application for noncompliance since we are satisfied that there is sufficient compliance. 12. The Interim Application itself that is before us along with its compilations and any annexures to the Petition will be treated as the application before the Committee. For convenience of the CWC, the Petitioner’s attorneys may separately compile that documentation.”
[ This Order was passed in Interim Application (L) No. 30500 of 2022, and partly in regard to the amended prayers in the Petition Writ Petition Number 2164/2022, The News India Foundation v/s State of Maharashtra.]
Last year, 2022, the NEST Foundation trust filed a petition in the HC, challenging a July 2021 notice by the District Women and Child Development Office to vacate the premises and shift 31 girls to another home as it is not a registered child care institution. In February 2022, the HC granted interim protection against their transfer. That issue was not being presently decided –what was is the future educational studies of two young women due to bureaucratic distinction being created between the words “orphan” and “abandoned” in the statute.
Advocate Abhinav Chandrachid with Akanksha Agarwal and Ismail Shaikh appeared for the petitioners and Ms PH Kantharia, government pleader for the state.
The interim order of the High Court may be read here:
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