Apex Court Holds The Orphan’s Hand

By Sujit Bhar

When the Supreme Court bench of Justices BV Nagarathna and KV Viswanathan recently held that orphaned children must be treated as “children belonging to disadvantaged groups” under Section 2(d) of the Right to Education Act, 2009 (RTE), the order did more than address the loopholes that could be dreamt up through clever interpretations. The order re-positioned the State as parens patriae—the legal guardian—for children who have no one else. The Court order also tethered that guardianship to a concrete, enforceable entitlement: admission under the 25 percent reservation in all aided, unaided and special-category schools.

The Court also asked the Union government to include a separate column for “orphaned children” in the 2027 Census, and directed every State/UT to issue notifications clarifying the inclusion of orphans within Section 2(d), to admit them in neighbourhood schools without delay, and to file personal affidavits if these directions are not implemented within four weeks.

In a country with an immense and largely invisible population of orphaned and abandoned children, this order matters. But its impact will depend on whether India can finally build the information base, the placement pathways, and the accountability plumbing that have been missing for years.

THE BIG, BLURRY NUMBERS

The first problem is brutally simple: India does not maintain a reliable, public, periodically updated count of orphaned children. What we do have are triangulated estimates and partial snapshots.

• Repeated compilations—drawing on UNICEF and civil-society syntheses—place the number of orphaned/abandoned children in India in the range of 25-30 million. While “orphan” often means the loss of one or both parents (single and double orphans), the policy relevance is still clear: tens of millions of children are without stable parental care.
• Government-supported mapping exercises have focused instead on children inside the system. A Ministry of Women and Child Development (MWCD) mapping (2015-2018) identified 9,589 child care institutions (CCIs) with about 3.7 lakh resident children. Alarmingly, only 32 percent of those CCIs were registered under the JJ Act at the time; 539 were subsequently closed for non-compliance. These are stunning governance gaps around children who are already in State custody.
• The Covid-19 shock added a hard edge: modelling in The Lancet/CDC/WHO collaboration estimated millions of children globally lost primary or secondary caregivers; India was among the worst-affected, with studies suggesting approximately 1.9 million Indian children lost a parent/caregiver in the first two pandemic years alone.

The above clearly indicates that none of the numbers or estimates are probably even near the actual problem.

In short, India’s “stock” of children lacking stable parental care is probably in the tens of millions, yet the “flow” we actually see and regulate—children in CCIs or routed into adoption/foster care—is a tiny subset.

This is why the Court’s call for a distinct orphan category in the 2027 Census is vital: you cannot govern what you do not count. Done well (with careful definitions and cross-linkages to civil registration, school and social protection databases), the Census could finally reveal the scale and geography of the need.

THE GOVERNMENT’S RECORD IS SCARY

When the State does take charge, its record is mixed. The National Commission for Protection of Child Rights (NCPCR), following Supreme Court directions in Sampurna Behura and related proceedings, conducted a nationwide social audit of CCIs and submitted state and national reports to the Court in March 2020. The findings were unsettling: large numbers of unregistered homes, patchy compliance with JJ Act norms, and significant quality/safeguarding deficits.

The MWCD’s own mapping confirms the structural problem: thousands of institutions, uneven registration, and closures for non-compliance. Meanwhile, high-profile abuse cases—Muzaffarpur being the most notorious—have exposed how quickly institutional care can turn into institutional harm when oversight is weak and accountability diffuse.

The Muzaffarpur shelter case, though an extreme, is probably emblematic of the societal degeneration in India today. This was about a shelter home, run by an NGO called Sewa Sankalp Evam Vikas Samiti at Muzaffarpur, Bihar. Here cases of sexual abuse, rape and torture were reported. In a medical examination, sexual abuse of 34 out of 42 of the girls living at the shelter was confirmed. A first information report (FIR) was lodged against 12 people on May 31, 2018.

The reference to this case is important, because this is how data vanishes within the mist of coercive and criminal acts and actors.

The audits therefore align with a broader global lesson: institutions should be a last resort, short-term, and tightly regulated; the bias should be towards safe family-based care (kinship care, foster care, adoption).

THE ADOPTION SCENARIO IN INDIA

The adoption pathway is India’s most visible route to family-based care—but for years it has been a narrow lane. Official CARA statistics show that after hovering around 3,000-3,500 total adoptions a year, India crossed 4,000 again in FY 2023-24 and reported approximately 4,500 in FY 2024-25, the highest since 2015-16.

That is progress, but it is still a drop in an ocean of need.

Two structural issues keep the pipe narrow:

1. Supply-demand mismatch and delays: As of 2025, over 35,000 prospective parents were registered on CARA’s CARINGS portal versus only a few thousand legally free children, with the youngest “healthy” category the scarcest. This has translated into average waits measured in years and even prompted a suo motu PIL by the Bombay High Court to probe systemic delays.
2. Legal/administrative churn: The JJ Amendment of 2021 shifted adoption orders from courts to district magistrates to speed things up. There are indications this change has begun to lift numbers, but transitional frictions, capacity gaps in districts, and concerns about making certain CCI-related offences non-cognizable drew critique. The direction of travel is right—simplify and decentralize—but the system needs consistent staffing, training, and digital plumbing to match.

CARA (as India’s Hague Convention Central Authority) has modernized eligibility, online workflows, and inter-country coordination, but the macro reality remains: in-country adoption is growing too slowly relative to need; inter-country adoption helps, but is appropriately a lower-volume, last-resort channel under Hague safeguards.

THE ISSUE OF OVERSIGHT

India’s child-protection architecture is not absent; it is fragmented.

• MWCD frames policy and funds the Child Protection Services (CPS) scheme.
• CARA governs adoption; each state has a State Adoption Resource Agency (SARA); placement happens through Specialised Adoption Agencies (SAAs).
• NCPCR/SCPCRs are statutory watchdogs with powers to inspect and recommend action; NCPCR led the CCI social audit exercise for the Supreme Court.
• District Child Protection Units (DCPUs) operationalise CPS; Child Welfare Committees (CWCs) make care decisions for “children in need of care and protection” under the JJ Act.

That lattice can work—but only if every node is staffed, funded, trained, digitally connected, and actually inspects. The Supreme Court’s new order effectively adds education departments to the accountability chain: if an orphan is out of school, the failure is now visible under RTE, not just under “child protection.”

IS THE ORDER ENFORCEABLE?

This is a critical question. This is asked of any order emanating from any court in India these days. Not because the courts are issuing orders that cannot be implemented, but because the machinery these orders need to pass through are rusted, corrupted and too thinly staffed.

Yet, even with these lacunae, yes, the order can be enforced, but only if it is embedded in existing RTE machinery and backed by data and money.

1. Clarity of entitlement:. The Court has removed interpretive wriggle room: orphans are within Section 2(d). Many jurisdictions (e.g., Delhi in nursery admissions) already list “orphans” within DG/EWS categories; now all states must do so, within four weeks, with Education Secretaries personally answerable for delay. That is administratively feasible because Section 12(1)(c) admissions already run every year.
2. Locating the children: The real execution challenge is identification. The order’s requirement that states survey orphan admissions, explain non-admissions, and admit to neighbourhood schools without delay is the right operational pivot—outreach via CCIs, CWCs, SAAs, DCPUs, and municipal bodies can be coordinated to produce name-by-name lists and track admissions on the state RTE portals.
3. RTE reimbursement and compliance: Section 12(1)(c) has historically suffered from uneven compliance and delayed reimbursements to private schools, depressing participation. If states ring-fence timely reimbursements and publish school-wise dashboards of offers/ acceptances for the orphan sub-category, compliance tends to follow.
4. Census 2027 data spine: Adding an “orphaned child” category, with careful definitions (single vs double orphan; in-family vs institutional care), would finally give planners spatial data—by district, block, and ward—so that admissions, scholarships, and social protection can be targeted and audited.

In short, the order is enforceable because it rides on the existing RTE pipeline, but it needs new identification plumbing and timely reimbursements to private schools.

WHAT THIS COULD CHANGE

A guaranteed school seat is not a panacea, but it is a platform for everything else: mid-day meals, health screenings, counselling, uniforms, and a daily adult gaze that notices when a child disappears or is unwell. For orphans raised by aged grandparents, kin, or in understaffed homes, the school is often the only universal service that sees them every day.

The judgment also creates a virtuous policy pressure: if states struggle to locate orphans for RTE admissions, they will have to fix the upstream registries—birth and death registration, linkage with CWCs, and active case management by DCPUs. Over time, that can reduce reliance on long-term institutionalization and re-balance towards family-based alternatives (kinship and foster care), which are globally recognized as better for developmental outcomes.

INDIA VS THE US AND EUROPE

No country has perfected care for parentless children, but the scale and structure differ.

• United States: On any given day, about 3,68,000 children live in foster care; over 1,00,000 are “waiting” for adoption; more than a quarter of annual exits from foster care are through adoption. The US runs a decentralized, data-rich system (AFCARS) that publishes national/state dashboards; schools are deeply integrated into the protective web via mandatory reporting and funding streams (Title IV-E, IV-B).
  
  India’s numbers dwarf the US in absolute terms, but the US shows what measurement, case-tracking, and public transparency can do to keep the system responsive.
• European Union: The EU has moved policy emphasis firmly towards deinstitutionalisation and family/community-based care, anchored by the European Child Guarantee (2021) and national action plans to 2030. Even so, around 7,58,000 children were in some form of alternative care in the EU in 2021, and the Commission/EU agencies keep pushing Member States to strengthen monitoring and family supports.
  
  Again, the lesson is not perfection, but clear targets, common indicators, and regular public reporting—all areas India can build quickly once the orphan category is formally embedded in Census and education portals.

What India lacks is not only capacity, but visibility. The RTE judgment, coupled with a Census category, is an invitation to build an India-scale equivalent of the US AFCARS/EU Child Guarantee reporting logic for “children without parental care”—with monthly dashboards spanning identification, school admissions, placement type (kin/foster/adoption/institution), and safeguarding incidents.

ADOPTION AGENCIES IN FOCUS

Specialised Adoption Agencies (SAAs) operate under CARA norms and the JJ Act. Over the last two years, the data trend is mildly positive: annual adoptions have recovered to pre-pandemic levels and beyond. Reforms such as district-level adoption orders (JJ Amendment, 2021) and more granular, state-wise publication of in-country adoptions have helped, but capacity is uneven across districts, matching remains slow for the youngest/“normal” category, and the pipeline of children legally free for adoption is constrained by slow declaration processes and the understandable (but system-stretching) priority given to in-country and kinship care.

Two steps would accelerate ethical adoption without compromising safeguards:

1. Speed up “legally free” decisions with due process: CWCs need paralegal support and time-bound SOPs so that abandoned/surrendered children are not stranded in legal limbo.
2. Fund and professionalize SAAs: Many SAAs run on shoestring budgets. Stable funding streams tied to quality metrics (time to family placement, counselling provided, post-adoption follow-ups) would lift performance.

Importantly, adoption is not the only family pathway. Kinship care (placement with relatives) is common, but largely unsupported in India. A modest, means-tested kinship caregiver allowance—as used in several US states and EU countries—would prevent unnecessary institutionalisation and sit comfortably alongside the RTE entitlement.

WHAT SHOULD CHANGE NOW

1. Immediate notifications, plus online tracking: States/UTs must issue the required RTE notifications and add an “orphan” tag in their RTE portals, with school-wise offers, acceptances, and reimbursements visible to the public.
2. One child, one case manager: DCPUs should assign a case worker to every identified orphaned child, with a simple digital case file that travels with the child (CWC orders, school admission, health checks, scholarship status).
3. Census 2027 design: MWCD and the Registrar General should convene experts to define “orphanhood” categories (single/double; living with kin/institution; cause where known, e.g., pandemic/accident), and to craft safe, non-stigmatizing enumeration protocols.
4. Strengthen oversight: NCPCR/SCPCR inspection calendars and CCI audit results should be published quarterly in a machine-readable format; homes found non-compliant should face time-bound corrective action or closure, with safe relocation plans.
5. Make schools the hub: Since admission is the new entry point, integrate school MIS (UDISE+) with child-protection case data so alerts trigger when a child drops out, relocates, or is absent persistently.

WHAT ABOUT PRIVATE SCHOOLS?

Section 12(1)(c) compliance varies across states, and some private schools resist EWS/DG admissions due to classroom limits or late reimbursements. But the Court’s design—clear inclusion of orphans, time-bound state notifications, neighbourhood admission mandate, and personal accountability of education secretaries—gives administrators the leverage they need.

Public dashboards and time-bound reimbursements will do the rest. The precedent of states like Delhi, which already list “orphans” within DG categories for nursery admissions, shows this is soluble when policy clarity meets administrative will.

THE WAY AHEAD

The Supreme Court has done something deceptively simple: it has tied the fate of India’s most invisible children to the most universal public institution we have—the neighbourhood school. And then the Court has demanded that the State not only open this door, but walk the child through it.

If India counts orphaned children properly in 2027, routes them to schools now under RTE, and fixes the upstream care pathways (kinship/foster/adoption with strong oversight), we will be able to look back on this ruling as the moment orphanhood moved from charitable afterthought to rights-based entitlement.

Getting there requires discipline: name-by-name identification, transparent dashboards, timely reimbursements, and a relentless preference for family-based care. Other jurisdictions show it can be done when data is public and someone is accountable every month.

For India, the Court has drawn the map; the State must now do the walking.