Though laws and regulations have been in place to protect orphans, few are implemented, leaving them vulnerable to abuse, violence and torture
By Shailendra Singh
There is nobody more vulnerable than an orphan. He is prone to exploitation, abuse, neglect and rape. He is often shelterless and is trafficked and tortured. While the official definition of an orphan is a child aged zero to 17 years whose mother, father, or both have died, there are also social orphans, whose one or both parents may be alive but who are unable to perform parental duties because of illness or acute poverty among other reasons.
These orphans, more than other children, are seen as vulnerable. A vulnerable child is defined as being under 18 years and at a high risk of lacking adequate care and protection. Accordingly, all children are vulnerable by nature, but some more so. So who are the children who are most vulnerable? These include: those orphaned by the death of one or both parents; abandoned by parents; living in extreme poverty; living with a disability; affected by armed conflicts; abused by parents or care-givers; malnourished due to extreme poverty; HIV-positive and those who are marginalized and stigmatized.
All vulnerable children have one common denominator: they have no reliable social safety networks. And in the Indian context, these children are widely exploited in safety homes and orphanages, many of which are unregistered and violate law and procedure.
TRAFFICKING OF CHILDREN
The Hindu, on October 13, 2014, mentions advocate Aparna Bhatt informing the Supreme Court about the state of orphanages in Palakkad, Kerala, where children were exploited. This was made in response to a case where 156 children were rescued while being illegally transported to an orphanage in Kerala and which was later handed over by the government to the very same institution. The Supreme Court asked the Kerala government to answer this charge.
These children were part of a group of 455 children, aged between 4 and 14, brought from Bihar and Jharkhand to some orphanages in Kerala. They were rescued in Palakkad by the railway police and district officials on May 24, 2014. All the children were found to be travelling with no tickets or travelling documents.
Laws such as the Juvenile Justice Act have not been implemented. Despite Supreme Court reminders, many states and UTs have yet not constituted Juvenile Boards.
Bhatt describes the Palakkad incident as part of the larger mushrooming of unauthorized orphanages and childcare centers in Kerala. She claims these institutions provide cover to “trafficking” of children from impoverished parts of Jharkhand, Bihar and West Bengal. The fact that Kerala did not make registration of orphanages compulsory under the Juvenile Justice Act left the State Child Rights Protection Commission with no control over them.
In its affidavit, the state government said the rescue operation in Palakkad was its own initiative. The children were provided care and protection by the state. It said social ins-truments such as Kudumbasree, Childline, etc, worked with authorities to prevent child exploitation and abuse in the state. The affidavit said the government had all the information about children from other states.
The National Commission for Protection of Child Rights too gave a clean chit to the state. It said orphanages admit children from other states only after permission of the state government and the Orphanage Control Board, set up under the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960. It said the Kerala State Commission for Protection of Child Rights has control over orphanages and institutions in the state.
While this case wasn’t as bad as the others, instances of abuse have come to light from orphanages across the country. In Arya Anathalaya in New Delhi, it was found that girls and boys were sexually abused. In an orphanage in Kozhikode, Kerala, a minor girl was forced to marry a much older man from the UAE. After a few weeks, she was abandoned.
CALLOUS STATES
In the Exploitation of Children in Orpha-nages in the State of Tamil Nadu vs the Union of India case of 2007, Justices Madan Lokur and Uday Umesh Lalit took note of the urgency to implement the Integrated Child Protection Scheme. The apex court, in its ruling in 2013, criticized the lackadaisical attitude of the government in not implementing the above mentioned scheme. It further held that it had become necessary to re-emphasize that it was the bounden duty of the States under Articles 21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy environment in which children could bloom and, subsequently, mature. The court said: “We have been pained to notice the utterly callous attitude adopted by the States as well as the Union Territories. We, therefore, have no option at this stage but to issue some further mandatory directions to ensure that the exploitation of the children in all spheres of life is brought to an end with utmost expedition. (The) Court has taken notice of the matter on the basis of the letter written way back in 2007 as part of judicial activism.” The court also said that states and union territories must realize that they have to operate under the constitution.
An enabling environment in shelter homes will foster capable individuals
A UNICEF report on orphan children says: “There is nothing more traumatic for a child than to see a parent die. Added to this tragedy is the loss of adult guidance and protection. Children without proper adult care are more likely to be abused and exploited. Many orphans and vulnerable children slip further into poverty once the family’s main breadwinner stops working or dies. Losing a parent or caregiver often means losing access to social grants, education and healthcare.”
Though UNICEF had addressed the concerns of orphans, their abuse and subjugation by community participation and the help of respective governments, it is inadequate. Take for instance the horrific rape of a 19-year-old girl by a Korean running an orphanage in Bangalore. The girl reportedly said: “I stayed in the orphanage from the age of 3 till I turned 19. He started abusing me when I was 9 years old and even gave us our baths. He later began abusing another girl. Whenever she wasn’t around, he wanted me. We had no choice but to do what he asked us to do.” The girl alleged that she was not the only victim of sexual assault in the orphanage.
NO IMPLEMENTATION
These incidents suggest that in spite of all regulations and laws laid down for child protection, everything remains on paper. Laws such as the Juvenile Justice Act and other child protection legislations have not been implemented. It has been found that in spite of repeated directions from the Supreme Court, many states and union territories have yet not constituted Juvenile Boards. This casual approach is not helping movements such as the Bachpan Bachao Andolan.
The government should constitute vigilance teams to check malpractices in orphanages and safety homes. Compulsory registration should be done and various directions of the Supreme Court should be implemented. Steps should be taken to increase the adoption of such children. Section 40 of the Juvenile Justice Act must be implemented. This section says that the rehabilitation and social reintegration of a child should begin during his time in the children’s home or special home. But as the family is the best option to provide care and protection for children, adoption is the first alternative for orphans, abandoned and surrendered children. Suffi-cient funds should be released for the proper upkeep of government safety homes and private ones should be kept under constant observation. The National Commission for Protection of Child Rights should be given more powers to redress these concerns.
Playtime at an orphanage
Article 39 (f) provides that children should be given opportunities and facilities to develop in a healthy manner and there should be conditions for freedom and dignity. It further enjoins that children and youth be protected from exploitation and moral and material abandonment. Article 45 makes provision for free and compulsory education for children and mandates that facilities and opportunities for higher educational be provided to them. Social justice and economic empowerment are firmly held as fundamental rights of every citizen. Thus, it is the duty of the state to protect the rights of the child even in orphanages. A child is the future human resource of the nation. Imagine what potential he holds if treated well.