Abstract
India is home to around 2.82 crores orphaned children which is one of the largest numbers of vulnerable children needing protection in the world. Despite broad constitutional protection and a plethora of Children’s statutes, children continue to face abuses, neglect and denial of fundamental rights. This article will focus on the challenges with the implementation of India’s legal and institutional provisions for orphan protection and address the gulf between legislative frameworks and real-life situations. Referring to the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA), constitutional mandates, and recent case law from the Supreme Court, the study will demonstrate that orphan protections are not hindered by insufficient legislation but from systematic failure to implement the judicial and legislative obligations. The research shows that while there are broad statutory frameworks in place, weak enforcement mechanisms result in dismal adoption rates in India, with a remaining adoption rate (in 2019) of 0.1%, and millions of children in need of care and protection provisions. This article calls for dependent reforms focused on implementation mechanisms rather than more legislation, which would include not only capacity building for the institution involved in orphan care and protections, public resources, implementation, and accountability mechanisms for accountability to fulfil the legal promises.
Keywords
Orphan protection, implementation gaps, Juvenile Justice Act, child welfare, constitutional rights, legal framework
1. Introduction
The safeguarding of orphaned children represents one of the ultimate touchstones of any legal system’s seriousness about human rights and social justice. In the case of India, this touchstone presents a profound paradox: the reality of comprehensive legal provisions exists alongside pervasive and systemic failures to safeguard vulnerable children. With the Supreme Court having officially recognized that there are 2.82 crore orphans in the country,India faces one of the most significant challenges of child protection in the world.[1]
What we could arguably call the “silence in law” is not the absence of legal provisions, but rather, the acute failure for law to resonate into a practical protection of vulnerable children in need of protection. The concept includes the systematic failure of implementation mechanisms to allow even the most powerful provisions of law to fall short in the protection of orphaned children from exploitation, abuse, and neglect.
The legal framework to protect orphans in India includes constitutional provisions, statutory law under the Juvenile Justice (Care and Protection of Children) Act, 2015, adoption laws, and state-specific legislation.[2] However, despite this comprehensive legal framework of protection, there is still significant absence in protecting the orphaned child; they are left vulnerable. There are still unregistered child care institutions; orphaned children are still trafficked on a daily basis; orphaned children are still denied the right to education; and all in a legal framework that specifically prohibits violations that occur on a daily basis.
This research examines the implementation paradox in India’s orphan protection framework, where robust laws coexist with widespread violations of children’s fundamental rights. The analysis focuses on identifying specific implementation gaps and proposing targeted reforms to address these systemic failures.
2. Research Methodology
This study employs a comprehensive doctrinal legal analysis framework, critically analyzing the statutory system, constitutional mandates, and adjudicative decisions that regulate safety measures for orphans in India. The methodological framework employs divergent analytic filters to ensure rigorous assessment of both institutional and legal environments.
2.1 Primary Legislative and Constitutional Analysis
This study makes a comprehensive assessment of fundamental constitutional provisions, specifically Articles 15(3), relating to special provisions for children and women, Article 21 regarding right to life and personal liberty, Article 21-A establishing the fundamental right to education, Article 24 banning child labor, and Articles 39(e) and (f), directing state policy toward child welfare and preventing child exploitation.[3] In addition to this, consideration includes important legislative instruments such as the Juvenile Justice (Care and Protection of Children) Act, 2015, which serves as the key law for child protection, the Hindu Adoption and Maintenance Act, 1956,[4] governing adoption proceedings under Hindu personal law, and comprehensive guidelines issued by the Central Adoption Resource Authority (CARA),[5] aiding in the nationwide implementation of adoption procedures.
2.2 Jurisprudential Case Law Analysis
The approach involves an in-depth examination of landmark Supreme Court judgments that have shaped the contours of child protection jurisprudence in India. The landmark judicial judgments analyzed include Sheela Barse v. Union of India (1986),[6] introducing fundamental principles for juvenile justice administration, The Temple of Healing v. Union of India (2024),[7] addressing contemporary issues among child care institutions, and Just Rights for Children Alliance v S Harish (2024),[8] providing contemporary judicial comments on child protection policy implementation. This jurisprudential analysis traces the evolution of legal principles and identifies new directions in judicial thinking.
2.3 Quantitative Assessment of Data and Statistical Analysis
The research approach includes statistical analysis of data from governments covering demographics pertaining to orphans, institutional care statistics, rates of adoption placements, and measures for outcomes. This quantitative assessment measures the effectiveness of implementation of policy, identifies system failures, and estimates quantifiable impacts of law on vulnerable child groups in selected states and union territories.
2.4 Institutional Efficacy and Gap Analysis
The study employs a comparative institutional analysis approach to quantify the functional efficiency of key child protection agencies, i.e., Child Welfare Committees (CWCs), Child Care Institutions (CCIs), District Child Protection Units (DCPUs), and Specialized Adoption Agencies (SAAs). The study finds inconsistencies between institutional capabilities and statutory requirements, resource allocation patterns, and implementation hurdles negating efforts to provide services to orphans and vulnerable children.
Interdisciplinary Integration: The approach benefits from knowledge from social work practice, developmental psychology, and public administration to generate multidisciplinary understanding of implementation-related issues and possible reform directions.
3. Review of Literature
3.1 Constitutional Framework Analysis
The Constitution of India ensures substantial safeguards for orphaned children through various stipulations. Article 15(3) grants the State authority to establish special measures for children, whereas Article 21 affirms the fundamental right to life and personal liberty, which the Supreme Court has interpreted to encompass the right to a dignified upbringing. Article 21-A guarantees free education for all children aged six to fourteen years, imposing distinct responsibilities toward orphaned children who are especially susceptible to being marginalized in terms of education.
Article 39(e) and (f) of Directive Principles require it upon the State to safeguard children from mistreatment and to save childhood from exploitation and moral abandonment. These articles generate general constitutional responsibilities pertaining to caring for orphans.
3.2 Statutory Framework Assessment
The Juvenile Justice (Care and Protection of Children) Act, 2015 is the overarching piece of statute for child protection which superseded the previous act from 2000 with more robust provisions regarding orphans’ care. The law itself defines orphans as “children in need of care and protection” and institutes a robust institutional hierarchy comprising Child Welfare Committees (CWCs), Child Care Institutions (CCIs), and Specialized Adoption Agencies (SAAs).
But implementation flaws significantly erode the Act’s efficacy. Few states have functional CWCs, and committees already existing are poorly resourced and staffed by poorly trained individuals. Few states meet the separate care plans requirement by designated children under the Act due to administrative constraints and lack of uniform protocols.
3.3 Adoption Framework Analysis
The Central Adoption Resource Authority (CARA), established under the Juvenile Justice Act, 2015, has issued elaborate guidelines for adoption procedures. Nevertheless, the process of adoption remains fraught with delay and administrative hurdles and therefore manages to accomplish only a paltry rate of adoption of 0.1% that is, only 1 out of every 1,000 orphans.[9]
This figure is particularly disconcerting when one considers that only 1,600 children qualify for adoption, yet more than 7,700 prospective parents have applied through CARA, hinting at a failure in the procedural system more than any shortage in demand.
3.4 Recent Judicial Interventions
Today’s judicial interventions amply demonstrate the fundamental significance of succeeding implementation failures. In The Temple of Healing v. Union of India (2024), all states and union territory governments were instructed by the Supreme Court to provide specific details regarding applications for adoption, statistics regarding foster care, and institutional care statistics, thereby underscoring the systematic lack of data collection systems indispensable for evidence-driven policymaking.
The judgment in Just Rights for Children Alliance v S Harish (2024) heralds a historic change in perspective from regarding orphaned children as beneficiaries of alms to rights-holders entitled to enforce claims against the state. It brings together “the fate of India’s most invisible children with the most universal public institution we have: the neighbourhood school.”
4. Method
4.1 Implementation Gap Analysis
The survey reveals several types of implementation failures:
Resource Shortage Crisis: Spending by current governments on child welfare amounts to less than 0.1% of GDP, far less than levels needed to fulfill existing legal requirements effectively. The bulk of states have inadequate child welfare budgets, leading to inadequate services and infrastructure.
HR Shortfalls: Lack of trained social workers, child psychologists, and skilled care providers inhibits successful implementation. There are often no qualified members at CWCs, and CCIs experience inadequate staff ratios to influence the quality of care and decision-making.
Overseeing and Accountability Loopholes: Lack of strong monitoring systems enables suboptimal care practices in CCIs. An estimated 2,000 CCIs are not registered despite consistent advisories and possibly face closure, running without effective oversight and accountability framework.[10]
4.2 Institutional Capacity Assessment
Child Welfare Committees: Though statutory in all districts, CWCs in most districts are not functional or are not operating with adequate capacity. The Supreme Court’s directive that “all States and Union Territories ensure that within every district, SAAs be set up by 31-01-2024” testifies to rampant lack of compliance with already prevailing statutory mandates.
Child Care Institutions: India hosts roughly 7,000 registered Child Care Institutions, although with significant quality gradients. There are numerous institutions reported to have “shortage of groceries, medicines, and clothing,” as it affects even rudimentary survival needs, and some accused of maltreatment and exploitation.[11]
Infrastructural Support for Adoption: The protracted and bureaucratic process of adoption keeps children who are orphans in institutional care for long durations, having implications on development outcomes and informing high demand by potential families despite low rates of adoption.
4.3 Crisis Amplification During COVID-19
The pandemic had immensely exacerbated India’s orphan situation, with official statistics stating that 1,42,949 children had lost one parent and 10,386 children had lost both parents during COVID-19. Other research notes that at least 3,621 children had lost both parents to COVID-19, with more than 26,000 having lost at least one parent from 2020-2021.[12]
The PM’s response by the PM CARES for Children program vowed to help through a “convergent approach,” yet implementation continues to be inadequate such that thousands of newly bereaved children are not getting proper care or protection.
5. Suggestions
5.1 Institutional Capacity Building
Systematic Training Programs: Implement comprehensive capacity building programs for CWC members, social workers, and CCI staff to improve the quality of care and protection services. Training should focus on child psychology, legal procedures, and rights-based approaches to child welfare.
Technology Integration: Develop and implement integrated information systems for tracking and monitoring orphaned children across different care settings to enhance accountability and improve service delivery. Electronic case management systems would enable better coordination between agencies and improve outcome tracking.
Quality Standards Implementation: Establish and enforce standardized quality indicators for CCIs with regular third-party evaluations to ensure consistent care standards across the country. Standards should address infrastructure, staffing ratios, care protocols, and outcome measures.
5.2 Legal and Policy Reforms
Adoption System Overhaul: Streamline adoption procedures while maintaining child protection safeguards to dramatically increase placement rates. Electronic processing, standardized documentation, and time-bound procedures are essential to address the current crisis where demand exceeds supply but bureaucratic barriers prevent placements.
Rights-Based Legislative Framework: Develop a unified Child Protection Code that consolidates various laws relating to orphan welfare, eliminates definitional inconsistencies, and provides comprehensive protection mechanisms recognizing orphaned children as rights-holders rather than mere beneficiaries of state welfare.
Aging-Out Provisions: Implement specific provisions addressing the transition of orphaned children from institutional care to independent living, including educational support, vocational training, and housing assistance. Research shows that “nearly half of young adults leaving institutional care struggle to find paid employment,” requiring comprehensive transition support.[13]
5.3 Resource Mobilization and Financing
Budget Allocation Reform: The current allocation of less than 0.1% of GDP toward child protection is grossly inadequate for addressing the needs of over 2.82 crore orphaned children in India. To bring about meaningful change, government expenditure on child welfare should be increased to at least 2% of GDP. This must be complemented by innovative financing models, such as the strategic use of Corporate Social Responsibility (CSR) funds under the Companies Act, 2013, and international partnerships with multilateral agencies and global child protection organizations. Such reforms would not only expand the resource base but also reduce the chronic underfunding that undermines implementation.
Dedicated Child Welfare Funds: To prevent fluctuations caused by annual budget allocations and political priorities, dedicated child welfare funds should be established at both the state and national levels. These funds would serve as sustainable financing instruments, ensuring continuity for long-term child welfare programs such as education, healthcare, vocational training, and psychosocial support. By ring-fencing resources specifically for child protection, the government can shield welfare programs from fiscal instability and competing budgetary demands.
5.4 Alternative Care Development
Community-Based Care Promotion: While the Foster Care Guidelines 2024 represent an important step in strengthening non-institutional care, their effectiveness will depend on robust implementation, monitoring, and financial support. Community based care alternatives including kinship care, foster care, and guardianship programs must be systematically developed and scaled across states to reduce over-reliance on Child Care Institutions (CCIs). Evidence suggests that children in family-like environments experience better psychosocial development, stability, and long-term integration into society compared to those raised in institutional settings.
Prevention-Focused Strategies: Alternative care development must be accompanied by a preventive approach aimed at reducing the number of children entering state care in the first place. This includes family preservation programs, such as socio-economic support for vulnerable households, targeted livelihood initiatives, access to affordable healthcare, and parental counseling. By addressing the root causes of child abandonment, poverty, unemployment, gender bias, and social stigma the state can reduce institutionalization rates and ensure that children grow up in secure family environments wherever possible.
5.5 Accountability Mechanisms
Independent Monitoring Systems: Effective accountability requires the establishment of independent monitoring systems for CCIs and child protection mechanisms. These systems should employ standardized outcome indicators covering education, health, safety, and emotional well-being, with regular third-party evaluations to ensure compliance with the Juvenile Justice Act, 2015, and related rules. Independent oversight would reduce the risks of abuse, neglect, and corruption that often flourish under weak internal monitoring.
Data-Driven Policy Making: The absence of reliable data on the number, condition, and needs of orphaned children remains a critical barrier to effective policymaking. As directed by the Supreme Court in The Temple of Healing case, systematic and real-time data collection mechanisms must be institutionalized at both state and national levels. A centralized digital database should record the status of every orphaned child, including their education, health, legal status, and placement, enabling evidence-based decision-making, transparent resource allocation, and proactive intervention strategies.
6. Conclusion
The study shows that India’s orphan protection crisis is not caused by the absence of laws but by inherent failures in the implementation of those laws. The contradiction presents itself in having a multitude of legal provisions broadly supporting orphaned children and continued recurring systemic violations of children’s rights. In a country where there are 28.2 million orphaned children relying on institutions that repeatedly fail them, we have now a human rights and social justice national emergency.
The “silence in law,” in relation to orphan protection, is not an absence of protective legislation, but a more serious inability of the law to effectively speak to and act in the lives of children it is meant to protect. Despite constitutional guarantees like Articles 15(3), 21, and 21-A or statutory protections like the Juvenile Justice (Care and Protection of Children) Act, 2015, and judicial interventions (although limited), children continue to be exploited through trafficking, abused and neglected in child welfare institutions, and systematically denied an education. The realities of children we found reflect the gap between legal promises and protective reality.
The paradox of implementation demonstrates that laws, no matter how comprehensive, are still meaningless in the face of weak enforcement, lack of accountibility, and an poorly resourced system. The ongoing existence of unregulated child care institutions, the extremely low adoption rate of only 0.1% despite demand from prospective parents, and lack of monitoring expose how bureaucratic inefficiency and corruption can negate even the most progressive laws.
Judicial movements, like the Supreme Court’ s decision in Just Rights for Children Alliance v. S. Harish that an orphan’s future must be linked to “the most universal public institution we have: the neighbourhood school,” demonstrate the courts’ growing frustration with a complete lack of executive action in regard to this issue. However, obviously, judges alone can’t be relied upon to create systems change. Long-lasting change in the child welfare system must involve transformative policy change, capacity building, technology for monitoring, and evidence-based governance.
Solutions lie not in creating more laws, but rather in building and strengthening institutions, resourcing them appropriately, mobilizing communities, and greatly improved accountability which lessen the reliance of institutional care. Strengthening foster care, kinship care, community-based rehabilitation, and reforms to promote adoption are vital to create a complete protection model
In the end, the genuine measure of India’s child protection system is not the number of pages in its laws, it will be the reality of its children. It is the safety, the educational opportunities, the emotional health, and the enhanced future opportunities of every child who has suffered the loss of a mother and father that will ultimately determine the success or failure of the fragile system. We must insist that until the promise of protection is manifested in safety, dignity, and agency for every child, the promise of constitutional and statutory rights is unfulfilled.
Every single day of inaction causes irreparable harm to the country’s most vulnerable children. The time for incremental reform is over. What is needed now in India are urgent, bold responses to the underlying causes of inactivity and failure of implementation which exist between law and justice. Until we do, India cannot claim to have fulfilled its obligation to protect the most vulnerable children in the country or to have demonstrated that the strength of its legal frameworks is successfully reflected in the lives of children the laws are meant to protect.
[1] Supreme Court of India, Court on Its Own Motion v. Union of India, Writ Petition (Civil) No. 473/2005 (2023).
[2] Juvenile Justice (Care and Protection of Children) Act), No. 2 of 2016, INDIA CODE (2016).
[3] INDIA CONST. arts. 15(3), 21, 21A, 24, 39(e)–(f).
[4] Hindu Adoption and Maintenance Act, No. 78 of 1956, INDIA CODE (1956).
[5] Central Adoption Resource Authority, Guidelines Governing Adoption of Children, 2017 (2017).
[6] Sheela Barse v. Union of India, (1986) 3 S.C.C. 596 (India).
[7] Temple of Healing v. Union of India, W.P. (C) No. 989/2022, decided on Feb. 12, 2024 (India).
[8] Just Rights for Children Alliance v. S. Harish, W.P. (C) No. 1411/2023, decided on Apr. 4, 2024 (India).
[9] Central Adoption Resource Authority, Annual Statistics Report 2023-24 (Ministry of Women and Child Development, 2024).
[10] Ministry of Women and Child Development, Status of Child Care Institutions in India (Government of India, 2023).
[11] National Commission for Protection of Child Rights, Study on Child Care Institutions (NCPCR, 2023).
[12] Ministry of Statistics and Programme Implementation, COVID-19 Impact on Children: Statistical Report (Government of India, 2022).
[13] UNICEF India, Aging Out: Challenges Faced by Children Leaving Institutional Care (UNICEF, 2023).
