Kerala HC: Private Orphanages Have To Register Under JJ Act; But Aren’t Required To Meet Standards Prescribed In Model Rules [Read Judgment]

In a writ petition filed by the Association of Orphanages and Charitable Institutions, the Kerala High Court has said that orphanages run by private individuals or organization without any support or aid from the government are required to obtain registration under the Juvenile Justice Act 2015. However, the court also clarified that such private orphanages functioning without state aid were not under the obligation to satisfy the requirements in the Model Rules framed under the JJ Act 2015. The court read down Section 41(7) of the Act which enabled the state to take over the management of orphanages failing to meet the standards under the Act, to the effect that state can only take over the control of the children, and not the management or assets of the orphanage. Further, it was also held that ‘management committees’ prescribed under Section 53(2) of the Act will have no application over private orphanages functioning without state aid.

The orphanages that approached the court had registration under the Orphanages and other Charitable Homes (Supervision and Control) Act 1960. With the enactment of Juvenile Justice Act in 2015, all institutions housing children in need of care and protection had to mandatorily obtain registration under the Act, as per Section 41(1). The petitioners in the case contended that the Juvenile Justice Act dealt with children in conflict with law and children in need of care and protection. According to the petitioners, the phrase children in need of care and protection had to be read conjunctively with children in conflict with law, and hence, children in need of care and protection meant only those children who became in need of care and protection owing to their conflict with law. The children housed by the petitioners were not children in conflict with law, and were either orphans, or were children taken under their shelter from families which do not have means to provide for their needs. Hence, the petitioners argued that the provisions of the JJ Act cannot be made applicable to them.

It was noted by the court that the Supreme Court, in the matter In Re Exploitation of Children in Orphanages in State of Tamil Nadu had given an expansive definition to children in need of care and protection.  It was held by the Supreme Court that definition of children in need of care and protection under the Act was not exhaustive and was illustrative. It included children who are the victims of crimes and atrocities. But the high court noted that the children in the care of the petitioner-institutions were neither in conflict with law nor victims. Hence, the court accepted the interpretation put forth by the petitioners, to hold that the children under their care were not children in need of care and protection as defined under Section 2(14) of Act.

It was further held that the petitioner-institution was not a ‘child care institution’ as defined under the Act, as it meant only the seven categories as laid down in the definition. The petitioner-institutions did not fall within any of those seven categories of (i) children’s home, (ii) open shelter, (iii) observation home, (iv) special home, (v) place of safety, (vi) specialized adoption facility, and (vii) fit facility specified in the Act. Nevertheless, the court held that the institutions had to get themselves registered under the Act. This was ordered taking note of the fact that the Supreme Court, in the above said case, had ordered the registration of all child care institutions by December 31, 2017. Though the petitioner-institutions did not fall within the definition of ‘child care institution’ under Sec.2(21) of the Act, the court held that registration was necessary on the ground that it was in the best interest of the children so housed in the institutions. It was also observed that the state has a duty to ensure that the children deprived of parental care and, hence, in need of care and protection, when institutionalised are treated with dignity and provided the basic necessities including education to integrate them into the society as full- fledged citizens.

Since the petitioner-institutions were not ‘child care institutions’ as per the Act, the management committee mentioned under Section 53(2) of the Act cannot have application over petitioner-institutions. It was observed that the constitution of managing committees as prescribed in the Model Rules, runs contrary to the provisions of the Orphanages Act.

The petitioners had also challenged the Model Rules on the ground that it was no realistic to meet the utopian standards set by the Model Rules by private orphanages functioning on individual donations. In this regard, the court observed as follows: It cannot be said that the charitable institutions, without any Government sponsorship, should provide the same facilities for housing orphans and destitute children who need care and protection. It would be disastrous to take a view that if the charity does not extend to such standards as prescribed by the Central Government in the Model Rules, then, such institutions would have to be closed down and the children thrown to the streets.

In short, the court held that private orphanages, though do not qualify as ‘child care institutions’ as per the Act, will have to obtain registration nevertheless. But the registration was only for the purpose of ensuring general supervision, and the other regulatory measures of the Act and Model Rules, such as the control by management committees under Section 53(2), and the standards specified by the Act will not be applicable to such institutions. However, the state can ensure the safety and welfare of the children in such institution, and can take control of such children invoking Section 41(7).