COVID Orphans : Supreme Court Directs District Magistrates To Personally Interact With Children To Review Health & Education

At the outset the Bench enquired about the directions that the Amicus Curiae Mr.Gaurav Agarwal sought from the Court. Referring to his notes, Mr. Agarwal read out the two broad issues that he wanted the court to look at.

The first issue is with respect to the working of the PM Cares Fund. Mr. Agarwal apprised the court that the PM Cares scheme has two functions. The first one is wherein a sum is invested in the post-office accounts in the name of the beneficiaries. Pointing out that the same is not an issue in the present proceeding, Mr. Agarwal addressed the issue of concern. The District Magistrate plays a pivotal role in the PM Cares scheme because he is supposed to act as a legal guardian of the children and is to interact with the children to ensure that the Children are being benefited from the scheme. The first direction sought was with respect to the larger purpose of the scheme - the DM is to ensure that the children's education is not disrupted for any reason whatsoever.

"While sufficient progress has been made for identification of the children, approval of registration and opening of post office accounts, the larger purpose of the scheme is to ensure that the child's education does not get disrupted due to unfortunate events arising out of COVID 19. This aspect to be reviewed for each child by the DM and each State Gov would inform the steps taken in respect to this Hon'ble Court. This is the first direction I am seeking with respect to the scheme of the PM Cares fund."

The second issue is with respect to the ascertainment of reasons for children dropping out of schools. Considering that schools in almost all states have reopened, there should be an obligation on the schools to ascertain if students have dropped out and also the reason for the same. It is further to be ensured that financial distress does not affect the continuation of education for the children who have lost their parents to COVID-19. The exercise is to be carried out especially for the students who would not be covered under the PM Cares Fund scheme.

"They should ensure financial distress for loss of parents does not result in discontinuation of the education of students...The court may consider the feasibility of issuing the appropriate direction to the school authority. Ministries of the State. Those who are covered by PM Cares they fall in one category that is under the scheme of the Govt of India, the others who your lordships have directed that their educational status should not be disrupted that exercise now should be done, because in all states the schools have opened or will be opening soon..."

Chhattisgarh

With respect to the mechanisms resorted by the States to ensure that children, who have lost their parents do not drop out of schools for financial distress, Mr. Agarwal submitted -

"Then for the previous directions,qua six states, I have requested directions…"

Coming to the sponsorship scheme floated by Chhattisgarh, he pointed out -

"Qua Chhattisgarh if your lordships would recollect there was a dispute about the sponsorship scheme. The Chhattisgarh Govt. had taken a stand that it is for the Govt. of India to approve. The Govt. of India through Ms. Bhati had said that their approval is not required."

Mr. Agarwal highlighted that after the Court's order wherein the dispute between the State and the Centre with respect to the approval of the scheme was directed to be resolved, even then the current affidavit of Chhattisgarh dated 12.11.2021 emphasised on the approval of the Central Government. Mr. Agarwal sought the Court's intervention to direct the State to implement the sponsorship scheme and also requested the benefit of the pre-existing Mahtari Dular scheme to be extended to these children.

Ms. Aishwarya Bhati, ASG informed the Court that the Central Government has received letters from the Chhattisgarh Government seeking expansion of the scope of the sponsorship scheme. The State intends to cover children on the basis of castes, apart from the economical considerations that are existent are the scheme.

"...we have received a letter from Chhattisgarh where they want to expand the scope of the sponsorship scheme. Right now the scheme covers children who are from families which are below the poverty line. On the basis of some caste criteria they want inclusion."

On PM Cares scheme, Ms Bhati submitted that there are some lapses in sticking to the one timeline stipulated for the DM to consider the application -

"5335 applications have been received out of which 2705 have been approved by DM, 1503 post office accounts have been opened...In terms of the guidelines in Annexure 2, scheme enrolment was to be completed by 31st Dec, 2021. Also Milords the DM rightly they have nominated as the guardians, the fulcrum of the scheme really is the DM and they would also be the guardians. Milords, the time period that has been stipulated for DM, from identification till approval is required to be one month, but we are falling short…"

Considering that Chhattisgarh had asked for financial benefits from the Central Government, the Bench enquired, "What do we do to Chhattisgarh then?"

Ms Bhati suggested, "My submission is that your lordship can ask Chhattisgarh to continue with the existing scheme till a decision is taken."

Mr. Arjun Nanda appearing on behalf of Mr. Sumeer Sodhi, for the State of Chhattisgarh submitted that they have written to the Central Government.

Suggesting the State to extend the benefit of the Mahtari scheme, the Bench interjected,

"The direction of this court has to be complied with. The number of children who suffered from COVID in your state is not very high, so why don't you implement the Mahtari Dulhar Scheme for all the Children."

Agreeing to do the same. Mr. Nanda informed the Court that -

"A proposal for the same has already been sent to the general administration, the decision would be coming anytime in 2-3 weeks. We are also inclined to extend the scheme to anyone who had become orphan during this time whether COVID or without COVID. We just require some time to implement that."

Addressing the plight of the children who had suffered the loss of their parents, the Bench remarked -

"Children need care. There cannot be any delay in this. Whatever is the scheme that you have….you continue to pay in accordance with this scheme to these children. If at all you are asking for more financial assistance for including other children also, you can do it later…If at all you are asking for further funds for the scheme that can be done later."

The Bench passed directions to the DMs, to enhance their functioning under the PM Cares Fund scheme. They were directed to ascertain educational status, consider and approve the remaining application, review health and education parameters of the children, stick to the timeline of one month, and review that education is not disrupted.

"On 15.11.2021, the DMs/DCs were directed to ascertain the educational status of those children who are eligible for the benefits under the PM Cares Funds and to consider the applications of those children expeditiously...From the information provided by the UOI, the Amicus has submitted a note that a total of 5335 applications have been received as on 23rd Nov 2021 out of which 2705 applications have been approved by DMs under PM Cares scheme.1503 post office accounts have been opened for the beneficiaries under the scheme...The remaining applications shall be taken up for consideration and approved at the earliest. According to the scheme the DMs have to act as guardians for children who have lost their parents."

As the Bench verified the beneficiaries of the scheme. Mr. Agarwal responded -

"Orphans, those who have lost both parents, surviving parent or adoptive parents or legal guardians."

The Bench further directed -

"The DM is required to interact with children personally and review health and education parameters. The DM has to ensure benefits reach the children. We are informed by Ms Bhati, ASG that a timeline of one months has been fixed in the scheme from registration to approval to come from UOI. This timeline is not being followed by DMs. Any delay caused in identification by Union of India for grant of benefits under PM Cares Fund would be to the detriment of the children who need assistance.

The main purpose of the scheme is to ensure that the education of the children under the scheme is not disrupted. The DMs are directed to review the present status of each child who is identified for receipt of the PM Cares Fund...The DMs are directed to ensure that the education of the children whose cases are sent up to be approved to Central Government is not disrupted for any reason whatsoever. In respect of those children who have become orphans...or not covered by the PM Cares Fund, the authorities from the education Department of the State Govt. and UTs should address the concern of discontinuance of education of such children. If the children are studying in Govt. school, they should be permitted to continue without payment of any fees...Private schools, the District Educational Authorities are directed to ensure continuation in those private schools, in consultation with private schools without any further financial stress."

In order to cut down any further delay, the Bench directed Chhattisgarh to extend the Mahtari Dular Scheme to all the concerned children without waiting for approval of the Central Government on the sponsorship scheme. Considering that it is State's constitutional obligation to facilitate education, the scheme ought to be applied at the earliest.

"In the affidavit filed by the State Chhattisgarh on 12.11.2021, this Court is informed that a sponsorship scheme has been prepared by the State and sent to Central Govt. for approval...it will be implemented after consent is received...The State of Chhattisgarh is directed to extend 'Chhattisgarh Mahtari Dular Scheme-2021' to all children who have become orphans or have lost either parents after March 2020.

The Ld. Amicus submitted that the number of children who have suffered the loss of their parents is not very high in Chhattisgarh and there is an imperative need for direction to be issued to the State for implementation of the Mahtari Dular Scheme 2021 without waiting for approval of the proposed sponsorship scheme by the UOI. According to Mahtari Dular scheme children are entitled to free education and scholarship of 500 to 1000 each month….

We have heard the Ld. Counsel for the State of Chhattisgarh who submitted that the sponsorship scheme shall be implemented upon receipt of approval from the Central Govt….We direct the State of Chhattisgarh to extend Mahtari Dular Scheme to children who have lost both/either of their parents after March 2020 without waiting for approval of proposed scheme form UOI. As it is the constitutional obligation of the State to provide the basic amenity of providing/ of facilitating education of children."

The Bench when apprised by Mr. Nanda, that the sponsorship scheme was over and above the Mahtary Dular Scheme, appreciated the State's initiative to provide additional financial assistance.

"The Ld. Counsel for Chhattisgarh submitted that Mahtari Dular Scheme is being implemented...The proposed sponsorship scheme is for payment of additional amounts to such children...We appreciate the efforts being made by the State of Chhattisgarh to provide additional aid to such children after approval is granted…"

Haryana

Mr. Agarwal proposed that in Haryana those who are not covered by the PM Cares scheme, which has made COVID death a mandatory requirement, can be covered under the Mukhyamantri Bal Seva scheme considering that the number of concerned children in Haryana is again not very high.

Ms. Bansuri Swaraj appearing for the State of Haryana sought time to seek instructions in respect to such a proposal.

The Bench insisted that the matter is not to be delayed and benefits can be given under the Mukhyamatri Bal Seva scheme. It directed -

"The Ld. Amicus submitted that the State of Haryana has announced Mukhyamantri Bal Seva Yojana (MBSY) to provide certain benefits to children who have lost both their parents/surviving parents/..adoptive parents and have become orphans due to COVID. According to the said scheme payment of Rs 2000 per month under a central sponsorship scheme and then additional Rs. 500 per month. Additional financial assistance of Rs. 12000 per annum is to be provided to the extended families...educational purposes of these children. On 26.08.2021, the State of Haryana was directed to consider extending MBSY to children who become orphans. We are informed 121 children have become orphans, we direct the State of Haryana to extend the MBSY which would meet immediate needs of children in distress."

Jharkhand

Mr. Agarwal informed the Bench that the State of Jharkhand in its affidavit dated 22.10.2021, had mentioned a State scheme to provide financial assistance which was on the lines of the aid available under Children Protection Scheme to orphan children till 18 years. At that point in time the scheme was under consideration and the Amicus had no information since.

Ms. Praya Bhagel appearing on behalf of the State of Jharkhand pointed out that their State scheme namely 'Project Shishu' was under consideration and yet to be implemented.

Expressing concern for the children, the Bench directed it to take decision at the earliest and file a status report -

"When will you do that...See the problems of these children, they cannot wait. The delays on the part of the bureaucracy can be with respect of other things, but not for basic amenities to be provided to such children who are almost on the streets. Please take a decision immediately...We will take Jharkhand after two weeks when the matter is listed ..The State of Jharkhand has proposed a children protection scheme for which a final decision has not been taken till date. A status report on the scheme and the manner in which the state is taking steps to protect interest."

Karnataka

Mr. V. N. Raghupathy appearing on behalf of the State of Karnataka apprised the bench that it is seeking funds of about Rs. 13 crores from the Central Government -

"Milords, the proposal was placed before the Finance Dept. They have it should be implemented under the ICPA scheme. So, we have returned to CG for additional funds."

The Bench was perturbed that any further delay would be detrimental for the concerned children. It remarked -

"In the meanwhile you have to do something...We initially recall that yours was a State where sufficient interest was taken and we were trying to resolve other states to follow your model….The plight of these children who have lost their parents, that has to be taken care of immediately. These issues do not brook in delay."

Mr. Raghupathy suggested that the Centre be directed to issue the fund at the earliest.

The Bench asked Ms. Bhati to seek instructions regarding the consideration of the financial aid sought by the States of Chhattisgarh and Karnataka.

Kerala

Mr. Agarwal informed the Court -

"Kerala has floated a scheme...providing 3 lakh deposited in the name of a child and 2000/ month to each child till the age of 18 years. Education will be sponsored till graduation. In 26.08.2021… directed to consider….Not sure if decision is taken in this aspect."

Mr. G. Prakash appearing on behalf of the State of Kerala sought time to file some information that he had obtained in this regard. He assured the Court that the State has already deposited 3 lakhs as per the proposal.

The Bench directed the State of Kerala to file a status report regarding the implementation of the order dated 26.08.2021.

West Bengal

It was brought to the Court's attention that the affidavit submitted by the State of West Bengal was vague.

Mr. Sayandeep Pahari appearing on behalf of the State of West Bengal submitted that he had obtained oral instructions and assured the Bench that the scheme was being implemented.

"The scheme is divided into two branches. One set is for the children and no. 2 are for the families. These are all pre-existing schemes that are being implemented. If your lordship permits I can get back with a detailed status report and show how WB has implemented it...I assure the schemes are being implemented."

The Bench expressed concern -

"There are a large number of children in your State. File an affidavit regarding what is the support that the State is providing to these children in one week."

Matter to be taken up on 13th December, 2021.

Another issue that the Amicus curiae brought to the forefront was the issue of video conferencing SOP.

"Your Lordship had directed the HCs to consider that. I have received suggestions from 13, 2 came over the weekend...so 15. I was only requesting that the others can give suggestions in 3 weeks, it can go in January."

The Bench directed that the SOP would be taken up in January and in the meanwhile, the remaining High Court can make suggestions.

[Case Title: In re: Children in need of Care and Protection due to Loss of Parents during Covid-19]