'Child' Includes 'Orphan Child': Supreme Court Orders Survey To Find If Orphans Are Given Benefits Under Right To Education Act

The Supreme Court today(August 6) directed the States and Union Territories to carry out surveys to find out whether orphan children are getting the benefit of free and compulsory education under the Right of Children to Free and Compulsory Education, 2009 ("RTE Act") or not. The Court passed the order in a writ petition seeking care and protection of orphan children in the country.

Before a bench comprising Justice BV Nagarathna and Justice KV Viswanathan, advocate and petitioner in person, Poulomi Pavini, submitted that, as per UNICEF's data, there are "25 million orphans" in India, the highest in the world. When Justice Nagarathna asked if the Ministry of Women & Children maintain data on orphan children, Pavini answered that there is no official data maintained. She added that even under the census, the data on them is not collected and insisted that their data should be collected in the census.

Pavini also submitted: "The National Commission of Backwards Classes recommended that orphans can be included in the backward class reservation in 2016." But Justice Nagarathna responded that the reservation is for the States to consider, and the Court can't do anything in that.

Pavini then argued that under the RTE Act, States are empowered to include any child, by way of notification, under the purview of the RTE Act. She pointed out that under Section 12(c) of the RTE Act, private unaided institutions and special category schools have 25% reservation for children belonging to disadvantaged groups and weaker sections. She added that many States like Delhi, Meghalaya, Orissa, Jharkhand, Sikkim, Manipur and Gujarat governments have notified orphaned children within this provision.

She pointed out that, anyway, an orphaned child is included within the RTE Act, but because there is no specific mention of their category, they are often excluded from the benefit of free primary education. Justice Nagarathna said: "2009 Act is for all children from 6 to 14 years." 

The Court considering the submissions, agreed that orphans children should be notified within Section 12(c) of the RTE Act where 25% quota can be reserved for them in schools. 

The Court ordered: "We have heard the petitioner, Poulomi Pavini Shukla and learned counsels for the Respondents. The petitioner has sought to seek the following reliefs. The petitioner, who is a practising advocate, has filed this writ petition invoking Article 32 of the Constitution of India as a public interest litigation in order to bring to the notice of this Court the vulnerable sections of the children, namely the orphans who have no parents and are in need of care and protection. The petitioner submitted that although there may be several schemes envisaged by the Central and State Governments for the care and protection of the orphans, nevertheless, the same be inadequate.

The emphasis in the petition is to ensure that orphan children are not left in the lurch in this country. In this regard, in drawing our attention to the prayers sought, she pointed out that under Section 12(d) of the Right of Children to Free and Compulsary Education, 2009, the definition of child should also include an orphan child, as such a child is maybe socially, culturally and economically and on gender-wise a disadvantaged child. She submitted that the expression 'such other factor' can also include that section of the children who are orphans and does not guardians. Such children may be in orphanages or other protective institutions. It was her contention that first and foremost need of such children is free and compulsary education in terms of the Act. In this regard, she drew our attention to Sections 3 and 12(c) of the Act. Section 3 envisages free and compulsory education for children from age of 6 to 14 years which is in align with Article 21A of the Constitution, which has recognised right to education as a fundamental right and also Article 51. In the absence of orphans having parents, it becomes duty of the States to act as parens patriae to ensure that such children are not denied free and compulsory education under the provisions of the Act. Therefore, the submission of the provision was that under Section 3 read with Section 12(c) of the Act, the right of the orphans to be admitted to neighbourhood school within the 25% quota may be recognised.

We find that the submission of the petitioner, who has appeared in person, requires consideration and we therefore direct the Respondent States to make a survey of the orphan children who have already been granted admission under the provisions of the Act and survey of children who have been denied free and compulsory education under the Act. If so, then for what reasons and submitted an affidavit in this regard. It is needless to observe that while this survey and data collection is done, simultaneous efforts should be made for ensuring that such deserving children (orphans) are admitted to neighbouring schools in case it has not been done so owing to the singular fact that such children are orphans and may not had the opportunity to be admitted to the neightbouring schools.

For ascertaining the aforesaid data and compliance, we grant four weeks time. We also take note of the fact that the Delhi, Meghalaya, Orissa, Jharkhand, Sikkim, Arunachal Pradesh, Manipur and Gujarat governments have issued notifications to include orphan children within the 25% quota to be admitted to neighbourhood schools. Other States may also consider issuing a notification and take steps to ensure that the aforesaid directions are complied with. In case, a notification is issued by States/UT, the same may be placed on record. We expect other States to issue such notification, failing which such an affidavit should be filed as to why the notification has not been issued by Secretary Department of Education. List on 9 September."

After the order was dictated, Pavini then requested that the Court consider another prayer of including orphan children in the census. Since the Solicitor General Tushar Mehta happened to be in the Court for another matter, the Court asked for his suggestion. Mehta responded affirmatively that orphan children should be included in the census data collection and said he would seek instruction.

Case Details:  POULOMI PAVINI SHUKLA Vs UNION OF INDIA|W.P.(C) No. 503/2018 

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