Abandoned children entitled to same benefits as orphaned children; no distinction between them: Bombay High Court

The Bombay High Court Thursday came down heavily on the Maharashtra government for its stand that benefits like reservation extneded to orphaned children cannot be given to abandoned children [NEST India Foundation v. State of Maharashtra & Ors].A division bench of Justices GS Patel and Neela Gokhale noted that the Juvenile Justice Act does not distinguish between a child who is abandoned and a child who is an orphan.“We note the definition of orphans, interestingly, also includes children whose legal guardian is incapable of caring for the child. Point to be noted is that act itself does not distinguish between child who is adopted and child who is orphan” the order states..The Court was hearing a petition filed by NEST India Foundation, a charitable trust, which sought issuance of certificate from the authorities to the girls declaring them as abandoned children..Government pleader Purnima Kantharia informed the Court about a government resolution which does not permit certificate to be given to an abandoned child.She argued that the government could issue certificates to orphans as only they were entitled to reservation, and the same could not be availed by abandoned children. She reasoned that orphans had no one to care for them but abandoned children have someone to take care of them..The Court was, however, was not convinced. It asked Kantharia to explain on what basis the State considered an abandoned child to be more advantaged than an orphan child. “There is no distinction, at least there is no moral distinction. What according to you is the material distinction justifying or taking away the reservation to abandoned child? What is the logic? There is distinction without any difference. It is entirely meaningless, and it defeats the purpose of the Juvenile Justice Act. How an abandoned child, whose parents are alive is not advantaged, to an orphaned child,” the Bench said..The Court underlined that it was the State’s responsibility to look after the children, both orphaned and abandoned, and ensure well-being.“We expect far less bureaucracy from the state and far more concern from the state. These children are not responsible for their condition, why is the state implicitly saying to the children, ‘your parents abandoned you, too bad!’ Technically, just see, neither of them is a child, what they are asking is a certificate of their tragic past, are we going to deny them that as well?” Justice Patel said..During the hearing, the High Court was informed that the committee set up under the Juvenile Justice Act refused to grant a certificate on the ground that the girls were no more minors and that their mother had visited them a couple of times. The committee also asked the girls to produce a police verification report.Pursuant to that, a police report was produced specifying that their mother’s whereabouts were not known.In light of this, the Court concluded that the report could be accepted by the committee.The Court asked the committee to conduct an enquiry and grant the document certifying that the two girls had been abandoned as children in the past even if they may be adults now. "They are not asking for reservation or admission into some institution! Investigation has been done, these girls want to study because they have suffered all possible prejudice, are we to deny them that?” the judge said directing the committee to decide the application considering the provisions of the JJ Act. "Having regard to the state of the record and fact as they have unfolded, we are satisfied that necessary material and child welfare committee is already on record. The unwillingness of the guardians to care for them manifests from the record," the Court said..The Court reiterated that what the children were seeking was a declaration that the time spent in the trust is as an abandoned child and orphan under the JJ Act.“The committee is not to reject the application, as being non-compliant, as we are satisfied that there is sufficient compliance,” the Court ordered..The Court did not dispose of the petition or any interim application but instead posted the matter for further consideration on February 22, 2023, by which date the committee has to comply with the order.