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GS Paper: Laws, Institutions & Bodies Constituted For The Vulnerable Sections

  • Economic criterion not sole basis for Creamy Layer: Supreme Court

    The basis of exclusion of ‘creamy layer’ cannot be merely economic, a Supreme Court Bench has observed in their judgment, while referring to the court’s Indra Sawhney verdict of 1992.

    What was the case?

    • The court was hearing a petition challenging some notifications by the Haryana government sub-classifying backward classes solely on economic basis while fixing the criteria for creamy layer.
    • The notifications said children of persons having “gross annual income” of up to ₹3 lakh annually would get the benefit of reservation in services and admission in educational institutions.
    • The remaining quota would go to those from backward families, which earn between₹3 lakh and ₹6 lakh per annum.
    • The sections earning over ₹6 lakh annually were considered as ‘creamy layer’ under Section 5 of the 2016 Act.
    • The apex court held that the Haryana’s notifications have violated the law declared in the Indra Sawhney judgment by identifying creamy layer only on the basis of income.

    Defying Indra Sawhney Verdict (1992)

    • The case had declared that ‘creamy layer’ in a backward community should be excluded from reservation so that the more deserving were able to come up.
    • Explaining this verdict, court said that such persons were to be treated as ‘creamy layer’ without any further inquiry.

    Who else would be excluded from such reservation?

    • Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, should be treated as outside the backward class.
    • Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation.

    Key takeaways from the Judgement

    • The Supreme Court has held that the government cannot deny reservation to a person belonging to a backward community solely on the ground that he or she is rich.
    • Social advancement, higher employment in government services, etc, played an equal role in deciding whether such a person belonged to the creamy layer and could be denied quota benefits.
    • The court had illustrated that ‘creamy layer’ would include persons from backward classes who occupied posts in higher services like IAS, IPS, and All India Services.
    • These persons had reached a higher level of social advancement and economic status,and therefore, were not entitled to be treated as backward.

    What is the Creamy Layer?

    • Creamy Layer is a concept that sets a threshold within which OBC reservation benefits are applicable.
    • While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” cannot get the benefits of this quota.

    Basis of Creamy Layer

    • It is based on the recommendation of the Second Backward Classes Commission (Mandal Commission).
    • The government in 1990 had notified 27% reservation for Socially and Educationally Backward Classes (SEBCs) in vacancies in civil posts and services that are to be filled on direct recruitment.
    • After this was challenged, the Supreme Court in the Indira Sawhney case (1992) upheld 27% reservation for OBCs, subject to exclusion of the creamy layer.

    How is it determined?

    • Following the order in Indra Sawhney, an expert committee headed by Justice (retired) R N Prasad was constituted for fixing the criteria for determining the creamy layer.
    • In 1993, the Department of Personnel and Training (DoPT) listed out various categories of people of certain rank/status/income whose children cannot avail the benefit of OBC reservation.
    1. For those not in government, the current threshold is an income of Rs 8 lakh per year.
    2. For children of government employees, the threshold is based on their parents’ rank and not income.
    3. For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services.
    4. If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer.
    5. Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer.
    6. Income from salaries or agricultural land is not clubbed while determining the creamy layer (2004).

    Back2Basics: Indira Sawhney Case

    In the famous Mandal case (Indra Sawhney Case, 1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favor of backward classes, has been examined thoroughly by the Supreme Court.

    • Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of a 27% reservation for the OBCs with certain conditions.
    • The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
    • No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., up to 1997).
    • The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
    • The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate the 50% rule.

  • [pib] E-Shram Portal:  National Database on Unorganized Workers (NDUW)

    The Union Ministry of Labour & Employment will launch the e-Shram portal – National Database on Unorganized Workers (NDUW).

    What is the E-Shram Portal?

    • The government aims to register 38 crore unorganized workers, such as construction labourers, migrant workforce, street vendors and domestic workers, among others.
    • The workers will be issued an e-Shram card containing a 12-digit unique number, which, going ahead, will help in including them in social security schemes.
    • The government had earlier missed deadlines for creating the database, inviting criticism from the Supreme Court.

    How will the registration for workers happen on the portal?

    • The registration of workers on the portal will be coordinated by the Labour Ministry, state governments, trade unions and CSCs.
    • Awareness campaigns would be planned across the country to enable nationwide registration of workers.
    • Following the launch of the portal, workers from the unorganized sector can begin their registration from the same day.
    • A national toll free number — 14434 — will also be launched to assist and address the queries of workers seeking registration on the portal.
    • A worker can register on the portal using his/her Aadhaar card number and bank account details, apart from filling other necessary details like date of birth, home town, mobile number and social category.

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  • [pib] Income Limit of OBCs and Creamy Layer

    A proposal for revision of the income criteria for determining the Creamy Layer amongst the OBCs is under consideration of the Government.

    What is the Creamy Layer?

    • Creamy Layer is a concept that sets a threshold within which OBC reservation benefits are applicable.
    • While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” cannot get the benefits of this quota.

    Basis of Creamy Layer

    • It is based on the recommendation of the Second Backward Classes Commission (Mandal Commission).
    • The government in 1990 had notified 27% reservation for Socially and Educationally Backward Classes (SEBCs) in vacancies in civil posts and services that are to be filled on direct recruitment.
    • After this was challenged, the Supreme Court in the Indira Sawhney case (1992) upheld 27% reservation for OBCs, subject to exclusion of the creamy layer.

    How is it determined?

    • Following the order in Indra Sawhney, an expert committee headed by Justice (retired) R N Prasad was constituted for fixing the criteria for determining the creamy layer.
    • In 1993, the Department of Personnel and Training (DoPT) listed out various categories of people of certain rank/status/income whose children cannot avail the benefit of OBC reservation.
    1. For those not in government, the current threshold is an income of Rs 8 lakh per year.
    2. For children of government employees, the threshold is based on their parents’ rank and not income.
    3. For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services.
    4. If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer.
    5. Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer.
    6. Income from salaries or agricultural land is not clubbed while determining the creamy layer (2004).

    What is happening now?

    • MPs have raised questions about the pending proposal for revising the criteria.
    • They have asked whether the provision of a creamy layer for government services only for OBC candidates is rational and justified.

    Has it ever been revised?

    • Other than the income limit, the current definition of the creamy layer remains the same as the DoPT had spelled out in 1993 and 2004.
    • The income limit has been revised over the years.
    • No other orders for the definition of the creamy layer have been issued.
    • While the DoPT had stipulated that it would be revised every three years, the first revision since 1993 (Rs 1 lakh per year) happened only in 2004 (Rs 2.50 lakh), 2008 (Rs 4.50 lakh), 2013 (Rs 6 lakh), and 2017 (Rs 8 lakh).
    • It is now more than three years since the last revision.

    What does the government propose to do about the revision?

    • A draft Cabinet note has stated that the creamy layer will be determined on all income, including salary calculated for income tax, but not agriculture income.
    • The government is considering a consensus on Rs 12 lakh but salary and agriculture income are also being added to the gross annual income.

  • Winning the battle against trafficking

    Context

    July 30 is United Nations World Day against Trafficking in Persons. It is also a time to reflect on India’s human trafficking crisis.

    What are factors increasing vulnerability?

    • Between April 2020 and June 2021, an estimated 9,000 children have been rescued after being trafficked for labour, according to a child rights non-governmental organisation (NGO).
    • Economic distress due to pandemic: The pandemic has resulted in the loss of income and economic crisis.
    • Loss of parental care: It has also caused, in some instances, loss of parental care due to death, illness or separation.
    • Relaxing of legal provision: These factors are compounded by an erosion of some of the checks against child labour and child marriage provided by law, as well as the scrutiny of schools and society.
    • Child marriages are also rampant — over 10,000 cases were tracked between April and August 2020.
    • Internet access: The increase in Internet access in current times has also led to cyber-trafficking.
    • A recent report by the United Nations Office on Drugs and Crime on the effects of the pandemic on trafficking echoes these findings.

    Challenges in dealing with the issue

    • Lack of national-level data: The Government admitted in Parliament as recently as March 2021 that it does not maintain any national-level data specific to cyber trafficking cases.
    • India does not meet the minimum standards: India is still classified by the U.S. Department of State as a Tier-2 country in its  report on global human trafficking.
    • This means that the Government does not fully meet the minimum standards under U.S. and international law for eliminating trafficking, but is making significant efforts to comply.
    • Lack of implementation: The Anti-Human Trafficking Units (AHTUs) are specialised district task forces comprising police and government officials.
    • In 2010, it was envisioned that 330 AHTUs would be set up.
    • RTI responses in August 2020 showed that about 225 AHTUs had been set up, but only on paper.

    Way forward

    • AHTU: If properly staffed and funded, AHTUs could provide crucial ground-level data on the methods and patterns of traffickers.
    • This, in turn, can strengthen community-based awareness and vigilance activities.
    • Incentivise education and provide safe employment: Global practices such as in Nigeria, Africa, should be encouraged in India, in consonance with a larger framework to protect women and children by incentivising education and creating safe employment opportunities.
    • Implementation of laws: There is no shortage of anti-trafficking policy in India.
    • Where the system is found lacking is in the implementation of the laws.
    • Take preventive action: The failure of existing institutional mechanisms to foresee the present crisis should spur the Government and other stakeholders to take preventive action now.

    Discussion needed on the provision of draft anti-trafficking Bill

    • Significant discussion is required on the provisions of the Bill, particularly with respect to bringing in the National Investigation Agency and increasing the punishment for offences, including the death penalty.
    • Ensure effective functioning of AHTUs: The draft Bill also provides for AHTUs/committees at the national, State and district levels, but as noted, their effective functioning cannot be taken for granted.
    • Challenges faced by prosecutors and judges: There were 140 acquittals and only 38 convictions in 2019, according to government data.
    • This points to a failure of investigation and cannot be solved by the draft Bill’s provision that accused traffickers must be presumed guilty unless they can prove the contrary.
    • Case management: Trials can drag on for years, with victims sometimes withdrawing their complaints after being intimidated by traffickers.
    • Proper case management must be introduced to give meaning to the “fast track” courts.
    • Compensation and counselling: Other problems include the low number of beneficiaries of monetary compensation and the lack of consistent access to psychological counselling.
    • Parts of the draft Bill recognise the importance of rehabilitation, but implementation is key.

    Conclusion

    Effective implementation of the legal provision and discussion on the various provisions of the draft law is required to deal with the menace of trafficking in persons.

  • Issues faced by India’s sexual minorities

    The article highlights the plight of sexual minorities despite the landmark judgments by the Supreme Court.

    Role played by the judiciary

    • The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
    • The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
    • In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
    • However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
    • This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
    • It also underscored the doctrine of progressive realisation of rights.

    No legal sanction to same-sex marriage

    • Despite the judgments of the Supreme Court, there is still a lot of discrimination against sexual minorities in matters of employment, health and personal relationship.
    • The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India.
    • The Union of India stated that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry. 
    • The U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage and asserted that the universal human right of marriage should not be denied to a same-sex couple.
    • Indian society and the state should synchronise themselves with changing trends.

    Need to amend Article 15 to prohibit discrimination based on gender or sexual orientation

    • Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them.
    • The grounds of non-discrimination should be expanded by including gender and sexual orientation.
    • In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
    • The United Kingdom passed the “Alan Turing law” in 2017 which ‘granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts’.

    Way forward

    • Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitise the general public and officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels.
    • School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity.
    • Heteronormativity is the root cause of hetero-sexism and homophobia.

    Conclusion

    It is time for change, but the burden should not be left to the powers that be. The onus remains with the civil society, the citizenry concerned and the LGBTQ+ community itself.

  • Verdict on Maratha reservation ignores inequality within intermediate castes

    The article highlights the issues with Maratha reservation judgement delivered by the Supreme Court which rejected the positive discrimination of lower classes of dominant caste.

    About the verdict

    • The Supreme Court rendered a unanimous verdict on the validity of the SEBC Act, 2018 that was to grant reservation to Marathas.
    • The court held that the classification of Marathas as a socially and educationally backward class was unreasonable.
    • Court held that Maratha belonged to a politically dominant caste with significant economic resources.

    Justification for 50% limit

    • The court also concluded that the majority opinion in the Indra Sawhney case was correct and that the limit of 50 per cent for caste-based reservation did not need consideration by a larger bench.
    • The court justified the fixed quantitative limit on caste-based reservation by postulating that it was intrinsic to the fundamental principle of equality.
    • The court highlighted the need to safeguard the interests of unreserved sections and said that all sections have progressed after 70 years of independence.
    • Based on this, the court rejected the state’s argument that the breach of the limit was necessitated by the fact that the population of backward classes was over 80 per cent.

    Missed opportunity to acknowledge growing socio-economic differentiation within the dominant castes

    Growing income difference

    • If in 2011-12, the average per capita income of the Marathas was second only to the Brahmins at Rs 36,548, against Rs 47,427.
    • Their highest quintile -20 per cent of the caste group- got 48 per cent of the total income of the Marathas with a mean per capita income of Rs 86,750.
    • The lowest quintile earned 10 times less (Rs 7,198) and the 40 per cent poorest got less than 13 per cent of the total income of the caste — and were lagging behind the Scheduled Castes elite.
    • In fact, the mean incomes of the highest Dalit quintile, Rs 63,030, and that of the second-highest, Rs 28,897, were above those of the three lowest quintiles of the Marathas.

    What explains growing income difference

    • This is partly due to changes on the education front. 
    • The percentage of graduates among Dalits in 2004-05 was 1.9 per cent and has more than doubled to 5.1 per cent in 2011-12.
    • The corresponding figure for the OBCs was 3.5 per cent and has doubled to 7.6 per cent, while for the Marathas it was 4.6 per cent in 2004-05 and has come up to 8 per cent in 2011-12.
    • Correlatively, the percentage of salaried people among the Dalits was about 28 per cent in Maharashtra in 2011-12, as against 30 per cent among the Marathas.

    Issues with the Maratha quota judgment

    •  The Court refused to recognise the need for positive discrimination of the lower classes of the dominant castes which continue to be seen as a dominant bloc.
    • It fails to admit the complexity that the role of class has introduced in post-liberalisation India.
    • This is unequivocal confirmation of a dated approach to social realities and a purely arithmetic limit that finds no expression in the Constitution.
    • The judgement also raises the issue of judicial supremacy in the broad area of social policy as it could lead to undesirable exclusion of beneficiaries.
    • The court seems to have forgotten its own observation in NM Thomas case that functional democracy postulates participation of all sections of the people and fair representation in administration is an index of such participation.

    Conclusion

    The Supreme Court has rejected the determination of Marathas as backward by holding that their relative deprivation and under-representation with regard to other sections of the general category did not entitle them to affirmative action.

  • Child labour in India

    The article highlights the risk posed by pandemic to the gains made by India on reducing the child labour in India.

    Child labour in India

    • A Government of India survey (NSS Report No. 585, 2017-18) suggests that only 79.6%. of the children in the age group of 14-17 years are attending educational institutions (formal and informal).
    • The Census of India 2011 reports 10.1 million working children in the age group of 5-14 years.
    • Out of whom 8.1 million are in rural areas mainly engaged as cultivators (26%) and agricultural labourers (32.9%).
    • UNESCO estimates based on the 2011 Census record 38.1 million children as “out of school” i.e.18.3% of total children in the age group of 6-13 years.
    • A Rapid Survey on Children (2013-14), jointly undertaken by the Ministry of Women and Child Development and UNICEF, found that less than half of children in the age group of 10-14 years have completed primary education.

    How policies and initiatives helped reduce child labour in India (2001-11)

    • Child labour in India decreased in the decade 2001 to 2011.
    • Policy interventions such as the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) 2005, the Right to Education Act 2009 and the Mid Day Meal Scheme have paved the way for children to be in schools along with guaranteed wage employment (unskilled) for rural families.
    • Efforts towards convergence of government schemes is also the focus of the implementation of the National Child Labour Project.
    • Ratifying International Labour Organization Conventions Nos. 138 and 182 in 2017, the Indian government further demonstrated its commitment to the elimination of child labour.
    • The Ministry of Labour and Employment-operated online portal allows to share information and coordinate on child labour cases at the national, State and local levels for effective enforcement of child labour laws.

    Challenges ahead

    • The economic contraction and lockdowns have worsened the situation, posing a real risk of backtracking the gains made in eliminating child labour.
    • With increased economic insecurity, lack of social protection and reduced household income, children from poor households are being pushed to contribute to the family income.
    • With closure of schools and challenges of distance learning, children may drop out leaving little scope for return unless affirmative and immediate actions are taken.
    • As many schools and educational institutions are moving to online platforms for continuation of learning, the ‘digital divide’ is a challenge that India has to reconcile within the next several years.
    • The NSS Report titled ‘Household Social Consumption on Education in India’ suggests that in 2017-18, only 24% of Indian households had access to an Internet facility.
    • The Annual Status of Education Report (ASER) 2020 survey highlights that a third of the total enrolled children received some kind of learning materials from their teachers during the reference period (October 2020) as digital mode of education was opted for.

    Way forward

    •  It is through strategic partnerships and collaborations involving government, employers, trade unions, community-based organisations and child labour families that we could make a difference building back better and sooner.
    • We need a strong alliance paving our way towards ending child labour in all its forms by 2025 to achieve Sustainable Development Goal 8.7.

    Consider the question “What are the policy measures and programmatic intervention implemented to reduce the child labour in India. How Covid-19 threatens the gains made on reducing the child labour?”

    Conclusion

    To deal with the child labour challenge, we need the right level of commitment among all the relevant stakeholders and the right mix of policy and programmatic interventions are present.

  • Socio-Economic Impact of Pandemic on Women

    The article highlights the disproportionate impact of the pandemic on women and suggests measures to soften the impact.

    Widening gender employment gap

    • Even prior to 2020, the gender employment gap was large.
    • Only 18% of working-age women were employed as compared to 75% of men.
    • Reasons include a lack of good jobs, restrictive social norms, and the burden of household work.
    • The nationwide lockdown hit women much harder than men.
    • Data from the Centre for Monitoring Indian Economy Pvt. Ltd. show that 61% of male workers were unaffected during the lockdown while only 19% of women experienced this kind of security.
    • Men who did lose work were able to regain it, even if it was at the cost of increased precarity or lower earnings, because they had the option of moving into fallback employment arrangements.
    • Even as new entrants to the workforce, women workers had poorer options compared to men.
    • Women were more likely to enter as daily wage workers while men found avenues for self-employment.
    •  So, not only did women enter into more precarious work, it was also likely to be at very low earnings compared to men.

    Growing domestic work

    • With schools closed and almost everyone limited to the confines of their homes, household responsibilities increased for women.
    • The India Working Survey 2020 found that among employed men, the number of hours spent on paid work remained more or less unchanged after the pandemic.
    • But for women, the number of hours spent in domestic work increased manifold.
    • This increase in hours came without any accompanying relief in the hours spent on paid work.

    Way forward

    • The following measures are needed now:
    • The National Employment Policy, currently in the works, should systematically address the constraints around the participation of the women’s workforce.
    • Expansion of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) and the introduction of an urban employment guarantee targeted to women as soon as the most severe forms of mobility restrictions are lifted.
    • There is a need for coordinated efforts by States to facilitate the employment of women while also addressing immediate needs through the setting up of community kitchens, the opening of schools and anganwadi centres, and engagement with self-help groups for the production of personal protective equipment kits.
    • Further, a COVID-19 hardship allowance of at least ₹5,000 per month for six months should be announced for 2.5 million accredited social health activists and Anganwadi workers, most of whom are women.
    • The pandemic has shown the necessity of adequate public investment in social infrastructure.
    • The time is right to imagine a bold universal basic services programme that not only fills existing vacancies in the social sector but also expands public investments in health, education, child and elderly care, and so on, to be prepared for future shocks.

    Consider the question “Examine the impact of the pandemic on women. Suggest the measures to mitigate the impact.”

    Conclusion

    As the country meets the challenge of the second wave of the pandemic, it is crucial to learn lessons from the first wave to chart the policy path ahead.

  • Lend a helping hand to children the right way

    The article highlights the need to be aware of the legal provisions while helping a orphan child.

    Helping orphaned children

    • Social media is flooded with requests to adopt children who have lost their parents in the pandemic.
    • However, before handing over an orphan child to any agency, family or person, it is important to be aware of the laws.
    • If an orphan child is kept by someone without lawful authority, he or she may land themselves in trouble.
    • According to the Hindu Minority and Guardianship Act, 1956, the father, and in his absence the mother, is the natural guardian.
    • Not even a close relative can look after the child without authorisation.

    What are the options to help

    • First option is any individual who finds an orphan child or even any child who needs care and protection under the circumstances, should immediately call the toll free Childline number 1098.
    • It is an emergency phone outreach service managed by the Women and Child Development department’s nodal agency, the Childline India Foundation.
    • The second option is to intimate the district protection officer concerned whose contact details can be found on the National Tracking System for Missing and Vulnerable Children portal.
    • The third alternative is to approach the nearest police station or its child welfare police officer who is specially trained to exclusively deal with children.
    •  jOne can always dial the Emergency Response Support System (ERSS) which is a pan-India single number (112) based emergency response system for citizens in emergencies and seek the necessary help.
    • The non-reporting of such children is also a punishable offence under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA).

    Procedure after a child reaches outreach agency

    • Once an orphan child is recovered by the outreach agency, it is the duty of the said agency to produce the child within 24 hours before the Child Welfare Committee (CWC) of the district.
    • The CWC, after an inquiry, decides whether to send the child to a children’s home or a fit facility or fit person.
    • If the child is below six years, he or she shall be placed in a specialised adoption agency.
    • The State thus takes care of all such children who are in need of care and protection, till they turn 18 years.
    • In Sampurna Behrua vs Union of India (2018), the Supreme Court of India directed States and Union Territories to ensure that all child care institutions are registered.

    Procedure for adoption

    • Once a child is declared legally free for adoption by the CWC, adoption can be done either by Indian prospective adoptive parents or non-resident Indians or foreigners, in that order.
    • Another important feature of the JJA is that it is secular in nature and simple in procedure.
    • While the Hindu Adoptions and Maintenance Act, 1956 is religion specific but also relatively cumbersome in procedure.
    • Second, the procedure of adoption is totally transparent and its progress can be monitored from the portal of the statutory body, the Central Adoption Resource Authority.

    Directives to the police

    • The Supreme Court in Bachpan Bachao Andolan vs Union of India directed all Directors General of Police, in May 2013, to register a first information report as a case of trafficking or abduction in every case of a missing child.
    • At least one police officer not below the rank of assistant sub-inspector in each police station is mandatorily required to undergo training to deal with children in conflict with the law and in need of care and protection.
    • They are not required to wear a uniform and need to be child-friendly.
    • Similarly, each district is supposed to have its special juvenile police unit, headed by an officer not below the rank of a Deputy Superintendent of Police.
    • The Supreme Court in Re: Exploitation of children in Orphanages in the State of Tamil Nadu (2017) inter alia, specifically asked the National Police Academy, Hyderabad and police training academies in every State to prepare training courses on the JJA and provide regular training to police officers in terms of sensitisation.
    • The National Commission for Protection of Child Rights (NCPCR) recently wrote to the Chief Secretaries of all States and Union Territories on the issue of children orphaned due to COVID-19.

    Conclusion

    Following the Covid surge and subsequent increase in request for adoption of children, the laws and procedure for the protection of children must be noted.

  • Legal issues involved in adoption pleas for Covid-19 orphans

    The Covid pandemic has orphaned many children. As a consequence there has been an increase in pleas on social media for adoption. However, such pleas go against the legal provisions. The article deals with the issue.

    Legal provisions for protection of children

    • Today, some people are offering infants for instant adoption by stating how the children have lost their parents to pandemic.
    • However, such adoptions are illegal.
    • The Juvenile Justice (Care and Protection of Children) law was enacted in 2015.
    • The Juvenile Justice Act is a secular law, all persons are free to adopt children under this law.
    • The Juvenile Justice Rules of 2016 and the Adoption Regulations of 2017 followed to create the Central Adoption Resource Authority (CARA).
    • CARA is a statutory body for the regulation, monitoring and control of all intra-country and inter-country adoptions.
    • CARA also grants a ‘no objection’ certificate for all inter-country adoptions, pursuant to India becoming a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoptions.
    • India is also a signatory to the UN Convention on the Rights of the Child.
    • Thus, protections afforded to children became a legal mandate of all authorities and courts.
    • Persons professing the Hindu religion are also free to adopt under the Hindu Adoptions and Maintenance Act of 1956.
    • Rehabilitation of all orphaned, abandoned and surrendered children is regulated by the strict mandatory procedures of the Adoption Regulations.

    Procedure for adoption

    • The eligibility of prospective adoptive parents living in India, duly registered on the Child Adoption Resource Information and Guidance System (CARINGS), irrespective of marital status and religion, is adjudged by specialised adoption agencies preparing home study reports.
    • The specialised adoption agency then secures court orders approving the adoption.
    • All non-resident persons approach authorised adoption agencies in their foreign country of residence for registration under CARINGS.
    • Their eligibility is adjudged by authorised foreign adoption agencies through home study reports.
    • CARA then issues a pre-adoption ‘no objection’ certificate for foster care, followed by a court adoption order.
    • A final ‘no objection’ certificate from CARA or a conformity certificate under the adoption convention is mandatory for a passport and visa to leave India.

    Way forward

    • CARA must conduct an outreach programme on social media, newspapers and TV, warning everyone not to entertain any illegal adoption offers under any circumstances whatsoever.
    • The National and State Commissions for Protection of Child Rights must step up their roles as vigilantes.
    • Social activists, NGOs and enlightened individuals must report all the incidents that come to their notice.
    • Respective State Legal Services Authorities have the infrastructure and machinery to stamp out such unlawful practices brought to their attention.
    • The media must publicise and shame all those involved in this disreputable occupation.
    •  At the same time, the police authorities need to be extra vigilant in apprehending criminals.

    Conclusion

    Tough times call for tough measures. This business of criminal trading of children must be checked with an iron hand.