A Study Of The Rights Of The Children With Special Focus On The Issue Of Institutionalization
Shubham Sharma & Rohit Kadiyan
ABSTRACT
This study examines the persistent gap between India’s stated commitment to deinstitutionalisation and the continued reliance on institutional care for children who are, in the overwhelming majority, not orphans but children separated from their families by poverty, family breakdown, or social distress. Beginning with the evolution of the international legal framework, principally the Convention on the Rights of the Child, 1989, and the 2009 UN Guidelines for the Alternative Care of Children, the study traces how the principle that institutional care must be a measure of last resort has been incorporated into India’s constitutional and statutory scheme through Article 15(3) of the Constitution, the Commissions for Protection of Child Rights Act, 2005, the Integrated Child Protection Scheme, and the Juvenile Justice (Care and Protection of Children) Act, 2015, as amended in 2021.
The study places India’s experience against a comparative backdrop, examining the European Union’s phased withdrawal from large residential institutions in Central and Eastern Europe and the United States’ timeline- driven foster care model, in order to identify structural lessons for policy design, chiefly, that a legislative preference for family-based care is meaningful only when matched by sustained investment in foster care, adoption processing, and independent monitoring.
Drawing on Indian case law, including Jose Maveli v. State of Kerala, Sheela Barse v. Union of India, Gaurav Jain v. Union of India, and Bachpan Bachao Andolan v. Union of India, the study documents how the judiciary has repeatedly reaffirmed the last-resort principle while also exposing continuing deficiencies in institutional oversight, staffing, and family-tracing practice, deficiencies that were sharpened by the child-welfare pressures of the COVID-19 pandemic.
The study concludes that India’s legal architecture for deinstitutionalisation is well developed on paper but weakly implemented in practice, and that closing this gap requires time-bound family reunification efforts, expanded and better-funded foster care, faster adoption processing through CARA, independent social audits of Child Care Institutions, and the integration of child protection with poverty-alleviation policy. Treating institutionalisation as a symptom of unaddressed socio-economic distress, rather than as an isolated child-rights failure, is essential to any lasting reform.
