SUPREME COURT CLARIFIES 'CHILD' UNDER RTE ACT INCLUDES ORPHANS, ORDERS SURVEY ON IMPLEMENTATION OF BENEFITS:

On August 6, the Supreme Court directed all States and Union Territories to conduct a comprehensive survey to determine whether orphan children are receiving the benefits of free and compulsory education as mandated under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). The direction came during the hearing of a public interest litigation (PIL) filed by advocate Poulomi Pavini Shukla, who appeared in person, seeking care, protection, and educational access for orphan children in India.

The case was heard by a bench comprising Justices BV Nagarathna and KV Viswanathan. The petitioner highlighted the absence of any official data on orphan children, pointing out that even the national census does not capture such information. She cited UNICEF data estimating that India has over 25 million orphaned children, among the highest globally. She also urged the inclusion of orphaned children in the national census to ensure their needs are adequately represented in policymaking.

The petitioner submitted that although the RTE Act mandates free and compulsory education for all children aged 6 to 14 under Section 3, orphans often remain excluded due to the lack of specific categorization under the Act. Section 12(c) of the RTE Act requires private unaided and special category schools to reserve 25% of seats for children belonging to disadvantaged groups and weaker sections. While some States such as Delhi, Gujarat, Jharkhand, Odisha, Sikkim, Manipur, Meghalaya, and Arunachal Pradesh have issued notifications including orphans within this quota, many others have not.

Shukla argued that orphaned children, due to the absence of parental or guardian support, clearly qualify as disadvantaged and should be expressly included under the Act. She referred to Section 12(d), which uses the phrase "such other factor," to argue that orphans can and should be interpreted within this broader category of disadvantaged children. In response, the Court noted that the RTE Act is intended to benefit all children and emphasized the responsibility of the State to act as parens patriae, a guardian for orphaned children—to ensure their right to education is protected.

Taking these submissions into account, the Court directed the States and Union Territories to carry out a two-fold survey: first, to identify how many orphan children have already been granted admission under the RTE Act; and second, to ascertain how many have been denied access and the reasons for such denial. The Court instructed that, where orphaned children have not been admitted due solely to their status, authorities must ensure that they are enrolled in nearby schools. Four weeks were granted for the States and UTs to comply and submit affidavits detailing their actions and findings

Additionally, the Court encouraged States that have not yet issued notifications to include orphans within the 25% reservation quota under Section 12(c) to do so. If a State chooses not to issue such a notification, it must submit an affidavit explaining its reasoning, signed by the Secretary of the Department of Education.

Following the main order, the petitioner urged the Court to direct the inclusion of orphaned children in the national census. Since Solicitor General Tushar Mehta was present in court for another matter, the bench sought his view. Mehta responded positively and assured the Court that he would seek instructions on the issue.

The matter has been listed for further hearing on September 9, with the Court expecting compliance reports and updates from the States and Union Territories by then.