By Khushboo Sharma and Pranjul Dalela
Introduction
The second wave of COVID-19 that hit India left a large number of orphaned and vulnerable children. Up to thirty thousand children have been orphaned or abandoned, according to figures given by state governments/UTs on the ‘BalSwaraj’ Portal. This has resulted in serious financial difficulties for these children, who have had to bear the brunt of the situation. Moreover, social media has become a hunting field for those trying to make money from vulnerable and orphaned children by calling illegal posts for adoption and seeking financial aid for them. States have created initiatives to support such children in order to combat the above issue. In light of the same, a central initiative called PM CARES has been launched to provide assistance.
The first section of the blog discusses the problems involved with the government’s PM CARES programme and how it infringes on the rights of such children, who are among the most vulnerable groups affected by the global pandemic. In the later part, the issues pertaining to the adoption mechanism and government procedure are examined. The final part concludes the article by providing the constitutional mandate with respect to the liability of the government vis-à-vis the issue.
Flaws in the PM Cares Scheme
It is laudable that state and federal governments have put in place plans for children who have lost their parents as a result of COVID-19’s second wave. However, it comes with multiple flaws. Despite the fact that the symptom of death remained COVID-19, the parents’ death certificates do not list COVID-19 as the cause of death. The Supreme Court has also taken action by directing the Centre to provide death certificates indicating the cause of death as COVID-19 if so caused. Furthermore, many in remote regions are yet to get death certificates. This makes it more difficult for the children to benefit from the scheme.
The virus has played a direct or indirect role in the majority of the deaths that were not recognized as COVID-19 deaths. This is due to the fact that the COVID-19 virus weakened the bodies of individuals who already had previous medical histories that made them vulnerable to the virus, causing them to succumb to it. Moreover, this pandemic has had a detrimental influence on everyone and has resulted in a phenomenon known as “social orphanhood,” in which children are left to shift for themselves despite the presence of one or both parents. This is because the sole earning members have died, leaving behind the surviving parent unable to completely support the child thus, causing mental suffering to many of these children and families. This would result in keeping such children or other people who need support out of the PM CARES Scheme, making it more distressing for them.
Furthermore, the PM CARES Scheme promises to pay an amount of ten lakhs to the orphaned children when they turn twenty-three years old. They would also be paid a monthly stipend once they turn eighteen. Additionally, the PM CARES guidelines also promise to assist these children with education loans for their higher education. However, these promises seem to be prima facie flawed. The primary reason for it is that there lie no procedural guidelines to distribute the said amount to these children when they turn the respective ages. Assuming the fact that a procedure is established, it would still be more difficult for the children who lost their parents at a tender age to benefit from the scheme. This is because there lies an extensive time gap for such children to avail the benefit, which would eventually lead to the manipulation of the process. Even if we disregard all these factors, we cannot overlook the fact that the government is yet to deliver on comparable promises made in the past. It is therefore recommended to have a transparent database wherein the details of all the orphan and abandoned children could be updated, which would also include the aid and financial assistance as promised by the government. This would ensure transparency and clarity on the promises made by the government.
In addition, to ascertain transparency and to make sure that the donations contributed by the public to the PM CARES Scheme are not arrogated by any government officials, it is pertinent that the information regarding donations be disclosed as it serves a public purpose. The same has been provided under Article 19(1)(a) of the Constitution, and thus, for the said purpose, the respective body must fall into the bracket of “Public Authority.”
Section 2(h)(d)(i) of the RTI Act provides the meaning of “Public Authority,” wherein the word “control” signifies such a degree which amounts to substantial control over the management and affairs of that respective body. With regard to the PM CARES Fund, the board of directors consists of the Prime Minister as the ex officio chairman, and the ex-officio trustees are Ministers of Defence, Home Affairs, and Finance, who eventually determine the accumulation and distribution of funds. Therefore, this management clearly determines that the PM CARES Funds falls under the bracket of “substantial control” by the government and, thus, is a “Public Authority.”
Even if we take into consideration Section 8(1)(j) of RTI Act which provides for an exception to disseminate information, a balance must be drawn between Article 19(1)(a), i.e., right to information, and Article 21 which includes right to privacy. It has been held that only such information that does not authorize public interest could be safeguarded. However, if the knowledge of such information is critical in character, the same shall be disclosed, indicating public interest as paramount. As the PM CARES Fund, being a public charitable fund, primarily deals with the benefit of the general public, therefore it is pertinent that at least the corpus of funds accumulated is disclosed to the general public so that the public is assured that government would stand by its promise to assist such vulnerable children.
(Khushboo Sharma and Pranjal Dalela are third year students at NLIU, Bhopal and NUSRL, Ranchi respectively.)
The RMLNLU Constitutional Law & Public Policy Blog 
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