The Bombay High Court has formulated four inquiries to address the constitutional and legal aspects of whether it is permissible to classify 'abandoned' children as 'orphans' for the purpose of granting them reservation benefits in education and employment.

A panel consisting of Justices SB Shukre and Firdosh Pooniwalla established these questions in response to a petition presented by the NEST India Foundation, a charitable organization. This petition requested the issuance of certificates designating two female children as abandoned youngsters.

The division bench identified that the petition raises the following four constitutional and legal concerns:
•    Is not including an abandoned child in the government resolution (GR) that grants reservation benefits to orphaned children discriminatory and hence unconstitutional?
•    If the court concludes the GR is unconstitutional, in order to save the constitutionality, should the word 'orphan' be read to include abandoned, and is it permissible?
•    Does the GR discriminate between institutional and non-institutional categories of reservation?
•    Can provisions of the Juvenile Justice (Care and Protection of Children) Act (JJ Act) which does not deal with reservation at all, be used to widen the scope of the word 'orphan'?

In February 2023, a related bench had observed that the Juvenile Justice (JJ) Act did not differentiate between a child who has been abandoned and a child who is officially considered an orphan. Initially, this bench did not concur with the State government's position that reservation benefits for orphaned children should not be extended to abandoned children.

Nevertheless, the same bench also concurred with the State's concern that parents might intentionally abandon children, particularly girl children, with the intention of gaining reservation benefits if such a reservation were to be established for abandoned children.

The Court ultimately reached the conclusion that a comprehensive examination of the law on this matter is necessary. It indicated that this examination will take place when the petition is finally heard.

Hence, the Court formulated the aforementioned questions for the lawyers to present arguments and debate upon during the proceedings.
The petition will be scheduled for a final hearing in due course.

Case: Nest India Foundation & Ors. v. State of Maharashtra INTERIM APPLICATION (L) NO.30500 OF 2022 IN WRIT PETITION NO.2164 OF 2022