Institutionalisation under the JJ Act: Protective Custody or Preventive Detention?
~ By Vaishnavi Sundar
Abstract
Child Care Institutions form a central pillar of India’s child protection framework. Designed as temporary shelters for children in need of care and protection, they are meant to be stepping stones, safe spaces on the way back to family and community. But a growing body of empirical evidence tells a different story: many children stay far longer than intended, a significant number have living parents, and the institutional environments themselves can cause harm. This article examines whether CCIs are functioning as protective spaces or whether they have quietly become something closer to custodial institutions. Drawing on research from across India, including studies on CCIs in Telangana and borrowing a limited analytical lens from Michel Foucault’s work on institutional discipline, it argues that the care system is caught in a paradox it must urgently confront.
Key words: Child Care Institutions (CCIs), Institutionalisation of Children, Child Protection System, Alternative Care, Institutional Discipline.
Introduction: The Promise and the Problem
Imagine a child, not an orphan, not abandoned, whose mother fell ill and whose father lost his job. Within weeks, that child ends up in a government children’s home. The placement is meant to be temporary. But months pass. Then a year. The family visits less, the paperwork piles up, and gradually, the institution becomes the only world the child knows. This is not an exceptional story in India. It is, in many ways, an ordinary one. And it sits at the heart of a question that the Juvenile Justice (Care and Protection of Children) Act, 2015[1] has never quite answered: are Child Care Institutions (CCIs) genuinely protecting children, or are they quietly detaining them?
Across legal systems worldwide, the protection of children who lack adequate parental care remains a fundamental responsibility of the state. The Juvenile Justice Act was built with the ideas of rehabilitation and re-integration of children in their best interest as reflected under sec 3(xiii)[2]It recognises that some children, those who are abandoned, abused, trafficked, or homeless need the state to step in and provide safety. Child Welfare Committees (CWCs) were set up to make careful, case-by-case decisions about where each child should go. Sec.3(xii) emphasises that institutional care should be a last resort, used only when family-based options are unavailable or unsafe.[3] The United Nations Guidelines for the Alternative Care of Children[4], which India has endorsed in spirit, say the same thing: family is always preferred; institutions are a bridge, not a destination. However, the operational realities of institutional care raise critical questions regarding how these institutions function in practice.
Institutionalisation in Practice: Empirical Evidence
Empirical research on institutional care in India has highlighted several patterns that complicate the legal vision of temporary protection.
Children in Institutions: Beyond the ‘Orphan’ Narrative
The Public in general usually associates institutional care primarily with orphaned children. However, empirical studies challenge this assumption. Report of the Committee for Analysing Data of Mapping and Review Exercise of Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015 and Other Homes conducted by Ministry of Women and Child Development in the year 2018[5]examining children residing in institutional care indicates that a majority of institutionalised children have at least one living parent. Many children enter institutional care due to poverty, family conflict, parental illness, domestic violence, or other forms of social vulnerability rather than complete absence of family.
These findings suggest that institutionalisation often functions as a response to structural socioeconomic distress rather than abandonment. Families facing economic hardship or social instability may rely on institutions as a coping mechanism when community support systems are inadequate. This raises important policy questions regarding the role of child protection systems in addressing family vulnerability rather than simply relocating children into institutional settings.[6]
Duration of Institutional Residence
Although institutional placements are intended to be temporary, many children remain in institutions for extended periods, some studies have documented children staying in institutional care for several years, particularly when reintegration pathways remain limited. Prolonged institutionalisation can have long-term implications for children’s emotional development, identity formation, and social integration. When temporary protective arrangements gradually become long-term residential environments, institutions effectively become the primary social setting in which childhood unfolds.[7]
Institutional Environments and Experiences of Abuse
Empirical studies conducted on Child violence experiences in institutionalised/ orphanage care by Department of Infection & Population Health, University College London, U.K in the year 2016 also highlight concerns regarding the quality of institutional environments. Research involving children living in residential care facilities has reported experiences of physical punishment, psychological abuse, and other forms of disciplinary practices. While legal frameworks prohibit corporal punishment and mandate child-friendly environments, implementation challenges often arise due to limited oversight, insufficient staff training, and resource constraints. The existence of such experiences underscores the importance of robust monitoring and accountability mechanisms within institutional care systems.[8]
Psychological and Developmental Consequences of Institutionalisation
Mental Health Outcomes
Research examining the mental health of children in institutional care has identified elevated levels of anxiety, depression, and behavioural difficulties compared to children raised in family environments. Some studies have found that nearly half of institutionalised children require significant mental health support services, highlighting the psychological challenges associated with institutional living. Institutional environments often lack consistent caregiver relationships, which are critical for children’s emotional development. These are not minor side effects. They are serious, often lifelong, harms. Rotating staff structures and high child-to-caregiver ratios can limit opportunities for individualised attention.[9]
Social Development and Emotional Attachment
The absence of stable family relationships can also affect children’s social development. Research indicates that institutionalised children may experience difficulties forming secure attachments, maintaining peer relationships, and developing emotional resilience. These are not minor side effects. While institutions provide essential material support including food, shelter, and education they often struggle to replicate the relational and emotional dynamics of family environments. These findings suggest that institutional care, while necessary in certain circumstances, may not constitute an ideal developmental setting for children when used as a long-term solution.[10]
When Care Looks Like Control
There is a reason Michel Foucault wrote about institutions with such unease. Whether it is a school, a hospital, a prison, or a reformatory, institutions organise human life in ways that are fundamentally about regulation about making people legible, manageable, orderly. They do this through routines, schedules, rules, and hierarchies. They watch, they measure, they correct.
CCIs are, of course, not prisons. Nobody should make that crude comparison. But it is worth sitting with the question: what does daily life actually look like for a child in a children’s home? Meals at fixed times. Lights out on schedule. Permissions required for movement. Staff who rotate, so the faces change but the rules stay the same. Limited contact with the outside world which hampers a child’s creativity and autonomy to a great extent. This is not how we would choose to raise children if we had a choice. And for many of the children inside CCIs, there was a choice, it just wasn’t theirs to make, and the alternatives were never properly explored. The structure that is meant to provide safety can, over time, produce something that feels more like control than care. Most people working in CCIs are doing their best under difficult conditions. The point is structural: when institutions become the primary environment in which children grow up, they inevitably shape those children in ways that go well beyond their stated purpose. Protection becomes governance. Care becomes discipline.[11]
A Closer Look: CCIs in Telangana
The challenges described above are not abstract. In Telangana, research on Child Care Institutions has documented them in concrete detail. A study titled-“ Between Protection and Punishment: An Evaluation of Child Care Institutions within Telangana’s Juvenile Justice Framework” by Research Scholar from Kakatiya University, Warangal, Telangana conducted in the year 2020 examining CCIs through interviews with officials from child care institutions, members of the Telangana Child Justice Board, and legal experts specializing in juvenile justice has found resource shortages, understaffing, limited access to counselling and psychological services, and overcrowding in some facilities. Monitoring mechanisms, though they exist, face administrative constraints that lead to uneven enforcement across facilities.
None of this is a criticism of the people working in these institutions. Many of them are deeply committed to the children in their care, and they are often doing extraordinary things with inadequate resources. But the system they are working within is under-resourced, under-supervised, and structurally ill-equipped to deliver on the promise of temporary, rehabilitative care. Telangana’s experience is not unique. It reflects a national pattern. And it is a reminder that good law, without the resources and will to implement it, can become a way of looking like we are doing something while children continue to slip through the cracks.[12]
The Paradox of Protection
Here is the visible tension at the heart of this issue: CCIs are genuinely necessary. There are children, those who have been trafficked, severely abused, completely abandoned, for whom institutional care may be the safest option available. We should not romanticise family or community to the point where we pretend every child can go back to one.
But the system as it currently operates has allowed an emergency measure to become a routine one. The institution, designed for the exception, is being used for the rule. Children who could be with extended family aren’t, because kinship care is under-recognised and unsupported. Children who could be in foster families aren’t, because the foster care system remains underdeveloped. Children who could go home aren’t, because the reintegration process is slow and the support for returning families is almost non-existent. So the institution takes them all. And in doing so, it protects some children from immediate harm while potentially causing a different kind of harm that is the slow harm of growing up without a family, without autonomy, without the ordinary textures of childhood. This is the paradox. And the first step toward resolving is to acknowledge the issues prevailing within the framework.
Strengthening Alternatives: Towards a Child-Centred Protection Framework
Addressing the limitations of institutional care requires strengthening family-based alternatives within the child protection system. Empirical evidence suggests that institutionalisation, while necessary in certain emergency circumstances, should not become the default response to child vulnerability. Prolonged institutional care risks disrupting children’s emotional development, weakening family bonds, and creating environments where childhood is shaped primarily by institutional routines rather than relational care.
This article proposes a conceptual framework referred to as the, “Child Protection Continuum”, which situates institutional care within a broader spectrum of protective arrangements. The central premise is that child protection mechanisms should be organised hierarchically, prioritising solutions that preserve family and community relationships before resorting to institutional placements. Under this model, child protection responses can be conceptualised across four interconnected levels:
Level 1- Preventive Family Support: Targeted financial assistance, healthcare access, parental counselling, and community-based support networks that address structural vulnerabilities before institutionalisation becomes necessary.
Level 2- Extended Family and Kinship Care: Formalised arrangements where children are cared for by grandparents, aunts, uncles, or older siblings, preserving cultural continuity and family relationships. Governments should provide financial and social support to kinship caregivers.
Level 3- Community-Based Care: Foster care systems and community guardianship networks providing family-like environments as an intermediate layer of care between family preservation and institutional placement.
Level 4 – Institutional Care as Transitional Protection: Institutions should function as short-term stabilisation environments where children receive immediate protection, counselling, and rehabilitation services before transitioning to family-based care arrangements.
In addition to this continuum model, this article proposes three specific policy interventions: (i) community-based guardianship networks, where vetted and trained community members are registered as temporary guardians (ii) targeted family support funds within the child protection system to prevent economic-driven institutionalisation and (iii) statutory time-bound review mechanisms requiring periodic judicial or administrative review for children who remain in institutions beyond a specified period.
Strengthening reintegration also requires consistent implementation of Individual Care Plans mandated under the JJ Act, along with counselling services, educational support, and structured follow-up for children returning to family environments. The challenge lies not in eliminating institutions but in ensuring that institutional placements remain short-term, child-centred, and subject to strong oversight mechanisms.[13]
Reimagine the institution itself
For children who do need residential care, institutions should feel less like institutions. Smaller, more home-like settings and stable caregivers who build genuine relationships with the children in their care. Trauma-informed approaches, Education about rights and Real participation by children in decisions that affect their lives would help in unfolding their childhood in a much better way. This is not utopian, it is the standard that the law itself sets, and that many institutions, with adequate resources and training, could reach.
Conclusion: A Child at the Crossroads
The Juvenile Justice Act was written to point children toward the doorsteps of a family. But too many of the children moving through the system are ending up at gates of CCIs instead not because anyone intended it, but because the system has not been honest enough about the gap between its aspirations and its realities, or committed enough to closing it. Protecting children should never mean institutionalising childhood. It should mean doing the harder, slower, less visible work of holding families together, building communities that support their most vulnerable members, and reserving the institution for the rare cases where there truly is no other way.
That work is possible. What it requires, above all, is the will to take it seriously.
“One path ends at a gate. The other, at a doorstep. A child should never have to stand long enough at that crossroads to forget which one she deserves.”
Author’s Bio – Vaishnavi Sundar is a L.L.M Student at NALSAR University of Law, Hyderabad (Batch of 2026).
References
[1] Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2 of 2016. < https://www.indiacode.nic.in/bitstream/123456789/8864/1/201602.juvenile2015pdf.pdf >
[2] 3(xiii) of Juvenile Justice (Care and Protection of Children) Act, 2015
[3] Section 3 (Xii) of Juvenile Justice (Care and Protection of Children) Act, 2015
[4] United Nations Guidelines for the Alternative Care of Children, G.A. Res. 64/142, U.N. Doc. A/RES/64/142 (2010).
[5] Ministry of Women and Child Development, Report of the Committee for Analysing Data of Mapping and Review Exercise of Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015 and Other Homes (2018).
[6] Raj Saravana Khumar A.N., A Study on Self-Efficacy of Child Care Institutions and Assessment of Quality of Life of Children Residing in CCIs in West Region of Tamil Nadu, India (Doctoral Thesis,Amrita Vishwa Vidyapeetham University, 2022). < http://hdl.handle.net/10603/438277 >
[7] Ibid.
[8] Lorraine Sherr et al., Child Violence Experiences in Institutionalised Orphanage Care, 17 Child Abuse & Neglect (2017).
[9] Bhuvaneswari K., Mental Health of Children under Institutional Care: An Empirical Investigation (Doctoral Thesis, Pondicherry University, 2017). < http://hdl.handle.net/10603/284463 >
[10] Ibid.
[11] Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan tr, Pantheon Books 1977)
[12] Kancha Prasad, Between Protection and Punishment: An Evaluation of Child Care Institutions within Telangana’s Juvenile Justice Framework (2020). < https://s3-ap-southeast-1.amazonaws.com/ijmer/pdf/volume9/volume9-issue12(8)/68.pdf >
[13] Supreme Court of India, Handbook on Child Rights (2025). < https://mphc.gov.in/PDF/web_pdf/JJC/PDF/publication/Handbook%20on%20Child%20Rights%20and%20the%20Law.pdf >