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Friday, May 26, 2017

“Orphanage or Places for Child Abuse”. - orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as government institutions were reportedly involved in systematic sexual abuse of children. A sting operation indicated that sexual services of children were being provided to foreigners as well as Indian tourists and that the rates of children whose sexual services were being taken were fixed over telephone or in a meeting at the orphanage. = children in need of care and protection we leave these issues open for consideration and grant liberty to the learned Amicus to move an appropriate application in this regard including any application for modification or clarification of the directions given above. The Union of India is directed to communicate our directions to the concerned Ministry or Department of each State and Union Territory for implementation and to collate necessary information regarding the implementation of these directions with the assistance of the National Commission for the Protection of Child Rights and the State Commission for the Protection of Child Rights. A status report in this regard should be filed in this Court on or before 15thJanuary, 2018. The Registry will list this case immediately thereafter.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                            CRIMINAL ORIGINAL JURISDICTION

                  WRIT PETITION (CRIMINAL) NO. 102 OF 2007


   Re: Exploitation of Children in       Orphanages
   in the State of  Tamil Nadu
    ….Petitioner

                                   versus

 Union of  India & Ors.
 ….Respondents

                               J U D G M E N T

  Madan B. Lokur, J.



1.    This writ petition was taken up on the basis of an article   published
in the Hindi newspaper “Hindustan” (Lucknow Edition) on 4thJuly, 2007.   The
article was written by Ms. Anjali Sinha and the translated  caption  of  the
article  is  “Orphanage  or  Places  for  Child  Abuse”.   The  article  was
forwarded to this Court by one A.S. Choudhury along with a letter  and  that
is the genesis of this petition which was registered as  a  Public  Interest
Litigation (PIL) on 10th September, 2007.  Ms. Aparna Bhat was appointed  as
Amicus Curiae to  assist  this  Court.    At  the  outset  we  must  and  do
acknowledge the unstinting and excellent efforts put in by Ms.  Aparna  Bhat
over the last 10 years in rendering assistance in this matter.

2.    Broadly, the  article  written  by  Ms.  Anjali  Sinha  mentions  that
orphanages  in  Mahabalipuram  in  Tamil  Nadu,  run  by  NGOs  as  well  as
government institutions  were  reportedly   involved  in  systematic  sexual
abuse of children.  A sting operation  indicated  that  sexual  services  of
children were being provided to foreigners as well as  Indian  tourists  and
that the rates of children whose  sexual  services  were  being  taken  were
fixed over telephone or in a meeting at the orphanage.

3.    It is further  stated  that  in  a  program  organized  by  the  State
Commission  for  Women  in  Tamil  Nadu,  representatives  of  the  National
Commission for Women participated and it was  acknowledged  that  government
schools have become unsafe for girl  students  due  to  sexual  abuse.   The
incident of an eight year old girl who was harassed  by  her  Principal  was
mentioned and it was noted that the Principal was only  transferred  out  by
way of punishment.  Another incident was mentioned where the school  teacher
misbehaved with students in the presence  of  other  students  in  a  closed
room.

4.    The then Ministry of  Family  and  Child  Welfare  along  with  UNICEF
brought out a report on the condition of children in which it  was  reported
that 53% of children suffered from sexual abuse.  Children were reported  to
be the subject of institutional abuse as well as by relatives.

5.    On these broad facts Ms. Anjali Sinha suggested that  the  problem  of
sexual abuse of children especially in government institutions has become  a
serious  problem  and  requires  immediate   redressal.    She   made   some
suggestions including a Counseling Cell in each school  where  children  are
taught  how  to  recognize  abuse  and  providing  a   complaint   mechanism
accessible to children in case of any such incident.

Proceedings in this Court

6.    Over the years, this Court passed several orders  and  also  mentioned
that certain other issues such as trafficking  of  children,  schools  being
occupied by  Central  Para  Military  Forces  and  the  right  to  education
guaranteed to children require consideration.  In other  words,  this  Court
sought to expand the scope of this PIL to include the rights of children  in
general.
7.    In an order passed  on  7th  February,  2013  the  learned  Additional
Solicitor General and the learned Amicus submitted that the main reason  for
this Court issuing various orders is to ensure that the provisions  for  the
rights of children as well as provisions for proper facilities  to  children
in education  as  also  health  are  implemented.   It  was  submitted  that
obviously the rights of children can  be  adequately  secured  only  if  the
monitoring and controlling provisions  contained  in  statutes  relating  to
children such as The Commissions for Protection of Child Rights  Act,  2005,
The Right of Children to  Free  and  Compulsory  Education  Act,  2009,  The
Protection of Children from Sexual  Offences  Act,  2012  and  The  Juvenile
Justice (Care and Protection of Children) Act, 2000 are fully implemented.
8.    A detailed order was passed by  this  Court  on  16th  December,  2013
lamenting that despite the directions issued,  little  or  no  progress  was
made by the States in protecting the rights of  children.   As  far  as  the
Commissions for the Protection of Child Rights  are  concerned,  they  exist
only on paper since in some cases the Chairperson had not been appointed  or
the Members had not been appointed or no  rules  and  regulations  had  been
framed.  This Court observed that the  lackadaisical  manner  in  which  the
States and the Union Territories had responded to  the  rights  of  children
made it necessary to draw attention to the constitutional rights  guaranteed
to children.  It was observed that the inaction of the  States  was  in  the
teeth of the directions given by this Court and additionally the States  and
Union Territories ought to realize that they have to operate  in  accordance
with the provisions of the Constitution of India.

9.    Accordingly, specific information  was  sought  from  each  State  and
Union Territory  regarding  efforts  made  by  the  respective  governments.
Affidavits were filed by the States and Union Territories from time to  time
as an attempt to respond to the questions raised  by  this  Court  regarding
action taken by the  concerned  governments  in  protecting  the  rights  of
children as well as implementation of the  statutes  mentioned  above.   The
responses  were  disheartening  then  and  the  situation  has  not  changed
substantially even after almost a decade since this  Court  took  cognizance
of the matter. Progress,  if  any,  has  been  marginal.  Unfortunately,  it
appears that the governments of some of the  States  and  Union  Territories
have little remedial or pro-active concern for children.

10.   On 20thMarch, 2015 this Court raised the need for a  social  audit  in
terms of Rule 64 of the Juvenile Justice (Care and Protection  of  Children)
Rules, 2007 and the utilization of funds  given  to  the  States  and  Union
Territories under the Integrated Child Protection Scheme.

11.   On 17thApril, 2015  this  Court  raised  the  issue  of  a  concurrent
monitoring audit under the Integrated Child Protection  Scheme  as  well  as
the establishment of Juvenile  Justice  Boards,  Child  Welfare  Committees,
Special Juvenile Police Units, functioning of Child  Care  Institutions  and
functioning of adoption agencies.

12.   On 31stJuly, 2015 at the instance of the learned Amicus, the issue  of
formulating Child Care Plans was discussed in  addition  to  laying  down  a
policy for conducting social audits.  On 28th August,  2015,  the  issue  of
vacancies in the National Commission for the Protection of Child Rights  was
raised by this Court.  On 30thOctober, 2015 the  format  for  social  audits
was  discussed,  in  the  context  of  finalizing  something  workable   and
pragmatic.

13.   Since it appeared that there  was  a  lack  of  seriousness  and  more
tragically a lack of empathy towards the well being and welfare of  children
amongst some of the States and Union Territories and  complete  apathy  with
respect to the disturbingly increasing  instances  of  child  sexual  abuse,
often by someone in a position of authority and  ineffective  implementation
of the laws passed by Parliament virtually making parliamentary  legislation
irrelevant, we heard detailed  submissions  of  all  the  parties  with  the
intention of passing appropriate directions so as to ensure  the  meaningful
implementation of the statutes already enacted by  Parliament.  It  must  be
appreciated that the Juvenile Justice  (Care  and  Protection  of  Children)
Act, 2015 is a medium for the State to honour the  Directive  Principles  of
State Policy particularly under Article 39(f) of the Constitution by  giving
opportunities to children to develop in a healthy manner and  in  conditions
of freedom and dignity. Indeed, though the  Directive  Principles  of  State
Policy are fundamental to the  governance  of  the  country,  they  are  not
enforceable However, as held in Bandhua Mukti  Morcha  v.  Union  of  India,
once a directive principle  is  enforced  through  law  the  State  must  be
obligated  to   enforce   the   statute   to   uphold   its   constitutional
obligation.[1]

14.   In this context, it is pertinent to note that  India  acceded  to  the
Convention on the Rights of the Child (CRC)  on  the  11th  December,  1992.
Article 19 of the CRC obligates the State Parties to “take  all  appropriate
legislative, administrative, social and educational measures to protect  the
child from all forms of  physical  or  mental  violence,  injury  or  abuse,
neglect or negligent  treatment,  maltreatment  or  exploitation,  including
sexual abuse….”

15.   Keeping all  this  in  mind,  the  learned  Amicus  focused  on  three
principal issues namely (1) Children in need of  care  and  protection;  (2)
Trafficked children (3) Street children.  We do not propose to consider  the
plight of trafficked or street children, since that would mean losing  focus
on the issues raised by Ms. Anjali Sinha.   We  leave  open  the  issues  of
trafficked children and street children for consideration in an  appropriate
case.

16.   On the rights of children in  need  of  care  and  protection  it  was
submitted that issues relating to child care  institutions  whether  managed
by the State Government or by NGOs or other voluntary organizations need  to
follow certain minimum standards of care and  in  addition,   rehabilitation
of such children must be a priority.

Children in need of care and protection

17.   Who is a child in need of care and protection? The provisions  of  the
Protection of Children from Sexual Offences Act, 2012 (for short the  ‘POCSO
Act’) do not provide  any  definition  of  a  child  in  need  of  care  and
protection. But no one can deny that a  child  victim  of  sexual  abuse  or
sexual assault or  sexual  harassment  is  a  child  in  need  of  care  and
protection. Similarly in a given case,a child  accused  of  an  offence  and
brought before the Juvenile Justice Board or any other authority might  also
be a child in need of care and protection.

18.   Even though a child in need of  care  and  protection  is  defined  in
Section 2(14) of the Juvenile Justice  (Care  and  Protection  of  Children)
Act, 2015 (hereinafter referred to as the JJ Act) the  definition  does  not
specifically include some categories of children. Consequently,  we  are  of
the view that since the JJ Act is intended for the benefit of  children  and
is intended to protect and foster their rights, the definition  of  a  child
in need of care and protection must be given  a  broad  interpretation.   It
would be unfortunate if certain categories of children are left out  of  the
definition, even though they need as much care and protection as  categories
of  children   specifically   enlisted   in   the   definition.   Beneficial
legislations of the kind that we are dealing with demand an  expansive  view
to be taken by the Courts and all concerned.

19.   In Workmen v. Management of  American  Express  International  Banking
Corporation[2] this Court held in paragraph 4 of the Report that:

“The principles of statutory construction are well settled. Words  occurring
in statutes of liberal import such as social welfare legislation  and  human
rights’ legislation are not to be put  in  Procrustean  beds  or  shrunk  to
Liliputian dimensions. In construing these  legislations  the  imposture  of
literal  construction  must  be  avoided  and   the   prodigality   of   its
misapplication must be recognised and reduced.”



20.   A similar view was expressed in Regional  Director,  ESI  Corporation.
v. Francis De Costa[3] when it was observed that “It is settled law that  to
prevent injustice or to promote justice and to  effectuate  the  object  and
purpose of the welfare legislation, broad interpretation  should  be  given,
even if it requires a departure from literal construction.”

21.   The necessity of giving a purposeful interpretation to a provision  in
a statute was recognized in MSR Leathers  v.  S.  Palaniappan[4]  when  this
Court observed that:

“…..one of the salutary principles  of  interpretation  of  statutes  is  to
adopt an interpretation which promotes and advances the object sought to  be
achieved by the  legislation,  in  preference  to  an  interpretation  which
defeats such object. This Court has in a long line of  decisions  recognised
purposive interpretation as a sound principle for the courts to adopt  while
interpreting statutory provisions.”



A similar view was expressed, though in a different context, in Badshah v.
Urmila Badshah Godse.[5] A far more detailed discussion on the subject is
to be found in the Constitution Bench decision of this Court in Abhiram
Singh v. C.D. Commachen.[6]

22.   Read in this light, the definition of a child  in  need  of  care  and
protection given in Section 2(14) of the JJ Act should be given a broad  and
purposeful interpretation – it ought not to be  treated  as  exhaustive  but
illustrative and  furthering  the  requirements  of  social  justice.   This
understanding would also be in consonance with Article 40 of the  CRC  which
stipulates that the “State Parties shall recognize  rights  of  every  child
accused of an offence and treatment of such a child shall  be  in  a  manner
consistent with promotion of the child’s dignity and worth”.

      23.   Learned Amicus drew our attention to decisions rendered by  some
High Courts which have taken a broad based approach  to  the  meaning  of  a
child in need of care and protection and some other High  Courts  that  have
adopted  a  comparatively  narrow  interpretation.  These   decisions   were
rendered in the context of the Juvenile Justice (Care and  Protection)  Act,
2000 and would not really be applicable insofar as the JJ Act is  concerned.
 However, this does not detract from her submission that a child in need  of
care and protection must be given a wider meaning and in  addition  to  some
children in conflict with law as  discussed  above,  it  must  also  include
victims of sexual abuse or sexual assault or  sexual  harassment  under  the
POCSO Act as also victims of child trafficking.  Such children must also  be
given protection under the provisions of the JJ Act being victims  of  crime
under the  POCSO  Act  and  the  Immoral  Traffic  (Prevention)  Act,  1956.


Child care institutions

24.   Children in need of care and protection are  given  shelter  in  homes
that are managed by  the  State  Government  or  by  NGOs  or  by  voluntary
organizations.   In this context, it  is  necessary  to  draw  attention  to
Section 41 of the JJ Act which mandates, notwithstanding anything  contained
in any other law for  the  time  being  in  force,  that  all  institutions,
whether run by a State Government or  by  voluntary  organizations  or  NGOs
which are meant, either wholly or partially, for housing  children  in  need
of care and protection shall be registered under the JJ Act in  such  manner
as may be prescribed within six months of the commencement of the said  Act.
 The JJ Act came into force on 15th January, 2016 but we were informed  that
the process of registration is underway and not yet complete.
25.   In this day and age when high  quality  technology  is  available  and
there is no shortage of manpower in the country we are unable to  appreciate
why the provisions of  Section  41  of  JJ  Act  have  not  yet  been  fully
implemented   particularly   as   regards   registration   of   child   care
institutions. It is virtually impossible  to  find  out  what  is  going  on
within its four walls. The article by Ms. Anjali Sinha is  a  prime  example
of what can happen in child care institutions. It  is  not  clear  from  the
article whether all the institutions referred to  were  registered  or  not,
but surely the government run institutions  must  have  been  registered  or
licensed. Therefore, if activities of the nature  mentioned  by  Ms.  Anjali
Sinha in her article are carried out in  government  run  institutions,  one
can only imagine what possibly can go wrong  in  unregistered  institutions,
which are managed beyond the law.

26.   Apart from their  registration,  the  statute  requires  quite  a  few
salutary actions to be taken by such institutions  including  recording  the
residential capacity and purpose of the child care institution. Rule  21  of
the Juvenile Justice (Care and Protection of  Children)  Model  Rules,  2016
(hereinafter referred to  as  the  Model  Rules)  specifies  the  manner  of
registration of child  care  institutions  and  provides,  inter  alia,  the
availability of the bye-laws and memorandum of association,  office  bearers
etc. of such institutions. The State Government is obligated to consider  an
application for registration of a child care institution  (in  Form  27)  in
light of aspects like whether provision exists for the care  and  protection
of children, their  health,  education,  boarding  and  lodging  facilities,
vocational studies and rehabilitation (among  others  things).  It  is  only
then that a certificate of registration can be issued. The State  Government
is also obligated to conduct an inspection of an applicant  institution  and
it appears to us that if such an  inspection  is  faithfully  and  sincerely
carried out, it will reveal the dark underbelly, if any, of a dubious  child
care institution such as those  referred  to  by  Ms.  Anjali  Sinha.    The
strict implementation of the provisions of the JJ Act will go a long way  in
making the life of children in such child care institutions  safer  and  far
more comfortable than it has been and also reduce the possibility of  crimes
such as trafficking, sexual abuse or sexual assault or sexual harassment  of
children. If the registration of child care institutions  is  not  complete,
their management obviously cannot be supervised.  Therefore,  a  misstep  in
the very first stage could have a  chain  reaction  and  perhaps  disastrous
consequences in some cases as is evident from the incidents of  child  abuse
in institutions as brought out by Ms. Anjali Sinha.

Minimum Standards of care
27.   Article 3 of the CRC mandates that  all  actions  concerning  children
undertaken by public or private social welfare institutions, courts of  law,
administrative  authorities  or  legislative  bodies  shall  have  the  best
interest of the children as a primary consideration.  Article  3(3)  of  the
CRC specifically obligates the State Parties  to  ensure  that  institutions
responsible for care and protection of children shall conform  to  standards
laid down  by  competent  authorities,  particularly  in  areas  of  safety,
health, staff and  supervision.  However,  the  minimum  standards  of  care
prescribed for institutions cannot be ensured if the child care  institution
is not identified and registered.
28.   In this regard it is necessary to draw attention to the provisions  of
Chapter VI of the Model Rules particularly  the  series  of  rules  starting
from Rule 26 onwards.  Amongst other  things,  these  Rules  deal  with  the
staffing  pattern  of  child  care  institutions,  physical  infrastructure,
clothing, bedding, toiletries and other articles,  sanitation  and  hygiene,
daily routine, nutrition and diet  scale,  medical  health,  mental  health,
education, vocational and recreational facilities  and  genuine  efforts  in
the rehabilitation and re-integration of such children  into  society.   All
these  requirements  are  rendered   unenforceable   in   the   absence   of
registration of child care institutions.
29.   The Integrated Child Protection Scheme,  which  also  concerns  itself
with the minimum standards of care in child  care  institutions,  refers  to
several  of  these  requirements   and   also   draws   attention   to   the
rehabilitation programme of children  and  their  recreation.   The  minimum
standards of care prescribed for child care institutions must be adhered  to
in letter and spirit and not only on paper.
30.    We  have  been  given  to  understand  by  the  learned  Amicus  that
unfortunately, even in registered  child  care  institutions,  many  of  the
statutory facilities and requirements are missing. If that  be  so,  we  can
only  imagine  the   living   conditions   of   children   in   unregistered
institutions.

31.   In a given case, failure to maintain a basic or  minimum  standard  of
care can be actionable as negligence. In Jacob Mathew v. State of  Punjab[7]
this Court cited Charlesworth & Percy on Negligence[8]  and  held  that  the
essential components of negligence are: (1) the existence of a duty to  take
care, which is owed by the defendant to the complainant; (2) the failure  to
attain that standard of care, prescribed by the law,  thereby  committing  a
breach of such duty; and (3) damage, which is both causally  connected  with
such  breach  and  recognized  by  the  law,  has  been  suffered   by   the
complainant. Effectively therefore, if the officers  of  the  State  do  not
ensure that minimum standards  of  care  are  followed  in  the  child  care
institutions, they could well be guilty  of  negligence.  Since  ours  is  a
welfare State it  would  be  difficult  for  uncaring  officers  to  absolve
themselves of a charge of negligence and also perhaps of a violation of  the
human rights of children.

Utilization of grants
32.   During the course of hearing, we found that many of  the  Model  Rules
though workable and beneficial, exist only on paper and there  has  been  no
serious attempt to implement the provisions or the  requirements  under  the
Integrated Child Protection Scheme.  One of the concerns  that  kept  coming
up as an  excuse  for  non-implementation  of  the  Rules  was  a  so-called
shortage of funds.  We are surprised that such an excuse was  advanced  even
though a large amount allocated towards child welfare is lying unspent.

33.   Really therefore, the problem is not a lack of funds but  the  absence
of a will to gainfully  utilize  the  available  grants.  In  this  context,
learned Amicus brought to our notice by way of an example, the statement  of
expenditure under the Integrated Child Protection Scheme for the year  2013-
14.  This indicates that the unspent grant is  over  Rs.3000  lakhs.   (This
figure does not include unspent amounts by the State of Andhra  Pradesh  and
the State of Uttarakhand).  Therefore, it cannot be said  that  there  is  a
shortage of funds.  The chart brought on record is as follows:-

|Year-wise details of unspent grants       |
|Sl. No. |Name of the State|Unspent        |
|        |                 |(Amount in     |
|        |                 |Lakhs)         |
|        |                 |2013-14        |
|1       |Andhra Pradesh   |2999.28*       |
|2       |Arunachal Pradesh|147.05         |
|3       |Assam            |148.47         |
|4       |Bihar            |442.14         |
|5       |Chhattisgarh     |0.00           |
|6       |Goa              |-              |
|7       |Gujarat          |545.23         |
|8       |Haryana          |238.92         |
|9       |Himachal Pradesh |138.10         |
|10      |Jammu & Kashmir  |-              |
|11      |Jharkhand        |147.21         |
|12      |Karnataka        |57.94          |
|13      |Kerala           |291.52         |
|14      |Madhya Pradesh   |1084.67        |
|15      |Maharashtra      |0.00           |
|16      |Manipur          |473.13         |
|17      |Meghalaya        |0.00           |
|18      |Mizoram          |0.00           |
|19      |Nagaland         |0.00           |
|20      |Orissa           |2.63           |
|21      |Punjab           |749.37         |
|22      |Rajasthan        |253.33         |
|23      |Sikkim           |50.36          |
|24      |Tamil Nadu       |589.22         |
|25      |Tripura          |0.00           |
|26      |Uttar Pradesh    |99.92          |
|27      |Uttarakhand      |333.92*        |
|28      |West Bengal      |268.95         |
|29      |Andaman & Nicobar|-              |
|        |Island           |               |
|30      |Chandigarh       |25.17          |
|31      |Dadra & Nagar    |9.63           |
|        |Haveli           |               |
|32      |Daman & Diu      |58.63          |
|33      |Delhi            |676.68         |
|34      |Lakshadweep      |-              |
|35      |Puducherry       |-              |
|Total   |                 |6498.27        |


               * States have not submitted their Statement of Expenditure
(SOE)

We are told that the same situation continued for subsequent years as well.

34.   No doubt, it is the constitutional obligation of the State  to  ensure
that for safeguarding and fostering the rights of children,  adequate  funds
are available particularly  for  children  who  are  in  need  of  care  and
protection.  The State cannot conflate non-availability of  funds  to  shirk
their obligations with inefficient utilization of  grants.   We  are  pained
that such an excuse is being trotted out.

National and State Commissions

35.   Parliament has, of course, appreciated the  need  for  protecting  the
rights of children in many of the ways that  we  have  mentioned  above  and
that is why the Commissions for Protection of Child  Rights  Act,  2005  was
enacted.  In fact the Preamble to the said Act is extremely significant  and
brings into focus not  only  the  necessity  of  protecting  the  rights  of
children  generally  but  also  as  a  part  of  our  obligations   to   the
international community. The Preamble to the Commissions for  Protection  of
Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’) reads  as
follows:


“An Act to provide for the constitution of a National Commission  and  State
Commissions for  Protection  of  Child  Rights  and  Children’s  Courts  for
providing speedy trial of offences  against  children  or  of  violation  of
child rights and for matters connected therewith or incidental thereto.


WHEREAS India participated in  the  United  Nations  (UN)  General  Assembly
Summit in 1990, which adopted a  Declaration  on  Survival,  Protection  and
Development of Children;


AND WHEREAS India has also acceded to the Convention on the  Rights  of  the
Child (CRC) on the 11th December, 1992;


AND WHEREAS CRC is an international treaty that makes it incumbent upon  the
signatory States to take all necessary steps to  protect  children’s  rights
enumerated in the Convention;


AND WHEREAS  in order to ensure protection of rights of children one of  the
recent initiatives that the  Government  have  taken  for  Children  is  the
adoption of National Charter for Children, 2003;


AND WHEREAS the UN General Assembly Special Session on Children held in  May
2002  adopted  an  Outcome  Document  titled  “A  World  Fit  for  Children”
containing  the  goals,  objectives,  strategies  and   activities   to   be
undertaken by the member countries for the current decade;


AND WHEREAS it is expedient to enact a law  relating  to  children  to  give
effect to the policies adopted by the Government in this  regard,  standards
prescribed in the CRC, and all other relevant international instruments;”



36.   To fulfill the obligations to children, the CPCR Act provides for  the
constitution of a National Commission for Protection of  Child  Rights  (for
short ‘the NCPCR’)  and  for  the  constitution  of  State  Commissions  for
Protection of Child Rights (for short ‘the SCPCR’).  These  Commissions  are
intended to function under the provisions of the CPCR  Act  and  their  vast
range of functions has been delineated in Section 13 as well as  in  Section
24 of the CPCR Act.

37.   It was pointed out by the learned Amicus that the NCPCR and the  SCPCR
can play a very crucial role in fostering child rights.   This  deserves  to
be recognized, but is unfortunately overlooked both by the Union  Government
as well as by the State Governments.  She  pointed  out  that  there  are  a
large number of vacancies in many of these bodies  and  in  fact  the  NCPCR
was, at one time, without any Chairperson for more than  a  year.   Some  of
the State Governments have also not bothered to fill  up  the  vacancies  in
the SCPCR and some others have  used  the  SCPCR  as  a  sinecure  for  some
favourites.  This again, as  pointed  out,  is  nothing  but  providing  lip
service to the provisions of a  parliamentary  legislation  and  not  giving
serious  attention  to  the  constitutional  rights  of  children.  This  is
certainly not acceptable.

38.   Similarly, in the implementation of the POCSO Act, the NCPCR  and  the
SCPCR have a vital role to play. As mentioned above, issues of sexual  abuse
or sexual assault or sexual harassment complained of  by  Ms.  Anjali  Sinha
need attention and Section 44 of the POCSO Act places a great burden on  the
shoulders of the NCPCR and the SCPCRs. These authorities have an  obligation
to monitor the implementation of the POCSO Act as is  evident  from  Section
44 thereof which reads as follows:

“44. Monitoring of implementation of Act - (1) The National  Commission  for
Protection of Child Rights constituted under Section 3, or as the  case  may
be, the State Commission for Protection of Child  Rights  constituted  under
Section 17, of the Commissions for Protection of Child Rights Act,  2005  (4
of 2006), shall, in addition to the functions assigned to  them  under  that
Act, also monitor the implementation of the provisions of this Act  in  such
manner as may be prescribed.

(2) The National Commission or, as the case may be,  the  State  Commission,
referred to in sub-section (1),  shall,  while  inquiring  into  any  matter
relating to any offence under this Act, have the same powers as  are  vested
in it under the Commissions for Protection of Child Rights Act, 2005  (4  of
2006).

(3) The National Commission or, as the case may be,  the  State  Commission,
referred to in sub-section (1), shall, also include,  its  activities  under
this section, in the  annual  report  referred  to  in  Section  16  of  the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006).”



39.   In our opinion, it is imperative that  the  NCPCR  and  the  SCPCR  be
allowed to function in terms of the CPCR Act and the POCSO Act and only  for
the benefit of children.  These Commissions are under an obligation to  take
action wherever necessary including approaching  the  Constitutional  Courts
wherever necessary.  These Commissions are under an  obligation  to  prepare
annual reports and if necessary special reports but it has been pointed  out
that this requirement has hardly been implemented mainly because of  a  lack
of interest that these Commissions  have  shown  in  functioning  under  the
statute and also partly because of the large number of  vacancies  in  these
Commissions.

40.   This is not to suggest that the NCPCR or the SCPCRs are  not  doing  a
good job. On the contrary, the NCPCR has of late begun taking its  statutory
obligations quite seriously and  there  are  a  few  SCPCRs  that  are  also
faithfully performing their functions under the relevant  statutes.  On  the
other hand, there are some SCPCRs that are not performing  well  at  all  or
are defunct and headless.  It is difficult to appreciate  how,  under  these
circumstances, the JJ Act or the POCSO Act can at all  be  implemented,  let
alone implemented effectively.

41.   Needless to say, it is obligatory on the part of the Union  Government
as well as of the State Governments to ensure that the  provisions  of  laws
enacted by Parliament are  faithfully  and  sincerely  implemented  and  the
statutory Commissions constituted under the provisions of the CPCR Act  must
be allowed to function as independent statutory bodies under the  provisions
of the said Act, the POCSO Act as well as the JJ Act.

42.   The rule of law includes adherence  to  parliamentary  legislation  by
all concerned including State Governments and the Union  Government  and  it
would be extremely unfortunate if the concerned governments voluntarily  and
knowingly flout the provisions of law solemnly enacted  by  Parliament.   We
need say nothing more on this subject, except that laws solemnly enacted  by
Parliament  cannot  be  insulted  by  putting  hurdles  in   the   effective
functioning of these Commissions, such as by not appointing the  Chairperson
or Members.





Rehabilitation and social re-integration

43.   With regard to the future of children in need of care and  protection,
the JJ Act contains obligatory provisions such as  Section  53  which  deals
with  rehabilitation  and  social  re-integration  services  in  child  care
institutions.  This provision requires the State to take care of  the  basic
requirements of  children  in  such  institutions  including  children  with
special needs, legal aid where required and more importantly  assistance  in
obtaining proof of identity.  There  have  been  instances  brought  to  our
notice where children;particularly in the case of  abandoned  children,  are
unable to give any information about their parentage  or  permanent  address
etc.  In such cases, proof of identify is crucial for  the  welfare  of  the
child, otherwise he or she is reduced to a mere statistic.

44.   The provision  for  rehabilitation  and  re-integration  services  has
several facets and cannot be read in  isolation  but  must  be  read,  inter
alia, in conjunction with Section 54  of  the  JJ  Act  which  requires  the
inspection of  child  care  institutions  registered  under  the  said  Act.
Inspection Committees are required to be  set  up  which  shall  mandatorily
visit all facilities housing children in the area allocated, at  least  once
in three months in a team of not less than three members, of whom  at  least
one shall be a woman and one shall be a medical officer.   Their  Inspection
Reports are required to be furnished to the District Child  Protection  Unit
or the State Government, as the case may be, for further  action.   Form  46
of the Model Rules prepared under Rule 41 thereof is  quite  exhaustive  and
if the Form is filled up with due seriousness it  will  go  a  long  way  in
improving the living conditions of children in child care institutions.

45.   The importance of rehabilitation  and  social  re-integration  clearly
stands out if we appreciate the objective of the JJ Act which is  to  foster
restorative  justice.  There  cannot  be  any   meaningful   rehabilitation,
particularly of a child in conflict with law who is also a child in need  of
care and protection unless the basic elements and principles of  restorative
justice are recognized and practised.

46.   Unfortunately, one of the problems faced  in  introducing  restorative
justice is that a child in a child care institution is treated as  a  number
and  no  effort  is  made  to  introduce  any  individual  child  care  plan
postulated by Rule 19 of the Model Rules read with Form 7.   Learned  Amicus
informed us that the Form is very rarely filled up (if at  all)  and  little
or no attention is paid to the needs of each  child  including  a  child  in
conflict with law.  She submitted that specific directions should  be  given
for the preparation of individual child  care  plans  in  every  child  care
institution since that is really the heart of rehabilitation and social  re-
integration of a child in need of care  and  protection.   Of  course,  some
expertise is involved in this exercise but  as  we  had  mentioned  earlier,
there is no shortage of manpower in our country and it is only the  will  of
the State Governments, Union Territories and the Union Government  which  is
coming in the way of the effective implementation of the provisions  of  the
JJ Act, Model Rules and filling up various Forms and their analysis.

Training of personnel

47.   One of the more important issues raised by the learned Amicus  in  the
context of rehabilitation and social re-integration is to be found  in  Rule
89 of the Model Rules which  concerns  itself  with  training  of  personnel
dealing with children.  This rule provides for a minimum period of  15  days
training to various categories of personnel under the JJ Act  including  the
staff of Children’s Courts, Principal Magistrates and  Members  of  Juvenile
Justice Boards,  Chairpersons  and  Members  of  Child  Welfare  Committees,
Police Officers including persons in charge of child care institutions  etc.
 Rule 89 of the Model Rules also postulates that the  Judicial  Academy  and
the Police Academy in the  States  as  well  as  the  State  Legal  Services
Authorities prepare  appropriate  training  modules,  training  manuals  and
provide training to personnel.  It was pointed out  by  the  learned  Amicus
that this rule is being followed more in the breach and there is hardly  any
Judicial Academy or Police Academy or State Legal Services  Authority  which
conducts 15 days training programmes.  This is quite unfortunate to say  the
least.

48.   The importance of quality training can best be understood by giving  a
negative example, which is that unless proper training is  imparted  to  the
concerned personnel,  it  is  quite  possible  that  strange  practices  and
procedures may evolve due to the absence of proper guidance.   It  has  been
brought to our notice in  cases  of  adoption  of  children  some  extremely
unusual and impracticable orders have been passed by the  concerned  Courts.
It  is  high  time  that  the  High  Courts   exercise   their   supervisory
jurisdiction and intervene and take  appropriate remedial steps. It is  also
high time that training of personnel be given due importance.  We  may  note
here that it was brought  to  our  attention  by  the  learned  Amicus  that
untrained or inadequately trained personnel can unwittingly play havoc  with
the  lives  of  victims  of  sexual  abuse  or  sexual  assault  or   sexual
harassment.

De-institutionalization

49.   In the context of rehabilitation and  social  re-integration,  it  was
submitted  before  us  that  institutionalization   of   children   is   not
necessarily the only  available  option.  This  submission  of  the  learned
Amicus also finds support in Article 20 of the CRC.  The  Article  obligates
the State Parties to provide special protection and assistance  to  children
temporarily or permanently  deprived  of  family  environment.  The  Article
illustrates alternate care in the form of foster placement, adoption “or  if
necessary placement in suitable institution”. It is  clear  that  the  first
option exercised by the authorities should not be institutionalization of  a
child in need of care and protection and the same is a measure of  the  last
resort.  Article  40(4)  of  the  CRC  pertaining  to  children  accused  of
violating the law also states that the State  Parties  shall  ensure  “care,
guidance, supervision, counseling, probation,  foster  care,  education  and
vocational training and other alternatives to institutional  care”.  Indeed,
in keeping with the  spirit  of  the  CRC,  the  JJ  Act  itself  encourages
alternatives  to  institutionalization  such  as  adoption  (Chapter  VIII),
foster care (Section 44) and Sponsorship (Section 45).  This too needs  some
serious thought, as submitted by the learned Amicus.

50.   The learned Additional Solicitor General brought to  our  notice  that
the Union Government has since framed  the  Adoption  Regulations,  2017  as
well as the Model Guidelines  for  Foster  Care,  2016.  These  need  to  be
implemented by  all  concerned  including  the  Courts,  particularly  those
dealing with issues of adoption.  However, as mentioned above,  training  in
the  understanding  and  appreciation  of  the  JJ  Act,  the  Model  Rules,
Regulations and Guidelines is imperative and merely handing over  copies  of
these documents to  the  concerned  personnel  even  if  they  are  judicial
officers or police officers  or  government  functionaries  is  not  enough.
Some sort of training is absolutely necessary so that the aims  and  objects
of the various statutory provisions enacted for the benefit of children  and
to foster their rights are implemented in letter and spirit.

51.   We must emphasize, at this stage that it is absolutely  necessary  for
all stakeholders  having  interest  in  the  welfare  of  children  to  work
together towards a common goal. This teamwork would  include  not  only  the
government machinery but also the police, civil society and the judiciary.

Juvenile Justice Committee

52.   That the judiciary is not far behind in fulfilling its  constitutional
responsibilities  is  obvious  from  the  fact   that   the   rather   slack
implementation of the Juvenile Justice (Care  and  Protection  of  Children)
Act, 2000 even after four  years  of  its  enactment,  compelled  the  Chief
Justice of  India to request all the  High  Courts  to  set  up  a  Juvenile
Justice Committee to ensure effective implementation of  the  said  Act  and
monitor the  activities  under  the  said  Act.   The  High  Courts  have  a
constitutional obligation  to  ensure  that  the  rights  of  all  citizens,
including children, as guaranteed  under  the  Constitution  are  preserved,
protected and respected.  With this in mind, all the High Courts have  since
set up a Juvenile Justice Committee consisting of Judges of the  High  Court
and these Committees ensure that the provisions of the Act  are  implemented
in letter and spirit.   For  better  co-ordination  on  issues  relating  to
children, some  High  Courts  have  also  provided  a  Secretariat  for  the
Juvenile Justice Committee.

53.   With the passage of time, it has been realized that the importance  of
the Juvenile Justice Committee in the High Court cannot  be  overemphasized.
It is time for all of us to now realize that judges are no  longer  required
to remain in an  ivory  tower.  Judges  of  all  the  Courts  including  the
Constitutional Courts have non-judicial duties and  obligations  to  perform
so that the fundamental rights of the people  are  respected.   It  is  this
realization that led the Constitutional Courts to exercise  jurisdiction  in
social justice issues through Public Interest  Litigation  and  it  is  this
that requires judges of the Courts to ensure access  to  justice  under  the
Legal Services Authorities Act,  1986  to  indigent  people  and  those  who
cannot afford legal services due to financial or other  constraints.  It  is
very much in keeping with this constitutional obligation and goals that  the
concern and involvement of each Juvenile Justice Committee in the  effective
implementation of the Act is an  absolute  necessity.   It  is  equally  the
obligation of the concerned officials of the State,  including  the  police,
to render all assistance to each Juvenile Justice Committee to  ensure  that
the goals envisaged  by  the  JJ  Act  and  the  constitutional  vision  are
successfully achieved in the shortest possible time.

Social audit

54.   For the purposes of ensuring that the implementation of the JJ Act  is
proceeding in the right direction, it is necessary that a  social  audit  be
conducted every year. Social audits give reasons for introspection  as  well
as for improvement in the services.

55.   Social audit has gained relevance as a tool of public  accountability.
It has been defined as  “an  assessment  of  a  department’s  non  financial
objectives through systematic and regular monitoring on  the  basis  of  the
views of its stakeholders.”[9]  A social audit is considered novel as it  is
supposed to serve as a supplement to a conventional Government Audit,  often
done in 12 month cycles generating an audit report every time.[10] In  fact,
in the Report of the Task Group  on  Social  Audit  by  the  Office  of  the
Comptroller and Auditor General, it was opined that social audit be  brought
into the mainstream of auditing by the Indian Audit and Accounts  Department
as an essential process and tool in all the  performance  audits  of  social
sector programmes as they afford an  opportunity  to  strengthen  the  micro
level   scrutiny   of   the   programme   planning,    implementation    and
monitoring.[11]

56.   The requirement of a social audit is necessary not only  for  purposes
of introspection but also transparency and accountability in  the  effective
implementation of  the  JJ  Act.   There  cannot  be  any  reason  to  avoid
conducting social audits, more particularly since they have been  encouraged
by the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 as  well
as by the  Integrated  Child  Protection  Scheme,  by  the  Comptroller  and
Auditor General of India and the National  Food  Security  Act,  2013.   The
impression given to us is  that  for  some  inexplicable  reason  the  Union
Government is shying away from social audits.

57.   In the hearing on 17th April, 2015, the learned  Additional  Solicitor
General informed us that no social audit was carried out  despite  the  rule
being notified in 2007. The Union of India was then directed to  finalize  a
policy for conducting social audits. In the hearing on  30th  October,  2015
we were informed that the formats for social audit have been  more  or  less
finalized. In its affidavit filed sometime in November 2015,  the  Union  of
India has annexed copies of Model Social Audit  Formats  for  Child  Welfare
Committees,  Juvenile  Justice  Boards,  Special  Juvenile   Police   Units,
Children Homes, Specialized Adoption Agencies, Open  Shelter/Shelter  Homes,
Observation Homes and Special Homes.  It is stated  in  the  affidavit  that
these formats will be circulated for pilot testing  by  selected  States  as
mentioned in an earlier affidavit dated 29th October, 2015.

58.   We have not been  informed  whether  any  steps  have  been  taken  to
conduct social audits in terms of the Model Formats prepared  by  the  Union
of India or the result of the  pilot  testing,  if  any.   It  is  therefore
necessary to ensure that these formats are tested out with urgency  so  that
the implementation of the JJ Act is made more meaningful.

Technology and computers

59.   We have been given to understand that there is no  data  base  of  all
the child care institutions in the country. State Governments have not  even
validated the available  data  or  undertaken  the  mapping  of  child  care
institutions in  collaboration  with  the  Union  Government.   This  is  an
essential first step since it is difficult to imagine how children in  child
care institutions can be cared for if there is no record of  the  number  of
institutions, number of children in such institutions, relevant  information
regarding the children etc. Therefore technology can be put to good use  for
collection, revision and access of records of children in need of  care  and
protection and the child care institutions.

60.   It is imperative for  the  Union  Government  as  well  as  the  State
Governments to make out a complete  list  of  all  child  care  institutions
along with their addresses  and  the  person  in  charge  or  the  principal
officer as well as full details of the  children  residing  in  these  child
care institutions.    Learned  Amicus  submitted  that  all  these  details,
though necessary, are not available with the Union Government or the  NCPCR.
 Availability of all this information is  possible  only  with  the  use  of
technology and a massive computerization program.

61.   Similarly, for the  effective  functioning  of  the  Juvenile  Justice
Boards as well as the Child Welfare Committees, it is  necessary  that  they
should be equipped with computers  and  printers  along  with  uninterrupted
power supply units so that their day to day functioning can  be  taken  care
of.  Learned Amicus pointed out that perhaps this  may  be  asking  for  too
much since she has  received  complaints  to  the  effect  that  very  often
stationery is not  available  with  the  Child  Welfare  Committees  or  the
Juvenile Justice Boards and an appropriate requisition has  to  be  made  to
the State Government or the local authority, which is  leisurely  processed.
In our opinion if this submission were to be accepted it  would  indicate  a
very sorry state of affairs in which the Juvenile  Justice  Boards  and  the
Child Welfare Committees are made  to  function.  This  step-child  attitude
cannot be permitted to continue since these statutory bodies are  vital  for
having necessary supervision  over  child  care  institutions  within  their
jurisdiction.

Directions

62.   In view of the above discussion, the following directions are issued:

The definition of the expression “child in  need  of  care  and  protection”
under Section  2(14)  of  the  JJ  Act  should  not  be  interpreted  as  an
exhaustive definition. The  definition  is  illustrative  and  the  benefits
envisaged for children in need of care and protection should be extended  to
all such children in fact requiring State care and protection.



The  Union  Government  and  the  governments  of  the  States   and   Union
Territories must ensure that the process of registration of all  child  care
institutions is completed positively by 31st December, 2017 with the  entire
data being confirmed and validated.  The  information  should  be  available
with all the concerned officials.   The  registration  process  should  also
include a data base of all children in need of  care  and  protection  which
should be updated every month.  While maintaining the  database,  issues  of
confidentiality  and  privacy  must  be  kept  in  mind  by  the   concerned
authorities.



The  Union  Government  and  the  governments  of  the  States   and   Union
Territories are directed  to  enforce  the  minimum  standards  of  care  as
required by and in terms of the JJ Act and the Model Rules positively on  or
before 31st December, 2017.



The governments of the States and Union Territories  should  draw  up  plans
for  full  and  proper  utilization  of  grants  (along   with   expenditure
statements) given  by  the  Union  Government  under  the  Integrated  Child
Protection Scheme.  Returning the grants as unspent  or  casual  utilization
of the grants will not ensure anybody’s benefit and is effectively  wasteful
expenditure.



It is imperative that the  Union  Government  and  the  governments  of  the
States and Union Territories must concentrate on rehabilitation  and  social
re-integration of children  in  need  of  care  and  protection.  There  are
several schemes of the Government  of  India  including  skill  development,
vocational training etc which must be taken advantage  of  keeping  in  mind
the need to rehabilitate such children.



The governments of the States and Union Territories are directed to  set  up
Inspection Committees as required by the JJ  Act  and  the  Model  Rules  to
conduct regular inspections  of  child  care  institutions  and  to  prepare
reports of such inspections so that the living  conditions  of  children  in
these institutions undergo positive changes.   These  Inspection  Committees
should be constituted on or before 31st July, 2017 and they  should  conduct
the first inspection of the child care institutions  in  their  jurisdiction
and submit a report to the concerned government  of  the  States  and  Union
Territories on or before 31st December, 2017.



The preparation of individual child care plans is  extremely  important  and
all governments of the States and Union Territories must ensure  that  there
is a  child  care  plan  in  place  for  every  child  in  each  child  care
institution.   While  this  process  may  appear  to  be  long   drawn   and
cumbersome, its necessity cannot be  underestimated  in  any  circumstances.
The process of  preparing  individual  child  care  plans  is  a  continuing
process and must be initiated immediately and an individual child care  plan
must be prepared for each child  in  each  child  care  institutions  on  or
before 31st December, 2017.



Wherever the State Commission for Protection of Child Rights  has  not  been
established or though established is not fully functional in the absence  of
a Chairperson or any one or more Members, the governments of the States  and
Union Territories  must  ensure  that  all  vacancies  are  filled  up  with
dedicated  persons  on  or  before  31st  December,  2017.   The  SCPCRs  so
constituted must publish an Annual Report  so  that  everyone  is  aware  of
their activities and can contribute individually  or  collectively  for  the
benefit of children in need of care and protection.
The training of personnel as required by the JJ Act and the Model  Rules  is
essential.  There are an adequate number of academies that can take up  this
task including police academies and judicial academies in the States.  There
are also national level bodies that can assist in this process  of  training
including  bodies like the Bureau  of  Police  Research  and  Training,  the
National Judicial Academy and others including  established  NGOs.  Wherever
possible training modules should be prepared at the earliest.



 It is time that  the  governments  of  the  States  and  Union  Territories
consider  de-institutionalization  as  a  viable  alternative.   It  is  not
necessary that every child in need of care and protection must be placed  in
a child care institutions.  Alternatives such as adoption  and  foster  care
need to be seriously considered by the concerned authorities.



 The importance of social audits cannot be over-emphasized.   The  necessity
of having a social audit has been felt in  some  statutes  which  have  been
mentioned above and also by the Comptroller and Auditor  General  of  India.
That being the position, it is imperative that the process of  conducting  a
social audit  must  be  taken  up  in  right  earnestness  by  the  National
Commission for the Protection of Child Rights  as  well  as  by  each  State
Commission for the Protection of Child Rights.  This  is  perhaps  the  best
possible method by which transparency and accountability in  the  management
and functioning of child care institutions and other  bodies  under  the  JJ
Act and Model Rules can be monitored and supervised.



 While the Juvenile Justice Committee in each High Court is  performing  its
role in ensuring the implementation of the JJ Act and Model Rules, there  is
no doubt that each Committee will require a  small  Secretariat  by  way  of
assistance.   We  request  each  Juvenile  Justice  Committee  to  seriously
consider establishing a Secretariat for its assistance and  we  direct  each
State Government and Union Territory to render assistance  to  the  Juvenile
Justice Committee of each High Court and to cooperate and  collaborate  with
the Juvenile Justice Committee in this regard.



 We acknowledge the contribution made by Ms.  Aparna  Bhat  in  taking  keen
interest in the issues raised  in  this  PIL  and  for  rendering  effective
assistance to this Court at all times.  The  Supreme  Court  Legal  Services
Committee will give an honorarium of Rs. 2 lakhs to Ms. Aparna Bhat  out  of
the funds available for juvenile justice issues.

 While there may be some other issues specifically  concerning  children  in
need of care and protection we leave these  issues  open  for  consideration
and grant liberty to the learned Amicus to move an  appropriate  application
in this regard including any application for modification  or  clarification
of the directions given above.

The Union of  India  is  directed  to  communicate  our  directions  to  the
concerned Ministry or Department of  each  State  and  Union  Territory  for
implementation  and  to  collate   necessary   information   regarding   the
implementation of these directions  with  the  assistance  of  the  National
Commission for the Protection of Child Rights and the State  Commission  for
the Protection of Child Rights.  A status report in this  regard  should  be
filed in this Court on or before 15thJanuary, 2018.  The Registry will  list
this case immediately thereafter.


                                                                  ………………………J
                                               (Madan B. Lokur)


                                                                  ………………………J
May  5 , 2017                                   (Deepak Gupta)
New Delhi;
-----------------------
[1]







      [2](1984) 3 SCC 161
[3]

      [4](1985) 4 SCC 71
[5]

      [6]1993 Supp (4) SCC 100
[7]

      [8](2013) 1 SCC 177
[9]

      [10](2014) 1 SCC 188
[11]

      [12](2017) 2 SCC 629
[13]

      [14](2005) 6 SCC 1
[15]

      [16]10th Edition (2001)
[17]

      [18]Social Audit: A Toolkit, A Guide for Performance  Improvement  and
Outcome               Measurement                available                at
https://cgg.gov.in/publicationdownloads2a/Social%20Audit%20Toolkit%20Final.p
df.
[19]

      [20] Ibid
[21]

       [22]Report  of  the  Task  Group  on  Social  Audit,  Office  of  the
Comptroller and Auditor General of India, (2010) at pg 5



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