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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 473 OF 2005
Sampurna Behura ....Petitioner
Versus
Union of India & Ors. ....Respondents
J U D G M E N T
Madan B. Lokur, J.
1. What can a citizen do if the State pays no attention to his or
her fundamental or human or statutory right, nor takes serious
interest in fulfilling its constitutional or statutory obligations?
What if that citizen is a voiceless child or someone whose voice
cannot be heard over the din of governance – for example,
physically or mentally challenged persons, senior citizens, and
other disadvantaged sections of society such as scheduled castes,
tribals and several others? The aggrieved would perhaps approach
the judiciary (if he or she could and as a last resort) for the
enforcement of a human right. Should the judiciary take corrective
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steps and be accused of ‗judicial activism‘ or overreach – or should
the cynics and skeptics have their day resulting in the grievance of
the voiceless and the disadvantaged remaining unheard and the
fundamental and human rights lying unaddressed?
2. These questions arise in the context of the virtual
non-implementation or tardy implementation of laws beneficial to
voiceless (and sometimes silenced) children, particularly, the
Juvenile Justice (Care and Protection of Children) Act, 2000 (the
Act of 2000) and the Juvenile Justice (Care and Protection of
Children) Act, 2015 (the JJ Act). We record and acknowledge our
appreciation for the efforts of Sampurna Behura in highlighting
some of these issues by way of a Public Interest Litigation and to
learned counsel for the appearing parties in rendering assistance
enabling us to address some of these issues by not making these
proceedings adversarial, but a constructive effort for the benefit of
the children of our country. No one has any doubt that it is time for
the State to strongly and proactively acknowledge that even
children in our country have fundamental rights and human rights
and they need to be enforced equally strongly.
3. If Nelson Mandela is to be believed, ―Our children are our
greatest treasure. They are our future. Those who abuse them tear at
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the fabric of our society and weaken our nation.‖
1 Our policy and
decision makers need to heed this advice and warning and
appreciate that they are not doing any favour to the children of our
country by caring for them – it is their constitutional obligation and
the social justice laws enacted by Parliament need to be effectively
and meaningfully enforced.
Background and Chief Justices Conferences
4. In a prescient understanding of child rights, the Chief Justices‘
Conference held in 2006 (presided by the Chief Justice of India
with participation by the Chief Justice of every High Court) the
following resolution was passed:
―a) That High Courts will impress upon the State
Governments to set up Juvenile Justice Boards, wherever
not set-up. The Chief Justices may nominate a High Court
Judge to oversee the condition and functioning of the
remand/observation homes established under the Juvenile
Justice (Care and Protection of Children) Act, 2000.
b) The Chief Justices of the High Courts will expedite the
matter with the respective State Governments for setting
up of Juvenile Justice Boards, wherever they have not yet
been set up.
c) The Chief Justices of the High Courts will nominate a
Judge to make periodical visits to Juvenile Homes,
wherever set up, and the learned Judge may suggest
remedial measures for the betterment of the conditions of
the juvenile homes and inmates.‖
1 Address by President Nelson Mandela at National Men's March, Pretoria on 22 November 1997
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5. The above resolution was passed almost six years after the Act
of 2000 came into force – meaning thereby that even about six
years after Parliament enacted a law for the benefit of children, the
State Governments had not taken steps to fulfill one basic
requirement of the law, that is, to set up Juvenile Justice Boards.
6. In 2009 the Chief Justices‘ Conference discussed the progress
made in setting-up of Juvenile Justice Boards and the resolution
passed in the Conference in 2006 was reiterated indicating that
little or no progress had still been made by the State Governments
in setting up Juvenile Justice Boards. So, almost a decade had gone
by without compliance by the State Governments of a basic
statutory obligation laid down by Parliament.
7. In 2013 the issue of strengthening the juvenile justice system
was again discussed at the Chief Justices‘ Conference and the
resolutions passed in 2006 and 2009 were reiterated. In addition,
the mandate of setting up Child Welfare Committees in all districts
was also emphasized to meet the requirements of children in need
of care and protection and to give full effect to the provisions of
the Act of 2000. It was the further resolved:
―It was further resolved that Juvenile Justice Committees,
as had been set up in the Delhi High Court, under the
guidance of the Chief Justice and senior judges and others
concerned with the welfare of juveniles and the working
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of the Juvenile Justice (Care and Protection of Children)
Act, 2000, be set up in all the High Courts to monitor the
implementation of the provisions of the Act in their true
spirit.
It was noticed that the State Governments had not taken
serious steps to establish and set-up the various Homes,
referred to in the Juvenile Justice (Care and Protection of
Children) Act, 2000, as amended in 2006 and the Juvenile
Justice (Care and Protection of Children) Rules, 2007. It
was noticed that the conditions in the Remand/
Observation Homes and Shelter Homes are not up to the
standard and a lot of improvement was required to make
these facilities meaningful, as envisaged under the above
Act and Rules. It was also noticed that After-care Homes
for adolescents passing into adulthood and, in particular
girls, have not been taken up seriously by the concerned
Authorities. The Chief Justices shall take up the matter
with the State Governments for improving the conditions
of the various Homes, referred to in the above Act and the
Rules, and to provide for permanent staff to run the said
establishments, as it was reported by some of the Chief
Justices that many of the employees of the Homes had
been working on an ad-hoc basis, even for as many as
fifteen years. The Chief Justices were requested to take up
the matter with the State Authorities to ensure that
services of such persons, who have been working on
ad-hoc basis, are regularised, if necessary, by creation of
posts.
Particular notice was taken of the fact that the provisions
of the Juvenile Justice (Care and Protection of Children)
Act, 2000, had not yet been implemented in the State of
Jammu and Kashmir.‖
8. In 2015 the issue of strengthening the juvenile justice system
was once again discussed at the Chief Justices‘ Conference and the
following resolution passed:
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―Resolved that the High Courts shall continue to take all
steps necessary, including evolving ways to ensure greater
sensitivity, to effectively deal with cases in the field of
Juvenile Justice in their respective States. The High
Courts should ensure that constitution of Juvenile Justice
Boards and Child Welfare Committees are in place, that
visits are regularly made to the Juvenile Homes, Special
Homes, Observation Homes, Shelter Homes and Rescue
Centres etc. and that such homes are set up wherever they
have not already been set up. It shall also be ensured that
the requisite facilities are provided as per the Standards,
Rules, Policies and Guidelines in all such Homes/Centres.
The assistance of State Legal Services Authorities and
District Legal Services Authorities shall also be taken in
this regard.‖
9. Finally, in 2016 at the Chief Justices‘ Conference the
following resolution was passed:
―The Conference has noted the necessity for ensuring
institutional support for juveniles in conflict of law and
children in need of care and protection.
Resolved that:
(i) cases pending for a period in excess of one year be
disposed of on priority by the JJBs;
(ii) Juvenile Justice Committees of the High Courts
shall monitor the pendency and disposal of adoption cases
and applications for declaring children free for adoption on
a priority basis;
(iii) steps be taken to ensure that every district is
equipped with a Child Protection Unit, Special Juvenile
Police Unit, Observation Homes and Children Homes;
(iv) pending cases of orphaned, abandoned and
surrendered children be monitored by the Juvenile Justice
Committees of High Courts;
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(v) training and refresher training be imparted to
judicial officers;
(vi) vacancies in juvenile justice institutions be filled up
on a mission mode basis in three months; and
(vii) State Legal Services Authorities should actively
discharge their role.‖
10. At this stage, it may be mentioned that pursuant to the
resolutions passed in the Chief Justices‘ Conferences, every High
Court has constituted a Juvenile Justice Committee headed by a
judge of the High Court to take stock of and look into issues
concerning children. We may note that every High Court has
responded more than positively and each Juvenile Justice
Committee has brought about some improvements in the living
conditions in Homes and in the well-being and lives of many
children.
11. Appreciating that the judiciary has a constitutional obligation
to ensure that everybody acts in the best interests of the child, the
Chief Justice of India set up a Committee in the Supreme Court to
address the issues of effective implementation of the Act of 2000 –
such is the importance given by the judiciary to the rights of
children.
12. Notwithstanding nudging by the judiciary, judicial ‗activism‘
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and criticism of it, over the last decade or so, State Governments
and Union Territories have not fully complied with the provisions
of a law solemnly enacted by Parliament for the benefit of children.
In many instances, only cosmetic changes have been introduced at
the ground level with the result that voiceless children continue to
be subjects of official apathy. However, it must be acknowledged
that the Union of India through the Ministry of Women and Child
Development (for short MWCD) has taken some bold steps in
recognizing the rights of the children and giving them some
importance. Nevertheless, the overall picture relating to the
recognition of the rights of children and their realization is far from
satisfactory and remains gloomy as we continue to trudge along the
long and winding road.
Writ petition in Public Interest
13. Sampurna Behura, the petitioner before us, has done her
Masters in Sociology and was pursuing her Doctoral Thesis in the
same subject at the relevant time. She has been involved in
handling cases of child sexual abuse, street children and working
children and has also undertaken various studies on child rights.
14. Concerned with the plight of children in the country,
Sampurna Behura filed a writ petition under Article 32 of the
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Constitution drawing attention to several Articles of the
Constitution which impose primary responsibility on the State to
ensure that the needs of children are met and their basic human
rights are protected. The Articles in the Constitution referred to by
her include those in the Chapter on Directive Principles of State
Policy. She has also drawn attention to the Convention on the
Rights of the Child adopted by the General Assembly of the United
Nations on 20th November, 1989. The Convention, to which
India is a signatory, emphasizes inter alia, securing the best
interests of the child, social reintegration of child victims etc.
15. She has also stated in the writ petition that the Act of 2000
was passed by Parliament bearing in mind various standards
prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985 (the Beijing Rules), the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty,
1990 and other relevant international instruments.
16. The main burden of the writ petition is the failure of State
Governments to implement various provisions of the Act of 2000
including, inter alia, the establishment of Child Welfare
Committees, Juvenile Justice Boards, Special Juvenile Police Units,
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establishment of appropriate Homes for children in need of care
and protection, improving the living conditions of juveniles in
conflict with law, medical facilities for children in the custody of
the State and several other human rights issues. It is on these broad
facts and averments that relief was prayed for in public interest.
17. The writ petition also drew attention to surveys and researches
conducted in 2004-2005 in various States but it is not necessary to
refer to them in any great detail, notwithstanding their significance
and importance, since they might have lost immediate relevance
with the passage of time.
18. The prayer in the Public Interest Litigation is to the effect that
the Chief Secretaries and the Directors General of Police and
Superintendents of Police of all the States should forthwith
implement the Act of 2000 in its true spirit.
19. There is also a prayer that all respondent States be directed to
provide basic amenities like nutritious food, proper and hygienic
accommodation, educational facilities, recreational facilities and
rehabilitation centres for juveniles in various Homes and to direct
the Collectors of each district to involve reputed NGOs in
implementing the orders of this Court.
20. The Act of 2000 has since been repealed and what is now in
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force is the JJ Act. The repeal of the Act of 2000 does not at all
change the sum and substance of the reliefs claimed in the Public
Interest Litigation. As such this petition though filed way back in
2005 is not infructuous, the issues raised being very much topical
and alive even today.
Proceedings in this Court
21. The writ petition was first taken up for consideration on 26th
September, 2005 when notices were issued to all the respondents
(Union of India and States). After service of notice (which itself
took about one year!) the matter was taken up on 3rd January, 2007
and it was observed that the prayer in the writ petition was for
forthwith implementation of the Act of 2000 in its true letter and
spirit and that the petition highlighted some provisions of the said
Act which had not been implemented despite a number of years
having elapsed. It was noted that the writ petition highlights the
horrible conditions in some Homes for children and that this was a
violation of Article 21 of the Constitution. Under these
circumstances, the Court required detailed affidavits to be filed by
the respondent States through the Chief Secretary of each State.
22. Reference was made in the order dated 3rd January, 2007 to
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Sheela Barse II v. Union of India 2 which also dealt with
abandoned or destitute children lodged in various jails across the
country for ―safe custody‖. It was noted in that decision that the
National Policy for the Welfare of Children contained the
following preamble:
―The nation‘s children are a supremely important asset.
Their nurture and solicitude are our responsibility.
Children‘s programmes should find a prominent part in our
national plans for the development of human resources, so
that our children grow up to become robust citizens,
physically fit, mentally alert and morally healthy, endowed
with the skill and motivations needed by society. Equal
opportunities for development of all children during the
period of growth should be our aim, for this would serve
our large purpose of reducing inequality and ensuring
social justice‖.
23. The Court noted in that decision that if a child is a national
asset (as per the National Policy), it is the duty of the State to look
after the child with a view to ensuring full development of the
personality and that is why statutes dealing with children provide
that a child shall not be kept in jail. It was directed that on no
occasion should children be kept in jail and if a State Government
does not have sufficient accommodation in its remand homes or
observation homes for children, they should be released on bail
instead of being subjected to incarceration in jail.
2
(1986) 3 SCC 632
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24. It was also emphasized that Juvenile Courts should be set up
in each district and there must be a special cadre of Magistrates
who are suitably trained for dealing with cases against children.
Some other directions were also issued but they arise out of the
Childrens‘ Act and are presently not relevant. Reference was also
made in the order to Sheela Barse v. Union of India3 wherein this
Court reiterated its decision referred to above.
25. It was noted that Juvenile Justice Boards (for short ‗JJBs‘) and
Child Welfare Committees (for short ‗CWCs‘) under the Act of
2000 have been constituted in very few districts. It was also noted
that some observation homes are like prisons with uniformed or
armed police.
26. After a few subsequent hearings and completion of pleadings,
the Court impleaded the National Commission for Protection of
Child Rights (the NCPCR) by an order dated 14th February, 2011
and the National Legal Services Authority (for short ‗NALSA‘) by
an order dated 11th July, 2011. In the hearing on 19th August, 2011
quite a few suggestions were made by NALSA in respect of child
rights. We will consider these submissions at the appropriate stage.
27. During the course of hearing, the Court lamented the
3
(1988) 4 SCC 226
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confusion and uncertainty about the availability of statistics
relating to the number of juveniles in conflict with law in each
district and details of such children. This made it difficult to
make an effective plan for providing legal aid or providing
appropriate Homes. The State Legal Services Authorities were
therefore required to collect data and NALSA was required to
make data available to the Court for issuing further directions. The
Court also observed that CWCs and JJBs are not functional or not
constituted in every district. Accordingly the State Legal Services
Authorities were requested to coordinate with the appropriate
Department in the State Government to ensure that CWCs and
JJBs are established as per the Act of 2000.
28. Pursuant to the order dated 19th August, 2011 a detailed and
excellent Report was prepared by NALSA in three parts on the
existing facilities for implementation of the Act of 2000, with the
month and year of reporting being August 2011.
29. When the case was again taken up on 12th October, 2011 the
Court reiterated the importance of the directions passed on 19th
August, 2011 and also added focus to setting up Special Juvenile
Police Units under Section 63 of the Act of 2000. Directions were
given in this regard to the Home Department and the Director
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General of Police of all the States and Union Territories to ensure
that there is at least one police officer in every Police Station who
has the necessary aptitude and is given appropriate training and
orientation to function as a Juvenile or Child Welfare Officer.
The State Legal Services Authorities and NALSA were requested
to provide necessary training and orientation in phases to such
officers.
30. The Home Department and the Directors General of Police
were also directed to ensure that Special Juvenile Police Units are
set up in every district and city to coordinate and upgrade the
treatment of juveniles in conflict with law and children in need of
care and protection as required by sub-section (3) of Section 63 of
the Act of 2000.
31. When the case was taken up for consideration on 11th
September, 2015 by the Social Justice Bench of this Court, it was
noticed that the Union of India had filed affidavits on 31st July,
2015 and 9th September, 2015. From a reading of these affidavits, it
appeared that a large number of Homes were not registered under
the provisions of the Act of 2000. Since this was a matter of
concern (with a possibility of trafficking of children), the learned
Additional Solicitor General appearing for the Union of India was
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requested to look into the matter and he submitted that the Union
of India had initiated steps to ensure that the Homes run by NGOs
get registered under the Act of 2000 in a few months time.
32. Soon thereafter, the JJ Act was passed by Parliament and
brought into force on 15th January, 2016. The JJ Act brought in
several changes in the juvenile justice regime but the substratum of
the petition filed by Sampurna Behura remained unaffected.
33. Her PIL was taken up on 15th February, 2016 in the above
background and after hearing learned counsel for the parties and
going through various orders passed by this Court from time to
time, the following issues were identified as needing serious
consideration and deliberation:
1. Constitution of State Child Protection Society.
2. Constitution of State Commissions for the Protection
of Child Rights.
3. Establishment of Juvenile Justice Boards (JJBs) in
every district (if necessary more than one in some
districts) and their training.
4. Establishment of Child Welfare Committees (CWCs)
and their training.
5. Appointment of Probation Officers and their training.
6. Establishment of Special Juvenile Police Units in
every Police Station, their training and updating the
Police Training Manual.
7. Provision for legal aid lawyers and their training.
8. Proper selection of members of JJBs and CWCs.
9. Assessment of manpower requirements of JJBs and
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CWCs and filling up the vacancies.
10.Furnishing of on-line quarterly reports by the State
Governments.
11.Significance of Social Investigation Report.
12.Principal Magistrates should exclusively deal with
Juvenile Justice inquiries.
13.Registration of child care institutions.
14.Improvement of living conditions in government run
child care institutions.
15.Establishment of Juvenile Justice Fund.
34. Thereafter, the matter was taken up on 9th May, 2016 when the
learned Additional Solicitor General stated that the process of
collecting and updating information online was underway in
MWCD and was proceeding at a fast pace and that he expected it
to be completed very soon. He also stated that the names of
persons in various positions, such as members of JJBs and CWCs
would be placed on the website of MWCD so that it would be easy
to contact them whenever necessary. Learned Additional Solicitor
General stated that the assistance of the State Governments and the
Union Territories was required for completing the project.
Accordingly this Court directed the State Governments and the
Union Territories to render necessary assistance to the Union of
India for updating the information and keeping it updated from
time to time.
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35. As far as NALSA is concerned, it submitted on record a copy
of the Training Module for Legal Services Lawyers and Probation
Officers but it was suggested by the learned Senior Counsel
appearing for NALSA that since the Modules were prepared on the
basis of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 NALSA would conduct some pilot training
programmes to ascertain their efficacy and subsequently bring
them in line with the new Rules to be framed under the JJ Act.
36. In the hearing on 22nd August, 2016 the Union of India was
required to consider the feasibility of urgently providing computers
and internet connectivity to the Juvenile Justice Boards and Child
Welfare Committees.
37. The matter was again taken up on 17th February, 2017 by
which time considerable progress had been made by MWCD in the
online collection of information to the extent that a Central Level
Monitoring Format had been prepared which could easily be filled
up by the States and Union Territories for providing full
information which could be collated.
38. We also required, in addition to the collated information, that
the State Commission for Protection of Child Rights (SCPCR)
should be in place in every State and Union Territory. It may be
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mentioned that the SCPCR is a body constituted under the
provisions of the Commissions for Protection of Child Rights Act,
2005 with a variety of functions as detailed in Section 13 of the
said Act.
39. On 5th April, 2017 and on 11th July, 2017 we noted the
information made available on the composition and constitution of
the SCPCRs and on an overall view of the matter it was found that
a large number of vacancies existed and that little or nothing was
being done by some of the State Governments to fill them up or to
show any urgency in respect of protection of the rights of children.
40. Subsequently, on 15th November, 2017 we required MWCD to
inform us of the amounts lying in the Juvenile Justice Fund in each
State and Union Territory.
41. With all this information available on record in some form or
the other, we heard the submissions of learned counsel for the
parties on 20th November, 2017 and reserved judgment.
42. We have gone into detail with regard to some of the more
important proceedings that have taken place in the matter from the
time when the Public Interest Litigation was instituted only to
highlight various dimensions to the problems faced by children and
the casual approach that most State Governments and Union
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Territories have towards the rights of children. It is easy to forget
that children also deserve dignified treatment and merely because
they have no voice in the affairs of State, it does not mean that they
are inconsequential members of society who can be compelled to
live in conditions that are uncomfortable (to say the least) and who
have little or no access to justice.
Affidavits filed by MWCD
43. During the progress of the case, MWCD filed a few status
reports and affidavits.
44. In an affidavit filed on 31st July, 2015 the status of an online
Central Level Monitoring System being implemented by MWCD
was indicated. Briefly, each State and Union Territory is given a
login ID and password to access the formats, feed data and submit
Reports to MWCD. Very broadly, the areas covered by the Reports
are Homes and Children, Open Shelters, Specialized Adoption
Agencies, Non-Institutional Care, Child Welfare Committees,
Juvenile Justice Boards and Service Delivery Structures. This is a
very forward-looking step and a major attempt to collect
information so that the JJ Act could be effectively implemented
and the planning process more structured rather than ad hoc.
45. MWCD filed another affidavit on 8th September, 2015 which
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indicated requests made to States and Union Territories to adhere
to the requirements of entering information in the software as
required by the Central Level Monitoring System. An indication
was given in the affidavit regarding the extent of compliance. For
the period 2014-15 it was stated that while most States and Union
Territories had provided the necessary information, as many as 7
States were not fully compliant. For the period 2015-16 most
States did not provide the necessary information. Those who did
were Assam, Union Territory of Chandigarh, Chhattisgarh,
Himachal Pradesh, Madhya Pradesh, Meghalaya, Mizoram,
Nagaland, Punjab, Tamil Nadu and Tripura.
46. MWCD filed a status report on 4th December, 2015 giving the
details of Child Care Institutions and their registration as well as
the availability of Probation Officers in the States and Union
Territories. Unfortunately, as per the affidavit the status was quite
unsatisfactory in the sense that not many Child Care Institutions
had been registered and there was a serious shortage of Probation
Officers. In a further affidavit of 12th February, 2016 MWCD
stated that steps were being taken for the registration of Child Care
Institutions and it also indicated the role of a Probation Officer in
the scheme of things.
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47. In yet another affidavit filed by MWCD on 29th March, 2016 a
factual response was given with regard to the 15 issues identified
by this Court on 15th February, 2015.
48. MWCD filed its final status report on 3rd May, 2016 in which
it was stated that some formats for information given in the Central
Level Monitoring System were added in view of the 15 issues
identified by this Court.
49. In the affidavit dated 11th January, 2017 it was disclosed by
MWCD that the availability and use of computers and peripherals
for juvenile justice issues was in quite a poor state. In fact,
complete information in this regard was not made available to
MWCD by the States and Union Territories.
50. In the final affidavit filed by MWCD it was disclosed that a
National Consultation was held on 26th September, 2017 and it
appears from a reading of the affidavit that there is considerable
improvement in the understanding of child rights and juvenile
justice issues by the participants, but there is still a lot to be done.
Unfortunately, the minutes of the National Consultation have not
been placed on record.
Information and data provided by NALSA
51. As far as NALSA is concerned, it had carried out a
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remarkable study and placed on record a three part Report on
issues pertaining to Juvenile Justice Boards, Child Welfare
Committees and Homes under the Act of 2000. Even though the
reports prepared by NALSA are extremely useful, since they are
now quite dated (with data upto August 2011) they are not being
referred to in any detail.
52. NALSA gave another Report on 20th July, 2015 in which it
was pointed out that a large number of inquiries are pending before
the JJBs. It was pointed out that in Uttar Pradesh alone there are
34,569 inquiries pending and in district Durg in Chhattisgarh, there
are 1883 inquiries pending before the JJBs. It was pointed out in
the report that many of the JJBs did not sit on a regular basis with
some sitting maybe once or twice a week. It was also pointed out
that in some places the distance between the Observation Home
and the JJB was considerable. It was submitted that there was a
need for Probation Officers who would deal exclusively with
juvenile justice issues.
53. At this stage, it may be mentioned that in May 2016 a
Training Module for Probation Officers was brought out by
NALSA. This Training Module has since been utilized by NALSA
and we have been given to understand that it has been found to be
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extremely useful and beneficial as a training guide.
Submissions made by the petitioner
54. On its part, the petitioner submitted a large number of steps
that need to be taken to improve the lives of children in Child Care
Institutions and enable them to live with dignity. Suggestions were
also given by the petitioner on 10th and 25th September, 2013 and
10th May, 2016 on several aspects of child rights and juvenile
justice. Most of these suggestions complement the suggestions
given by NALSA.
Discussion, suggestions and recommendations
(i) National and State Commissions for Protection of Child
Rights
55. Child related laws enacted by Parliament provide for two
extremely important policy and decision-making institutions in
respect of children and child rights, namely the NCPCR and the
SCPCRs. Similarly, two extremely important bodies have been
provided for at the ground or grass-roots level for implementation
of the JJ Act, namely the State Child Protection Society and the
District Child Protection Unit. In our opinion, if these institutions
and bodies perform their duties as required by the laws made by
Parliament, under the supervision and guidance of the concerned
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State Government and the Government of India, recognition and
enforcement of child rights could actually become a reality in our
country.
56. The Commissions for Protection of Child Rights Act, 2005
provides for the Central Government constituting a body to be
known as the NCPCR at the national level and the State
Governments constituting a body to be known as the SCPCR at the
State level. The composition of the NCPCR is provided for in
Section 3 of the statute while a similar composition of the SCPCR
is provided for in Section 17 of the statute. Section 3 of the
Commissions for Protection of Child Rights Act reads as follows:
―3. Constitution of National Commission for Protection
of Child Rights.—(1) The Central Government shall, by
notification, constitute a body to be known as the National
Commission for Protection of Child Rights to exercise the
powers conferred on, and to perform the functions
assigned to it under this Act.
(2) The Commission shall consist of the following
Members, namely:—
(a) a Chairperson who, is a person of eminence and has
done outstanding work for promoting the welfare of
children; and
(b) six Members, out of which at least two shall be women,
from the following fields, to be appointed by the Central
Government from amongst persons of eminence, ability,
integrity, standing and experience in,—
(i) education;
(ii) child health, care, welfare or child development;
(iii) juvenile justice or care of neglected or marginalized
children or children with disabilities;
W.P. (C) No.473 of 2005 Page 26 of 62
(iv) elimination of child labour or children in distress;
(v) child psychology or sociology; and
(vi) laws relating to children.
(3) The office of the Commission shall be at Delhi.‖
57. It is quite apparent that at the national level, the NCPCR is an
institution consisting of eminent persons and experts in their
respective fields. As such, they are expected to look at issues
concerning the welfare of children in the national perspective
taking into consideration the views of every SCPCR and other
stakeholders. At the State level, the SCPCR is an equally
significant body consisting of eminent persons and experts. They
are expected to take policy decisions for the benefit of the children
in their State, regardless of which State the children originally
belong to, for there might be children of one State who are in need
of care and protection but in a Child Care Institution of another
State.
58. The functions of the NCPCR and the SCPCR are more or less
the same except that one performs these functions at the national
level, while the other performs these functions at the State level.
Section 13 of the Commissions for Protection of Child Rights Act,
2005 details the functions of the NCPCR and this reads as follows:
W.P. (C) No.473 of 2005 Page 27 of 62
―13. Functions of Commission.—(1) The Commission
shall perform all or any of the following functions,
namely:—
(a) examine and review the safeguards provided by or
under any law for the time being in force for the
protection of child rights and recommend measures for
their effective implementation;
(b) present to the Central Government, annually and at
such other intervals, as the Commission may deem fit,
reports upon the working of those safeguards;
(c) inquire into violation of child rights and recommend
initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of rights
of children affected by terrorism, communal violence,
riots, natural disaster, domestic violence, HIV/AIDS,
trafficking, maltreatment, torture and exploitation,
pornography and prostitution and recommend appropriate
remedial measures;
(e) look into the matters relating to children in need of
special care and protection including children in distress,
marginalized and disadvantaged children, children in
conflict with law, juveniles, children without family and
children of prisoners and recommend appropriate remedial
measures;
(f) study treaties and other international instruments and
undertake periodical review of existing policies,
programmes and other activities on child rights and make
recommendations for their effective implementation in the
best interest of children;
(g) undertake and promote research in the field of child
rights;
(h) spread child rights literacy among various sections of
the society and promote awareness of the safeguards
available for protection of these rights through
W.P. (C) No.473 of 2005 Page 28 of 62
publications, the media, seminars and other available
means;
(i) inspect or cause to be inspected any juvenile custodial
home, or any other place of residence or institution meant
for children, under the control of the Central Government
or any State Government or any other authority, including
any institution run by a social organisation; where children
are detained or lodged for the purpose of treatment,
reformation or protection and take up with these
authorities for remedial action, if found necessary;
(j) inquire into complaints and take suo motu notice of
matters relating to,—
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection
and development of children;
(iii) non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships to and ensuring
welfare of the children and to provide relief to such
children,
or take up the issues arising out of such matters with
appropriate authorities; and
(k) such other functions as it may consider necessary for
the promotion of child rights and any other matter
incidental to the above functions.
(2) The Commission shall not inquire into any matter
which is pending before a State Commission or any other
Commission duly constituted under any law for the time
being in force.‖
59. It will be seen from the above that both the NCPCR and the
SCPCR have a range and variety of functions to perform and each
one of them entails a great deal of responsibility. We have been
given to understand that both the Government of India and the
State Governments have not been giving these bodies the freedom
W.P. (C) No.473 of 2005 Page 29 of 62
to decide on broad policy matters and indeed in some instances,
particularly relating to the SCPCR, vacancies have not been filled
up for several months. In fact, the NCPCR was compelled to file a
writ petition in the Punjab and Haryana High Court for a
mandamus to the State Governments of Punjab and Haryana and
the Union Territory of Chandigarh to fill up the vacancies of
members of the SCPCR.4 Unfortunately, at one point of time, even
the position of the Chairperson of the NCPCR was lying unfilled
for several months, until, on the directions of this Court, the
position was eventually filled up. We need hardly say that unless
the NCPCR and the SCPCRs are given due importance by the
Government of India and the State Governments and vacancies are
filled up in time, the enforcement of the rights of children will
remain on the back burner and any number of welfare schemes
formulated by the Government of India or by the State
Governments will remain unimplemented or their implementation
will remain sketchy and symbolic.
60. We hope and trust that those in authority and power in the
Government of India and in the State Governments appreciate the
4 Court on its own motion v. State of Punjab and The National Commission for the Protection of Child
Rights (NCPCR) v. The State of Haryana and Others, Decided on 9
th April, 2013 and reported as
MANU/PH/0599/2013
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importance of adhering to the provisions of the laws enacted by
Parliament and ensure that the NCPCR at the National level and
the SCPCR at the State level actually function and perform their
duties and recognize their responsibilities.
(ii) State Child Protection Society and the District Child
Protection Unit
61. In the absence of any clear-cut guidelines on who should be
appointed to these two bodies, the State Governments have found
an easy way out by appointing Government officials only and
leaving out members of civil society. In our opinion, the
constitution of the State Child Protection Society and the District
Child Protection Unit need serious consideration so that all
stake-holders, including the police and NGOs are actively involved
in the performance of the functions, duties and responsibilities of
these two bodies.
62. The functions of the State Child Protection Society and the
District Child Protection Unit are detailed in Rule 84 and Rule 85
of the Juvenile Justice (Care and Protection of Children) Model
Rules, 2016 framed by the Government of India. [It may be noted
that some States have framed their independent Rules, but we are
not referring to them]. The functions are varied, extensive and
W.P. (C) No.473 of 2005 Page 31 of 62
geared to improve the living conditions of children through
different strategies and with the involvement of all stake-holders.
63. For the effective implementation of the JJ Act and the
policies laid down by the NCPCR and the SCPCRs, Section 106 of
the JJ Act provides for the constitution of a State-level Child
Protection Society and a District-level Child Protection Unit.
Section 106 of the JJ Act reads as follows:
―106. State Child Protection Society and District Child
Protection Unit.—Every State Government shall
constitute a Child Protection Society for the State and
Child Protection Unit for every District, consisting of such
officers and other employees as may be appointed by that
Government, to take up matters relating to children with a
view to ensure the implementation of this Act, including
the establishment and maintenance of institutions under
this Act, notification of competent authorities in relation to
the children and their rehabilitation and co-ordination with
various official and non-official agencies concerned and to
discharge such other functions as may be prescribed.‖
64. A perusal of the above provision broadly indicates that the
primary function of the State Child Protection Society and the
District Child Protection Unit is to ensure implementation of the JJ
Act. In addition, these bodies are obliged to ensure that the
institutions under the JJ Act are established and maintained,
competent authorities in relation to children and their rehabilitation
are in place and these two bodies are also required to coordinate
with Government officials as well as NGOs to discharge their
W.P. (C) No.473 of 2005 Page 32 of 62
wide-ranging functions. The involvement of civil society through
NGOs is a progressive step and these two bodies are expected to
take their assistance from time to time.
65. If these two bodies actually perform their duties,
responsibilities and functions in the manner expected of them, the
implementation of the JJ Act would no longer be an issue.
Unfortunately, we have been informed that these bodies are not
functioning in many places or in the manner in which they are
expected to and in several districts the District Child Protection
Unit has not even been constituted. We expect remedial steps to be
taken by all concerned.
(iii) Juvenile Justice Boards and Child Welfare Committees
66. With regard to the establishment of JJBs, we were given to
understand that most districts now have a JJB, but it is high time
that every district in every State must have a JJB. An exception
could perhaps be made, such as in some districts of Arunachal
Pradesh where there is perhaps no juvenile crime or, there could be
some districts where the number of inquiries are very few in which
event the JJB may appropriately schedule its sittings. Similarly, a
‗circuit JJB‘ could be considered if there are some adjacent
districts where the number of pending inquires is quite few.
W.P. (C) No.473 of 2005 Page 33 of 62
67. We have also been given to understand that the appointment
of some social workers as members of the JJB is not necessarily in
accordance with the provisions of Section 4 of the JJ Act. The
relevant provision in this regard reads as follows:
―4. Juvenile Justice Board :– 1. xxx xxx xxx
2. A Board shall consist of a Metropolitan Magistrate or a
Judicial Magistrate of First Class not being Chief
Metropolitan Magistrate or Chief Judicial Magistrate
(hereinafter referred to as Principal Magistrate) with at
least three years experience and two social workers
selected in such manner as may be prescribed, of whom at
least one shall be a woman, forming a Bench and every
such Bench shall have the powers conferred by the Code of
Criminal Procedure, 1973 (2 of 1974) on a Metropolitan
Magistrate or, as the case may be, a Judicial Magistrate of
First Class.
3. No social worker shall be appointed as a member of the
Board unless such person has been actively involved in
health, education, or welfare activities pertaining to
children for atleast seven years or a practicing
professional with a degree in child psychology, psychiatry,
sociology or law.
4. xxx xxx xxx
5. The State Government shall ensure that induction
training and sensitization of all members including
Principal Magistrate of the Board on care, protection,
rehabilitation, legal provisions and justice for children, as
may be prescribed, is provided within a period of sixty
days from the date of appointment.
6. and 7. Xxx xxx xxx.‖
68. The selection of social workers as members of the JJB is
W.P. (C) No.473 of 2005 Page 34 of 62
required to be carried out in accordance with the provisions of
Rule 88 read with Rule 87 of the Model Rules. It must be
appreciated that the appointment of social workers is serious
business, inasmuch as they bring their experience - practical and
professional - while conducting an enquiry under the JJ Act. This
becomes all the more important when it is appreciated that the
social workers can also conduct an enquiry independent of the
Principal Magistrate as provided for in Section 7 of the JJ Act.
However, the final disposition of the enquiry cannot be without the
Principal Magistrate as mandated in the proviso to sub-section (3)
of Section 7 of the JJ Act. There is therefore a heavy responsibility
on the social workers to make a meaningful contribution during the
course of an enquiry and also at the time of its disposition.
69. In this context, it is important to note that the training of the
Principal Magistrate as well as the social workers is extremely
important and this is provided for in Rule 89 of the Model Rules.
Unfortunately, the duration of training and the curriculum and
course have not yet formulated, and the nature of training given to
the Principal Magistrate and the social workers is somewhat ad hoc
and unstructured. The lack of meaningful and effective training
(and refresher courses) can have a vital impact on the ultimate
W.P. (C) No.473 of 2005 Page 35 of 62
disposition of an enquiry as also on the rehabilitation and
reintegration of a juvenile in conflict with law who is before the
JJB. Serious thought is required to be given to this not only from
the point of view of awareness of the law and child rights but also
from the point of view of sensitization of the JJBs, case
management and creation of a child friendly ambience and
environment within the JJB for a juvenile in conflict with law. It
appears to us that not much thought has been given to these aspects
of the functioning of the JJBs and that is perhaps the reason why a
very large number of inquiries are pending as mentioned above,
with the State of Uttar Pradesh topping the list.
70. On the functioning of the JJBs, it is worth referring to the
following passage from a decision of the Gauhati High Court in
Naisul Khatun v. State of Assam and Ors.5
―The second disturbing aspect of the case is that it appears
the Juvenile Justice Board constituted under section 4 of
the Act did not actually sit or assemble to deal with the
case of the juvenile. We say so because from the original
case records we find that all the order sheets passed in the
matter, including those refusing bail, to juvenile have all
been signed only by the Principal Magistrate of the
Juvenile Justice Board. There is nothing to suggest that the
two social worker members of the Board ever met to
consider the request of the juvenile's father to grant him
bail. This is rather unfortunate because the application of
5
2011 Cri LJ 326 = 2010 SCC Online Gau 225
W.P. (C) No.473 of 2005 Page 36 of 62
mind has to be by the Juvenile Justice Board and not only
by the Principal Magistrate.‖
71. The submissions made before us by learned counsel for the
petitioner as well as by learned counsel appearing for NALSA
suggest that the JJBs do not have daily sittings. Of course, this
would depend upon the number of inquiries pending before each
JJB, but clearly if there are a large number of inquiries pending, it
is the obligation of the JJB to sit on a daily basis so that the
enquiry is concluded within the time limit prescribed by the JJ Act.
It does not serve any purpose at all if an enquiry remains pending
for a considerable period of time - no one benefits by the delay in
the disposition of an enquiry. In this context, we may also add that
where a large number of inquiries are pending, it would be
worthwhile for the State Government and the High Court to
consider having more than one JJB. In Delhi, for instance, there are
as many as three JJBs functioning at any given point of time and
that is because of the large number of pending enquiries. Similar
steps can be taken by some of the other State Governments as well
as by the High Courts after evaluating and making an assessment
of the need for more than one JJB being established in a district.
72. During the course of hearing, we had emphasized the need
for a study to be conducted by the State Governments on whether
W.P. (C) No.473 of 2005 Page 37 of 62
there is adequate staff available with the JJBs. Unfortunately, the
response was rather poor and we were only told that there is
adequate staff available. It must be appreciated that a JJB is
virtually in the nature of a court, although it does not conduct a
trial, but only conducts an enquiry. Nevertheless, it does need
adequate staff to perform its functions in an efficient manner. The
JJB also has several administrative functions and they need due
attention so that there is effective coordination between the JJB,
the officials of the Observation Home, the police, the juvenile in
conflict with law and the parents of that juvenile and lawyers
representing the police as well as the juvenile in conflict with law.
These administrative duties need attention if the JJB is to function
effectively and a casual statement that the JJB has adequate staff,
though possibly correct, is neither here nor there considering the
requirements of the stake-holders who attend the enquiry before
the JJB.
73. In this context, it must also be mentioned that there is a dire
need to have quality legal aid lawyers who can assist juveniles in
conflict with law. This is an issue that must be taken up with all
earnestness by the State Legal Services Authority. Unless a child is
given adequate legal representation, it may impact his or her future,
W.P. (C) No.473 of 2005 Page 38 of 62
more so if the child in conflict with law is found guilty and placed
in a Special Home. On its part, NALSA has brought out a manual
for training of legal aid lawyers and we believe that it will be
extremely useful not only for legal aid lawyers who are
representing juveniles in conflict with law, but also for legal aid
lawyers generally. Similarly, prosecutors also need to be sensitized
and we hope that the State Governments will take necessary steps
to educate and train them keeping in mind the primary objective of
the JJ Act, which is to reintegrate a juvenile in conflict with law in
society and to rehabilitate that juvenile.
74. In the context of conducting an effective enquiry, the role of
a Probation Officer cannot be underestimated nor can we
underestimate the significance of an accurate Social Investigation
Report prepared by a Probation Officer. The duties of a Probation
Officer have been detailed in Rule 64 of the Model Rules and this
reads as follows:
―64. Duties of a Probation Officer. — (1) On receipt
of information from the Police or Child Welfare Police
Officer under clause (ii) of sub-section (1) of section 13 of
the Act, without waiting for any formal order from the
Board, the Probation Officer shall inquire into the
circumstances of the child as may have bearing on the
inquiry by the Board and submit a social investigation
report in Form 6 to the Board.
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(2) The social investigation report should provide for
risk assessment, including aggravating and mitigating
factors highlighting the circumstances which induced
vulnerability such as traffickers or abusers being in the
neighbourhood, adult gangs, drug users, accessibility to
weapons and drugs, exposure to age inappropriate
behaviours, information and material.
(3) The Probation Officer shall carry out the directions
given by the Board and shall have the following duties,
functions and responsibilities:
(i) To conduct social investigation of the child in Form 6;
(ii) To attend the proceedings of the Board and the
Children‘s Court and to submit reports as and when
required;
(iii) To clarify the problems of the child and deal with
their difficulties in institutional life;
(iv) To participate in the orientation, monitoring,
education, vocational and rehabilitation programmes;
(v) To establish co-operation and understanding between
the child and the Person- in-charge;
(vi) To assist the child to develop contacts with family and
also provide assistance to family members;
(vii) To participate in the pre-release programme and help
the child to establish contacts which could provide
emotional and social support to the child after release;
(viii) To establish linkages with Probation Officers in
other Districts and States for obtaining social investigation
report, supervision and follow-up;
(ix) To establish linkages with voluntary workers and
organisations to facilitate rehabilitation and social
reintegration of children and to ensure the necessary
follow-up;
W.P. (C) No.473 of 2005 Page 40 of 62
(x) Regular post release follow-up of the child extending
help and guidance, enabling and facilitating their return to
social mainstreaming;
(xi) To prepare the individual care plan and post release
plan for the child;
(xii) To supervise children placed on probation as per the
individual care plan;
(xiii) To make regular visits to the residence of the child
under his supervision and places of employment or school
attended by such child and submit periodic reports as per
Form 10;
(xiv) To accompany children where ever possible, from
the office of the Board to the observation home, special
home, place of safety or fit facility as the case may be;
(xv) To evaluate the progress of the children in place of
safety periodically and prepare the report including
psycho-social and forward the same to the Children‘s
Court;
(xvi) To discharge the functions of a monitoring authority
where so appointed by the Children‘s Court;
(xvii) To maintain a diary or register to record his day to
day activities such as visits made by him, social
investigation reports prepared by him, follow up done by
him and supervision reports prepared by him;
(xviii) To identify alternatives of community services and
to establish linkages with voluntary sector for facilitating
rehabilitation and social reintegration of children; and
(xix) Any other task as may be assigned.‖
75. It is clear from a reading of the above provision that a
Probation Officer has a very important role to play in ensuring that
W.P. (C) No.473 of 2005 Page 41 of 62
a juvenile in conflict with law is given adequate representation and
a fair hearing before the JJB and the enquiry is conducted in a
manner that is conducive to the rehabilitation of the juvenile in
conflict with law. In this regard, the preparation of an individual
care plan and post release plan gain immense significance and a
Probation Officer has an important role to play in this.
76. Once again, it is of great importance that a Probation Officer
should be given adequate training, sensitization and awareness of
his or her duties and responsibilities. NALSA has made a
significant contribution in this regard by preparing a training
module for Probation Officers. We expect all the State
Governments as well as MWCD to ensure that training is given to
Probation Officers on the lines suggested by NALSA with
improvements being made in adult learning techniques, training
methodology, the curriculum and the course content in due course
of time.
77. The submissions made by learned counsel for all the parties
and our views and conclusions pertaining to the JJBs are equally
applicable to the CWCs and it is not necessary to repeat them.
However, it might be noted that it is not always necessary for the
State Legal Services Authority to appoint legal aid lawyers to assist
W.P. (C) No.473 of 2005 Page 42 of 62
the CWC - this would depend on a case to case basis and only as
an Amicus Curiae for the purpose of advising the CWC on a
question of law, should the need arise.
78. We were informed, somewhat unfortunately, that Child
Welfare Committees are sometimes treated as ‗second class bodies‘
and that payment of honorarium is not made to them on a regular
basis. In addition, they are compelled to hold their sittings in
buildings with very poor infrastructure facilities. This is a sad
commentary on the working of the JJ Act for which the full
responsibility rests on the shoulders of the concerned State
Governments who must remedy the situation.
(iv) Use of technology
79. The use of technology, both by the JJBs as well as by the
CWCs is extremely important and we are disheartened to note
from the affidavits and submissions made by MWCD that there is
an acute shortage of computers and peripherals with the JJBs and
CWCs. Technology is important not only for the effective
functioning of the JJBs and CWCs, but also to deal with issues that
would arise from time to time concerning the tracing and tracking
of missing children, the rescue of children working in hazardous
industries, trafficked children, children who leave the Child Care
W.P. (C) No.473 of 2005 Page 43 of 62
Institutions, victims of child sexual abuse and follow-up action,
among several other requirements. It is well-known that our
country is a technological power-house and if we are unable to take
advantage of the resources available with us and fully utilize the
benefits of technology through computers and the internet for the
benefit of children, our status as a technological power-house
would be in jeopardy and would remain only on paper. Data,
particularly of the magnitude of the kind that we are concerned
with, can be easily collected through the use of computers and the
internet. This would be of great assistance in planning and
management of resources and MWCD and others concerned with
child rights must take full advantage of this.
80. That apart, there can be no doubt that the use of computers
and peripherals would make an immense contribution to the
administrative functioning of the JJBs and CWCs. Both the
Government of India and the State Governments need to look into
this and provide necessary software and hardware to the JJBs and
the CWCs for obvious reasons. We were informed by learned
counsel that the Police authorities in Telangana and Andhra
Pradesh in consultation with the Juvenile Justice Committee of the
High Court have made considerable use of information and
W.P. (C) No.473 of 2005 Page 44 of 62
communication technology and we are of the view that innovative
steps must be encouraged. Similarly, the use of video conferencing
could also be considered in appropriate cases where some
inconvenience to the juvenile in conflict with law necessitates the
use of video conferencing facilities.
81. In the context of the use of technology, MWCD must be
complimented for bringing out an online Central Level Monitoring
System. We have been told by the learned Additional Solicitor
General that this online system is working rather effectively
although it would need upgrading from time to time as the months
go by. The unfortunate part is that there does not seem to be much
active cooperation extended by the State Governments in updating
the information on the Central Level Monitoring System. In one of
the affidavits filed by MWCD and adverted to above, it was stated
that while almost every State Government has filled up the relevant
information for the year 2014-15, but the response was rather
lukewarm with regard to the period 2015-16. Needless to say,
updating information is extremely important so that there can be
efficient planning which will ultimately lead to better management
of issues concerning children. We may mention that the State
Governments are required to fill up the information on the Central
W.P. (C) No.473 of 2005 Page 45 of 62
Level Monitoring System once a quarter and surely that cannot be
a difficult task.
(v) Role of Police
82. An extremely important stake-holder in the effective
implementation of the JJ Act is the local police. Section 107 of the
JJ Act mandates the appointment of a Child Welfare Police Officer
(for short ‗CWPO‘) and a Special Juvenile Police Unit (for short
‗SJPU‘) in each district. The SJPU must also include two social
workers having experience of work in the field of child welfare,
one of them being a woman. The responsibility for appointment
lies on the State Government. Section 107 of the JJ Act reads as
follows:
―107. Child Welfare Police Officer and Special Juvenile
Police Unit. — 1. In every police station, at least one
officer, not below the rank of assistant sub-inspector, with
aptitude, appropriate training and orientation may be
designated as the child welfare police officer to exclusively
deal with children either as victims or perpetrators, in
co-ordination with the police, voluntary and
non-governmental organisations.
2. To co-ordinate all functions of police related to children,
the State Government shall constitute Special Juvenile
Police Units in each district and city, headed by a police
officer not below the rank of a Deputy Superintendent of
Police or above and consisting of all police officers
designated under sub-section (1) and two social workers
having experience of working in the field of child welfare,
of whom one shall be a woman.
W.P. (C) No.473 of 2005 Page 46 of 62
3. All police officers of the Special Juvenile Police Units
shall be provided special training, especially at induction as
child welfare police officer, to enable them to perform their
functions more effectively.
4. Special Juvenile Police Unit also includes Railway
police dealing with children.‖
83. We have been given to understand by learned counsel for the
parties that many States have actually appointed CWPOs and set
up SJPUs. Unfortunately, their duties and responsibilities have not
been clearly identified but are generally stated in Rule 86 of the
Model Rules. We have also been given to understand that no
system of effective training for CWPOs and SJPUs has evolved
and many of them exist only symbolically and only because the
law requires them to exist. Since the duties and responsibilities of
the CWPOs and SJPUs have not been specified or identified, it is
high time in our opinion, that the Bureau of Police Research &
Development and the National Police Academy in consultation
with the State Police Academies identify the functions, duties and
responsibilities of the CWPOs and SJPUs. In this regard, we may
note that NALSA has prepared Guidelines for Training
Juvenile/Child Welfare Officers attached to every police station
and members of the Special Juvenile Police Unit. Perhaps this
could be a starting point for their training through the Bureau of
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Police Research & Development and the Police Academies.
84. The importance of training can be appreciated from the
allegations made before the Patna High Court in The Matter of
Letter of Sanat Kumar Sinha (Chief Co-ordinator), Bal Sakha v.
The State of Bihar through the Chief Secretary, Govt. of Bihar
and Ors.6
It was alleged in that case that a child was handcuffed
by policemen in uniform during his transit from the Police Station
to the Civil Court for his appearance before the Chief Judicial
Magistrate. Additionally, it was alleged that contrary to the
provisions of the Act of 2000 the identity of the child was
disclosed. Of course, the Patna High Court took up the issue with
due seriousness but such a situation ought not to have occurred at
all and could have been avoided through proper training and
sensitization.
85. With regard to the Police generally, it was submitted that due
to the policy of rotation, it often happens that soon after a police
officer completes his or her training that officer is transferred out
to another department. This is a waste of effort and one of the ways
of resolving problems arising out of transfers is for every State
Police Academy to conduct regular training programmes under the
6 MANU/BH/0384/2008
W.P. (C) No.473 of 2005 Page 48 of 62
guidance of senior police officials of the State and for the State
Government to optimally utilize the services of its officers.
86. Similarly, the Government of India is required to involve
Railway Police for dealing with children. No information or data is
forthcoming in this regard and learned counsel for the parties were
unable to assist us insofar as this aspect is concerned. We expect
the Government of India through the Railways to look into the
matter with some degree of urgency. We were told by learned
counsel that a large number of runaway children and children on
drugs are found in railway stations (and other places) working as
rag-pickers or performing other menial activities. It was submitted
before us that even otherwise, there is rampant drug abuse among
such children. Efforts must be made to establish de-addiction
centres especially for such children and also generally for juveniles
in conflict with law and children in need of care and protection.
(vi) Child Care Institutions
87. There is a lot to be said with regard to Child Care
Institutions. Many of them are housed in run-down buildings and
are hardly conducive to comfortable living even to a minimum
degree. State Governments must appreciate that they are not doing
any charity by putting up children in Child Care Institutions - they
W.P. (C) No.473 of 2005 Page 49 of 62
are merely performing their statutory and constitutional obligations.
There is, therefore, an urgent need to make an evaluation and
assessment of all the Child Care Institutions in every State to
ascertain their condition, the infrastructure requirements and
staffing requirements. Children live in these Institutions, not
because they want to but because they have no other option, since
most of them are children in need of care and protection. The
obligation of society is to provide solace and comfort to these
children and adherence to the minimum standards of care. Model
Rules contain details for improved Child Care Institutions and their
requirements. The State Governments have merely to adhere to
these minimum requirements. The condition of some State
managed Child Care Institutions is best illustrated by the
observations made by the Punjab and Haryana High Court in Court
on its own motion v. State of Punjab (supra) to the following
effect:
―….The sordid state of the said Observation Home
depicted that Observation Home at Sonepat had two
barracks and a front side courtyard with high walls. The
entry gate was similar to jail gate. The Home was having
no source of recreation facilities or playground for the
juveniles housed therein. The courtyard was filled with
stagnated water due to blockage of drainage system and
there was hardly any place for going out of barrack for
using courtyard. Enquiry revealed that there was no
arrangement for potable water. The bathrooms and kitchen
W.P. (C) No.473 of 2005 Page 50 of 62
were also in deplorable condition. The Observation Home
was managed by a single teacher who, besides performing
job of a teacher, was also looking after the overall
administration of the Home. In this manner, no
meaningful education was being imparted to the children.
The Observation Home was found to be worse than a
prison. Observation Home at Hoshiarpur (Punjab) was
found to be no better with almost similar dilapidated
conditions…..‖
88. There are, of course, additional duties and responsibilities
obligated by the Constitution on the State Governments such as
providing education, health-care (both physical and psychological)
and adequate nutrition. These are huge areas that need to be looked
into with all sincerity by the bodies and institutions established
under the Commissions for Protection of Child Rights Act, 2005
and the JJ Act. Concerned citizens like Sampurna Behura can only
highlight the systemic implementation lapses and flaws and hope
that the State Governments and the various bodies constituted
under statutes enacted by Parliament perform their duties and
functions. But, in such exceptional circumstances, the courts are
constitutionally obliged to issue a continuing mandamus in public
interest for implementation of the laws enacted by Parliament,
which is essentially the primary responsibility of the Executive. If
the Executive ignores the mandate of Parliament with continuing
callousness, it will only be to the detriment of the children of our
country.
W.P. (C) No.473 of 2005 Page 51 of 62
89. In this context, we may add that MWCD has made
considerable efforts in ensuring that Child Care Institutions run
and managed by individuals and NGOs are registered in
accordance with the provisions of the JJ Act. We are quite
surprised that there has been some resistance to registration from
some institutions, as informed by the learned Additional Solicitor
General, and therefore we must make it clear that the law has to be
obeyed as long as it exists on the statute books. It might be
uncomfortable for those who manage some of these Child Care
Institutions, but registration is compulsory and in public interest to
ensure that minimum standards of care are maintained and the
children in those Institutions are well looked after. We may note
that occasionally there are allegations originating from Child Care
Institutions of trafficking and child sexual abuse, some of which
may be unverified, but to avoid any such shameful allegations it is
necessary that their registration, their management and functioning
are strictly monitored by the State Governments and by MWCD.
90. It was suggested by learned counsel that in all Child Care
Institutions, there should be a segregation of children in terms of
age and wherever applicable segregation based on the nature of the
offence allegedly committed so that the possibility of sexual abuse
W.P. (C) No.473 of 2005 Page 52 of 62
or any other kind of violence is eliminated. Additionally, all such
institutions should be advised to provide vocational or continuing
education with a view to re-settling children in conflict with law
and children in need of care and protection by reintegrating and
mainstreaming them in society. All these are issues of serious
concern and need to be addressed by the State Governments and
SCPCRs.
91. It was emphasized that there should be adequate staff
available in all Child Care Institutions so that they are able to
perform their duties efficiently. It was also suggested that the
location of the JJBs and CWCs should be in close proximity of the
Child Care Institutions to avoid children having to travel long
distances for their appearance before these statutory bodies. All
these suggestions and recommendations made by learned counsel
are issues of concern and must be dutifully addressed by the State
Governments and the SCPCRs.
92. One of the submissions made with regard to Child Care
Institutions was that District Legal Services Authorities may make
unscheduled visits to them to ascertain whether they are in fact
functioning as they should. We are of opinion that this ‗Visitor‘
W.P. (C) No.473 of 2005 Page 53 of 62
system is definitely worth implementing and we expect NALSA to
go ahead with the suggestion given. In fact, the Chief Justices
Conference in 2006 had specifically adverted to the appointment of
Visitors to Child Care Institutions and in the Chief Justices
Conference in 2013 and 2015 improving the living conditions in
Child Care Institutions was also adverted to. NALSA and the
District Legal Services Authorities must respect the views
expressed in the Chief Justices Conferences.
(vii) Juvenile Justice Fund
93. The JJ Act provides for the constitution of a Juvenile Justice
Fund. The learned Additional Solicitor General placed before us
figures relating to the contribution of the State Governments in the
Juvenile Justice Fund. We are quite distressed to note that some of
the State Governments have not even set up the Juvenile Justice
Fund while one or two State Governments have set up the Fund
with an embarrassing amount of only a few thousand rupees. We
wonder how the welfare of children can be looked after by these
State Governments with such a pittance in the kitty. Obviously,
these State Governments are not seriously concerned about the
welfare of children, which is a pity. This is yet another example of
official apathy to the rights of children and a cause for worry.
W.P. (C) No.473 of 2005 Page 54 of 62
(viii) Evaluation and assessment
94. Finally, it would be appropriate if some sort of an evaluation
or social audit is carried out every six months for the next couple
of years to monitor and supervise the implementation of the JJ Act.
More than sufficient time has already elapsed since the Act of 2000
was enacted by Parliament and certainly the children of our
country deserve much better and cannot wait for another 15 or 16
years for the effective implementation of the JJ Act. Most of the
children who were born when the Act of 2000 was enacted are
nearing adulthood and many of them have not had the benefit of
the provisions of the Act of 2000. This mistake, a serious one at
that, cannot be repeated in the implementation of the JJ Act. It is
said that children are the future of the country and if they are not
looked after, it is the future of the country that is at stake.
Conclusions and Directions
95. Keeping in mind the concerns expressed by all learned
counsel and the need to invigorate the juvenile justice system in
the country, we are of the view that the following directions ought
to be given and we do so.
1.The Ministry of Women and Child Development in the
Government of India and the State Governments should
W.P. (C) No.473 of 2005 Page 55 of 62
ensure that all positions in the NCPCR and the SCPRs are
filled up well in time and adequate staff is provided to these
statutory bodies so that they can function effectively and
meaningfully for the benefit of the children.
2. The NCPCR and the SCPCRs should take their duties,
functions and responsibilities with great earnestness keeping
in mind the faith reposed in them by Parliament. A position
in these statutory institutions is not a sinecure. These bodies
have a very significant and proactive role to play in
improving the lives of children across the country.
3. The State level Child Protection Societies and the District
level Child Protection Units have an enormous responsibility
in ensuring that the JJ Act is effectively implemented and
Child Care Institutions are managed and maintained in a
manner that is conducive to the well being of children in all
respects including nutrition, education, medical benefits,
skill development and general living conditions. These two
bodies would be well advised to take the assistance of NGOs
and civil society to ensure that the JJ Act serves the purpose
for which it is enacted by Parliament.
4. The State Governments must ensure that all positions in the
W.P. (C) No.473 of 2005 Page 56 of 62
JJBs and CWCs are filled up expeditiously and in
accordance with the Model Rules or the Rules framed by the
State Government. Any delay in filling up the positions
might adversely impact on children and this should be
avoided.
5. The JJBs and CWCs must appreciate that it is necessary to
have sittings on a regular basis so that a minimal number of
inquiries are pending at any given point of time and justice is
given to all juveniles in conflict with law and social justice to
children in need of care and protection. This is a
constitutional obligation.
6. The NCPCR and the SCPCRs must carry out time-bound
studies on various issues, as deemed appropriate, under the
JJ Act. Based on these studies, the State Governments and
the Union Territories must take remedial steps.
7. In particular the NCPCR and the SCPCRs must carry out a
study for estimating the number of Probation Officers
required for the effective implementation of the JJ Act.
Based on this study, the State Government must appoint the
necessary number of Probation Officers. It must be
emphasised that the role of a Probation Officer is critical for
W.P. (C) No.473 of 2005 Page 57 of 62
the rehabilitation and social reintegration of a juvenile in
conflict with law and due importance must be given to their
duties as postulated in the Model Rules and Rules, if any,
framed by the State Governments and the Union Territories.
8. The MWCD must continue to make creative use of
information and communication technology not only for the
purpose of collecting data and information but also for other
issues connected with the JJ Act such as having a database of
missing children, trafficked children and for follow up of
adoption cases etc. With the utilization of technology to the
fullest extent, administrative efficiency will improve
considerably, which in turn will have a positive impact on
the lives of children.
9. It is important for the police to appreciate their role as the
first responder on issues pertaining to offences allegedly
committed by children as well as offences committed against
children. There is therefore a need to set up meaningful
Special Juvenile Police Units and appoint Child Welfare
Police Officers in terms of the JJ Act at the earliest and not
only on paper. In this context, it is necessary to clearly
identify the duties and responsibilities of such Units and
W.P. (C) No.473 of 2005 Page 58 of 62
Officers and wherever necessary, guidance from the
available expertise, either the National Police Academy or
the Bureau of Police Research and Development or NGOs
must be taken for the benefit of children.
10. The National Police Academy and State Police Academies
must consider including child rights as a part of their
curriculum on a regular basis and not as an isolated or
sporadic event.
11. The management of Child Care Institutions is extremely
important and State Governments and Union Territories
would be well advised to ensure that all such institutions are
registered so that children can live a dignified life in these
Institutions and issues of missing children and trafficking are
also addressed.
12. State Governments and Union Territories would be well
advised to appoint eminent persons from civil society as
Visitors to monitor and supervise the Child Care Institutions
in all the districts. This will ensure that the management and
maintenance of these Institutions are addressed. We have
no doubt that the State Legal Service Authorities and the
District Legal Service Authorities will extend full assistance
W.P. (C) No.473 of 2005 Page 59 of 62
and cooperation to the government authorities in this venture
as well as to the Visitors.
13. The JJ Fund is a bit of an embarrassment with an absence of
an effective response from the State Governments and the
Union Territories. If financial resources are not made
available for the welfare of the children we shudder to think
what could be better utilization of the funds.
14. NALSA has done a remarkable job in collecting data and
information relating to the JJ Act, as evidenced by the three
part Report prepared by it. We request NALSA to carry
forward the exercise and complete a similar Report
preferably before 30th April, 2018 to assist all the policy
making and decision taking authorities to plan out their
affairs.
15. The importance of training cannot be over-emphasized. It is
vital for understanding and appreciating child rights and for
the effective implementation of the JJ Act. All authorities
such as JJBs and CWCs, Probation Officers, members of the
Child Protection Societies and District Child Protection
Units, Special Juvenile Police Units, Child Welfare Police
Officers and managerial staff of Child Care Institutions must
W.P. (C) No.473 of 2005 Page 60 of 62
be sensitized and given adequate training relating to their
position. A very positive step has been taken in this regard
by NALSA and we expect the NCPCR with the assistance of
the SCPCRs to carry forward this initiative so that there is
meaningful implementation of the JJ Act.
16. Since the involvement of the State Governments and the
Union Territories is critical to child rights and the effective
implementation of the JJ Act, it would be appropriate if each
High Court and the Juvenile Justice Committee of each High
Court continues its proactive role in the welfare of children
in their State. To make the involvement and process more
meaningful, we request the Chief Justice of every High
Court to register proceedings on its own motion for the
effective implementation of the Juvenile Justice (Care and
Protection of Children) Act, 2015 so that road-blocks if any,
encountered by statutory authorities and the Juvenile Justice
Committee of the High Court are meaningfully addressed
after hearing the concerned governmental authorities. A
copy of this judgment and order should be sent by the
Secretary General of this Court to the Registrar General of
each High Court for being placed before the Chief Justice of
W.P. (C) No.473 of 2005 Page 61 of 62
every High Court for initiating suo motu proceedings.
96. Finally, we request and urge the Chief Justice of each High
Court to seriously consider establishing child friendly courts and
vulnerable witness courts in each district. Inquiries under the JJ
Act and trials under other statutes such as the Protection of
Children from Sexual Offences Act, 2012, the Prohibition of Child
Marriage Act, 2006, trials for sexual offences under the Indian
Penal Code and other similar laws require to be conducted with a
high degree of sensitivity, care and empathy for the victim. It is
often said that the experience in our courts of a juvenile accused of
an offence or the victim of a sexual offence is traumatic. We need
to have some compassion towards them – even juveniles in
conflict with law, since they are entitled to the presumption of
innocence - and establishing child friendly courts and vulnerable
witness courts is perhaps one manner in which the justice delivery
system can respond to ease their pain and suffering. Another
advantage of such child friendly courts and vulnerable witness
courts is that they can be used for trials in which adult women are
victims of sexual offences since they too are often traumatized by
the not so friendly setting and environment in our courts.
97. We record our appreciation for Sampurna Behura for
W.P. (C) No.473 of 2005 Page 62 of 62
highlighting the issues raised in this Public Interest Litigation and
to learned counsel for the appearing parties in not making this an
adversarial proceeding, but a constructive effort for the benefit of
the children of our country.
98. The petition stands disposed of.
99. The Registry should list the matter on 13th March, 2018 for
directions after obtaining a response from the Registrar General of
each High Court.
...……………………J
(Madan B. Lokur)
.…………………....J
New Delhi; (Deepak Gupta)
February 9, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 473 OF 2005
Sampurna Behura ....Petitioner
Versus
Union of India & Ors. ....Respondents
J U D G M E N T
Madan B. Lokur, J.
1. What can a citizen do if the State pays no attention to his or
her fundamental or human or statutory right, nor takes serious
interest in fulfilling its constitutional or statutory obligations?
What if that citizen is a voiceless child or someone whose voice
cannot be heard over the din of governance – for example,
physically or mentally challenged persons, senior citizens, and
other disadvantaged sections of society such as scheduled castes,
tribals and several others? The aggrieved would perhaps approach
the judiciary (if he or she could and as a last resort) for the
enforcement of a human right. Should the judiciary take corrective
W.P. (C) No.473 of 2005 Page 2 of 62
steps and be accused of ‗judicial activism‘ or overreach – or should
the cynics and skeptics have their day resulting in the grievance of
the voiceless and the disadvantaged remaining unheard and the
fundamental and human rights lying unaddressed?
2. These questions arise in the context of the virtual
non-implementation or tardy implementation of laws beneficial to
voiceless (and sometimes silenced) children, particularly, the
Juvenile Justice (Care and Protection of Children) Act, 2000 (the
Act of 2000) and the Juvenile Justice (Care and Protection of
Children) Act, 2015 (the JJ Act). We record and acknowledge our
appreciation for the efforts of Sampurna Behura in highlighting
some of these issues by way of a Public Interest Litigation and to
learned counsel for the appearing parties in rendering assistance
enabling us to address some of these issues by not making these
proceedings adversarial, but a constructive effort for the benefit of
the children of our country. No one has any doubt that it is time for
the State to strongly and proactively acknowledge that even
children in our country have fundamental rights and human rights
and they need to be enforced equally strongly.
3. If Nelson Mandela is to be believed, ―Our children are our
greatest treasure. They are our future. Those who abuse them tear at
W.P. (C) No.473 of 2005 Page 3 of 62
the fabric of our society and weaken our nation.‖
1 Our policy and
decision makers need to heed this advice and warning and
appreciate that they are not doing any favour to the children of our
country by caring for them – it is their constitutional obligation and
the social justice laws enacted by Parliament need to be effectively
and meaningfully enforced.
Background and Chief Justices Conferences
4. In a prescient understanding of child rights, the Chief Justices‘
Conference held in 2006 (presided by the Chief Justice of India
with participation by the Chief Justice of every High Court) the
following resolution was passed:
―a) That High Courts will impress upon the State
Governments to set up Juvenile Justice Boards, wherever
not set-up. The Chief Justices may nominate a High Court
Judge to oversee the condition and functioning of the
remand/observation homes established under the Juvenile
Justice (Care and Protection of Children) Act, 2000.
b) The Chief Justices of the High Courts will expedite the
matter with the respective State Governments for setting
up of Juvenile Justice Boards, wherever they have not yet
been set up.
c) The Chief Justices of the High Courts will nominate a
Judge to make periodical visits to Juvenile Homes,
wherever set up, and the learned Judge may suggest
remedial measures for the betterment of the conditions of
the juvenile homes and inmates.‖
1 Address by President Nelson Mandela at National Men's March, Pretoria on 22 November 1997
W.P. (C) No.473 of 2005 Page 4 of 62
5. The above resolution was passed almost six years after the Act
of 2000 came into force – meaning thereby that even about six
years after Parliament enacted a law for the benefit of children, the
State Governments had not taken steps to fulfill one basic
requirement of the law, that is, to set up Juvenile Justice Boards.
6. In 2009 the Chief Justices‘ Conference discussed the progress
made in setting-up of Juvenile Justice Boards and the resolution
passed in the Conference in 2006 was reiterated indicating that
little or no progress had still been made by the State Governments
in setting up Juvenile Justice Boards. So, almost a decade had gone
by without compliance by the State Governments of a basic
statutory obligation laid down by Parliament.
7. In 2013 the issue of strengthening the juvenile justice system
was again discussed at the Chief Justices‘ Conference and the
resolutions passed in 2006 and 2009 were reiterated. In addition,
the mandate of setting up Child Welfare Committees in all districts
was also emphasized to meet the requirements of children in need
of care and protection and to give full effect to the provisions of
the Act of 2000. It was the further resolved:
―It was further resolved that Juvenile Justice Committees,
as had been set up in the Delhi High Court, under the
guidance of the Chief Justice and senior judges and others
concerned with the welfare of juveniles and the working
W.P. (C) No.473 of 2005 Page 5 of 62
of the Juvenile Justice (Care and Protection of Children)
Act, 2000, be set up in all the High Courts to monitor the
implementation of the provisions of the Act in their true
spirit.
It was noticed that the State Governments had not taken
serious steps to establish and set-up the various Homes,
referred to in the Juvenile Justice (Care and Protection of
Children) Act, 2000, as amended in 2006 and the Juvenile
Justice (Care and Protection of Children) Rules, 2007. It
was noticed that the conditions in the Remand/
Observation Homes and Shelter Homes are not up to the
standard and a lot of improvement was required to make
these facilities meaningful, as envisaged under the above
Act and Rules. It was also noticed that After-care Homes
for adolescents passing into adulthood and, in particular
girls, have not been taken up seriously by the concerned
Authorities. The Chief Justices shall take up the matter
with the State Governments for improving the conditions
of the various Homes, referred to in the above Act and the
Rules, and to provide for permanent staff to run the said
establishments, as it was reported by some of the Chief
Justices that many of the employees of the Homes had
been working on an ad-hoc basis, even for as many as
fifteen years. The Chief Justices were requested to take up
the matter with the State Authorities to ensure that
services of such persons, who have been working on
ad-hoc basis, are regularised, if necessary, by creation of
posts.
Particular notice was taken of the fact that the provisions
of the Juvenile Justice (Care and Protection of Children)
Act, 2000, had not yet been implemented in the State of
Jammu and Kashmir.‖
8. In 2015 the issue of strengthening the juvenile justice system
was once again discussed at the Chief Justices‘ Conference and the
following resolution passed:
W.P. (C) No.473 of 2005 Page 6 of 62
―Resolved that the High Courts shall continue to take all
steps necessary, including evolving ways to ensure greater
sensitivity, to effectively deal with cases in the field of
Juvenile Justice in their respective States. The High
Courts should ensure that constitution of Juvenile Justice
Boards and Child Welfare Committees are in place, that
visits are regularly made to the Juvenile Homes, Special
Homes, Observation Homes, Shelter Homes and Rescue
Centres etc. and that such homes are set up wherever they
have not already been set up. It shall also be ensured that
the requisite facilities are provided as per the Standards,
Rules, Policies and Guidelines in all such Homes/Centres.
The assistance of State Legal Services Authorities and
District Legal Services Authorities shall also be taken in
this regard.‖
9. Finally, in 2016 at the Chief Justices‘ Conference the
following resolution was passed:
―The Conference has noted the necessity for ensuring
institutional support for juveniles in conflict of law and
children in need of care and protection.
Resolved that:
(i) cases pending for a period in excess of one year be
disposed of on priority by the JJBs;
(ii) Juvenile Justice Committees of the High Courts
shall monitor the pendency and disposal of adoption cases
and applications for declaring children free for adoption on
a priority basis;
(iii) steps be taken to ensure that every district is
equipped with a Child Protection Unit, Special Juvenile
Police Unit, Observation Homes and Children Homes;
(iv) pending cases of orphaned, abandoned and
surrendered children be monitored by the Juvenile Justice
Committees of High Courts;
W.P. (C) No.473 of 2005 Page 7 of 62
(v) training and refresher training be imparted to
judicial officers;
(vi) vacancies in juvenile justice institutions be filled up
on a mission mode basis in three months; and
(vii) State Legal Services Authorities should actively
discharge their role.‖
10. At this stage, it may be mentioned that pursuant to the
resolutions passed in the Chief Justices‘ Conferences, every High
Court has constituted a Juvenile Justice Committee headed by a
judge of the High Court to take stock of and look into issues
concerning children. We may note that every High Court has
responded more than positively and each Juvenile Justice
Committee has brought about some improvements in the living
conditions in Homes and in the well-being and lives of many
children.
11. Appreciating that the judiciary has a constitutional obligation
to ensure that everybody acts in the best interests of the child, the
Chief Justice of India set up a Committee in the Supreme Court to
address the issues of effective implementation of the Act of 2000 –
such is the importance given by the judiciary to the rights of
children.
12. Notwithstanding nudging by the judiciary, judicial ‗activism‘
W.P. (C) No.473 of 2005 Page 8 of 62
and criticism of it, over the last decade or so, State Governments
and Union Territories have not fully complied with the provisions
of a law solemnly enacted by Parliament for the benefit of children.
In many instances, only cosmetic changes have been introduced at
the ground level with the result that voiceless children continue to
be subjects of official apathy. However, it must be acknowledged
that the Union of India through the Ministry of Women and Child
Development (for short MWCD) has taken some bold steps in
recognizing the rights of the children and giving them some
importance. Nevertheless, the overall picture relating to the
recognition of the rights of children and their realization is far from
satisfactory and remains gloomy as we continue to trudge along the
long and winding road.
Writ petition in Public Interest
13. Sampurna Behura, the petitioner before us, has done her
Masters in Sociology and was pursuing her Doctoral Thesis in the
same subject at the relevant time. She has been involved in
handling cases of child sexual abuse, street children and working
children and has also undertaken various studies on child rights.
14. Concerned with the plight of children in the country,
Sampurna Behura filed a writ petition under Article 32 of the
W.P. (C) No.473 of 2005 Page 9 of 62
Constitution drawing attention to several Articles of the
Constitution which impose primary responsibility on the State to
ensure that the needs of children are met and their basic human
rights are protected. The Articles in the Constitution referred to by
her include those in the Chapter on Directive Principles of State
Policy. She has also drawn attention to the Convention on the
Rights of the Child adopted by the General Assembly of the United
Nations on 20th November, 1989. The Convention, to which
India is a signatory, emphasizes inter alia, securing the best
interests of the child, social reintegration of child victims etc.
15. She has also stated in the writ petition that the Act of 2000
was passed by Parliament bearing in mind various standards
prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985 (the Beijing Rules), the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty,
1990 and other relevant international instruments.
16. The main burden of the writ petition is the failure of State
Governments to implement various provisions of the Act of 2000
including, inter alia, the establishment of Child Welfare
Committees, Juvenile Justice Boards, Special Juvenile Police Units,
W.P. (C) No.473 of 2005 Page 10 of 62
establishment of appropriate Homes for children in need of care
and protection, improving the living conditions of juveniles in
conflict with law, medical facilities for children in the custody of
the State and several other human rights issues. It is on these broad
facts and averments that relief was prayed for in public interest.
17. The writ petition also drew attention to surveys and researches
conducted in 2004-2005 in various States but it is not necessary to
refer to them in any great detail, notwithstanding their significance
and importance, since they might have lost immediate relevance
with the passage of time.
18. The prayer in the Public Interest Litigation is to the effect that
the Chief Secretaries and the Directors General of Police and
Superintendents of Police of all the States should forthwith
implement the Act of 2000 in its true spirit.
19. There is also a prayer that all respondent States be directed to
provide basic amenities like nutritious food, proper and hygienic
accommodation, educational facilities, recreational facilities and
rehabilitation centres for juveniles in various Homes and to direct
the Collectors of each district to involve reputed NGOs in
implementing the orders of this Court.
20. The Act of 2000 has since been repealed and what is now in
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force is the JJ Act. The repeal of the Act of 2000 does not at all
change the sum and substance of the reliefs claimed in the Public
Interest Litigation. As such this petition though filed way back in
2005 is not infructuous, the issues raised being very much topical
and alive even today.
Proceedings in this Court
21. The writ petition was first taken up for consideration on 26th
September, 2005 when notices were issued to all the respondents
(Union of India and States). After service of notice (which itself
took about one year!) the matter was taken up on 3rd January, 2007
and it was observed that the prayer in the writ petition was for
forthwith implementation of the Act of 2000 in its true letter and
spirit and that the petition highlighted some provisions of the said
Act which had not been implemented despite a number of years
having elapsed. It was noted that the writ petition highlights the
horrible conditions in some Homes for children and that this was a
violation of Article 21 of the Constitution. Under these
circumstances, the Court required detailed affidavits to be filed by
the respondent States through the Chief Secretary of each State.
22. Reference was made in the order dated 3rd January, 2007 to
W.P. (C) No.473 of 2005 Page 12 of 62
Sheela Barse II v. Union of India 2 which also dealt with
abandoned or destitute children lodged in various jails across the
country for ―safe custody‖. It was noted in that decision that the
National Policy for the Welfare of Children contained the
following preamble:
―The nation‘s children are a supremely important asset.
Their nurture and solicitude are our responsibility.
Children‘s programmes should find a prominent part in our
national plans for the development of human resources, so
that our children grow up to become robust citizens,
physically fit, mentally alert and morally healthy, endowed
with the skill and motivations needed by society. Equal
opportunities for development of all children during the
period of growth should be our aim, for this would serve
our large purpose of reducing inequality and ensuring
social justice‖.
23. The Court noted in that decision that if a child is a national
asset (as per the National Policy), it is the duty of the State to look
after the child with a view to ensuring full development of the
personality and that is why statutes dealing with children provide
that a child shall not be kept in jail. It was directed that on no
occasion should children be kept in jail and if a State Government
does not have sufficient accommodation in its remand homes or
observation homes for children, they should be released on bail
instead of being subjected to incarceration in jail.
2
(1986) 3 SCC 632
W.P. (C) No.473 of 2005 Page 13 of 62
24. It was also emphasized that Juvenile Courts should be set up
in each district and there must be a special cadre of Magistrates
who are suitably trained for dealing with cases against children.
Some other directions were also issued but they arise out of the
Childrens‘ Act and are presently not relevant. Reference was also
made in the order to Sheela Barse v. Union of India3 wherein this
Court reiterated its decision referred to above.
25. It was noted that Juvenile Justice Boards (for short ‗JJBs‘) and
Child Welfare Committees (for short ‗CWCs‘) under the Act of
2000 have been constituted in very few districts. It was also noted
that some observation homes are like prisons with uniformed or
armed police.
26. After a few subsequent hearings and completion of pleadings,
the Court impleaded the National Commission for Protection of
Child Rights (the NCPCR) by an order dated 14th February, 2011
and the National Legal Services Authority (for short ‗NALSA‘) by
an order dated 11th July, 2011. In the hearing on 19th August, 2011
quite a few suggestions were made by NALSA in respect of child
rights. We will consider these submissions at the appropriate stage.
27. During the course of hearing, the Court lamented the
3
(1988) 4 SCC 226
W.P. (C) No.473 of 2005 Page 14 of 62
confusion and uncertainty about the availability of statistics
relating to the number of juveniles in conflict with law in each
district and details of such children. This made it difficult to
make an effective plan for providing legal aid or providing
appropriate Homes. The State Legal Services Authorities were
therefore required to collect data and NALSA was required to
make data available to the Court for issuing further directions. The
Court also observed that CWCs and JJBs are not functional or not
constituted in every district. Accordingly the State Legal Services
Authorities were requested to coordinate with the appropriate
Department in the State Government to ensure that CWCs and
JJBs are established as per the Act of 2000.
28. Pursuant to the order dated 19th August, 2011 a detailed and
excellent Report was prepared by NALSA in three parts on the
existing facilities for implementation of the Act of 2000, with the
month and year of reporting being August 2011.
29. When the case was again taken up on 12th October, 2011 the
Court reiterated the importance of the directions passed on 19th
August, 2011 and also added focus to setting up Special Juvenile
Police Units under Section 63 of the Act of 2000. Directions were
given in this regard to the Home Department and the Director
W.P. (C) No.473 of 2005 Page 15 of 62
General of Police of all the States and Union Territories to ensure
that there is at least one police officer in every Police Station who
has the necessary aptitude and is given appropriate training and
orientation to function as a Juvenile or Child Welfare Officer.
The State Legal Services Authorities and NALSA were requested
to provide necessary training and orientation in phases to such
officers.
30. The Home Department and the Directors General of Police
were also directed to ensure that Special Juvenile Police Units are
set up in every district and city to coordinate and upgrade the
treatment of juveniles in conflict with law and children in need of
care and protection as required by sub-section (3) of Section 63 of
the Act of 2000.
31. When the case was taken up for consideration on 11th
September, 2015 by the Social Justice Bench of this Court, it was
noticed that the Union of India had filed affidavits on 31st July,
2015 and 9th September, 2015. From a reading of these affidavits, it
appeared that a large number of Homes were not registered under
the provisions of the Act of 2000. Since this was a matter of
concern (with a possibility of trafficking of children), the learned
Additional Solicitor General appearing for the Union of India was
W.P. (C) No.473 of 2005 Page 16 of 62
requested to look into the matter and he submitted that the Union
of India had initiated steps to ensure that the Homes run by NGOs
get registered under the Act of 2000 in a few months time.
32. Soon thereafter, the JJ Act was passed by Parliament and
brought into force on 15th January, 2016. The JJ Act brought in
several changes in the juvenile justice regime but the substratum of
the petition filed by Sampurna Behura remained unaffected.
33. Her PIL was taken up on 15th February, 2016 in the above
background and after hearing learned counsel for the parties and
going through various orders passed by this Court from time to
time, the following issues were identified as needing serious
consideration and deliberation:
1. Constitution of State Child Protection Society.
2. Constitution of State Commissions for the Protection
of Child Rights.
3. Establishment of Juvenile Justice Boards (JJBs) in
every district (if necessary more than one in some
districts) and their training.
4. Establishment of Child Welfare Committees (CWCs)
and their training.
5. Appointment of Probation Officers and their training.
6. Establishment of Special Juvenile Police Units in
every Police Station, their training and updating the
Police Training Manual.
7. Provision for legal aid lawyers and their training.
8. Proper selection of members of JJBs and CWCs.
9. Assessment of manpower requirements of JJBs and
W.P. (C) No.473 of 2005 Page 17 of 62
CWCs and filling up the vacancies.
10.Furnishing of on-line quarterly reports by the State
Governments.
11.Significance of Social Investigation Report.
12.Principal Magistrates should exclusively deal with
Juvenile Justice inquiries.
13.Registration of child care institutions.
14.Improvement of living conditions in government run
child care institutions.
15.Establishment of Juvenile Justice Fund.
34. Thereafter, the matter was taken up on 9th May, 2016 when the
learned Additional Solicitor General stated that the process of
collecting and updating information online was underway in
MWCD and was proceeding at a fast pace and that he expected it
to be completed very soon. He also stated that the names of
persons in various positions, such as members of JJBs and CWCs
would be placed on the website of MWCD so that it would be easy
to contact them whenever necessary. Learned Additional Solicitor
General stated that the assistance of the State Governments and the
Union Territories was required for completing the project.
Accordingly this Court directed the State Governments and the
Union Territories to render necessary assistance to the Union of
India for updating the information and keeping it updated from
time to time.
W.P. (C) No.473 of 2005 Page 18 of 62
35. As far as NALSA is concerned, it submitted on record a copy
of the Training Module for Legal Services Lawyers and Probation
Officers but it was suggested by the learned Senior Counsel
appearing for NALSA that since the Modules were prepared on the
basis of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 NALSA would conduct some pilot training
programmes to ascertain their efficacy and subsequently bring
them in line with the new Rules to be framed under the JJ Act.
36. In the hearing on 22nd August, 2016 the Union of India was
required to consider the feasibility of urgently providing computers
and internet connectivity to the Juvenile Justice Boards and Child
Welfare Committees.
37. The matter was again taken up on 17th February, 2017 by
which time considerable progress had been made by MWCD in the
online collection of information to the extent that a Central Level
Monitoring Format had been prepared which could easily be filled
up by the States and Union Territories for providing full
information which could be collated.
38. We also required, in addition to the collated information, that
the State Commission for Protection of Child Rights (SCPCR)
should be in place in every State and Union Territory. It may be
W.P. (C) No.473 of 2005 Page 19 of 62
mentioned that the SCPCR is a body constituted under the
provisions of the Commissions for Protection of Child Rights Act,
2005 with a variety of functions as detailed in Section 13 of the
said Act.
39. On 5th April, 2017 and on 11th July, 2017 we noted the
information made available on the composition and constitution of
the SCPCRs and on an overall view of the matter it was found that
a large number of vacancies existed and that little or nothing was
being done by some of the State Governments to fill them up or to
show any urgency in respect of protection of the rights of children.
40. Subsequently, on 15th November, 2017 we required MWCD to
inform us of the amounts lying in the Juvenile Justice Fund in each
State and Union Territory.
41. With all this information available on record in some form or
the other, we heard the submissions of learned counsel for the
parties on 20th November, 2017 and reserved judgment.
42. We have gone into detail with regard to some of the more
important proceedings that have taken place in the matter from the
time when the Public Interest Litigation was instituted only to
highlight various dimensions to the problems faced by children and
the casual approach that most State Governments and Union
W.P. (C) No.473 of 2005 Page 20 of 62
Territories have towards the rights of children. It is easy to forget
that children also deserve dignified treatment and merely because
they have no voice in the affairs of State, it does not mean that they
are inconsequential members of society who can be compelled to
live in conditions that are uncomfortable (to say the least) and who
have little or no access to justice.
Affidavits filed by MWCD
43. During the progress of the case, MWCD filed a few status
reports and affidavits.
44. In an affidavit filed on 31st July, 2015 the status of an online
Central Level Monitoring System being implemented by MWCD
was indicated. Briefly, each State and Union Territory is given a
login ID and password to access the formats, feed data and submit
Reports to MWCD. Very broadly, the areas covered by the Reports
are Homes and Children, Open Shelters, Specialized Adoption
Agencies, Non-Institutional Care, Child Welfare Committees,
Juvenile Justice Boards and Service Delivery Structures. This is a
very forward-looking step and a major attempt to collect
information so that the JJ Act could be effectively implemented
and the planning process more structured rather than ad hoc.
45. MWCD filed another affidavit on 8th September, 2015 which
W.P. (C) No.473 of 2005 Page 21 of 62
indicated requests made to States and Union Territories to adhere
to the requirements of entering information in the software as
required by the Central Level Monitoring System. An indication
was given in the affidavit regarding the extent of compliance. For
the period 2014-15 it was stated that while most States and Union
Territories had provided the necessary information, as many as 7
States were not fully compliant. For the period 2015-16 most
States did not provide the necessary information. Those who did
were Assam, Union Territory of Chandigarh, Chhattisgarh,
Himachal Pradesh, Madhya Pradesh, Meghalaya, Mizoram,
Nagaland, Punjab, Tamil Nadu and Tripura.
46. MWCD filed a status report on 4th December, 2015 giving the
details of Child Care Institutions and their registration as well as
the availability of Probation Officers in the States and Union
Territories. Unfortunately, as per the affidavit the status was quite
unsatisfactory in the sense that not many Child Care Institutions
had been registered and there was a serious shortage of Probation
Officers. In a further affidavit of 12th February, 2016 MWCD
stated that steps were being taken for the registration of Child Care
Institutions and it also indicated the role of a Probation Officer in
the scheme of things.
W.P. (C) No.473 of 2005 Page 22 of 62
47. In yet another affidavit filed by MWCD on 29th March, 2016 a
factual response was given with regard to the 15 issues identified
by this Court on 15th February, 2015.
48. MWCD filed its final status report on 3rd May, 2016 in which
it was stated that some formats for information given in the Central
Level Monitoring System were added in view of the 15 issues
identified by this Court.
49. In the affidavit dated 11th January, 2017 it was disclosed by
MWCD that the availability and use of computers and peripherals
for juvenile justice issues was in quite a poor state. In fact,
complete information in this regard was not made available to
MWCD by the States and Union Territories.
50. In the final affidavit filed by MWCD it was disclosed that a
National Consultation was held on 26th September, 2017 and it
appears from a reading of the affidavit that there is considerable
improvement in the understanding of child rights and juvenile
justice issues by the participants, but there is still a lot to be done.
Unfortunately, the minutes of the National Consultation have not
been placed on record.
Information and data provided by NALSA
51. As far as NALSA is concerned, it had carried out a
W.P. (C) No.473 of 2005 Page 23 of 62
remarkable study and placed on record a three part Report on
issues pertaining to Juvenile Justice Boards, Child Welfare
Committees and Homes under the Act of 2000. Even though the
reports prepared by NALSA are extremely useful, since they are
now quite dated (with data upto August 2011) they are not being
referred to in any detail.
52. NALSA gave another Report on 20th July, 2015 in which it
was pointed out that a large number of inquiries are pending before
the JJBs. It was pointed out that in Uttar Pradesh alone there are
34,569 inquiries pending and in district Durg in Chhattisgarh, there
are 1883 inquiries pending before the JJBs. It was pointed out in
the report that many of the JJBs did not sit on a regular basis with
some sitting maybe once or twice a week. It was also pointed out
that in some places the distance between the Observation Home
and the JJB was considerable. It was submitted that there was a
need for Probation Officers who would deal exclusively with
juvenile justice issues.
53. At this stage, it may be mentioned that in May 2016 a
Training Module for Probation Officers was brought out by
NALSA. This Training Module has since been utilized by NALSA
and we have been given to understand that it has been found to be
W.P. (C) No.473 of 2005 Page 24 of 62
extremely useful and beneficial as a training guide.
Submissions made by the petitioner
54. On its part, the petitioner submitted a large number of steps
that need to be taken to improve the lives of children in Child Care
Institutions and enable them to live with dignity. Suggestions were
also given by the petitioner on 10th and 25th September, 2013 and
10th May, 2016 on several aspects of child rights and juvenile
justice. Most of these suggestions complement the suggestions
given by NALSA.
Discussion, suggestions and recommendations
(i) National and State Commissions for Protection of Child
Rights
55. Child related laws enacted by Parliament provide for two
extremely important policy and decision-making institutions in
respect of children and child rights, namely the NCPCR and the
SCPCRs. Similarly, two extremely important bodies have been
provided for at the ground or grass-roots level for implementation
of the JJ Act, namely the State Child Protection Society and the
District Child Protection Unit. In our opinion, if these institutions
and bodies perform their duties as required by the laws made by
Parliament, under the supervision and guidance of the concerned
W.P. (C) No.473 of 2005 Page 25 of 62
State Government and the Government of India, recognition and
enforcement of child rights could actually become a reality in our
country.
56. The Commissions for Protection of Child Rights Act, 2005
provides for the Central Government constituting a body to be
known as the NCPCR at the national level and the State
Governments constituting a body to be known as the SCPCR at the
State level. The composition of the NCPCR is provided for in
Section 3 of the statute while a similar composition of the SCPCR
is provided for in Section 17 of the statute. Section 3 of the
Commissions for Protection of Child Rights Act reads as follows:
―3. Constitution of National Commission for Protection
of Child Rights.—(1) The Central Government shall, by
notification, constitute a body to be known as the National
Commission for Protection of Child Rights to exercise the
powers conferred on, and to perform the functions
assigned to it under this Act.
(2) The Commission shall consist of the following
Members, namely:—
(a) a Chairperson who, is a person of eminence and has
done outstanding work for promoting the welfare of
children; and
(b) six Members, out of which at least two shall be women,
from the following fields, to be appointed by the Central
Government from amongst persons of eminence, ability,
integrity, standing and experience in,—
(i) education;
(ii) child health, care, welfare or child development;
(iii) juvenile justice or care of neglected or marginalized
children or children with disabilities;
W.P. (C) No.473 of 2005 Page 26 of 62
(iv) elimination of child labour or children in distress;
(v) child psychology or sociology; and
(vi) laws relating to children.
(3) The office of the Commission shall be at Delhi.‖
57. It is quite apparent that at the national level, the NCPCR is an
institution consisting of eminent persons and experts in their
respective fields. As such, they are expected to look at issues
concerning the welfare of children in the national perspective
taking into consideration the views of every SCPCR and other
stakeholders. At the State level, the SCPCR is an equally
significant body consisting of eminent persons and experts. They
are expected to take policy decisions for the benefit of the children
in their State, regardless of which State the children originally
belong to, for there might be children of one State who are in need
of care and protection but in a Child Care Institution of another
State.
58. The functions of the NCPCR and the SCPCR are more or less
the same except that one performs these functions at the national
level, while the other performs these functions at the State level.
Section 13 of the Commissions for Protection of Child Rights Act,
2005 details the functions of the NCPCR and this reads as follows:
W.P. (C) No.473 of 2005 Page 27 of 62
―13. Functions of Commission.—(1) The Commission
shall perform all or any of the following functions,
namely:—
(a) examine and review the safeguards provided by or
under any law for the time being in force for the
protection of child rights and recommend measures for
their effective implementation;
(b) present to the Central Government, annually and at
such other intervals, as the Commission may deem fit,
reports upon the working of those safeguards;
(c) inquire into violation of child rights and recommend
initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of rights
of children affected by terrorism, communal violence,
riots, natural disaster, domestic violence, HIV/AIDS,
trafficking, maltreatment, torture and exploitation,
pornography and prostitution and recommend appropriate
remedial measures;
(e) look into the matters relating to children in need of
special care and protection including children in distress,
marginalized and disadvantaged children, children in
conflict with law, juveniles, children without family and
children of prisoners and recommend appropriate remedial
measures;
(f) study treaties and other international instruments and
undertake periodical review of existing policies,
programmes and other activities on child rights and make
recommendations for their effective implementation in the
best interest of children;
(g) undertake and promote research in the field of child
rights;
(h) spread child rights literacy among various sections of
the society and promote awareness of the safeguards
available for protection of these rights through
W.P. (C) No.473 of 2005 Page 28 of 62
publications, the media, seminars and other available
means;
(i) inspect or cause to be inspected any juvenile custodial
home, or any other place of residence or institution meant
for children, under the control of the Central Government
or any State Government or any other authority, including
any institution run by a social organisation; where children
are detained or lodged for the purpose of treatment,
reformation or protection and take up with these
authorities for remedial action, if found necessary;
(j) inquire into complaints and take suo motu notice of
matters relating to,—
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection
and development of children;
(iii) non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships to and ensuring
welfare of the children and to provide relief to such
children,
or take up the issues arising out of such matters with
appropriate authorities; and
(k) such other functions as it may consider necessary for
the promotion of child rights and any other matter
incidental to the above functions.
(2) The Commission shall not inquire into any matter
which is pending before a State Commission or any other
Commission duly constituted under any law for the time
being in force.‖
59. It will be seen from the above that both the NCPCR and the
SCPCR have a range and variety of functions to perform and each
one of them entails a great deal of responsibility. We have been
given to understand that both the Government of India and the
State Governments have not been giving these bodies the freedom
W.P. (C) No.473 of 2005 Page 29 of 62
to decide on broad policy matters and indeed in some instances,
particularly relating to the SCPCR, vacancies have not been filled
up for several months. In fact, the NCPCR was compelled to file a
writ petition in the Punjab and Haryana High Court for a
mandamus to the State Governments of Punjab and Haryana and
the Union Territory of Chandigarh to fill up the vacancies of
members of the SCPCR.4 Unfortunately, at one point of time, even
the position of the Chairperson of the NCPCR was lying unfilled
for several months, until, on the directions of this Court, the
position was eventually filled up. We need hardly say that unless
the NCPCR and the SCPCRs are given due importance by the
Government of India and the State Governments and vacancies are
filled up in time, the enforcement of the rights of children will
remain on the back burner and any number of welfare schemes
formulated by the Government of India or by the State
Governments will remain unimplemented or their implementation
will remain sketchy and symbolic.
60. We hope and trust that those in authority and power in the
Government of India and in the State Governments appreciate the
4 Court on its own motion v. State of Punjab and The National Commission for the Protection of Child
Rights (NCPCR) v. The State of Haryana and Others, Decided on 9
th April, 2013 and reported as
MANU/PH/0599/2013
W.P. (C) No.473 of 2005 Page 30 of 62
importance of adhering to the provisions of the laws enacted by
Parliament and ensure that the NCPCR at the National level and
the SCPCR at the State level actually function and perform their
duties and recognize their responsibilities.
(ii) State Child Protection Society and the District Child
Protection Unit
61. In the absence of any clear-cut guidelines on who should be
appointed to these two bodies, the State Governments have found
an easy way out by appointing Government officials only and
leaving out members of civil society. In our opinion, the
constitution of the State Child Protection Society and the District
Child Protection Unit need serious consideration so that all
stake-holders, including the police and NGOs are actively involved
in the performance of the functions, duties and responsibilities of
these two bodies.
62. The functions of the State Child Protection Society and the
District Child Protection Unit are detailed in Rule 84 and Rule 85
of the Juvenile Justice (Care and Protection of Children) Model
Rules, 2016 framed by the Government of India. [It may be noted
that some States have framed their independent Rules, but we are
not referring to them]. The functions are varied, extensive and
W.P. (C) No.473 of 2005 Page 31 of 62
geared to improve the living conditions of children through
different strategies and with the involvement of all stake-holders.
63. For the effective implementation of the JJ Act and the
policies laid down by the NCPCR and the SCPCRs, Section 106 of
the JJ Act provides for the constitution of a State-level Child
Protection Society and a District-level Child Protection Unit.
Section 106 of the JJ Act reads as follows:
―106. State Child Protection Society and District Child
Protection Unit.—Every State Government shall
constitute a Child Protection Society for the State and
Child Protection Unit for every District, consisting of such
officers and other employees as may be appointed by that
Government, to take up matters relating to children with a
view to ensure the implementation of this Act, including
the establishment and maintenance of institutions under
this Act, notification of competent authorities in relation to
the children and their rehabilitation and co-ordination with
various official and non-official agencies concerned and to
discharge such other functions as may be prescribed.‖
64. A perusal of the above provision broadly indicates that the
primary function of the State Child Protection Society and the
District Child Protection Unit is to ensure implementation of the JJ
Act. In addition, these bodies are obliged to ensure that the
institutions under the JJ Act are established and maintained,
competent authorities in relation to children and their rehabilitation
are in place and these two bodies are also required to coordinate
with Government officials as well as NGOs to discharge their
W.P. (C) No.473 of 2005 Page 32 of 62
wide-ranging functions. The involvement of civil society through
NGOs is a progressive step and these two bodies are expected to
take their assistance from time to time.
65. If these two bodies actually perform their duties,
responsibilities and functions in the manner expected of them, the
implementation of the JJ Act would no longer be an issue.
Unfortunately, we have been informed that these bodies are not
functioning in many places or in the manner in which they are
expected to and in several districts the District Child Protection
Unit has not even been constituted. We expect remedial steps to be
taken by all concerned.
(iii) Juvenile Justice Boards and Child Welfare Committees
66. With regard to the establishment of JJBs, we were given to
understand that most districts now have a JJB, but it is high time
that every district in every State must have a JJB. An exception
could perhaps be made, such as in some districts of Arunachal
Pradesh where there is perhaps no juvenile crime or, there could be
some districts where the number of inquiries are very few in which
event the JJB may appropriately schedule its sittings. Similarly, a
‗circuit JJB‘ could be considered if there are some adjacent
districts where the number of pending inquires is quite few.
W.P. (C) No.473 of 2005 Page 33 of 62
67. We have also been given to understand that the appointment
of some social workers as members of the JJB is not necessarily in
accordance with the provisions of Section 4 of the JJ Act. The
relevant provision in this regard reads as follows:
―4. Juvenile Justice Board :– 1. xxx xxx xxx
2. A Board shall consist of a Metropolitan Magistrate or a
Judicial Magistrate of First Class not being Chief
Metropolitan Magistrate or Chief Judicial Magistrate
(hereinafter referred to as Principal Magistrate) with at
least three years experience and two social workers
selected in such manner as may be prescribed, of whom at
least one shall be a woman, forming a Bench and every
such Bench shall have the powers conferred by the Code of
Criminal Procedure, 1973 (2 of 1974) on a Metropolitan
Magistrate or, as the case may be, a Judicial Magistrate of
First Class.
3. No social worker shall be appointed as a member of the
Board unless such person has been actively involved in
health, education, or welfare activities pertaining to
children for atleast seven years or a practicing
professional with a degree in child psychology, psychiatry,
sociology or law.
4. xxx xxx xxx
5. The State Government shall ensure that induction
training and sensitization of all members including
Principal Magistrate of the Board on care, protection,
rehabilitation, legal provisions and justice for children, as
may be prescribed, is provided within a period of sixty
days from the date of appointment.
6. and 7. Xxx xxx xxx.‖
68. The selection of social workers as members of the JJB is
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required to be carried out in accordance with the provisions of
Rule 88 read with Rule 87 of the Model Rules. It must be
appreciated that the appointment of social workers is serious
business, inasmuch as they bring their experience - practical and
professional - while conducting an enquiry under the JJ Act. This
becomes all the more important when it is appreciated that the
social workers can also conduct an enquiry independent of the
Principal Magistrate as provided for in Section 7 of the JJ Act.
However, the final disposition of the enquiry cannot be without the
Principal Magistrate as mandated in the proviso to sub-section (3)
of Section 7 of the JJ Act. There is therefore a heavy responsibility
on the social workers to make a meaningful contribution during the
course of an enquiry and also at the time of its disposition.
69. In this context, it is important to note that the training of the
Principal Magistrate as well as the social workers is extremely
important and this is provided for in Rule 89 of the Model Rules.
Unfortunately, the duration of training and the curriculum and
course have not yet formulated, and the nature of training given to
the Principal Magistrate and the social workers is somewhat ad hoc
and unstructured. The lack of meaningful and effective training
(and refresher courses) can have a vital impact on the ultimate
W.P. (C) No.473 of 2005 Page 35 of 62
disposition of an enquiry as also on the rehabilitation and
reintegration of a juvenile in conflict with law who is before the
JJB. Serious thought is required to be given to this not only from
the point of view of awareness of the law and child rights but also
from the point of view of sensitization of the JJBs, case
management and creation of a child friendly ambience and
environment within the JJB for a juvenile in conflict with law. It
appears to us that not much thought has been given to these aspects
of the functioning of the JJBs and that is perhaps the reason why a
very large number of inquiries are pending as mentioned above,
with the State of Uttar Pradesh topping the list.
70. On the functioning of the JJBs, it is worth referring to the
following passage from a decision of the Gauhati High Court in
Naisul Khatun v. State of Assam and Ors.5
―The second disturbing aspect of the case is that it appears
the Juvenile Justice Board constituted under section 4 of
the Act did not actually sit or assemble to deal with the
case of the juvenile. We say so because from the original
case records we find that all the order sheets passed in the
matter, including those refusing bail, to juvenile have all
been signed only by the Principal Magistrate of the
Juvenile Justice Board. There is nothing to suggest that the
two social worker members of the Board ever met to
consider the request of the juvenile's father to grant him
bail. This is rather unfortunate because the application of
5
2011 Cri LJ 326 = 2010 SCC Online Gau 225
W.P. (C) No.473 of 2005 Page 36 of 62
mind has to be by the Juvenile Justice Board and not only
by the Principal Magistrate.‖
71. The submissions made before us by learned counsel for the
petitioner as well as by learned counsel appearing for NALSA
suggest that the JJBs do not have daily sittings. Of course, this
would depend upon the number of inquiries pending before each
JJB, but clearly if there are a large number of inquiries pending, it
is the obligation of the JJB to sit on a daily basis so that the
enquiry is concluded within the time limit prescribed by the JJ Act.
It does not serve any purpose at all if an enquiry remains pending
for a considerable period of time - no one benefits by the delay in
the disposition of an enquiry. In this context, we may also add that
where a large number of inquiries are pending, it would be
worthwhile for the State Government and the High Court to
consider having more than one JJB. In Delhi, for instance, there are
as many as three JJBs functioning at any given point of time and
that is because of the large number of pending enquiries. Similar
steps can be taken by some of the other State Governments as well
as by the High Courts after evaluating and making an assessment
of the need for more than one JJB being established in a district.
72. During the course of hearing, we had emphasized the need
for a study to be conducted by the State Governments on whether
W.P. (C) No.473 of 2005 Page 37 of 62
there is adequate staff available with the JJBs. Unfortunately, the
response was rather poor and we were only told that there is
adequate staff available. It must be appreciated that a JJB is
virtually in the nature of a court, although it does not conduct a
trial, but only conducts an enquiry. Nevertheless, it does need
adequate staff to perform its functions in an efficient manner. The
JJB also has several administrative functions and they need due
attention so that there is effective coordination between the JJB,
the officials of the Observation Home, the police, the juvenile in
conflict with law and the parents of that juvenile and lawyers
representing the police as well as the juvenile in conflict with law.
These administrative duties need attention if the JJB is to function
effectively and a casual statement that the JJB has adequate staff,
though possibly correct, is neither here nor there considering the
requirements of the stake-holders who attend the enquiry before
the JJB.
73. In this context, it must also be mentioned that there is a dire
need to have quality legal aid lawyers who can assist juveniles in
conflict with law. This is an issue that must be taken up with all
earnestness by the State Legal Services Authority. Unless a child is
given adequate legal representation, it may impact his or her future,
W.P. (C) No.473 of 2005 Page 38 of 62
more so if the child in conflict with law is found guilty and placed
in a Special Home. On its part, NALSA has brought out a manual
for training of legal aid lawyers and we believe that it will be
extremely useful not only for legal aid lawyers who are
representing juveniles in conflict with law, but also for legal aid
lawyers generally. Similarly, prosecutors also need to be sensitized
and we hope that the State Governments will take necessary steps
to educate and train them keeping in mind the primary objective of
the JJ Act, which is to reintegrate a juvenile in conflict with law in
society and to rehabilitate that juvenile.
74. In the context of conducting an effective enquiry, the role of
a Probation Officer cannot be underestimated nor can we
underestimate the significance of an accurate Social Investigation
Report prepared by a Probation Officer. The duties of a Probation
Officer have been detailed in Rule 64 of the Model Rules and this
reads as follows:
―64. Duties of a Probation Officer. — (1) On receipt
of information from the Police or Child Welfare Police
Officer under clause (ii) of sub-section (1) of section 13 of
the Act, without waiting for any formal order from the
Board, the Probation Officer shall inquire into the
circumstances of the child as may have bearing on the
inquiry by the Board and submit a social investigation
report in Form 6 to the Board.
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(2) The social investigation report should provide for
risk assessment, including aggravating and mitigating
factors highlighting the circumstances which induced
vulnerability such as traffickers or abusers being in the
neighbourhood, adult gangs, drug users, accessibility to
weapons and drugs, exposure to age inappropriate
behaviours, information and material.
(3) The Probation Officer shall carry out the directions
given by the Board and shall have the following duties,
functions and responsibilities:
(i) To conduct social investigation of the child in Form 6;
(ii) To attend the proceedings of the Board and the
Children‘s Court and to submit reports as and when
required;
(iii) To clarify the problems of the child and deal with
their difficulties in institutional life;
(iv) To participate in the orientation, monitoring,
education, vocational and rehabilitation programmes;
(v) To establish co-operation and understanding between
the child and the Person- in-charge;
(vi) To assist the child to develop contacts with family and
also provide assistance to family members;
(vii) To participate in the pre-release programme and help
the child to establish contacts which could provide
emotional and social support to the child after release;
(viii) To establish linkages with Probation Officers in
other Districts and States for obtaining social investigation
report, supervision and follow-up;
(ix) To establish linkages with voluntary workers and
organisations to facilitate rehabilitation and social
reintegration of children and to ensure the necessary
follow-up;
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(x) Regular post release follow-up of the child extending
help and guidance, enabling and facilitating their return to
social mainstreaming;
(xi) To prepare the individual care plan and post release
plan for the child;
(xii) To supervise children placed on probation as per the
individual care plan;
(xiii) To make regular visits to the residence of the child
under his supervision and places of employment or school
attended by such child and submit periodic reports as per
Form 10;
(xiv) To accompany children where ever possible, from
the office of the Board to the observation home, special
home, place of safety or fit facility as the case may be;
(xv) To evaluate the progress of the children in place of
safety periodically and prepare the report including
psycho-social and forward the same to the Children‘s
Court;
(xvi) To discharge the functions of a monitoring authority
where so appointed by the Children‘s Court;
(xvii) To maintain a diary or register to record his day to
day activities such as visits made by him, social
investigation reports prepared by him, follow up done by
him and supervision reports prepared by him;
(xviii) To identify alternatives of community services and
to establish linkages with voluntary sector for facilitating
rehabilitation and social reintegration of children; and
(xix) Any other task as may be assigned.‖
75. It is clear from a reading of the above provision that a
Probation Officer has a very important role to play in ensuring that
W.P. (C) No.473 of 2005 Page 41 of 62
a juvenile in conflict with law is given adequate representation and
a fair hearing before the JJB and the enquiry is conducted in a
manner that is conducive to the rehabilitation of the juvenile in
conflict with law. In this regard, the preparation of an individual
care plan and post release plan gain immense significance and a
Probation Officer has an important role to play in this.
76. Once again, it is of great importance that a Probation Officer
should be given adequate training, sensitization and awareness of
his or her duties and responsibilities. NALSA has made a
significant contribution in this regard by preparing a training
module for Probation Officers. We expect all the State
Governments as well as MWCD to ensure that training is given to
Probation Officers on the lines suggested by NALSA with
improvements being made in adult learning techniques, training
methodology, the curriculum and the course content in due course
of time.
77. The submissions made by learned counsel for all the parties
and our views and conclusions pertaining to the JJBs are equally
applicable to the CWCs and it is not necessary to repeat them.
However, it might be noted that it is not always necessary for the
State Legal Services Authority to appoint legal aid lawyers to assist
W.P. (C) No.473 of 2005 Page 42 of 62
the CWC - this would depend on a case to case basis and only as
an Amicus Curiae for the purpose of advising the CWC on a
question of law, should the need arise.
78. We were informed, somewhat unfortunately, that Child
Welfare Committees are sometimes treated as ‗second class bodies‘
and that payment of honorarium is not made to them on a regular
basis. In addition, they are compelled to hold their sittings in
buildings with very poor infrastructure facilities. This is a sad
commentary on the working of the JJ Act for which the full
responsibility rests on the shoulders of the concerned State
Governments who must remedy the situation.
(iv) Use of technology
79. The use of technology, both by the JJBs as well as by the
CWCs is extremely important and we are disheartened to note
from the affidavits and submissions made by MWCD that there is
an acute shortage of computers and peripherals with the JJBs and
CWCs. Technology is important not only for the effective
functioning of the JJBs and CWCs, but also to deal with issues that
would arise from time to time concerning the tracing and tracking
of missing children, the rescue of children working in hazardous
industries, trafficked children, children who leave the Child Care
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Institutions, victims of child sexual abuse and follow-up action,
among several other requirements. It is well-known that our
country is a technological power-house and if we are unable to take
advantage of the resources available with us and fully utilize the
benefits of technology through computers and the internet for the
benefit of children, our status as a technological power-house
would be in jeopardy and would remain only on paper. Data,
particularly of the magnitude of the kind that we are concerned
with, can be easily collected through the use of computers and the
internet. This would be of great assistance in planning and
management of resources and MWCD and others concerned with
child rights must take full advantage of this.
80. That apart, there can be no doubt that the use of computers
and peripherals would make an immense contribution to the
administrative functioning of the JJBs and CWCs. Both the
Government of India and the State Governments need to look into
this and provide necessary software and hardware to the JJBs and
the CWCs for obvious reasons. We were informed by learned
counsel that the Police authorities in Telangana and Andhra
Pradesh in consultation with the Juvenile Justice Committee of the
High Court have made considerable use of information and
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communication technology and we are of the view that innovative
steps must be encouraged. Similarly, the use of video conferencing
could also be considered in appropriate cases where some
inconvenience to the juvenile in conflict with law necessitates the
use of video conferencing facilities.
81. In the context of the use of technology, MWCD must be
complimented for bringing out an online Central Level Monitoring
System. We have been told by the learned Additional Solicitor
General that this online system is working rather effectively
although it would need upgrading from time to time as the months
go by. The unfortunate part is that there does not seem to be much
active cooperation extended by the State Governments in updating
the information on the Central Level Monitoring System. In one of
the affidavits filed by MWCD and adverted to above, it was stated
that while almost every State Government has filled up the relevant
information for the year 2014-15, but the response was rather
lukewarm with regard to the period 2015-16. Needless to say,
updating information is extremely important so that there can be
efficient planning which will ultimately lead to better management
of issues concerning children. We may mention that the State
Governments are required to fill up the information on the Central
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Level Monitoring System once a quarter and surely that cannot be
a difficult task.
(v) Role of Police
82. An extremely important stake-holder in the effective
implementation of the JJ Act is the local police. Section 107 of the
JJ Act mandates the appointment of a Child Welfare Police Officer
(for short ‗CWPO‘) and a Special Juvenile Police Unit (for short
‗SJPU‘) in each district. The SJPU must also include two social
workers having experience of work in the field of child welfare,
one of them being a woman. The responsibility for appointment
lies on the State Government. Section 107 of the JJ Act reads as
follows:
―107. Child Welfare Police Officer and Special Juvenile
Police Unit. — 1. In every police station, at least one
officer, not below the rank of assistant sub-inspector, with
aptitude, appropriate training and orientation may be
designated as the child welfare police officer to exclusively
deal with children either as victims or perpetrators, in
co-ordination with the police, voluntary and
non-governmental organisations.
2. To co-ordinate all functions of police related to children,
the State Government shall constitute Special Juvenile
Police Units in each district and city, headed by a police
officer not below the rank of a Deputy Superintendent of
Police or above and consisting of all police officers
designated under sub-section (1) and two social workers
having experience of working in the field of child welfare,
of whom one shall be a woman.
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3. All police officers of the Special Juvenile Police Units
shall be provided special training, especially at induction as
child welfare police officer, to enable them to perform their
functions more effectively.
4. Special Juvenile Police Unit also includes Railway
police dealing with children.‖
83. We have been given to understand by learned counsel for the
parties that many States have actually appointed CWPOs and set
up SJPUs. Unfortunately, their duties and responsibilities have not
been clearly identified but are generally stated in Rule 86 of the
Model Rules. We have also been given to understand that no
system of effective training for CWPOs and SJPUs has evolved
and many of them exist only symbolically and only because the
law requires them to exist. Since the duties and responsibilities of
the CWPOs and SJPUs have not been specified or identified, it is
high time in our opinion, that the Bureau of Police Research &
Development and the National Police Academy in consultation
with the State Police Academies identify the functions, duties and
responsibilities of the CWPOs and SJPUs. In this regard, we may
note that NALSA has prepared Guidelines for Training
Juvenile/Child Welfare Officers attached to every police station
and members of the Special Juvenile Police Unit. Perhaps this
could be a starting point for their training through the Bureau of
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Police Research & Development and the Police Academies.
84. The importance of training can be appreciated from the
allegations made before the Patna High Court in The Matter of
Letter of Sanat Kumar Sinha (Chief Co-ordinator), Bal Sakha v.
The State of Bihar through the Chief Secretary, Govt. of Bihar
and Ors.6
It was alleged in that case that a child was handcuffed
by policemen in uniform during his transit from the Police Station
to the Civil Court for his appearance before the Chief Judicial
Magistrate. Additionally, it was alleged that contrary to the
provisions of the Act of 2000 the identity of the child was
disclosed. Of course, the Patna High Court took up the issue with
due seriousness but such a situation ought not to have occurred at
all and could have been avoided through proper training and
sensitization.
85. With regard to the Police generally, it was submitted that due
to the policy of rotation, it often happens that soon after a police
officer completes his or her training that officer is transferred out
to another department. This is a waste of effort and one of the ways
of resolving problems arising out of transfers is for every State
Police Academy to conduct regular training programmes under the
6 MANU/BH/0384/2008
W.P. (C) No.473 of 2005 Page 48 of 62
guidance of senior police officials of the State and for the State
Government to optimally utilize the services of its officers.
86. Similarly, the Government of India is required to involve
Railway Police for dealing with children. No information or data is
forthcoming in this regard and learned counsel for the parties were
unable to assist us insofar as this aspect is concerned. We expect
the Government of India through the Railways to look into the
matter with some degree of urgency. We were told by learned
counsel that a large number of runaway children and children on
drugs are found in railway stations (and other places) working as
rag-pickers or performing other menial activities. It was submitted
before us that even otherwise, there is rampant drug abuse among
such children. Efforts must be made to establish de-addiction
centres especially for such children and also generally for juveniles
in conflict with law and children in need of care and protection.
(vi) Child Care Institutions
87. There is a lot to be said with regard to Child Care
Institutions. Many of them are housed in run-down buildings and
are hardly conducive to comfortable living even to a minimum
degree. State Governments must appreciate that they are not doing
any charity by putting up children in Child Care Institutions - they
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are merely performing their statutory and constitutional obligations.
There is, therefore, an urgent need to make an evaluation and
assessment of all the Child Care Institutions in every State to
ascertain their condition, the infrastructure requirements and
staffing requirements. Children live in these Institutions, not
because they want to but because they have no other option, since
most of them are children in need of care and protection. The
obligation of society is to provide solace and comfort to these
children and adherence to the minimum standards of care. Model
Rules contain details for improved Child Care Institutions and their
requirements. The State Governments have merely to adhere to
these minimum requirements. The condition of some State
managed Child Care Institutions is best illustrated by the
observations made by the Punjab and Haryana High Court in Court
on its own motion v. State of Punjab (supra) to the following
effect:
―….The sordid state of the said Observation Home
depicted that Observation Home at Sonepat had two
barracks and a front side courtyard with high walls. The
entry gate was similar to jail gate. The Home was having
no source of recreation facilities or playground for the
juveniles housed therein. The courtyard was filled with
stagnated water due to blockage of drainage system and
there was hardly any place for going out of barrack for
using courtyard. Enquiry revealed that there was no
arrangement for potable water. The bathrooms and kitchen
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were also in deplorable condition. The Observation Home
was managed by a single teacher who, besides performing
job of a teacher, was also looking after the overall
administration of the Home. In this manner, no
meaningful education was being imparted to the children.
The Observation Home was found to be worse than a
prison. Observation Home at Hoshiarpur (Punjab) was
found to be no better with almost similar dilapidated
conditions…..‖
88. There are, of course, additional duties and responsibilities
obligated by the Constitution on the State Governments such as
providing education, health-care (both physical and psychological)
and adequate nutrition. These are huge areas that need to be looked
into with all sincerity by the bodies and institutions established
under the Commissions for Protection of Child Rights Act, 2005
and the JJ Act. Concerned citizens like Sampurna Behura can only
highlight the systemic implementation lapses and flaws and hope
that the State Governments and the various bodies constituted
under statutes enacted by Parliament perform their duties and
functions. But, in such exceptional circumstances, the courts are
constitutionally obliged to issue a continuing mandamus in public
interest for implementation of the laws enacted by Parliament,
which is essentially the primary responsibility of the Executive. If
the Executive ignores the mandate of Parliament with continuing
callousness, it will only be to the detriment of the children of our
country.
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89. In this context, we may add that MWCD has made
considerable efforts in ensuring that Child Care Institutions run
and managed by individuals and NGOs are registered in
accordance with the provisions of the JJ Act. We are quite
surprised that there has been some resistance to registration from
some institutions, as informed by the learned Additional Solicitor
General, and therefore we must make it clear that the law has to be
obeyed as long as it exists on the statute books. It might be
uncomfortable for those who manage some of these Child Care
Institutions, but registration is compulsory and in public interest to
ensure that minimum standards of care are maintained and the
children in those Institutions are well looked after. We may note
that occasionally there are allegations originating from Child Care
Institutions of trafficking and child sexual abuse, some of which
may be unverified, but to avoid any such shameful allegations it is
necessary that their registration, their management and functioning
are strictly monitored by the State Governments and by MWCD.
90. It was suggested by learned counsel that in all Child Care
Institutions, there should be a segregation of children in terms of
age and wherever applicable segregation based on the nature of the
offence allegedly committed so that the possibility of sexual abuse
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or any other kind of violence is eliminated. Additionally, all such
institutions should be advised to provide vocational or continuing
education with a view to re-settling children in conflict with law
and children in need of care and protection by reintegrating and
mainstreaming them in society. All these are issues of serious
concern and need to be addressed by the State Governments and
SCPCRs.
91. It was emphasized that there should be adequate staff
available in all Child Care Institutions so that they are able to
perform their duties efficiently. It was also suggested that the
location of the JJBs and CWCs should be in close proximity of the
Child Care Institutions to avoid children having to travel long
distances for their appearance before these statutory bodies. All
these suggestions and recommendations made by learned counsel
are issues of concern and must be dutifully addressed by the State
Governments and the SCPCRs.
92. One of the submissions made with regard to Child Care
Institutions was that District Legal Services Authorities may make
unscheduled visits to them to ascertain whether they are in fact
functioning as they should. We are of opinion that this ‗Visitor‘
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system is definitely worth implementing and we expect NALSA to
go ahead with the suggestion given. In fact, the Chief Justices
Conference in 2006 had specifically adverted to the appointment of
Visitors to Child Care Institutions and in the Chief Justices
Conference in 2013 and 2015 improving the living conditions in
Child Care Institutions was also adverted to. NALSA and the
District Legal Services Authorities must respect the views
expressed in the Chief Justices Conferences.
(vii) Juvenile Justice Fund
93. The JJ Act provides for the constitution of a Juvenile Justice
Fund. The learned Additional Solicitor General placed before us
figures relating to the contribution of the State Governments in the
Juvenile Justice Fund. We are quite distressed to note that some of
the State Governments have not even set up the Juvenile Justice
Fund while one or two State Governments have set up the Fund
with an embarrassing amount of only a few thousand rupees. We
wonder how the welfare of children can be looked after by these
State Governments with such a pittance in the kitty. Obviously,
these State Governments are not seriously concerned about the
welfare of children, which is a pity. This is yet another example of
official apathy to the rights of children and a cause for worry.
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(viii) Evaluation and assessment
94. Finally, it would be appropriate if some sort of an evaluation
or social audit is carried out every six months for the next couple
of years to monitor and supervise the implementation of the JJ Act.
More than sufficient time has already elapsed since the Act of 2000
was enacted by Parliament and certainly the children of our
country deserve much better and cannot wait for another 15 or 16
years for the effective implementation of the JJ Act. Most of the
children who were born when the Act of 2000 was enacted are
nearing adulthood and many of them have not had the benefit of
the provisions of the Act of 2000. This mistake, a serious one at
that, cannot be repeated in the implementation of the JJ Act. It is
said that children are the future of the country and if they are not
looked after, it is the future of the country that is at stake.
Conclusions and Directions
95. Keeping in mind the concerns expressed by all learned
counsel and the need to invigorate the juvenile justice system in
the country, we are of the view that the following directions ought
to be given and we do so.
1.The Ministry of Women and Child Development in the
Government of India and the State Governments should
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ensure that all positions in the NCPCR and the SCPRs are
filled up well in time and adequate staff is provided to these
statutory bodies so that they can function effectively and
meaningfully for the benefit of the children.
2. The NCPCR and the SCPCRs should take their duties,
functions and responsibilities with great earnestness keeping
in mind the faith reposed in them by Parliament. A position
in these statutory institutions is not a sinecure. These bodies
have a very significant and proactive role to play in
improving the lives of children across the country.
3. The State level Child Protection Societies and the District
level Child Protection Units have an enormous responsibility
in ensuring that the JJ Act is effectively implemented and
Child Care Institutions are managed and maintained in a
manner that is conducive to the well being of children in all
respects including nutrition, education, medical benefits,
skill development and general living conditions. These two
bodies would be well advised to take the assistance of NGOs
and civil society to ensure that the JJ Act serves the purpose
for which it is enacted by Parliament.
4. The State Governments must ensure that all positions in the
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JJBs and CWCs are filled up expeditiously and in
accordance with the Model Rules or the Rules framed by the
State Government. Any delay in filling up the positions
might adversely impact on children and this should be
avoided.
5. The JJBs and CWCs must appreciate that it is necessary to
have sittings on a regular basis so that a minimal number of
inquiries are pending at any given point of time and justice is
given to all juveniles in conflict with law and social justice to
children in need of care and protection. This is a
constitutional obligation.
6. The NCPCR and the SCPCRs must carry out time-bound
studies on various issues, as deemed appropriate, under the
JJ Act. Based on these studies, the State Governments and
the Union Territories must take remedial steps.
7. In particular the NCPCR and the SCPCRs must carry out a
study for estimating the number of Probation Officers
required for the effective implementation of the JJ Act.
Based on this study, the State Government must appoint the
necessary number of Probation Officers. It must be
emphasised that the role of a Probation Officer is critical for
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the rehabilitation and social reintegration of a juvenile in
conflict with law and due importance must be given to their
duties as postulated in the Model Rules and Rules, if any,
framed by the State Governments and the Union Territories.
8. The MWCD must continue to make creative use of
information and communication technology not only for the
purpose of collecting data and information but also for other
issues connected with the JJ Act such as having a database of
missing children, trafficked children and for follow up of
adoption cases etc. With the utilization of technology to the
fullest extent, administrative efficiency will improve
considerably, which in turn will have a positive impact on
the lives of children.
9. It is important for the police to appreciate their role as the
first responder on issues pertaining to offences allegedly
committed by children as well as offences committed against
children. There is therefore a need to set up meaningful
Special Juvenile Police Units and appoint Child Welfare
Police Officers in terms of the JJ Act at the earliest and not
only on paper. In this context, it is necessary to clearly
identify the duties and responsibilities of such Units and
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Officers and wherever necessary, guidance from the
available expertise, either the National Police Academy or
the Bureau of Police Research and Development or NGOs
must be taken for the benefit of children.
10. The National Police Academy and State Police Academies
must consider including child rights as a part of their
curriculum on a regular basis and not as an isolated or
sporadic event.
11. The management of Child Care Institutions is extremely
important and State Governments and Union Territories
would be well advised to ensure that all such institutions are
registered so that children can live a dignified life in these
Institutions and issues of missing children and trafficking are
also addressed.
12. State Governments and Union Territories would be well
advised to appoint eminent persons from civil society as
Visitors to monitor and supervise the Child Care Institutions
in all the districts. This will ensure that the management and
maintenance of these Institutions are addressed. We have
no doubt that the State Legal Service Authorities and the
District Legal Service Authorities will extend full assistance
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and cooperation to the government authorities in this venture
as well as to the Visitors.
13. The JJ Fund is a bit of an embarrassment with an absence of
an effective response from the State Governments and the
Union Territories. If financial resources are not made
available for the welfare of the children we shudder to think
what could be better utilization of the funds.
14. NALSA has done a remarkable job in collecting data and
information relating to the JJ Act, as evidenced by the three
part Report prepared by it. We request NALSA to carry
forward the exercise and complete a similar Report
preferably before 30th April, 2018 to assist all the policy
making and decision taking authorities to plan out their
affairs.
15. The importance of training cannot be over-emphasized. It is
vital for understanding and appreciating child rights and for
the effective implementation of the JJ Act. All authorities
such as JJBs and CWCs, Probation Officers, members of the
Child Protection Societies and District Child Protection
Units, Special Juvenile Police Units, Child Welfare Police
Officers and managerial staff of Child Care Institutions must
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be sensitized and given adequate training relating to their
position. A very positive step has been taken in this regard
by NALSA and we expect the NCPCR with the assistance of
the SCPCRs to carry forward this initiative so that there is
meaningful implementation of the JJ Act.
16. Since the involvement of the State Governments and the
Union Territories is critical to child rights and the effective
implementation of the JJ Act, it would be appropriate if each
High Court and the Juvenile Justice Committee of each High
Court continues its proactive role in the welfare of children
in their State. To make the involvement and process more
meaningful, we request the Chief Justice of every High
Court to register proceedings on its own motion for the
effective implementation of the Juvenile Justice (Care and
Protection of Children) Act, 2015 so that road-blocks if any,
encountered by statutory authorities and the Juvenile Justice
Committee of the High Court are meaningfully addressed
after hearing the concerned governmental authorities. A
copy of this judgment and order should be sent by the
Secretary General of this Court to the Registrar General of
each High Court for being placed before the Chief Justice of
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every High Court for initiating suo motu proceedings.
96. Finally, we request and urge the Chief Justice of each High
Court to seriously consider establishing child friendly courts and
vulnerable witness courts in each district. Inquiries under the JJ
Act and trials under other statutes such as the Protection of
Children from Sexual Offences Act, 2012, the Prohibition of Child
Marriage Act, 2006, trials for sexual offences under the Indian
Penal Code and other similar laws require to be conducted with a
high degree of sensitivity, care and empathy for the victim. It is
often said that the experience in our courts of a juvenile accused of
an offence or the victim of a sexual offence is traumatic. We need
to have some compassion towards them – even juveniles in
conflict with law, since they are entitled to the presumption of
innocence - and establishing child friendly courts and vulnerable
witness courts is perhaps one manner in which the justice delivery
system can respond to ease their pain and suffering. Another
advantage of such child friendly courts and vulnerable witness
courts is that they can be used for trials in which adult women are
victims of sexual offences since they too are often traumatized by
the not so friendly setting and environment in our courts.
97. We record our appreciation for Sampurna Behura for
W.P. (C) No.473 of 2005 Page 62 of 62
highlighting the issues raised in this Public Interest Litigation and
to learned counsel for the appearing parties in not making this an
adversarial proceeding, but a constructive effort for the benefit of
the children of our country.
98. The petition stands disposed of.
99. The Registry should list the matter on 13th March, 2018 for
directions after obtaining a response from the Registrar General of
each High Court.
...……………………J
(Madan B. Lokur)
.…………………....J
New Delhi; (Deepak Gupta)
February 9, 2018
