REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 906 OF 2014
BACHPAN BACHAO ANDOLAN .... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
These proceedings which have been instituted under Article 32 of the
Constitution by Bachpan Bachao Andolan bring focus upon the alarming
increase in the use of drugs and alcohol among children in India. The
petition has been instituted in the public interest for enforcing the
fundamental rights of children particularly those suffering from and
involved in substance use and abuse. The petitioner seeks the intervention
of this Court for a mandamus to the Union of India to formulate and
implement a national action plan for children on the issue of drugs,
alcohol and substance abuse amongst children. This must, according to the
petitioner, include in its coverage issues pertaining to identification,
investigation, recovery, counselling and rehabilitation. This essentially
is the main relief which has been sought. Other incidental directions
include steps to incorporate appropriate content in the school curriculum;
creation of a coordinating body; imposing mandatory duties for reporting
drugs and substance abuse on school principals and on the police;
establishment of de-addiction centres in every district and at the tehsil
level; protecting children reporting drug use from harm; preparation of a
national database and a direction for the registration of cases against
persons supplying tobacco, alcohol and drugs to children. Supplemental
reliefs are claimed in these proceedings.
2 India is home to the largest child population in the world with over
forty-four crore children, according to the census of 2011. Among this,
twenty-four crore children constituting twenty-four percent of the
population of the country are adolescent. They constitute a vulnerable age
group for social, educational, moral and physical development. Protecting
children from wide-spread prevalence of substance abuse is one of the
biggest policy challenges facing India. Recent reports both of official and
private agencies indicate that there has been a substantial increase in the
prevalence of use and abuse of substances in young children. A nationwide
survey was carried out on the basis of a representative household sample
across the country as the National Family Health Survey, 2005-06. The
petitioner has relied upon several reports which indicate the nature and
extent of substance abuse in children. Many of them make recommendations
for the formulation and implementation of policy.
3 In this part of the judgment, we will broadly summarize the content
of the reports mentioned above :
(i) Report of Planning Commission’s Working Group on Adolescent and Youth
Development, for formulation of 12th Five Year Plan (2012-17) :
“Substance abuse among young people is on the increase. That could be due
to peer pressure or stress and frustration. Children are not fully aware of
the full implications of abuse to their health and to their life. Drug
mafia and cartels target young people in cities and towns and once they are
addicted, it is an easy market for them.”
(ii) Research Study by National Commission on Protection of Child Rights
(August 2013) :
The final study sample comprised of 4024 children between 5-18 years of
age. The study indicates that :
“…Of the boys aged 15-19 years (n=13,009), 28.6% reported tobacco use and
11% reported alcohol use. Similarly, in the girls aged 15-19 years
(n=24,811), 3.5% reported tobacco use and 1% reported alcohol use. It
appears to be an upward trend from the previous round of the survey (NFHS-
2; 1998-99) where the prevalence of alcohol use was found to be 2.4% for
boys and 0.6% for girls [13). Further, it appears that among those who
‘drink’, a significant percentage of boys and girls are using alcohol at
least weekly (18.3-39.8%) or even daily (3.4-6.8%)…..majority reported a
lifetime use of variety of substance. Tobacco at 83.2% and alcohol (68%
were the most common substance followed by cannabis (35.4%), inhalants
(34.7%), pharmaceutical opiods (18.1%), sedatives (7.9%) and heroin/smack
(7.9%). A significant proportion (12.6%) reported use of injectable
substances.”
The study showed several glaring issues pertaining to the pattern of
substance abuse amongst children :
Tobacco and inhalants were used almost on a daily basis, several other
substances were being used on less than daily or intermittent basis in the
past month
The study showed that the mean age of onset was lowest for tobacco (12.3
years) followed by onset of inhalants (12.4 years), cannabis (13.4 years),
alcohol (13.6 years), proceeding then to use of harder substances- opium,
heroin (14.3-14.9 years) and then finally use of substances through
injecting route (15.1 years).
The study highlighted the regional issues and preferences. Choice of
substance showed some regional variations.
The study also highlighted various other issues pertaining to
rehabilitation and reintegration of children in the mainstream of society.
Recommendations :
1) The study has highlighted the pressing need for initiating programmes
for prevention and treatment. There is a need to sensitize the state
governments and all the important stakeholders about the problem of
substance use among children in the country;
2) Prevention programmes must target multiple settings and multiple risk
factors particularly vulnerable children such as children of substance
users, children injecting substances, street children, children involved in
child labour, trafficked children, children of sex workers and any other
category most at risk;
3) Prevention in schools should include universal prevention programmes
such as education and life skill programmes. School going children who are
at risk should have access to professional counselling in the school
setting;
4) There is need for availability of specialized treatment services for
children who are using substances. These services should be available in
government hospitals; NGOs funded by Ministry of Social Justice and
Empowerment (MSJE) and also by NGOs that provide services to street
children. Detoxification should be available at government run de-addiction
centres with rehabilitation in NGO/Community setting with linkage with
NGOs;
5) Rehabilitation efforts focussing on skill building and vocational
training should be provided by NGOs;
6) Juvenile homes and Children homes should have service provision for
substance using children through linkage with treatment service;
7) There is need for provision of service by the TI NGOs to children
who are injecting substances. Action to be taken by NACO/SACS;
8) Prevention efforts must target both demand and supply reduction
efforts. Supply reduction efforts should limit availability of tobacco and
alcohol near residential areas and schools;
9) Size estimation of substance using children should be carried out in
specific high risk areas, metropolitan cities and conflict areas; and
10) School based surveys should be conducted at a national level based on
a representative sample.
(iii) Annual Report of the Ministry of Social Justice and Empowerment
(2013-2014)[1] :
The report defines “a victim of substance abuse” as a person who is
addicted to/dependent on alcohol, narcotic drugs, psychotropic substances
or any other addictive substances (other than tobacco).
The report states:
Alcoholism and substance abuse is assuming an alarming magnitude. 12th plan
envisages an urgent need for effective counter measures through programmes
in convergence mode
Various Central Ministries need better coordination and convergence.
All existing schematic and non-schematic interventions made by the
ministries need to be integrated under a Mission Mode programme.
Preventive measures need to be taken to reduce both supply and demand and
universal access to preventive treatment and rehabilitation of alcoholism
and drug abuse.
Integrated Rehabilitation Centres of Addicts (IRCAs) assisted under the
scheme of assistance for the prevention of alcoholism and substance (drugs)
abuse and for social defence services run by voluntary organizations need
to be strengthened[2].
Broad strategy[3] :
The overall strategy is awareness generation, identification, counselling,
treatment and rehabilitation of drug dependent persons though collaborative
efforts of the Central and State Governments, Voluntary organizations and
other national and international bodies. With a view to reducing the demand
for and consumption of addictive substances, the thrust would be on
preventive education programmes, comprehensive recovery of addicted persons
and their reintegration into society.
In order to achieve the objectives of the Policy, the key strategies will
be as follows :
To evolve appropriate models for the prevention of alcoholism and substance
abuse, treatment and rehabilitation of drug dependent individuals;
To promote collective initiatives and self-help endeavour among individuals
and groups vulnerable to dependence or found at risk;
To increase community participation and public cooperation in the reduction
of demand for dependence-producing substances;
To create a pool of trained human resources personnel and service providers
to strengthen the service delivery mechanisms;
To establish and foster appropriate synergy between interventions by the
State, corporate initiatives, the voluntary sector and other stakeholders
in the field of substance abuse prevention;
To facilitate networking among policy planners, service providers and other
stakeholders with an aim to encourage appropriate advocacy;
To promote and sustain a system of continuous monitoring and evaluation
including self-correctional mechanism.
It is the aim of the draft National Policy to strive for a society where
use of intoxicating drugs is discouraged through awareness generation and
prevention, directed towards the young and adolescents-helping individuals
make appropriate choices and stay away from drugs. Persons dependent on
substance abuse will be encouraged to give up drugs through a continuum of
care and treatment services. Reducing the demand for addictive substances
with the active support of all stakeholders, including governmental and
civil society organizations, is the goal.
While recognizing the need for services, it is also necessary to increase
the range of services and the access to various modalities of interventions
for prevention, treatment, rehabilitation with a focus on the poor and
marginalized sections of the society. Special attention would be provided
to groups at high risk.
School children are highly impressionable and are influenced largely by the
peer group behaviour. Appropriate interventions in the form of
curricular/co-curricular contents will be put in place in the schools and
colleges for awareness generation. Interventions will be evidence based and
supported by sustainable strategies.
Street children/adolescents have always been vulnerable to abuse of certain
drugs like pharmaceuticals, solvents, inhalants, etc. They do not have
access to health care and there is a total lack of preventive initiatives
for these children as they are cut off from school systems and community
programmes, which are the general vehicles for such interventions. Curbing
the sale and abuse of pharmaceutical and other such substances, including
solvents, glue etc, will be an important element of the policy. Rights of
the children are to be respected and protected. The National Commission for
Protection of Child Rights (NCPCR) visualises a rights-based perspective
flowing into National Policies and Programmes, along with nuanced responses
at the State, District and Block levels, taking care of specificities and
strengths of each region.
Facilities exclusively for such adolescents should be provided. The
essential requirements for them include psycho-social support, life skill
training, nutrition and health facilities, educational and formal training,
recreational facilities including sports and referral services. Protective
measures will be met through night shelters/drop-in centres and easy access
to health services including counselling and de-addiction facilities.
Police and judiciary should be sensitized about these issues.
Women and young girls are affected by drug and alcohol abuse in various
ways. They suffer the economic, social and physical consequences as
partners of male drug users. Some of them may themselves become addicted,
increasing their vulnerability for this population sub-groups.
Recognizing the close nexus between substance abuse and HIV/AIDS and the
fact that drug injecting person is vulnerable to HIV/AIDS, the National
Policy envisages that the population at risk will be sensitized to the
threat of and wherever necessary, treated for screening and identification
for HIV/AIDS. Drug demand reduction and HIV/AIDS prevention programmes will
be synergized to address the spread of HIV/AIDS amongst substance abusers.
There will be three different levels of the substance abuse intervention
strategy as follows :
Primary prevention encouraging abstinence by generating awareness;
Secondary prevention to facilitate the process of behaviour change of high-
risk individuals, early identification, treatment and counselling of
affected individuals;
Tertiary prevention by providing rehabilitation and reintegration of
recovering persons into the social mainstream.
Broad Strategy :
Preventive education & awareness building by multiple agencies
Comprehensive package for recovery of affected individuals
Increase range of services
Develop multiple modalities of interventions
(iv) National Policy on Narcotic Drugs and Psychotropic Substances (NDPS)
drafted by the Ministry of Finance, Depament of Revenue :
The Policy has attempted to curb the menace of drug abuse and contains
provisions for treatment, rehabilitation and social reintegration of
victims of drug abuse :
In Para 55 of the policy, special emphasis is made to stop the menace of
drug abuse amongst children e.g.- local police should pay special attention
to areas surrounding schools and colleges; schools and colleges to conduct
surveys to assess the level of addiction; educational authorities to
include a mandatory and comprehensive chapter on drug abuse and illicit
trafficking and its social-economic cost.
The policy, in its Annexure includes a time bound and specific Plan of
Action. The policy has prepared a ‘Plan of Action’ with regard to the
following recommendations: National Drug Control System, National Survey on
Drug Abuse, Demand Reduction Activities, Supply Reduction Activities,
Control of licit cultivation of opium poppy and production of opium, etc.
4 We find that there have been numerous statements of policy, by
different arms of the government. What is needed is a comprehensive
formulation of a National Plan which will form the basis of co-ordinated
intervention by the Union and State governments together with their
agencies in collaboration with expert institutions at the national and
international levels having a bearing on the issue.
5 United Nations Conventions
A. India is a signatory to three United Nations Conventions, having a
bearing on the issue :
Convention on Narcotic Drugs, 1961;
Convention on Psychotropic Substances, 1971;
Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988.
India has an international obligation to curb drug abuse. The United
Nations General Assembly, in its 20th Special Session in 1998, has accepted
demand reduction as an indispensable pillar of drug control strategies. The
demand reduction strategy consists of education, treatment, rehabilitation
and social integration of drug dependent persons for prevention of drug
abuse.
B. Article 38 of the Single Convention on Narcotic Drugs of 1961,
suggests the following measures against the abuse of drugs :
“The Parties shall give special attention to and take all practicable
measures for the prevention of abuse of drugs and for the early
identification, treatment, education, after-care, rehabilitation and social
reintegration of the persons involved and shall co-ordinate their efforts
to these ends.
The Parties shall as far as possible promote the training of personnel in
the treatment, after-care, rehabilitation and social reintegration of
abusers of drugs.
The Parties shall take all practicable measures to assist persons whose
work so requires to gain an understanding of the problems of abuse of drugs
and of its prevention, and shall also promote such understanding among the
general public if there is a risk that abuse of drugs will become
widespread.”
C. Article 12 of SAARC Convention on Narcotic Drugs and Psychotropic
Substances[4] :
Measures to eliminate illicit demand for Narcotic drugs and psychotropic
substances are set out as follows :
Each Member State shall take appropriate measures to prevent illicit
cultivation of and to eradicate plants containing narcotic or psychotropic
substances, such as opium poppy, coca bush and cannabis plants, cultivated
illicitly in its territory.
The Member States may cooperate to increase the effectiveness of
eradication efforts. Towards this end, Member States shall also facilitate
the exchange or scientific and technical information and the conduct of
research concerning eradication.
The Member States shall adopt appropriate measures aimed at eliminating or
reducing illicit demand for narcotic drugs and psychotropic substances,
with a view to reducing human suffering and eliminating financial
Incentives for illicit traffic.
The Member States may also take necessary measures for early destruction or
lawful disposal of the narcotic drugs, psychotropic substances and
substances listed in Table I and Table II of the 1988 U.N. Convention,
which have been seized or confiscated.
D. Article 33 of the Convention on Rights of Child provides as follows :
“States Parties shall take all appropriate measures, including legislative,
administrative, social and educational measures, to protect children from
the illicit use of narcotic drugs and psychotropic substances as defined in
the relevant international treaties, and to prevent the use of children in
the illicit production and trafficking of such substances.”
E. The high-level segment of the fifty-second session of the Commission
on Narcotic Drugs was held on 11 and 12 March 2009 to evaluate progress
made since 1998 towards meeting the goals and targets established at the
twentieth special session of the General Assembly for
Countering the world drug problem together;
To identify future priorities and areas requiring further action and goals
and targets to be established for drug control beyond 2009;
To adopt a political declaration and other measures to enhance
international cooperation.
The member states pledged to adopt a political declaration and plan of
action on international cooperation towards an integrated and balanced
strategy to counter the world drug problem. The member states reaffirmed
that the ultimate goal of both demand and supply reduction strategies and
sustainable development strategies is to minimize and eventually eliminate
the availability and use of illicit drugs and psychotropic substances in
order to ensure the health and welfare of humankind and encourage the
exchange of best practices in demand and supply reduction, and emphasize
that each strategy is ineffective in the absence of the other. They further
agreed that amphetamine-type stimulants and psychotropic substances
continue to pose a serious and constantly evolving challenge to
international drug control efforts, which threatens the security, health
and welfare of the population, especially youth, and requires a focused and
comprehensive national, regional and global response, based on scientific
evidence and experience, in an international and multi-sectoral setting.
6 The situation is compounded by the fact that children are being
encouraged to become drug peddlers, once a child is addicted to drugs.
Parliamentary intervention
7 Legislative interventions since 2000 have brought focus on the
vulnerabilities of children, particularly in the context of substance
abuse. The Juvenile Justice (Care and Protection of Children) Act, 2000
defined the expression “child in need of care and protection” to include “…
a child who is being or is likely to be grossly abused, tortured or
exploited for the purpose of sexual abuse or illegal acts…” (Section
2(d)(vi)).
Section 25 provided penalties in the following terms :
“Section 25. Penalty for giving intoxicating liquor or narcotic drug or
psychotropic substance to juvenile or child:
Whoever gives, or causes to be given, to any juvenile or the child any
intoxicating liquor in a public place or any narcotic drug or psychotropic
substance except upon the order of duly qualified medical practitioner or
in case of sickness shall be punishable with imprisonment for a term which
may extend to three years and shall also be liable to fine.”
8 Parliament enacted the Juvenile Justice (Care and Protection of
Children) Act, 2015 which received the assent of the President on 31
December 2015. The expression ‘child in need of care and protection’ is
defined in clauses (viii), (ix) and (x) of Section 2(14) as follows :
“Section 2(14).Child in need of care and protection” means a child—
***
who has been or is being or is likely to be abused, tortured or exploited
for the purpose of sexual abuse or illegal acts; or
who is found vulnerable and is likely to be inducted into drug abuse or
trafficking; or
who is being or is likely to be abused for unconscionable gains.”
Section 3 enunciates the general principles to be followed in the
administration of the Act. Among them are :
Principle of presumption of innocence;
Principle of dignity and worth;
Principle of participation;
Principle of best interest;
Principle of family responsibility;
Principle of safety;
Positive measures;
Principle of non-stigmatising semantics;
Principle of non-waiver of rights;
Principle of equality and non- discrimination;
Principle of right to privacy and confidentiality;
Principle of institutionalisation as a measure of last resort;
Principle of repatriation and restoration;
Principle of fresh start;
Principle of diversion;
Principles of natural justice.
Sections 77 and 78 provide penalties in the following terms :
“77. Whoever gives, or causes to be given, to any child any intoxicating
liquor or any narcotic drug or tobacco products or psychotropic substance,
except on the order of a duly qualified medical practitioner, shall be
punishable with rigorous imprisonment for a term which may extend to seven
years and shall also be liable to a fine which may extend up to one lakh
rupees.
78. Whoever uses a child, for vending, peddling, carrying, supplying or
smuggling any intoxicating liquor, narcotic drug or psychotropic substance,
shall be liable for rigorous imprisonment for a term which may extend to
seven years and shall also be liable to a fine up to one lakh rupees.”
The 2015 Act provides the legal framework. Stringent punishments have been
provided. What is required is proper administrative implementation.
The need for a national data base
9 A counter affidavit has been filed in these proceedings on behalf of
the Union Ministry of Social Justice and Empowerment. Surprisingly, the
affidavit indicates that there is no authentic data on the number of
victims of substance abuse in India. According to the Union Government, the
figures quoted in the report of the Ministry of 2013-14 are only an
approximation. In order to build a reliable database, a decision was taken
to conduct a detailed round of national survey through the National Sample
Survey Association (NSSO). NSSO expressed its inability to conduct the
survey. The Ministry is stated to have approached the All India Institute
of Medical Sciences for conducting a national survey on the extent, trend
and pattern of drug abuse.
10 Generation of reliable data is an essential requirement of a policy
aimed at curbing substance abuse. In the absence of accurate data at a
national, state and sectoral level, policy interventions can at best remain
ad hoc. For, in the absence of data there will be no realistic assessment
of the nature and extent of policy interventions required having regard to
(i) vulnerable states and regions; (ii) high risk populations; (iii)
requirement of infrastructure, including de-addiction centres across the
states : (iv) requirement of trained man power; and (v) requirement of
rehabilitation, treatment and counselling services.
11 This is a basic deficiency which the Union government must redress at
the earliest. We direct that the Union Government shall expeditiously
conclude the national survey on drug abuse within a period of six months
from today.
Immediate concerns
The immediate areas requiring remedial attention have been summarized below
:
Formulation of a national action plan for children;
Creation of a module containing an appropriate curriculum for children of
all age groups in order to keep them away from drugs, alcohol and tobacco;
Setting up of de-addiction centres;
Establishing a standard operating procedure on enforcing the provisions of
the Juvenile Justice (Care and Protection of Children) Act, 2015
particularly Sections 77 and 78; and
Implementing the action plan with the national policy on narcotic drugs and
psychotropic substance which has been approved by the Union Cabinet.
The counter affidavit addresses the steps taken by MSJE thus :
“The Ministry implements Central Sector Scheme of Assistance for Prevention
of Alcoholism and Substance (Drugs) Abuse under which financial assistance
is provided to NGOs/Voluntary organizations for running Integrated
Rehabilitation Centres for Addicts (IRCAs), organizing de-addiction camps
and conducting awareness programmes, about the ill effects of Alcoholism
and Substance (Drugs) Abuse on the individual, family, workplace and the
society at large. At present the Ministry gives financial assistance to
approximately 400 Integrated Rehabilitation Centres for Addicts (IRCAs),
which are spread, all over the country, These IRCAs aim at enabling the
addict to achieve total assistance and improve their quality of life. The
IRCAs provide the whole range of community based services for the
identification, motivation, counselling, de-addiction, after case and
rehabilitation for whole person recovery (WPR) of addicts to make a person
drug free, crime free and gainfully employed.”
The real need is to ensure the formulation of a National Plan so that all
interventions are in accordance with a properly formulated national policy
framework.
12 The Union Government has stated that a national policy on drug demand
reduction is being finalized. The priority areas of intervention would
include capacity building and training of service providers with a view to
build up skilled manpower, education and awareness building at all levels
and inter-sectoral collaboration. The policy also proposes to adopt a
system of accreditation of de-addiction centres. The policy must in our
view address the need for setting up de-addiction centres in every district
and address specific vulnerabilities particularly in the context of high
risk populations including children. We direct that this exercise be
completed and that a national policy be formulated within a period of six
months from today.
13 As regards the formulation of a curriculum incorporating appropriate
aspects of generating awareness and sensitisation, an affidavit has been
filed on behalf of the Department of Higher Education in the Union Ministry
of Human Resource Development. On 4 December 2015 directions were issued in
the present case in pursuance of which inclusion of issues relating to
eradication of alcohol and drug abuse in the New Education Policy was taken
up. A consultative process has been initiated by the Union Government. A
committee was constituted on 31 October 2015 for the evolution of a New
Education Policy (NEP). Out of 33 themes identified, 2 themes of school
education are titled : (i) comprehensive education – ethics, physical
education, arts and crafts; life skills; and (ii) focus on child health.
This, it has been stated, would cover “the implied importance of the
inclusion of issues pertaining to eradication of alcohol and drug abuse in
the NEP.” MSJE has recommended tobacco and education on drug abuse within
two of the above themes. This has been placed before the Committee. The
court is informed that the Committee indicated on 30 December 2015 that the
theme relating to eradication of alcohol and drug abuse will be included in
its recommendations.
14 The importance of adopting a holistic solution to deal with issues
pertaining to alcohol, tobacco and drug abuse in the school curriculum has
to be adequately emphasized. We are of the view that since the entire issue
is pending consideration before the government, it would be appropriate to
await the ultimate formulation. However, we may indicate that rather than
resting on an “implied inclusion” of such an important subject within an
extant head or topic, it would be appropriate if the competent authorities
consider how children should be protected from the dangers of substance
abuse. These are matters which should not be brushed under the carpet. The
authorities should consider how children should be sensitised (having due
regard to the age and stage of the child) of the dangers of drug use, the
necessity to report drug use and the need to develop resistance to
prevailing peer and social pressures.
15 The enormity of the problem makes it impractical for the judicial
process to address all issues in one proceeding. We have addressed three
systemic issues mentioned above. We have done so on the basis of the
existing policy framework of the Union government, as evidenced by the
material to which we have adverted in the prefatory part of this judgment.
We have not laid down policy in exercise of judicial review. We have issued
directions to enforce obligations under the existing legislative and
administrative framework.
16 We proceed to summarise, our directions to the Union government, as
indicated earlier : The Union government shall
(i) Complete a national survey and generate a national data base within a
period of six months;
(ii) Formulate and adopt a comprehensive national plan within four months,
which will among other things also address the areas of immediate concern
noted earlier; and
(iii) Adopt specific content in the school curriculum under the aegis of
NEP.
17 We dispose of the writ petition with the aforesaid directions.
However, we grant liberty to the petitioner to move the court in separate
proceedings when it becomes necessary to do so including on various aspects
which have been the subject matter of these proceedings.
............................................CJI
[T.S. THAKUR]
................................................J
[A.M. KHANWILKAR]
................................................J
[Dr D Y CHANDRACHUD]
New Delhi
December 14, 2016
-----------------------
[1]
[2] Relevant part pg. 20, full report at pg. 157
[3] [4] Page 167
[5] [6] Page no. 175 onwards
[7] [8] Article 12, SAARC Convention on Narcotic Drugs and Psychotropic
Substances
