REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 102 OF 2007
Re: Exploitation of Children in Orphanages
in the State of Tamil Nadu
….Petitioner
versus
Union of India & Ors.
….Respondents
J U D G M E N T
Madan B. Lokur, J.
1. This writ petition was taken up on the basis of an article published
in the Hindi newspaper “Hindustan” (Lucknow Edition) on 4thJuly, 2007. The
article was written by Ms. Anjali Sinha and the translated caption of the
article is “Orphanage or Places for Child Abuse”. The article was
forwarded to this Court by one A.S. Choudhury along with a letter and that
is the genesis of this petition which was registered as a Public Interest
Litigation (PIL) on 10th September, 2007. Ms. Aparna Bhat was appointed as
Amicus Curiae to assist this Court. At the outset we must and do
acknowledge the unstinting and excellent efforts put in by Ms. Aparna Bhat
over the last 10 years in rendering assistance in this matter.
2. Broadly, the article written by Ms. Anjali Sinha mentions that
orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as
government institutions were reportedly involved in systematic sexual
abuse of children. A sting operation indicated that sexual services of
children were being provided to foreigners as well as Indian tourists and
that the rates of children whose sexual services were being taken were
fixed over telephone or in a meeting at the orphanage.
3. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National
Commission for Women participated and it was acknowledged that government
schools have become unsafe for girl students due to sexual abuse. The
incident of an eight year old girl who was harassed by her Principal was
mentioned and it was noted that the Principal was only transferred out by
way of punishment. Another incident was mentioned where the school teacher
misbehaved with students in the presence of other students in a closed
room.
4. The then Ministry of Family and Child Welfare along with UNICEF
brought out a report on the condition of children in which it was reported
that 53% of children suffered from sexual abuse. Children were reported to
be the subject of institutional abuse as well as by relatives.
5. On these broad facts Ms. Anjali Sinha suggested that the problem of
sexual abuse of children especially in government institutions has become a
serious problem and requires immediate redressal. She made some
suggestions including a Counseling Cell in each school where children are
taught how to recognize abuse and providing a complaint mechanism
accessible to children in case of any such incident.
Proceedings in this Court
6. Over the years, this Court passed several orders and also mentioned
that certain other issues such as trafficking of children, schools being
occupied by Central Para Military Forces and the right to education
guaranteed to children require consideration. In other words, this Court
sought to expand the scope of this PIL to include the rights of children in
general.
7. In an order passed on 7th February, 2013 the learned Additional
Solicitor General and the learned Amicus submitted that the main reason for
this Court issuing various orders is to ensure that the provisions for the
rights of children as well as provisions for proper facilities to children
in education as also health are implemented. It was submitted that
obviously the rights of children can be adequately secured only if the
monitoring and controlling provisions contained in statutes relating to
children such as The Commissions for Protection of Child Rights Act, 2005,
The Right of Children to Free and Compulsory Education Act, 2009, The
Protection of Children from Sexual Offences Act, 2012 and The Juvenile
Justice (Care and Protection of Children) Act, 2000 are fully implemented.
8. A detailed order was passed by this Court on 16th December, 2013
lamenting that despite the directions issued, little or no progress was
made by the States in protecting the rights of children. As far as the
Commissions for the Protection of Child Rights are concerned, they exist
only on paper since in some cases the Chairperson had not been appointed or
the Members had not been appointed or no rules and regulations had been
framed. This Court observed that the lackadaisical manner in which the
States and the Union Territories had responded to the rights of children
made it necessary to draw attention to the constitutional rights guaranteed
to children. It was observed that the inaction of the States was in the
teeth of the directions given by this Court and additionally the States and
Union Territories ought to realize that they have to operate in accordance
with the provisions of the Constitution of India.
9. Accordingly, specific information was sought from each State and
Union Territory regarding efforts made by the respective governments.
Affidavits were filed by the States and Union Territories from time to time
as an attempt to respond to the questions raised by this Court regarding
action taken by the concerned governments in protecting the rights of
children as well as implementation of the statutes mentioned above. The
responses were disheartening then and the situation has not changed
substantially even after almost a decade since this Court took cognizance
of the matter. Progress, if any, has been marginal. Unfortunately, it
appears that the governments of some of the States and Union Territories
have little remedial or pro-active concern for children.
10. On 20thMarch, 2015 this Court raised the need for a social audit in
terms of Rule 64 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and the utilization of funds given to the States and Union
Territories under the Integrated Child Protection Scheme.
11. On 17thApril, 2015 this Court raised the issue of a concurrent
monitoring audit under the Integrated Child Protection Scheme as well as
the establishment of Juvenile Justice Boards, Child Welfare Committees,
Special Juvenile Police Units, functioning of Child Care Institutions and
functioning of adoption agencies.
12. On 31stJuly, 2015 at the instance of the learned Amicus, the issue of
formulating Child Care Plans was discussed in addition to laying down a
policy for conducting social audits. On 28th August, 2015, the issue of
vacancies in the National Commission for the Protection of Child Rights was
raised by this Court. On 30thOctober, 2015 the format for social audits
was discussed, in the context of finalizing something workable and
pragmatic.
13. Since it appeared that there was a lack of seriousness and more
tragically a lack of empathy towards the well being and welfare of children
amongst some of the States and Union Territories and complete apathy with
respect to the disturbingly increasing instances of child sexual abuse,
often by someone in a position of authority and ineffective implementation
of the laws passed by Parliament virtually making parliamentary legislation
irrelevant, we heard detailed submissions of all the parties with the
intention of passing appropriate directions so as to ensure the meaningful
implementation of the statutes already enacted by Parliament. It must be
appreciated that the Juvenile Justice (Care and Protection of Children)
Act, 2015 is a medium for the State to honour the Directive Principles of
State Policy particularly under Article 39(f) of the Constitution by giving
opportunities to children to develop in a healthy manner and in conditions
of freedom and dignity. Indeed, though the Directive Principles of State
Policy are fundamental to the governance of the country, they are not
enforceable However, as held in Bandhua Mukti Morcha v. Union of India,
once a directive principle is enforced through law the State must be
obligated to enforce the statute to uphold its constitutional
obligation.[1]
14. In this context, it is pertinent to note that India acceded to the
Convention on the Rights of the Child (CRC) on the 11th December, 1992.
Article 19 of the CRC obligates the State Parties to “take all appropriate
legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse….”
15. Keeping all this in mind, the learned Amicus focused on three
principal issues namely (1) Children in need of care and protection; (2)
Trafficked children (3) Street children. We do not propose to consider the
plight of trafficked or street children, since that would mean losing focus
on the issues raised by Ms. Anjali Sinha. We leave open the issues of
trafficked children and street children for consideration in an appropriate
case.
16. On the rights of children in need of care and protection it was
submitted that issues relating to child care institutions whether managed
by the State Government or by NGOs or other voluntary organizations need to
follow certain minimum standards of care and in addition, rehabilitation
of such children must be a priority.
Children in need of care and protection
17. Who is a child in need of care and protection? The provisions of the
Protection of Children from Sexual Offences Act, 2012 (for short the ‘POCSO
Act’) do not provide any definition of a child in need of care and
protection. But no one can deny that a child victim of sexual abuse or
sexual assault or sexual harassment is a child in need of care and
protection. Similarly in a given case,a child accused of an offence and
brought before the Juvenile Justice Board or any other authority might also
be a child in need of care and protection.
18. Even though a child in need of care and protection is defined in
Section 2(14) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as the JJ Act) the definition does not
specifically include some categories of children. Consequently, we are of
the view that since the JJ Act is intended for the benefit of children and
is intended to protect and foster their rights, the definition of a child
in need of care and protection must be given a broad interpretation. It
would be unfortunate if certain categories of children are left out of the
definition, even though they need as much care and protection as categories
of children specifically enlisted in the definition. Beneficial
legislations of the kind that we are dealing with demand an expansive view
to be taken by the Courts and all concerned.
19. In Workmen v. Management of American Express International Banking
Corporation[2] this Court held in paragraph 4 of the Report that:
“The principles of statutory construction are well settled. Words occurring
in statutes of liberal import such as social welfare legislation and human
rights’ legislation are not to be put in Procrustean beds or shrunk to
Liliputian dimensions. In construing these legislations the imposture of
literal construction must be avoided and the prodigality of its
misapplication must be recognised and reduced.”
20. A similar view was expressed in Regional Director, ESI Corporation.
v. Francis De Costa[3] when it was observed that “It is settled law that to
prevent injustice or to promote justice and to effectuate the object and
purpose of the welfare legislation, broad interpretation should be given,
even if it requires a departure from literal construction.”
21. The necessity of giving a purposeful interpretation to a provision in
a statute was recognized in MSR Leathers v. S. Palaniappan[4] when this
Court observed that:
“…..one of the salutary principles of interpretation of statutes is to
adopt an interpretation which promotes and advances the object sought to be
achieved by the legislation, in preference to an interpretation which
defeats such object. This Court has in a long line of decisions recognised
purposive interpretation as a sound principle for the courts to adopt while
interpreting statutory provisions.”
A similar view was expressed, though in a different context, in Badshah v.
Urmila Badshah Godse.[5] A far more detailed discussion on the subject is
to be found in the Constitution Bench decision of this Court in Abhiram
Singh v. C.D. Commachen.[6]
22. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad and
purposeful interpretation – it ought not to be treated as exhaustive but
illustrative and furthering the requirements of social justice. This
understanding would also be in consonance with Article 40 of the CRC which
stipulates that the “State Parties shall recognize rights of every child
accused of an offence and treatment of such a child shall be in a manner
consistent with promotion of the child’s dignity and worth”.
23. Learned Amicus drew our attention to decisions rendered by some
High Courts which have taken a broad based approach to the meaning of a
child in need of care and protection and some other High Courts that have
adopted a comparatively narrow interpretation. These decisions were
rendered in the context of the Juvenile Justice (Care and Protection) Act,
2000 and would not really be applicable insofar as the JJ Act is concerned.
However, this does not detract from her submission that a child in need of
care and protection must be given a wider meaning and in addition to some
children in conflict with law as discussed above, it must also include
victims of sexual abuse or sexual assault or sexual harassment under the
POCSO Act as also victims of child trafficking. Such children must also be
given protection under the provisions of the JJ Act being victims of crime
under the POCSO Act and the Immoral Traffic (Prevention) Act, 1956.
Child care institutions
24. Children in need of care and protection are given shelter in homes
that are managed by the State Government or by NGOs or by voluntary
organizations. In this context, it is necessary to draw attention to
Section 41 of the JJ Act which mandates, notwithstanding anything contained
in any other law for the time being in force, that all institutions,
whether run by a State Government or by voluntary organizations or NGOs
which are meant, either wholly or partially, for housing children in need
of care and protection shall be registered under the JJ Act in such manner
as may be prescribed within six months of the commencement of the said Act.
The JJ Act came into force on 15th January, 2016 but we were informed that
the process of registration is underway and not yet complete.
25. In this day and age when high quality technology is available and
there is no shortage of manpower in the country we are unable to appreciate
why the provisions of Section 41 of JJ Act have not yet been fully
implemented particularly as regards registration of child care
institutions. It is virtually impossible to find out what is going on
within its four walls. The article by Ms. Anjali Sinha is a prime example
of what can happen in child care institutions. It is not clear from the
article whether all the institutions referred to were registered or not,
but surely the government run institutions must have been registered or
licensed. Therefore, if activities of the nature mentioned by Ms. Anjali
Sinha in her article are carried out in government run institutions, one
can only imagine what possibly can go wrong in unregistered institutions,
which are managed beyond the law.
26. Apart from their registration, the statute requires quite a few
salutary actions to be taken by such institutions including recording the
residential capacity and purpose of the child care institution. Rule 21 of
the Juvenile Justice (Care and Protection of Children) Model Rules, 2016
(hereinafter referred to as the Model Rules) specifies the manner of
registration of child care institutions and provides, inter alia, the
availability of the bye-laws and memorandum of association, office bearers
etc. of such institutions. The State Government is obligated to consider an
application for registration of a child care institution (in Form 27) in
light of aspects like whether provision exists for the care and protection
of children, their health, education, boarding and lodging facilities,
vocational studies and rehabilitation (among others things). It is only
then that a certificate of registration can be issued. The State Government
is also obligated to conduct an inspection of an applicant institution and
it appears to us that if such an inspection is faithfully and sincerely
carried out, it will reveal the dark underbelly, if any, of a dubious child
care institution such as those referred to by Ms. Anjali Sinha. The
strict implementation of the provisions of the JJ Act will go a long way in
making the life of children in such child care institutions safer and far
more comfortable than it has been and also reduce the possibility of crimes
such as trafficking, sexual abuse or sexual assault or sexual harassment of
children. If the registration of child care institutions is not complete,
their management obviously cannot be supervised. Therefore, a misstep in
the very first stage could have a chain reaction and perhaps disastrous
consequences in some cases as is evident from the incidents of child abuse
in institutions as brought out by Ms. Anjali Sinha.
Minimum Standards of care
27. Article 3 of the CRC mandates that all actions concerning children
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies shall have the best
interest of the children as a primary consideration. Article 3(3) of the
CRC specifically obligates the State Parties to ensure that institutions
responsible for care and protection of children shall conform to standards
laid down by competent authorities, particularly in areas of safety,
health, staff and supervision. However, the minimum standards of care
prescribed for institutions cannot be ensured if the child care institution
is not identified and registered.
28. In this regard it is necessary to draw attention to the provisions of
Chapter VI of the Model Rules particularly the series of rules starting
from Rule 26 onwards. Amongst other things, these Rules deal with the
staffing pattern of child care institutions, physical infrastructure,
clothing, bedding, toiletries and other articles, sanitation and hygiene,
daily routine, nutrition and diet scale, medical health, mental health,
education, vocational and recreational facilities and genuine efforts in
the rehabilitation and re-integration of such children into society. All
these requirements are rendered unenforceable in the absence of
registration of child care institutions.
29. The Integrated Child Protection Scheme, which also concerns itself
with the minimum standards of care in child care institutions, refers to
several of these requirements and also draws attention to the
rehabilitation programme of children and their recreation. The minimum
standards of care prescribed for child care institutions must be adhered to
in letter and spirit and not only on paper.
30. We have been given to understand by the learned Amicus that
unfortunately, even in registered child care institutions, many of the
statutory facilities and requirements are missing. If that be so, we can
only imagine the living conditions of children in unregistered
institutions.
31. In a given case, failure to maintain a basic or minimum standard of
care can be actionable as negligence. In Jacob Mathew v. State of Punjab[7]
this Court cited Charlesworth & Percy on Negligence[8] and held that the
essential components of negligence are: (1) the existence of a duty to take
care, which is owed by the defendant to the complainant; (2) the failure to
attain that standard of care, prescribed by the law, thereby committing a
breach of such duty; and (3) damage, which is both causally connected with
such breach and recognized by the law, has been suffered by the
complainant. Effectively therefore, if the officers of the State do not
ensure that minimum standards of care are followed in the child care
institutions, they could well be guilty of negligence. Since ours is a
welfare State it would be difficult for uncaring officers to absolve
themselves of a charge of negligence and also perhaps of a violation of the
human rights of children.
Utilization of grants
32. During the course of hearing, we found that many of the Model Rules
though workable and beneficial, exist only on paper and there has been no
serious attempt to implement the provisions or the requirements under the
Integrated Child Protection Scheme. One of the concerns that kept coming
up as an excuse for non-implementation of the Rules was a so-called
shortage of funds. We are surprised that such an excuse was advanced even
though a large amount allocated towards child welfare is lying unspent.
33. Really therefore, the problem is not a lack of funds but the absence
of a will to gainfully utilize the available grants. In this context,
learned Amicus brought to our notice by way of an example, the statement of
expenditure under the Integrated Child Protection Scheme for the year 2013-
14. This indicates that the unspent grant is over Rs.3000 lakhs. (This
figure does not include unspent amounts by the State of Andhra Pradesh and
the State of Uttarakhand). Therefore, it cannot be said that there is a
shortage of funds. The chart brought on record is as follows:-
|Year-wise details of unspent grants |
|Sl. No. |Name of the State|Unspent |
| | |(Amount in |
| | |Lakhs) |
| | |2013-14 |
|1 |Andhra Pradesh |2999.28* |
|2 |Arunachal Pradesh|147.05 |
|3 |Assam |148.47 |
|4 |Bihar |442.14 |
|5 |Chhattisgarh |0.00 |
|6 |Goa |- |
|7 |Gujarat |545.23 |
|8 |Haryana |238.92 |
|9 |Himachal Pradesh |138.10 |
|10 |Jammu & Kashmir |- |
|11 |Jharkhand |147.21 |
|12 |Karnataka |57.94 |
|13 |Kerala |291.52 |
|14 |Madhya Pradesh |1084.67 |
|15 |Maharashtra |0.00 |
|16 |Manipur |473.13 |
|17 |Meghalaya |0.00 |
|18 |Mizoram |0.00 |
|19 |Nagaland |0.00 |
|20 |Orissa |2.63 |
|21 |Punjab |749.37 |
|22 |Rajasthan |253.33 |
|23 |Sikkim |50.36 |
|24 |Tamil Nadu |589.22 |
|25 |Tripura |0.00 |
|26 |Uttar Pradesh |99.92 |
|27 |Uttarakhand |333.92* |
|28 |West Bengal |268.95 |
|29 |Andaman & Nicobar|- |
| |Island | |
|30 |Chandigarh |25.17 |
|31 |Dadra & Nagar |9.63 |
| |Haveli | |
|32 |Daman & Diu |58.63 |
|33 |Delhi |676.68 |
|34 |Lakshadweep |- |
|35 |Puducherry |- |
|Total | |6498.27 |
* States have not submitted their Statement of Expenditure
(SOE)
We are told that the same situation continued for subsequent years as well.
34. No doubt, it is the constitutional obligation of the State to ensure
that for safeguarding and fostering the rights of children, adequate funds
are available particularly for children who are in need of care and
protection. The State cannot conflate non-availability of funds to shirk
their obligations with inefficient utilization of grants. We are pained
that such an excuse is being trotted out.
National and State Commissions
35. Parliament has, of course, appreciated the need for protecting the
rights of children in many of the ways that we have mentioned above and
that is why the Commissions for Protection of Child Rights Act, 2005 was
enacted. In fact the Preamble to the said Act is extremely significant and
brings into focus not only the necessity of protecting the rights of
children generally but also as a part of our obligations to the
international community. The Preamble to the Commissions for Protection of
Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’) reads as
follows:
“An Act to provide for the constitution of a National Commission and State
Commissions for Protection of Child Rights and Children’s Courts for
providing speedy trial of offences against children or of violation of
child rights and for matters connected therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN) General Assembly
Summit in 1990, which adopted a Declaration on Survival, Protection and
Development of Children;
AND WHEREAS India has also acceded to the Convention on the Rights of the
Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it incumbent upon the
signatory States to take all necessary steps to protect children’s rights
enumerated in the Convention;
AND WHEREAS in order to ensure protection of rights of children one of the
recent initiatives that the Government have taken for Children is the
adoption of National Charter for Children, 2003;
AND WHEREAS the UN General Assembly Special Session on Children held in May
2002 adopted an Outcome Document titled “A World Fit for Children”
containing the goals, objectives, strategies and activities to be
undertaken by the member countries for the current decade;
AND WHEREAS it is expedient to enact a law relating to children to give
effect to the policies adopted by the Government in this regard, standards
prescribed in the CRC, and all other relevant international instruments;”
36. To fulfill the obligations to children, the CPCR Act provides for the
constitution of a National Commission for Protection of Child Rights (for
short ‘the NCPCR’) and for the constitution of State Commissions for
Protection of Child Rights (for short ‘the SCPCR’). These Commissions are
intended to function under the provisions of the CPCR Act and their vast
range of functions has been delineated in Section 13 as well as in Section
24 of the CPCR Act.
37. It was pointed out by the learned Amicus that the NCPCR and the SCPCR
can play a very crucial role in fostering child rights. This deserves to
be recognized, but is unfortunately overlooked both by the Union Government
as well as by the State Governments. She pointed out that there are a
large number of vacancies in many of these bodies and in fact the NCPCR
was, at one time, without any Chairperson for more than a year. Some of
the State Governments have also not bothered to fill up the vacancies in
the SCPCR and some others have used the SCPCR as a sinecure for some
favourites. This again, as pointed out, is nothing but providing lip
service to the provisions of a parliamentary legislation and not giving
serious attention to the constitutional rights of children. This is
certainly not acceptable.
38. Similarly, in the implementation of the POCSO Act, the NCPCR and the
SCPCR have a vital role to play. As mentioned above, issues of sexual abuse
or sexual assault or sexual harassment complained of by Ms. Anjali Sinha
need attention and Section 44 of the POCSO Act places a great burden on the
shoulders of the NCPCR and the SCPCRs. These authorities have an obligation
to monitor the implementation of the POCSO Act as is evident from Section
44 thereof which reads as follows:
“44. Monitoring of implementation of Act - (1) The National Commission for
Protection of Child Rights constituted under Section 3, or as the case may
be, the State Commission for Protection of Child Rights constituted under
Section 17, of the Commissions for Protection of Child Rights Act, 2005 (4
of 2006), shall, in addition to the functions assigned to them under that
Act, also monitor the implementation of the provisions of this Act in such
manner as may be prescribed.
(2) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, while inquiring into any matter
relating to any offence under this Act, have the same powers as are vested
in it under the Commissions for Protection of Child Rights Act, 2005 (4 of
2006).
(3) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, also include, its activities under
this section, in the annual report referred to in Section 16 of the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006).”
39. In our opinion, it is imperative that the NCPCR and the SCPCR be
allowed to function in terms of the CPCR Act and the POCSO Act and only for
the benefit of children. These Commissions are under an obligation to take
action wherever necessary including approaching the Constitutional Courts
wherever necessary. These Commissions are under an obligation to prepare
annual reports and if necessary special reports but it has been pointed out
that this requirement has hardly been implemented mainly because of a lack
of interest that these Commissions have shown in functioning under the
statute and also partly because of the large number of vacancies in these
Commissions.
40. This is not to suggest that the NCPCR or the SCPCRs are not doing a
good job. On the contrary, the NCPCR has of late begun taking its statutory
obligations quite seriously and there are a few SCPCRs that are also
faithfully performing their functions under the relevant statutes. On the
other hand, there are some SCPCRs that are not performing well at all or
are defunct and headless. It is difficult to appreciate how, under these
circumstances, the JJ Act or the POCSO Act can at all be implemented, let
alone implemented effectively.
41. Needless to say, it is obligatory on the part of the Union Government
as well as of the State Governments to ensure that the provisions of laws
enacted by Parliament are faithfully and sincerely implemented and the
statutory Commissions constituted under the provisions of the CPCR Act must
be allowed to function as independent statutory bodies under the provisions
of the said Act, the POCSO Act as well as the JJ Act.
42. The rule of law includes adherence to parliamentary legislation by
all concerned including State Governments and the Union Government and it
would be extremely unfortunate if the concerned governments voluntarily and
knowingly flout the provisions of law solemnly enacted by Parliament. We
need say nothing more on this subject, except that laws solemnly enacted by
Parliament cannot be insulted by putting hurdles in the effective
functioning of these Commissions, such as by not appointing the Chairperson
or Members.
Rehabilitation and social re-integration
43. With regard to the future of children in need of care and protection,
the JJ Act contains obligatory provisions such as Section 53 which deals
with rehabilitation and social re-integration services in child care
institutions. This provision requires the State to take care of the basic
requirements of children in such institutions including children with
special needs, legal aid where required and more importantly assistance in
obtaining proof of identity. There have been instances brought to our
notice where children;particularly in the case of abandoned children, are
unable to give any information about their parentage or permanent address
etc. In such cases, proof of identify is crucial for the welfare of the
child, otherwise he or she is reduced to a mere statistic.
44. The provision for rehabilitation and re-integration services has
several facets and cannot be read in isolation but must be read, inter
alia, in conjunction with Section 54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act.
Inspection Committees are required to be set up which shall mandatorily
visit all facilities housing children in the area allocated, at least once
in three months in a team of not less than three members, of whom at least
one shall be a woman and one shall be a medical officer. Their Inspection
Reports are required to be furnished to the District Child Protection Unit
or the State Government, as the case may be, for further action. Form 46
of the Model Rules prepared under Rule 41 thereof is quite exhaustive and
if the Form is filled up with due seriousness it will go a long way in
improving the living conditions of children in child care institutions.
45. The importance of rehabilitation and social re-integration clearly
stands out if we appreciate the objective of the JJ Act which is to foster
restorative justice. There cannot be any meaningful rehabilitation,
particularly of a child in conflict with law who is also a child in need of
care and protection unless the basic elements and principles of restorative
justice are recognized and practised.
46. Unfortunately, one of the problems faced in introducing restorative
justice is that a child in a child care institution is treated as a number
and no effort is made to introduce any individual child care plan
postulated by Rule 19 of the Model Rules read with Form 7. Learned Amicus
informed us that the Form is very rarely filled up (if at all) and little
or no attention is paid to the needs of each child including a child in
conflict with law. She submitted that specific directions should be given
for the preparation of individual child care plans in every child care
institution since that is really the heart of rehabilitation and social re-
integration of a child in need of care and protection. Of course, some
expertise is involved in this exercise but as we had mentioned earlier,
there is no shortage of manpower in our country and it is only the will of
the State Governments, Union Territories and the Union Government which is
coming in the way of the effective implementation of the provisions of the
JJ Act, Model Rules and filling up various Forms and their analysis.
Training of personnel
47. One of the more important issues raised by the learned Amicus in the
context of rehabilitation and social re-integration is to be found in Rule
89 of the Model Rules which concerns itself with training of personnel
dealing with children. This rule provides for a minimum period of 15 days
training to various categories of personnel under the JJ Act including the
staff of Children’s Courts, Principal Magistrates and Members of Juvenile
Justice Boards, Chairpersons and Members of Child Welfare Committees,
Police Officers including persons in charge of child care institutions etc.
Rule 89 of the Model Rules also postulates that the Judicial Academy and
the Police Academy in the States as well as the State Legal Services
Authorities prepare appropriate training modules, training manuals and
provide training to personnel. It was pointed out by the learned Amicus
that this rule is being followed more in the breach and there is hardly any
Judicial Academy or Police Academy or State Legal Services Authority which
conducts 15 days training programmes. This is quite unfortunate to say the
least.
48. The importance of quality training can best be understood by giving a
negative example, which is that unless proper training is imparted to the
concerned personnel, it is quite possible that strange practices and
procedures may evolve due to the absence of proper guidance. It has been
brought to our notice in cases of adoption of children some extremely
unusual and impracticable orders have been passed by the concerned Courts.
It is high time that the High Courts exercise their supervisory
jurisdiction and intervene and take appropriate remedial steps. It is also
high time that training of personnel be given due importance. We may note
here that it was brought to our attention by the learned Amicus that
untrained or inadequately trained personnel can unwittingly play havoc with
the lives of victims of sexual abuse or sexual assault or sexual
harassment.
De-institutionalization
49. In the context of rehabilitation and social re-integration, it was
submitted before us that institutionalization of children is not
necessarily the only available option. This submission of the learned
Amicus also finds support in Article 20 of the CRC. The Article obligates
the State Parties to provide special protection and assistance to children
temporarily or permanently deprived of family environment. The Article
illustrates alternate care in the form of foster placement, adoption “or if
necessary placement in suitable institution”. It is clear that the first
option exercised by the authorities should not be institutionalization of a
child in need of care and protection and the same is a measure of the last
resort. Article 40(4) of the CRC pertaining to children accused of
violating the law also states that the State Parties shall ensure “care,
guidance, supervision, counseling, probation, foster care, education and
vocational training and other alternatives to institutional care”. Indeed,
in keeping with the spirit of the CRC, the JJ Act itself encourages
alternatives to institutionalization such as adoption (Chapter VIII),
foster care (Section 44) and Sponsorship (Section 45). This too needs some
serious thought, as submitted by the learned Amicus.
50. The learned Additional Solicitor General brought to our notice that
the Union Government has since framed the Adoption Regulations, 2017 as
well as the Model Guidelines for Foster Care, 2016. These need to be
implemented by all concerned including the Courts, particularly those
dealing with issues of adoption. However, as mentioned above, training in
the understanding and appreciation of the JJ Act, the Model Rules,
Regulations and Guidelines is imperative and merely handing over copies of
these documents to the concerned personnel even if they are judicial
officers or police officers or government functionaries is not enough.
Some sort of training is absolutely necessary so that the aims and objects
of the various statutory provisions enacted for the benefit of children and
to foster their rights are implemented in letter and spirit.
51. We must emphasize, at this stage that it is absolutely necessary for
all stakeholders having interest in the welfare of children to work
together towards a common goal. This teamwork would include not only the
government machinery but also the police, civil society and the judiciary.
Juvenile Justice Committee
52. That the judiciary is not far behind in fulfilling its constitutional
responsibilities is obvious from the fact that the rather slack
implementation of the Juvenile Justice (Care and Protection of Children)
Act, 2000 even after four years of its enactment, compelled the Chief
Justice of India to request all the High Courts to set up a Juvenile
Justice Committee to ensure effective implementation of the said Act and
monitor the activities under the said Act. The High Courts have a
constitutional obligation to ensure that the rights of all citizens,
including children, as guaranteed under the Constitution are preserved,
protected and respected. With this in mind, all the High Courts have since
set up a Juvenile Justice Committee consisting of Judges of the High Court
and these Committees ensure that the provisions of the Act are implemented
in letter and spirit. For better co-ordination on issues relating to
children, some High Courts have also provided a Secretariat for the
Juvenile Justice Committee.
53. With the passage of time, it has been realized that the importance of
the Juvenile Justice Committee in the High Court cannot be overemphasized.
It is time for all of us to now realize that judges are no longer required
to remain in an ivory tower. Judges of all the Courts including the
Constitutional Courts have non-judicial duties and obligations to perform
so that the fundamental rights of the people are respected. It is this
realization that led the Constitutional Courts to exercise jurisdiction in
social justice issues through Public Interest Litigation and it is this
that requires judges of the Courts to ensure access to justice under the
Legal Services Authorities Act, 1986 to indigent people and those who
cannot afford legal services due to financial or other constraints. It is
very much in keeping with this constitutional obligation and goals that the
concern and involvement of each Juvenile Justice Committee in the effective
implementation of the Act is an absolute necessity. It is equally the
obligation of the concerned officials of the State, including the police,
to render all assistance to each Juvenile Justice Committee to ensure that
the goals envisaged by the JJ Act and the constitutional vision are
successfully achieved in the shortest possible time.
Social audit
54. For the purposes of ensuring that the implementation of the JJ Act is
proceeding in the right direction, it is necessary that a social audit be
conducted every year. Social audits give reasons for introspection as well
as for improvement in the services.
55. Social audit has gained relevance as a tool of public accountability.
It has been defined as “an assessment of a department’s non financial
objectives through systematic and regular monitoring on the basis of the
views of its stakeholders.”[9] A social audit is considered novel as it is
supposed to serve as a supplement to a conventional Government Audit, often
done in 12 month cycles generating an audit report every time.[10] In fact,
in the Report of the Task Group on Social Audit by the Office of the
Comptroller and Auditor General, it was opined that social audit be brought
into the mainstream of auditing by the Indian Audit and Accounts Department
as an essential process and tool in all the performance audits of social
sector programmes as they afford an opportunity to strengthen the micro
level scrutiny of the programme planning, implementation and
monitoring.[11]
56. The requirement of a social audit is necessary not only for purposes
of introspection but also transparency and accountability in the effective
implementation of the JJ Act. There cannot be any reason to avoid
conducting social audits, more particularly since they have been encouraged
by the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 as well
as by the Integrated Child Protection Scheme, by the Comptroller and
Auditor General of India and the National Food Security Act, 2013. The
impression given to us is that for some inexplicable reason the Union
Government is shying away from social audits.
57. In the hearing on 17th April, 2015, the learned Additional Solicitor
General informed us that no social audit was carried out despite the rule
being notified in 2007. The Union of India was then directed to finalize a
policy for conducting social audits. In the hearing on 30th October, 2015
we were informed that the formats for social audit have been more or less
finalized. In its affidavit filed sometime in November 2015, the Union of
India has annexed copies of Model Social Audit Formats for Child Welfare
Committees, Juvenile Justice Boards, Special Juvenile Police Units,
Children Homes, Specialized Adoption Agencies, Open Shelter/Shelter Homes,
Observation Homes and Special Homes. It is stated in the affidavit that
these formats will be circulated for pilot testing by selected States as
mentioned in an earlier affidavit dated 29th October, 2015.
58. We have not been informed whether any steps have been taken to
conduct social audits in terms of the Model Formats prepared by the Union
of India or the result of the pilot testing, if any. It is therefore
necessary to ensure that these formats are tested out with urgency so that
the implementation of the JJ Act is made more meaningful.
Technology and computers
59. We have been given to understand that there is no data base of all
the child care institutions in the country. State Governments have not even
validated the available data or undertaken the mapping of child care
institutions in collaboration with the Union Government. This is an
essential first step since it is difficult to imagine how children in child
care institutions can be cared for if there is no record of the number of
institutions, number of children in such institutions, relevant information
regarding the children etc. Therefore technology can be put to good use for
collection, revision and access of records of children in need of care and
protection and the child care institutions.
60. It is imperative for the Union Government as well as the State
Governments to make out a complete list of all child care institutions
along with their addresses and the person in charge or the principal
officer as well as full details of the children residing in these child
care institutions. Learned Amicus submitted that all these details,
though necessary, are not available with the Union Government or the NCPCR.
Availability of all this information is possible only with the use of
technology and a massive computerization program.
61. Similarly, for the effective functioning of the Juvenile Justice
Boards as well as the Child Welfare Committees, it is necessary that they
should be equipped with computers and printers along with uninterrupted
power supply units so that their day to day functioning can be taken care
of. Learned Amicus pointed out that perhaps this may be asking for too
much since she has received complaints to the effect that very often
stationery is not available with the Child Welfare Committees or the
Juvenile Justice Boards and an appropriate requisition has to be made to
the State Government or the local authority, which is leisurely processed.
In our opinion if this submission were to be accepted it would indicate a
very sorry state of affairs in which the Juvenile Justice Boards and the
Child Welfare Committees are made to function. This step-child attitude
cannot be permitted to continue since these statutory bodies are vital for
having necessary supervision over child care institutions within their
jurisdiction.
Directions
62. In view of the above discussion, the following directions are issued:
The definition of the expression “child in need of care and protection”
under Section 2(14) of the JJ Act should not be interpreted as an
exhaustive definition. The definition is illustrative and the benefits
envisaged for children in need of care and protection should be extended to
all such children in fact requiring State care and protection.
The Union Government and the governments of the States and Union
Territories must ensure that the process of registration of all child care
institutions is completed positively by 31st December, 2017 with the entire
data being confirmed and validated. The information should be available
with all the concerned officials. The registration process should also
include a data base of all children in need of care and protection which
should be updated every month. While maintaining the database, issues of
confidentiality and privacy must be kept in mind by the concerned
authorities.
The Union Government and the governments of the States and Union
Territories are directed to enforce the minimum standards of care as
required by and in terms of the JJ Act and the Model Rules positively on or
before 31st December, 2017.
The governments of the States and Union Territories should draw up plans
for full and proper utilization of grants (along with expenditure
statements) given by the Union Government under the Integrated Child
Protection Scheme. Returning the grants as unspent or casual utilization
of the grants will not ensure anybody’s benefit and is effectively wasteful
expenditure.
It is imperative that the Union Government and the governments of the
States and Union Territories must concentrate on rehabilitation and social
re-integration of children in need of care and protection. There are
several schemes of the Government of India including skill development,
vocational training etc which must be taken advantage of keeping in mind
the need to rehabilitate such children.
The governments of the States and Union Territories are directed to set up
Inspection Committees as required by the JJ Act and the Model Rules to
conduct regular inspections of child care institutions and to prepare
reports of such inspections so that the living conditions of children in
these institutions undergo positive changes. These Inspection Committees
should be constituted on or before 31st July, 2017 and they should conduct
the first inspection of the child care institutions in their jurisdiction
and submit a report to the concerned government of the States and Union
Territories on or before 31st December, 2017.
The preparation of individual child care plans is extremely important and
all governments of the States and Union Territories must ensure that there
is a child care plan in place for every child in each child care
institution. While this process may appear to be long drawn and
cumbersome, its necessity cannot be underestimated in any circumstances.
The process of preparing individual child care plans is a continuing
process and must be initiated immediately and an individual child care plan
must be prepared for each child in each child care institutions on or
before 31st December, 2017.
Wherever the State Commission for Protection of Child Rights has not been
established or though established is not fully functional in the absence of
a Chairperson or any one or more Members, the governments of the States and
Union Territories must ensure that all vacancies are filled up with
dedicated persons on or before 31st December, 2017. The SCPCRs so
constituted must publish an Annual Report so that everyone is aware of
their activities and can contribute individually or collectively for the
benefit of children in need of care and protection.
The training of personnel as required by the JJ Act and the Model Rules is
essential. There are an adequate number of academies that can take up this
task including police academies and judicial academies in the States. There
are also national level bodies that can assist in this process of training
including bodies like the Bureau of Police Research and Training, the
National Judicial Academy and others including established NGOs. Wherever
possible training modules should be prepared at the earliest.
It is time that the governments of the States and Union Territories
consider de-institutionalization as a viable alternative. It is not
necessary that every child in need of care and protection must be placed in
a child care institutions. Alternatives such as adoption and foster care
need to be seriously considered by the concerned authorities.
The importance of social audits cannot be over-emphasized. The necessity
of having a social audit has been felt in some statutes which have been
mentioned above and also by the Comptroller and Auditor General of India.
That being the position, it is imperative that the process of conducting a
social audit must be taken up in right earnestness by the National
Commission for the Protection of Child Rights as well as by each State
Commission for the Protection of Child Rights. This is perhaps the best
possible method by which transparency and accountability in the management
and functioning of child care institutions and other bodies under the JJ
Act and Model Rules can be monitored and supervised.
While the Juvenile Justice Committee in each High Court is performing its
role in ensuring the implementation of the JJ Act and Model Rules, there is
no doubt that each Committee will require a small Secretariat by way of
assistance. We request each Juvenile Justice Committee to seriously
consider establishing a Secretariat for its assistance and we direct each
State Government and Union Territory to render assistance to the Juvenile
Justice Committee of each High Court and to cooperate and collaborate with
the Juvenile Justice Committee in this regard.
We acknowledge the contribution made by Ms. Aparna Bhat in taking keen
interest in the issues raised in this PIL and for rendering effective
assistance to this Court at all times. The Supreme Court Legal Services
Committee will give an honorarium of Rs. 2 lakhs to Ms. Aparna Bhat out of
the funds available for juvenile justice issues.
While there may be some other issues specifically concerning children in
need of care and protection we leave these issues open for consideration
and grant liberty to the learned Amicus to move an appropriate application
in this regard including any application for modification or clarification
of the directions given above.
The Union of India is directed to communicate our directions to the
concerned Ministry or Department of each State and Union Territory for
implementation and to collate necessary information regarding the
implementation of these directions with the assistance of the National
Commission for the Protection of Child Rights and the State Commission for
the Protection of Child Rights. A status report in this regard should be
filed in this Court on or before 15thJanuary, 2018. The Registry will list
this case immediately thereafter.
………………………J
(Madan B. Lokur)
………………………J
May 5 , 2017 (Deepak Gupta)
New Delhi;
-----------------------
[1]
[2](1984) 3 SCC 161
[3]
[4](1985) 4 SCC 71
[5]
[6]1993 Supp (4) SCC 100
[7]
[8](2013) 1 SCC 177
[9]
[10](2014) 1 SCC 188
[11]
[12](2017) 2 SCC 629
[13]
[14](2005) 6 SCC 1
[15]
[16]10th Edition (2001)
[17]
[18]Social Audit: A Toolkit, A Guide for Performance Improvement and
Outcome Measurement available at
https://cgg.gov.in/publicationdownloads2a/Social%20Audit%20Toolkit%20Final.p
df.
[19]
[20] Ibid
[21]
[22]Report of the Task Group on Social Audit, Office of the
Comptroller and Auditor General of India, (2010) at pg 5
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 102 OF 2007
Re: Exploitation of Children in Orphanages
in the State of Tamil Nadu
….Petitioner
versus
Union of India & Ors.
….Respondents
J U D G M E N T
Madan B. Lokur, J.
1. This writ petition was taken up on the basis of an article published
in the Hindi newspaper “Hindustan” (Lucknow Edition) on 4thJuly, 2007. The
article was written by Ms. Anjali Sinha and the translated caption of the
article is “Orphanage or Places for Child Abuse”. The article was
forwarded to this Court by one A.S. Choudhury along with a letter and that
is the genesis of this petition which was registered as a Public Interest
Litigation (PIL) on 10th September, 2007. Ms. Aparna Bhat was appointed as
Amicus Curiae to assist this Court. At the outset we must and do
acknowledge the unstinting and excellent efforts put in by Ms. Aparna Bhat
over the last 10 years in rendering assistance in this matter.
2. Broadly, the article written by Ms. Anjali Sinha mentions that
orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as
government institutions were reportedly involved in systematic sexual
abuse of children. A sting operation indicated that sexual services of
children were being provided to foreigners as well as Indian tourists and
that the rates of children whose sexual services were being taken were
fixed over telephone or in a meeting at the orphanage.
3. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National
Commission for Women participated and it was acknowledged that government
schools have become unsafe for girl students due to sexual abuse. The
incident of an eight year old girl who was harassed by her Principal was
mentioned and it was noted that the Principal was only transferred out by
way of punishment. Another incident was mentioned where the school teacher
misbehaved with students in the presence of other students in a closed
room.
4. The then Ministry of Family and Child Welfare along with UNICEF
brought out a report on the condition of children in which it was reported
that 53% of children suffered from sexual abuse. Children were reported to
be the subject of institutional abuse as well as by relatives.
5. On these broad facts Ms. Anjali Sinha suggested that the problem of
sexual abuse of children especially in government institutions has become a
serious problem and requires immediate redressal. She made some
suggestions including a Counseling Cell in each school where children are
taught how to recognize abuse and providing a complaint mechanism
accessible to children in case of any such incident.
Proceedings in this Court
6. Over the years, this Court passed several orders and also mentioned
that certain other issues such as trafficking of children, schools being
occupied by Central Para Military Forces and the right to education
guaranteed to children require consideration. In other words, this Court
sought to expand the scope of this PIL to include the rights of children in
general.
7. In an order passed on 7th February, 2013 the learned Additional
Solicitor General and the learned Amicus submitted that the main reason for
this Court issuing various orders is to ensure that the provisions for the
rights of children as well as provisions for proper facilities to children
in education as also health are implemented. It was submitted that
obviously the rights of children can be adequately secured only if the
monitoring and controlling provisions contained in statutes relating to
children such as The Commissions for Protection of Child Rights Act, 2005,
The Right of Children to Free and Compulsory Education Act, 2009, The
Protection of Children from Sexual Offences Act, 2012 and The Juvenile
Justice (Care and Protection of Children) Act, 2000 are fully implemented.
8. A detailed order was passed by this Court on 16th December, 2013
lamenting that despite the directions issued, little or no progress was
made by the States in protecting the rights of children. As far as the
Commissions for the Protection of Child Rights are concerned, they exist
only on paper since in some cases the Chairperson had not been appointed or
the Members had not been appointed or no rules and regulations had been
framed. This Court observed that the lackadaisical manner in which the
States and the Union Territories had responded to the rights of children
made it necessary to draw attention to the constitutional rights guaranteed
to children. It was observed that the inaction of the States was in the
teeth of the directions given by this Court and additionally the States and
Union Territories ought to realize that they have to operate in accordance
with the provisions of the Constitution of India.
9. Accordingly, specific information was sought from each State and
Union Territory regarding efforts made by the respective governments.
Affidavits were filed by the States and Union Territories from time to time
as an attempt to respond to the questions raised by this Court regarding
action taken by the concerned governments in protecting the rights of
children as well as implementation of the statutes mentioned above. The
responses were disheartening then and the situation has not changed
substantially even after almost a decade since this Court took cognizance
of the matter. Progress, if any, has been marginal. Unfortunately, it
appears that the governments of some of the States and Union Territories
have little remedial or pro-active concern for children.
10. On 20thMarch, 2015 this Court raised the need for a social audit in
terms of Rule 64 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and the utilization of funds given to the States and Union
Territories under the Integrated Child Protection Scheme.
11. On 17thApril, 2015 this Court raised the issue of a concurrent
monitoring audit under the Integrated Child Protection Scheme as well as
the establishment of Juvenile Justice Boards, Child Welfare Committees,
Special Juvenile Police Units, functioning of Child Care Institutions and
functioning of adoption agencies.
12. On 31stJuly, 2015 at the instance of the learned Amicus, the issue of
formulating Child Care Plans was discussed in addition to laying down a
policy for conducting social audits. On 28th August, 2015, the issue of
vacancies in the National Commission for the Protection of Child Rights was
raised by this Court. On 30thOctober, 2015 the format for social audits
was discussed, in the context of finalizing something workable and
pragmatic.
13. Since it appeared that there was a lack of seriousness and more
tragically a lack of empathy towards the well being and welfare of children
amongst some of the States and Union Territories and complete apathy with
respect to the disturbingly increasing instances of child sexual abuse,
often by someone in a position of authority and ineffective implementation
of the laws passed by Parliament virtually making parliamentary legislation
irrelevant, we heard detailed submissions of all the parties with the
intention of passing appropriate directions so as to ensure the meaningful
implementation of the statutes already enacted by Parliament. It must be
appreciated that the Juvenile Justice (Care and Protection of Children)
Act, 2015 is a medium for the State to honour the Directive Principles of
State Policy particularly under Article 39(f) of the Constitution by giving
opportunities to children to develop in a healthy manner and in conditions
of freedom and dignity. Indeed, though the Directive Principles of State
Policy are fundamental to the governance of the country, they are not
enforceable However, as held in Bandhua Mukti Morcha v. Union of India,
once a directive principle is enforced through law the State must be
obligated to enforce the statute to uphold its constitutional
obligation.[1]
14. In this context, it is pertinent to note that India acceded to the
Convention on the Rights of the Child (CRC) on the 11th December, 1992.
Article 19 of the CRC obligates the State Parties to “take all appropriate
legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse….”
15. Keeping all this in mind, the learned Amicus focused on three
principal issues namely (1) Children in need of care and protection; (2)
Trafficked children (3) Street children. We do not propose to consider the
plight of trafficked or street children, since that would mean losing focus
on the issues raised by Ms. Anjali Sinha. We leave open the issues of
trafficked children and street children for consideration in an appropriate
case.
16. On the rights of children in need of care and protection it was
submitted that issues relating to child care institutions whether managed
by the State Government or by NGOs or other voluntary organizations need to
follow certain minimum standards of care and in addition, rehabilitation
of such children must be a priority.
Children in need of care and protection
17. Who is a child in need of care and protection? The provisions of the
Protection of Children from Sexual Offences Act, 2012 (for short the ‘POCSO
Act’) do not provide any definition of a child in need of care and
protection. But no one can deny that a child victim of sexual abuse or
sexual assault or sexual harassment is a child in need of care and
protection. Similarly in a given case,a child accused of an offence and
brought before the Juvenile Justice Board or any other authority might also
be a child in need of care and protection.
18. Even though a child in need of care and protection is defined in
Section 2(14) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as the JJ Act) the definition does not
specifically include some categories of children. Consequently, we are of
the view that since the JJ Act is intended for the benefit of children and
is intended to protect and foster their rights, the definition of a child
in need of care and protection must be given a broad interpretation. It
would be unfortunate if certain categories of children are left out of the
definition, even though they need as much care and protection as categories
of children specifically enlisted in the definition. Beneficial
legislations of the kind that we are dealing with demand an expansive view
to be taken by the Courts and all concerned.
19. In Workmen v. Management of American Express International Banking
Corporation[2] this Court held in paragraph 4 of the Report that:
“The principles of statutory construction are well settled. Words occurring
in statutes of liberal import such as social welfare legislation and human
rights’ legislation are not to be put in Procrustean beds or shrunk to
Liliputian dimensions. In construing these legislations the imposture of
literal construction must be avoided and the prodigality of its
misapplication must be recognised and reduced.”
20. A similar view was expressed in Regional Director, ESI Corporation.
v. Francis De Costa[3] when it was observed that “It is settled law that to
prevent injustice or to promote justice and to effectuate the object and
purpose of the welfare legislation, broad interpretation should be given,
even if it requires a departure from literal construction.”
21. The necessity of giving a purposeful interpretation to a provision in
a statute was recognized in MSR Leathers v. S. Palaniappan[4] when this
Court observed that:
“…..one of the salutary principles of interpretation of statutes is to
adopt an interpretation which promotes and advances the object sought to be
achieved by the legislation, in preference to an interpretation which
defeats such object. This Court has in a long line of decisions recognised
purposive interpretation as a sound principle for the courts to adopt while
interpreting statutory provisions.”
A similar view was expressed, though in a different context, in Badshah v.
Urmila Badshah Godse.[5] A far more detailed discussion on the subject is
to be found in the Constitution Bench decision of this Court in Abhiram
Singh v. C.D. Commachen.[6]
22. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad and
purposeful interpretation – it ought not to be treated as exhaustive but
illustrative and furthering the requirements of social justice. This
understanding would also be in consonance with Article 40 of the CRC which
stipulates that the “State Parties shall recognize rights of every child
accused of an offence and treatment of such a child shall be in a manner
consistent with promotion of the child’s dignity and worth”.
23. Learned Amicus drew our attention to decisions rendered by some
High Courts which have taken a broad based approach to the meaning of a
child in need of care and protection and some other High Courts that have
adopted a comparatively narrow interpretation. These decisions were
rendered in the context of the Juvenile Justice (Care and Protection) Act,
2000 and would not really be applicable insofar as the JJ Act is concerned.
However, this does not detract from her submission that a child in need of
care and protection must be given a wider meaning and in addition to some
children in conflict with law as discussed above, it must also include
victims of sexual abuse or sexual assault or sexual harassment under the
POCSO Act as also victims of child trafficking. Such children must also be
given protection under the provisions of the JJ Act being victims of crime
under the POCSO Act and the Immoral Traffic (Prevention) Act, 1956.
Child care institutions
24. Children in need of care and protection are given shelter in homes
that are managed by the State Government or by NGOs or by voluntary
organizations. In this context, it is necessary to draw attention to
Section 41 of the JJ Act which mandates, notwithstanding anything contained
in any other law for the time being in force, that all institutions,
whether run by a State Government or by voluntary organizations or NGOs
which are meant, either wholly or partially, for housing children in need
of care and protection shall be registered under the JJ Act in such manner
as may be prescribed within six months of the commencement of the said Act.
The JJ Act came into force on 15th January, 2016 but we were informed that
the process of registration is underway and not yet complete.
25. In this day and age when high quality technology is available and
there is no shortage of manpower in the country we are unable to appreciate
why the provisions of Section 41 of JJ Act have not yet been fully
implemented particularly as regards registration of child care
institutions. It is virtually impossible to find out what is going on
within its four walls. The article by Ms. Anjali Sinha is a prime example
of what can happen in child care institutions. It is not clear from the
article whether all the institutions referred to were registered or not,
but surely the government run institutions must have been registered or
licensed. Therefore, if activities of the nature mentioned by Ms. Anjali
Sinha in her article are carried out in government run institutions, one
can only imagine what possibly can go wrong in unregistered institutions,
which are managed beyond the law.
26. Apart from their registration, the statute requires quite a few
salutary actions to be taken by such institutions including recording the
residential capacity and purpose of the child care institution. Rule 21 of
the Juvenile Justice (Care and Protection of Children) Model Rules, 2016
(hereinafter referred to as the Model Rules) specifies the manner of
registration of child care institutions and provides, inter alia, the
availability of the bye-laws and memorandum of association, office bearers
etc. of such institutions. The State Government is obligated to consider an
application for registration of a child care institution (in Form 27) in
light of aspects like whether provision exists for the care and protection
of children, their health, education, boarding and lodging facilities,
vocational studies and rehabilitation (among others things). It is only
then that a certificate of registration can be issued. The State Government
is also obligated to conduct an inspection of an applicant institution and
it appears to us that if such an inspection is faithfully and sincerely
carried out, it will reveal the dark underbelly, if any, of a dubious child
care institution such as those referred to by Ms. Anjali Sinha. The
strict implementation of the provisions of the JJ Act will go a long way in
making the life of children in such child care institutions safer and far
more comfortable than it has been and also reduce the possibility of crimes
such as trafficking, sexual abuse or sexual assault or sexual harassment of
children. If the registration of child care institutions is not complete,
their management obviously cannot be supervised. Therefore, a misstep in
the very first stage could have a chain reaction and perhaps disastrous
consequences in some cases as is evident from the incidents of child abuse
in institutions as brought out by Ms. Anjali Sinha.
Minimum Standards of care
27. Article 3 of the CRC mandates that all actions concerning children
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies shall have the best
interest of the children as a primary consideration. Article 3(3) of the
CRC specifically obligates the State Parties to ensure that institutions
responsible for care and protection of children shall conform to standards
laid down by competent authorities, particularly in areas of safety,
health, staff and supervision. However, the minimum standards of care
prescribed for institutions cannot be ensured if the child care institution
is not identified and registered.
28. In this regard it is necessary to draw attention to the provisions of
Chapter VI of the Model Rules particularly the series of rules starting
from Rule 26 onwards. Amongst other things, these Rules deal with the
staffing pattern of child care institutions, physical infrastructure,
clothing, bedding, toiletries and other articles, sanitation and hygiene,
daily routine, nutrition and diet scale, medical health, mental health,
education, vocational and recreational facilities and genuine efforts in
the rehabilitation and re-integration of such children into society. All
these requirements are rendered unenforceable in the absence of
registration of child care institutions.
29. The Integrated Child Protection Scheme, which also concerns itself
with the minimum standards of care in child care institutions, refers to
several of these requirements and also draws attention to the
rehabilitation programme of children and their recreation. The minimum
standards of care prescribed for child care institutions must be adhered to
in letter and spirit and not only on paper.
30. We have been given to understand by the learned Amicus that
unfortunately, even in registered child care institutions, many of the
statutory facilities and requirements are missing. If that be so, we can
only imagine the living conditions of children in unregistered
institutions.
31. In a given case, failure to maintain a basic or minimum standard of
care can be actionable as negligence. In Jacob Mathew v. State of Punjab[7]
this Court cited Charlesworth & Percy on Negligence[8] and held that the
essential components of negligence are: (1) the existence of a duty to take
care, which is owed by the defendant to the complainant; (2) the failure to
attain that standard of care, prescribed by the law, thereby committing a
breach of such duty; and (3) damage, which is both causally connected with
such breach and recognized by the law, has been suffered by the
complainant. Effectively therefore, if the officers of the State do not
ensure that minimum standards of care are followed in the child care
institutions, they could well be guilty of negligence. Since ours is a
welfare State it would be difficult for uncaring officers to absolve
themselves of a charge of negligence and also perhaps of a violation of the
human rights of children.
Utilization of grants
32. During the course of hearing, we found that many of the Model Rules
though workable and beneficial, exist only on paper and there has been no
serious attempt to implement the provisions or the requirements under the
Integrated Child Protection Scheme. One of the concerns that kept coming
up as an excuse for non-implementation of the Rules was a so-called
shortage of funds. We are surprised that such an excuse was advanced even
though a large amount allocated towards child welfare is lying unspent.
33. Really therefore, the problem is not a lack of funds but the absence
of a will to gainfully utilize the available grants. In this context,
learned Amicus brought to our notice by way of an example, the statement of
expenditure under the Integrated Child Protection Scheme for the year 2013-
14. This indicates that the unspent grant is over Rs.3000 lakhs. (This
figure does not include unspent amounts by the State of Andhra Pradesh and
the State of Uttarakhand). Therefore, it cannot be said that there is a
shortage of funds. The chart brought on record is as follows:-
|Year-wise details of unspent grants |
|Sl. No. |Name of the State|Unspent |
| | |(Amount in |
| | |Lakhs) |
| | |2013-14 |
|1 |Andhra Pradesh |2999.28* |
|2 |Arunachal Pradesh|147.05 |
|3 |Assam |148.47 |
|4 |Bihar |442.14 |
|5 |Chhattisgarh |0.00 |
|6 |Goa |- |
|7 |Gujarat |545.23 |
|8 |Haryana |238.92 |
|9 |Himachal Pradesh |138.10 |
|10 |Jammu & Kashmir |- |
|11 |Jharkhand |147.21 |
|12 |Karnataka |57.94 |
|13 |Kerala |291.52 |
|14 |Madhya Pradesh |1084.67 |
|15 |Maharashtra |0.00 |
|16 |Manipur |473.13 |
|17 |Meghalaya |0.00 |
|18 |Mizoram |0.00 |
|19 |Nagaland |0.00 |
|20 |Orissa |2.63 |
|21 |Punjab |749.37 |
|22 |Rajasthan |253.33 |
|23 |Sikkim |50.36 |
|24 |Tamil Nadu |589.22 |
|25 |Tripura |0.00 |
|26 |Uttar Pradesh |99.92 |
|27 |Uttarakhand |333.92* |
|28 |West Bengal |268.95 |
|29 |Andaman & Nicobar|- |
| |Island | |
|30 |Chandigarh |25.17 |
|31 |Dadra & Nagar |9.63 |
| |Haveli | |
|32 |Daman & Diu |58.63 |
|33 |Delhi |676.68 |
|34 |Lakshadweep |- |
|35 |Puducherry |- |
|Total | |6498.27 |
* States have not submitted their Statement of Expenditure
(SOE)
We are told that the same situation continued for subsequent years as well.
34. No doubt, it is the constitutional obligation of the State to ensure
that for safeguarding and fostering the rights of children, adequate funds
are available particularly for children who are in need of care and
protection. The State cannot conflate non-availability of funds to shirk
their obligations with inefficient utilization of grants. We are pained
that such an excuse is being trotted out.
National and State Commissions
35. Parliament has, of course, appreciated the need for protecting the
rights of children in many of the ways that we have mentioned above and
that is why the Commissions for Protection of Child Rights Act, 2005 was
enacted. In fact the Preamble to the said Act is extremely significant and
brings into focus not only the necessity of protecting the rights of
children generally but also as a part of our obligations to the
international community. The Preamble to the Commissions for Protection of
Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’) reads as
follows:
“An Act to provide for the constitution of a National Commission and State
Commissions for Protection of Child Rights and Children’s Courts for
providing speedy trial of offences against children or of violation of
child rights and for matters connected therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN) General Assembly
Summit in 1990, which adopted a Declaration on Survival, Protection and
Development of Children;
AND WHEREAS India has also acceded to the Convention on the Rights of the
Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it incumbent upon the
signatory States to take all necessary steps to protect children’s rights
enumerated in the Convention;
AND WHEREAS in order to ensure protection of rights of children one of the
recent initiatives that the Government have taken for Children is the
adoption of National Charter for Children, 2003;
AND WHEREAS the UN General Assembly Special Session on Children held in May
2002 adopted an Outcome Document titled “A World Fit for Children”
containing the goals, objectives, strategies and activities to be
undertaken by the member countries for the current decade;
AND WHEREAS it is expedient to enact a law relating to children to give
effect to the policies adopted by the Government in this regard, standards
prescribed in the CRC, and all other relevant international instruments;”
36. To fulfill the obligations to children, the CPCR Act provides for the
constitution of a National Commission for Protection of Child Rights (for
short ‘the NCPCR’) and for the constitution of State Commissions for
Protection of Child Rights (for short ‘the SCPCR’). These Commissions are
intended to function under the provisions of the CPCR Act and their vast
range of functions has been delineated in Section 13 as well as in Section
24 of the CPCR Act.
37. It was pointed out by the learned Amicus that the NCPCR and the SCPCR
can play a very crucial role in fostering child rights. This deserves to
be recognized, but is unfortunately overlooked both by the Union Government
as well as by the State Governments. She pointed out that there are a
large number of vacancies in many of these bodies and in fact the NCPCR
was, at one time, without any Chairperson for more than a year. Some of
the State Governments have also not bothered to fill up the vacancies in
the SCPCR and some others have used the SCPCR as a sinecure for some
favourites. This again, as pointed out, is nothing but providing lip
service to the provisions of a parliamentary legislation and not giving
serious attention to the constitutional rights of children. This is
certainly not acceptable.
38. Similarly, in the implementation of the POCSO Act, the NCPCR and the
SCPCR have a vital role to play. As mentioned above, issues of sexual abuse
or sexual assault or sexual harassment complained of by Ms. Anjali Sinha
need attention and Section 44 of the POCSO Act places a great burden on the
shoulders of the NCPCR and the SCPCRs. These authorities have an obligation
to monitor the implementation of the POCSO Act as is evident from Section
44 thereof which reads as follows:
“44. Monitoring of implementation of Act - (1) The National Commission for
Protection of Child Rights constituted under Section 3, or as the case may
be, the State Commission for Protection of Child Rights constituted under
Section 17, of the Commissions for Protection of Child Rights Act, 2005 (4
of 2006), shall, in addition to the functions assigned to them under that
Act, also monitor the implementation of the provisions of this Act in such
manner as may be prescribed.
(2) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, while inquiring into any matter
relating to any offence under this Act, have the same powers as are vested
in it under the Commissions for Protection of Child Rights Act, 2005 (4 of
2006).
(3) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, also include, its activities under
this section, in the annual report referred to in Section 16 of the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006).”
39. In our opinion, it is imperative that the NCPCR and the SCPCR be
allowed to function in terms of the CPCR Act and the POCSO Act and only for
the benefit of children. These Commissions are under an obligation to take
action wherever necessary including approaching the Constitutional Courts
wherever necessary. These Commissions are under an obligation to prepare
annual reports and if necessary special reports but it has been pointed out
that this requirement has hardly been implemented mainly because of a lack
of interest that these Commissions have shown in functioning under the
statute and also partly because of the large number of vacancies in these
Commissions.
40. This is not to suggest that the NCPCR or the SCPCRs are not doing a
good job. On the contrary, the NCPCR has of late begun taking its statutory
obligations quite seriously and there are a few SCPCRs that are also
faithfully performing their functions under the relevant statutes. On the
other hand, there are some SCPCRs that are not performing well at all or
are defunct and headless. It is difficult to appreciate how, under these
circumstances, the JJ Act or the POCSO Act can at all be implemented, let
alone implemented effectively.
41. Needless to say, it is obligatory on the part of the Union Government
as well as of the State Governments to ensure that the provisions of laws
enacted by Parliament are faithfully and sincerely implemented and the
statutory Commissions constituted under the provisions of the CPCR Act must
be allowed to function as independent statutory bodies under the provisions
of the said Act, the POCSO Act as well as the JJ Act.
42. The rule of law includes adherence to parliamentary legislation by
all concerned including State Governments and the Union Government and it
would be extremely unfortunate if the concerned governments voluntarily and
knowingly flout the provisions of law solemnly enacted by Parliament. We
need say nothing more on this subject, except that laws solemnly enacted by
Parliament cannot be insulted by putting hurdles in the effective
functioning of these Commissions, such as by not appointing the Chairperson
or Members.
Rehabilitation and social re-integration
43. With regard to the future of children in need of care and protection,
the JJ Act contains obligatory provisions such as Section 53 which deals
with rehabilitation and social re-integration services in child care
institutions. This provision requires the State to take care of the basic
requirements of children in such institutions including children with
special needs, legal aid where required and more importantly assistance in
obtaining proof of identity. There have been instances brought to our
notice where children;particularly in the case of abandoned children, are
unable to give any information about their parentage or permanent address
etc. In such cases, proof of identify is crucial for the welfare of the
child, otherwise he or she is reduced to a mere statistic.
44. The provision for rehabilitation and re-integration services has
several facets and cannot be read in isolation but must be read, inter
alia, in conjunction with Section 54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act.
Inspection Committees are required to be set up which shall mandatorily
visit all facilities housing children in the area allocated, at least once
in three months in a team of not less than three members, of whom at least
one shall be a woman and one shall be a medical officer. Their Inspection
Reports are required to be furnished to the District Child Protection Unit
or the State Government, as the case may be, for further action. Form 46
of the Model Rules prepared under Rule 41 thereof is quite exhaustive and
if the Form is filled up with due seriousness it will go a long way in
improving the living conditions of children in child care institutions.
45. The importance of rehabilitation and social re-integration clearly
stands out if we appreciate the objective of the JJ Act which is to foster
restorative justice. There cannot be any meaningful rehabilitation,
particularly of a child in conflict with law who is also a child in need of
care and protection unless the basic elements and principles of restorative
justice are recognized and practised.
46. Unfortunately, one of the problems faced in introducing restorative
justice is that a child in a child care institution is treated as a number
and no effort is made to introduce any individual child care plan
postulated by Rule 19 of the Model Rules read with Form 7. Learned Amicus
informed us that the Form is very rarely filled up (if at all) and little
or no attention is paid to the needs of each child including a child in
conflict with law. She submitted that specific directions should be given
for the preparation of individual child care plans in every child care
institution since that is really the heart of rehabilitation and social re-
integration of a child in need of care and protection. Of course, some
expertise is involved in this exercise but as we had mentioned earlier,
there is no shortage of manpower in our country and it is only the will of
the State Governments, Union Territories and the Union Government which is
coming in the way of the effective implementation of the provisions of the
JJ Act, Model Rules and filling up various Forms and their analysis.
Training of personnel
47. One of the more important issues raised by the learned Amicus in the
context of rehabilitation and social re-integration is to be found in Rule
89 of the Model Rules which concerns itself with training of personnel
dealing with children. This rule provides for a minimum period of 15 days
training to various categories of personnel under the JJ Act including the
staff of Children’s Courts, Principal Magistrates and Members of Juvenile
Justice Boards, Chairpersons and Members of Child Welfare Committees,
Police Officers including persons in charge of child care institutions etc.
Rule 89 of the Model Rules also postulates that the Judicial Academy and
the Police Academy in the States as well as the State Legal Services
Authorities prepare appropriate training modules, training manuals and
provide training to personnel. It was pointed out by the learned Amicus
that this rule is being followed more in the breach and there is hardly any
Judicial Academy or Police Academy or State Legal Services Authority which
conducts 15 days training programmes. This is quite unfortunate to say the
least.
48. The importance of quality training can best be understood by giving a
negative example, which is that unless proper training is imparted to the
concerned personnel, it is quite possible that strange practices and
procedures may evolve due to the absence of proper guidance. It has been
brought to our notice in cases of adoption of children some extremely
unusual and impracticable orders have been passed by the concerned Courts.
It is high time that the High Courts exercise their supervisory
jurisdiction and intervene and take appropriate remedial steps. It is also
high time that training of personnel be given due importance. We may note
here that it was brought to our attention by the learned Amicus that
untrained or inadequately trained personnel can unwittingly play havoc with
the lives of victims of sexual abuse or sexual assault or sexual
harassment.
De-institutionalization
49. In the context of rehabilitation and social re-integration, it was
submitted before us that institutionalization of children is not
necessarily the only available option. This submission of the learned
Amicus also finds support in Article 20 of the CRC. The Article obligates
the State Parties to provide special protection and assistance to children
temporarily or permanently deprived of family environment. The Article
illustrates alternate care in the form of foster placement, adoption “or if
necessary placement in suitable institution”. It is clear that the first
option exercised by the authorities should not be institutionalization of a
child in need of care and protection and the same is a measure of the last
resort. Article 40(4) of the CRC pertaining to children accused of
violating the law also states that the State Parties shall ensure “care,
guidance, supervision, counseling, probation, foster care, education and
vocational training and other alternatives to institutional care”. Indeed,
in keeping with the spirit of the CRC, the JJ Act itself encourages
alternatives to institutionalization such as adoption (Chapter VIII),
foster care (Section 44) and Sponsorship (Section 45). This too needs some
serious thought, as submitted by the learned Amicus.
50. The learned Additional Solicitor General brought to our notice that
the Union Government has since framed the Adoption Regulations, 2017 as
well as the Model Guidelines for Foster Care, 2016. These need to be
implemented by all concerned including the Courts, particularly those
dealing with issues of adoption. However, as mentioned above, training in
the understanding and appreciation of the JJ Act, the Model Rules,
Regulations and Guidelines is imperative and merely handing over copies of
these documents to the concerned personnel even if they are judicial
officers or police officers or government functionaries is not enough.
Some sort of training is absolutely necessary so that the aims and objects
of the various statutory provisions enacted for the benefit of children and
to foster their rights are implemented in letter and spirit.
51. We must emphasize, at this stage that it is absolutely necessary for
all stakeholders having interest in the welfare of children to work
together towards a common goal. This teamwork would include not only the
government machinery but also the police, civil society and the judiciary.
Juvenile Justice Committee
52. That the judiciary is not far behind in fulfilling its constitutional
responsibilities is obvious from the fact that the rather slack
implementation of the Juvenile Justice (Care and Protection of Children)
Act, 2000 even after four years of its enactment, compelled the Chief
Justice of India to request all the High Courts to set up a Juvenile
Justice Committee to ensure effective implementation of the said Act and
monitor the activities under the said Act. The High Courts have a
constitutional obligation to ensure that the rights of all citizens,
including children, as guaranteed under the Constitution are preserved,
protected and respected. With this in mind, all the High Courts have since
set up a Juvenile Justice Committee consisting of Judges of the High Court
and these Committees ensure that the provisions of the Act are implemented
in letter and spirit. For better co-ordination on issues relating to
children, some High Courts have also provided a Secretariat for the
Juvenile Justice Committee.
53. With the passage of time, it has been realized that the importance of
the Juvenile Justice Committee in the High Court cannot be overemphasized.
It is time for all of us to now realize that judges are no longer required
to remain in an ivory tower. Judges of all the Courts including the
Constitutional Courts have non-judicial duties and obligations to perform
so that the fundamental rights of the people are respected. It is this
realization that led the Constitutional Courts to exercise jurisdiction in
social justice issues through Public Interest Litigation and it is this
that requires judges of the Courts to ensure access to justice under the
Legal Services Authorities Act, 1986 to indigent people and those who
cannot afford legal services due to financial or other constraints. It is
very much in keeping with this constitutional obligation and goals that the
concern and involvement of each Juvenile Justice Committee in the effective
implementation of the Act is an absolute necessity. It is equally the
obligation of the concerned officials of the State, including the police,
to render all assistance to each Juvenile Justice Committee to ensure that
the goals envisaged by the JJ Act and the constitutional vision are
successfully achieved in the shortest possible time.
Social audit
54. For the purposes of ensuring that the implementation of the JJ Act is
proceeding in the right direction, it is necessary that a social audit be
conducted every year. Social audits give reasons for introspection as well
as for improvement in the services.
55. Social audit has gained relevance as a tool of public accountability.
It has been defined as “an assessment of a department’s non financial
objectives through systematic and regular monitoring on the basis of the
views of its stakeholders.”[9] A social audit is considered novel as it is
supposed to serve as a supplement to a conventional Government Audit, often
done in 12 month cycles generating an audit report every time.[10] In fact,
in the Report of the Task Group on Social Audit by the Office of the
Comptroller and Auditor General, it was opined that social audit be brought
into the mainstream of auditing by the Indian Audit and Accounts Department
as an essential process and tool in all the performance audits of social
sector programmes as they afford an opportunity to strengthen the micro
level scrutiny of the programme planning, implementation and
monitoring.[11]
56. The requirement of a social audit is necessary not only for purposes
of introspection but also transparency and accountability in the effective
implementation of the JJ Act. There cannot be any reason to avoid
conducting social audits, more particularly since they have been encouraged
by the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 as well
as by the Integrated Child Protection Scheme, by the Comptroller and
Auditor General of India and the National Food Security Act, 2013. The
impression given to us is that for some inexplicable reason the Union
Government is shying away from social audits.
57. In the hearing on 17th April, 2015, the learned Additional Solicitor
General informed us that no social audit was carried out despite the rule
being notified in 2007. The Union of India was then directed to finalize a
policy for conducting social audits. In the hearing on 30th October, 2015
we were informed that the formats for social audit have been more or less
finalized. In its affidavit filed sometime in November 2015, the Union of
India has annexed copies of Model Social Audit Formats for Child Welfare
Committees, Juvenile Justice Boards, Special Juvenile Police Units,
Children Homes, Specialized Adoption Agencies, Open Shelter/Shelter Homes,
Observation Homes and Special Homes. It is stated in the affidavit that
these formats will be circulated for pilot testing by selected States as
mentioned in an earlier affidavit dated 29th October, 2015.
58. We have not been informed whether any steps have been taken to
conduct social audits in terms of the Model Formats prepared by the Union
of India or the result of the pilot testing, if any. It is therefore
necessary to ensure that these formats are tested out with urgency so that
the implementation of the JJ Act is made more meaningful.
Technology and computers
59. We have been given to understand that there is no data base of all
the child care institutions in the country. State Governments have not even
validated the available data or undertaken the mapping of child care
institutions in collaboration with the Union Government. This is an
essential first step since it is difficult to imagine how children in child
care institutions can be cared for if there is no record of the number of
institutions, number of children in such institutions, relevant information
regarding the children etc. Therefore technology can be put to good use for
collection, revision and access of records of children in need of care and
protection and the child care institutions.
60. It is imperative for the Union Government as well as the State
Governments to make out a complete list of all child care institutions
along with their addresses and the person in charge or the principal
officer as well as full details of the children residing in these child
care institutions. Learned Amicus submitted that all these details,
though necessary, are not available with the Union Government or the NCPCR.
Availability of all this information is possible only with the use of
technology and a massive computerization program.
61. Similarly, for the effective functioning of the Juvenile Justice
Boards as well as the Child Welfare Committees, it is necessary that they
should be equipped with computers and printers along with uninterrupted
power supply units so that their day to day functioning can be taken care
of. Learned Amicus pointed out that perhaps this may be asking for too
much since she has received complaints to the effect that very often
stationery is not available with the Child Welfare Committees or the
Juvenile Justice Boards and an appropriate requisition has to be made to
the State Government or the local authority, which is leisurely processed.
In our opinion if this submission were to be accepted it would indicate a
very sorry state of affairs in which the Juvenile Justice Boards and the
Child Welfare Committees are made to function. This step-child attitude
cannot be permitted to continue since these statutory bodies are vital for
having necessary supervision over child care institutions within their
jurisdiction.
Directions
62. In view of the above discussion, the following directions are issued:
The definition of the expression “child in need of care and protection”
under Section 2(14) of the JJ Act should not be interpreted as an
exhaustive definition. The definition is illustrative and the benefits
envisaged for children in need of care and protection should be extended to
all such children in fact requiring State care and protection.
The Union Government and the governments of the States and Union
Territories must ensure that the process of registration of all child care
institutions is completed positively by 31st December, 2017 with the entire
data being confirmed and validated. The information should be available
with all the concerned officials. The registration process should also
include a data base of all children in need of care and protection which
should be updated every month. While maintaining the database, issues of
confidentiality and privacy must be kept in mind by the concerned
authorities.
The Union Government and the governments of the States and Union
Territories are directed to enforce the minimum standards of care as
required by and in terms of the JJ Act and the Model Rules positively on or
before 31st December, 2017.
The governments of the States and Union Territories should draw up plans
for full and proper utilization of grants (along with expenditure
statements) given by the Union Government under the Integrated Child
Protection Scheme. Returning the grants as unspent or casual utilization
of the grants will not ensure anybody’s benefit and is effectively wasteful
expenditure.
It is imperative that the Union Government and the governments of the
States and Union Territories must concentrate on rehabilitation and social
re-integration of children in need of care and protection. There are
several schemes of the Government of India including skill development,
vocational training etc which must be taken advantage of keeping in mind
the need to rehabilitate such children.
The governments of the States and Union Territories are directed to set up
Inspection Committees as required by the JJ Act and the Model Rules to
conduct regular inspections of child care institutions and to prepare
reports of such inspections so that the living conditions of children in
these institutions undergo positive changes. These Inspection Committees
should be constituted on or before 31st July, 2017 and they should conduct
the first inspection of the child care institutions in their jurisdiction
and submit a report to the concerned government of the States and Union
Territories on or before 31st December, 2017.
The preparation of individual child care plans is extremely important and
all governments of the States and Union Territories must ensure that there
is a child care plan in place for every child in each child care
institution. While this process may appear to be long drawn and
cumbersome, its necessity cannot be underestimated in any circumstances.
The process of preparing individual child care plans is a continuing
process and must be initiated immediately and an individual child care plan
must be prepared for each child in each child care institutions on or
before 31st December, 2017.
Wherever the State Commission for Protection of Child Rights has not been
established or though established is not fully functional in the absence of
a Chairperson or any one or more Members, the governments of the States and
Union Territories must ensure that all vacancies are filled up with
dedicated persons on or before 31st December, 2017. The SCPCRs so
constituted must publish an Annual Report so that everyone is aware of
their activities and can contribute individually or collectively for the
benefit of children in need of care and protection.
The training of personnel as required by the JJ Act and the Model Rules is
essential. There are an adequate number of academies that can take up this
task including police academies and judicial academies in the States. There
are also national level bodies that can assist in this process of training
including bodies like the Bureau of Police Research and Training, the
National Judicial Academy and others including established NGOs. Wherever
possible training modules should be prepared at the earliest.
It is time that the governments of the States and Union Territories
consider de-institutionalization as a viable alternative. It is not
necessary that every child in need of care and protection must be placed in
a child care institutions. Alternatives such as adoption and foster care
need to be seriously considered by the concerned authorities.
The importance of social audits cannot be over-emphasized. The necessity
of having a social audit has been felt in some statutes which have been
mentioned above and also by the Comptroller and Auditor General of India.
That being the position, it is imperative that the process of conducting a
social audit must be taken up in right earnestness by the National
Commission for the Protection of Child Rights as well as by each State
Commission for the Protection of Child Rights. This is perhaps the best
possible method by which transparency and accountability in the management
and functioning of child care institutions and other bodies under the JJ
Act and Model Rules can be monitored and supervised.
While the Juvenile Justice Committee in each High Court is performing its
role in ensuring the implementation of the JJ Act and Model Rules, there is
no doubt that each Committee will require a small Secretariat by way of
assistance. We request each Juvenile Justice Committee to seriously
consider establishing a Secretariat for its assistance and we direct each
State Government and Union Territory to render assistance to the Juvenile
Justice Committee of each High Court and to cooperate and collaborate with
the Juvenile Justice Committee in this regard.
We acknowledge the contribution made by Ms. Aparna Bhat in taking keen
interest in the issues raised in this PIL and for rendering effective
assistance to this Court at all times. The Supreme Court Legal Services
Committee will give an honorarium of Rs. 2 lakhs to Ms. Aparna Bhat out of
the funds available for juvenile justice issues.
While there may be some other issues specifically concerning children in
need of care and protection we leave these issues open for consideration
and grant liberty to the learned Amicus to move an appropriate application
in this regard including any application for modification or clarification
of the directions given above.
The Union of India is directed to communicate our directions to the
concerned Ministry or Department of each State and Union Territory for
implementation and to collate necessary information regarding the
implementation of these directions with the assistance of the National
Commission for the Protection of Child Rights and the State Commission for
the Protection of Child Rights. A status report in this regard should be
filed in this Court on or before 15thJanuary, 2018. The Registry will list
this case immediately thereafter.
………………………J
(Madan B. Lokur)
………………………J
May 5 , 2017 (Deepak Gupta)
New Delhi;
-----------------------
[1]
[2](1984) 3 SCC 161
[3]
[4](1985) 4 SCC 71
[5]
[6]1993 Supp (4) SCC 100
[7]
[8](2013) 1 SCC 177
[9]
[10](2014) 1 SCC 188
[11]
[12](2017) 2 SCC 629
[13]
[14](2005) 6 SCC 1
[15]
[16]10th Edition (2001)
[17]
[18]Social Audit: A Toolkit, A Guide for Performance Improvement and
Outcome Measurement available at
https://cgg.gov.in/publicationdownloads2a/Social%20Audit%20Toolkit%20Final.p
df.
[19]
[20] Ibid
[21]
[22]Report of the Task Group on Social Audit, Office of the
Comptroller and Auditor General of India, (2010) at pg 5
