RE:EXPLOI.OF CHILN.INJ ORPH.IN ST.OF T.N Vs UNION OF INDIA & ORS.
Bench: MADAN B. LOKUR,DEEPAK GUPTA
Case number: Writ Petition (crl.) 102 of 2007
Page 1
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 W.P. (Crl.) No. 102 of 2007 page 1
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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.
W.P. (Crl.) No. 102 of 2007 page 2
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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
W.P. (Crl.) No. 102 of 2007 page 3
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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
W.P. (Crl.) No. 102 of 2007 page 4
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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
W.P. (Crl.) No. 102 of 2007 page 5
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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 30 thOctober, 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
W.P. (Crl.) No. 102 of 2007 page 6
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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,
1
(1984) 3 SCC 161 W.P. (Crl.) No. 102 of 2007 page 7
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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
W.P. (Crl.) No. 102 of 2007 page 8
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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. W.P. (Crl.) No. 102 of 2007 page 9
Page 10
19. In Workmen v. Management of American Express International
Banking Corporation2 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 Costa3 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. Palaniappan4 when
this Court observed that:
2
(1985) 4 SCC 71 3
1993 Supp (4) SCC 100 4
(2013) 1 SCC 177 W.P. (Crl.) No. 102 of 2007 page 10
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“…..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”.
5
(2014) 1 SCC 188 6
(2017) 2 SCC 629 W.P. (Crl.) No. 102 of 2007 page 11
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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
W.P. (Crl.) No. 102 of 2007 page 12
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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 15 th
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
W.P. (Crl.) No. 102 of 2007 page 13
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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 W.P. (Crl.) No. 102 of 2007 page 14
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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. W.P. (Crl.) No. 102 of 2007 page 15
Page 16
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
W.P. (Crl.) No. 102 of 2007 page 16
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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
Punjab7 this Court cited Charlesworth & Percy on Negligence8 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
7
(2005) 6 SCC 1 8
10th Edition (2001) W.P. (Crl.) No. 102 of 2007 page 17
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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)
W.P. (Crl.) No. 102 of 2007 page 18
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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
W.P. (Crl.) No. 102 of 2007 page 19
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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 Haveli
9.63
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
W.P. (Crl.) No. 102 of 2007 page 20
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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;
W.P. (Crl.) No. 102 of 2007 page 21
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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 W.P. (Crl.) No. 102 of 2007 page 22
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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
W.P. (Crl.) No. 102 of 2007 page 23
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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
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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
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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.
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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. W.P. (Crl.) No. 102 of 2007 page 27
Page 28
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
W.P. (Crl.) No. 102 of 2007 page 28
Page 29
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 W.P. (Crl.) No. 102 of 2007 page 29
Page 30
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,
W.P. (Crl.) No. 102 of 2007 page 30
Page 31
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.
W.P. (Crl.) No. 102 of 2007 page 31
Page 32
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
W.P. (Crl.) No. 102 of 2007 page 32
Page 33
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
W.P. (Crl.) No. 102 of 2007 page 33
Page 34
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
9
Social Audit: A Toolkit, A Guide for Performance Improvement and Outcome Measurement available at https://cgg.gov.in/publicationdownloads2a/Social%20Audit%20Toolkit%20Final.pdf. 10
Ibid W.P. (Crl.) No. 102 of 2007 page 34
Page 35
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
11
Report of the Task Group on Social Audit, Office of the Comptroller and Auditor General of India, (2010) at pg 5
W.P. (Crl.) No. 102 of 2007 page 35
Page 36
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
W.P. (Crl.) No. 102 of 2007 page 36
Page 37
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
W.P. (Crl.) No. 102 of 2007 page 37
Page 38
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:
1. 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
W.P. (Crl.) No. 102 of 2007 page 38
Page 39
extended to all such children in fact requiring State care
and protection.
2. 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.
3. 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.
4. The governments of the States and Union Territories
should draw up plans for full and proper utilization of
W.P. (Crl.) No. 102 of 2007 page 39
Page 40
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.
5. 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.
6. 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
W.P. (Crl.) No. 102 of 2007 page 40
Page 41
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.
7. 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.
8. 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
W.P. (Crl.) No. 102 of 2007 page 41
Page 42
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. 9. 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.
10. 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 W.P. (Crl.) No. 102 of 2007 page 42
Page 43
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.
11. 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.
12. While the Juvenile Justice Committee in each High
Court is performing its role in ensuring the
W.P. (Crl.) No. 102 of 2007 page 43
Page 44
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.
13. 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.
14. 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
W.P. (Crl.) No. 102 of 2007 page 44
Page 45
application in this regard including any application for
modification or clarification of the directions given
above.
15.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;
W.P. (Crl.) No. 102 of 2007 page 45