05 May 2017
Supreme Court
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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


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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,

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(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

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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:

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(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”.

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(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

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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

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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

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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

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(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)

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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

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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;

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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

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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

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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

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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

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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,

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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;

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