RE:EXPLOI.OF CHILN.INJ ORPH.IN ST.OF T.N Vs UNION OF INDIA & ORS.
Bench: SURINDER SINGH NIJJAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Writ Petition (crl.) 102 of 2007
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) No.102 of 2007
Re. Exploitation of Children in Orphanages in the State of Tamil Nadu ...Petitioner(s)
Versus
Union of India & Ors. … Respondent(s)
O R D E R
1. We have heard very lengthy submissions from the
Amicus Curie Ms. Aparna Bhat, Ms. Indira Jaising, ASG,
Mr. Paras Kuhad, ASG.
2. It has been brought to our notice that inspite of
the emphatic directions that have been issued by this
court on 3rd January, 2013 directing all the States and
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the Union Territories to implement the protective
provisions contained in the Protection of Rights of
Children from Sexual Offences Act, 2012, the Right of
Children to Free and Compulsory Education Act, 2009
and the Commission for Protection of Child Rights Act,
2005, many States and Union Territories have not
complied with the same. By order dated 3rd January,
2013, we had also directed the States to file an affidavit
indicating the time frame within which the State
Commission for the protection of children would be
established. By a subsequent order dated 7th February,
2013, further directions were issued to all the States
and the Union Territories to comply with the obligations
under the aforesaid three Acts, with regard to the
establishment of protection institutions/implementation
institutions, together with necessary Rules and
Regulations. The aforesaid order was to be complied
with within a period of three months from the date of
receipt of the certified copy of the order. Sadly, we
have to notice that inspite of the concern shown not
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only by this Court but also by the learned counsel
appearing for the parties, little or no progress has been
made in this regard. Although the affidavits have been
filed indicating that the State Commissions have been
established yet we find that such establishment is only
on paper. In many States, Chairman of the Commission
has not been appointed and in some other States even
Members have not been appointed. This apart,
necessary rules and regulations have also not been
framed. This, in our opinion, would be sufficient
justification for this Court to take a serious view and
initiate appropriate proceedings for contempt of court
against the defaulting States and the Union Territories.
3. Given the lackadaisical manner in which the States
and the Union Territories have responded to the
concern shown by this Court in relation to the wholly
unacceptable situation prevailing and to stamp out any
further exploitation of children, it has become
necessary to re-emphasize that it is the bounden duty
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of the States under Articles 21, 21A, 23, 24, 45 and 51A
(k) to create and maintain a protective and healthy
environment in which children who are the future of
this country can bloom and subsequently become
mature and responsible citizen of this country. We have
been pained to notice the utterly callous attitude
adopted by the States as well as the Union Territories.
We, therefore, have no option at this stage but to issue
some further mandatory directions to ensure that the
exploitation of the children in all spheres of life is
brought to an end with utmost expedition.
4. We may notice at this stage that pursuant to our
earlier directions Tripura, Dadar and Nagar Haveli,
Lakshwadeep, Chandigarh, Andaman and Nicobar,
Pondicherry and Daman and Diu have still not
constituted State Commissions under Section 17 of the
Commission for Protection of Child Rights Act, 2005.
Some of the States which have established the State
Commissions for the protection of children but have not
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completely constituted the same by either not
appointing a Chairperson or Members are as under:
Andhra Pradesh : The Commission exists only on
paper as no Chairman/Member has been appointed.
Chattisgarh is partially constituted as only
Chairman has been appointed and the members have
not been appointed.
Gujarat : Although Chairman has been appointed
yet no member or Secretary of the Commission has
been appointed.
Haryana : The situation is exactly the same as
Gujarat, i.e. neither any Member nor Secretary has
been appointed although the Chairman has been
selected and appointed.
Himachal Pradesh: Only a Member Secretary has
been appointed. No Chairperson or Member has been
appointed.
Kerala - Again only a Secretary has been
appointed but there is no Chairperson or Member
appointed.
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Tamil Nadu has appointed a Chairperson but no
Member has been appointed.
Nagaland – Nothing has been done, i.e. no
Chairperson or Member has been appointed.
Similarly in U.P., nothing has been done as neither
the Chairperson nor any Member has been appointed.
5. This inaction of the States is in the teeth of the
directions issued by this Court on 3rd January, 2013 and
7th February, 2013. We make it clear that this Court had
taken notice of the exploitation of children and the
deplorable conditions of children in various orphanages
on the basis of the letter received, way back in the year
2007. Surely, the States and the Union Territories must
realize that they have to operate under the Constitution
and have to be duty bound to act in accordance with
the provisions of the Constitution. Furthermore, each
and every field which concerns the welfare and the
protection of the children is covered by relevant
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legislation. The three prominent Acts have already been
listed hereinabove.
6. Keeping in view the aforesaid attitude of the
States and the Union Territories, we direct that the
Chief Secretaries of all the States to which notices have
been issued in this matter shall file an affidavit within a
period of eight weeks from the date of this order
disclosing full details with regard to the implementation
of the obligations specified under the three Acts. The
affidavit shall contain all the relevant information with
regard to the following :
a. Whether the State Commissions have been
set up under Section 17 of the
Commissions for Protection of Child Rights
Act, 2005?
b. Whether the appointment of the
Chairperson and six Members has been
made indicating the names of such
Chairpersons and members?
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c. Whether Rules have been framed by the
State Governments under the said Act?
d. Whether the said Commissions are
functional and if not what are the
constraints. The appointment and the
remuneration structure of the Chairperson,
Members and supports staff including
Member Secretary of the State
Commissions?
e. The Chief Secretaries of the States in their
affidavits to also indicate whether Special
Courts have been designated under
Section 28 of the Protection of Children
from Sexual Offences Act, 2012?
f. Whether Special Public Prosecutors have
been appointed under Section 32 of the
said Act?
g. Whether Rules have been framed under
the Right to Education Act, 2009?
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h. Whether all Institutions run by the State
Governments or by Voluntary
Organisations for Children in need care and
protection have been registered under the
provisions of Section 34 of the Juvenile
Justice (Care and Protection of Children)
Act, 2000, read with Rule 71 of the said
Act?
i. Whether any unregistered institutions for
children in need of care and protection are
being run and if so have they been shut
down or taken over by the State
Governments?
7. It is further directed that in the unlikely event of
there being a non-compliance of any part of the
directions issued by this Court, an officer of the rank of
Principal Secretary of State Government shall remain
present in person in the Court to clarify the issues with
respect to the failure to implement the directions of the
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Court. If for any reason, the affidavit, as directed for, is
not filed by the Chief Secretary before the next date of
hearing, then also, the officer of the rank referred
above shall remain present in person to explain the
reasons for the State’s failure to submit the affidavit.
8. The concerned State Governments shall also
submit the required information in the format annexed
hereto as part of the affidavit to be filed by them.
………………………....J. [Surinder Singh
Nijjar]
……..……………………………J. [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi; December 16, 2013.
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ANNEXURE
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
S.N
o
Obligation of the States Current Status of Implementa tion (Carried out/not carried out) with details as to the date of order
Detailed reasons for failure including Received date by which the implementation would stand carried out
(a) (b) (c) (d)
Steps taken Circumstances Person who Dates on which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton
1. Constitution of Special Court (section 28)
2. Appointment of Special Public Prosecutor (section 32)
3. Framing of Guidelines
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for use of NGOs, experts etc. to be associated with the pre- trial & trial stage to assist the child (section 39)
4. Public Awareness about the Act & any Periodic Training imparted to the officers of the Govt. etc. (section 43)
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THE RIGHT OF CHILDREN TO FREE & COMPULSORY EDUCATION ACT, 2009
S.N
o
Obligation of the States
Current Status of Implementa tion (Carried out/not carried out) with details as to the date of order
Detailed reasons for failure including Received date by which the implementation would stand carried out
(a) (b) (c) (d)
Steps taken Circumstances Person who Dates on which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton
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1. Constitution of State Commissions for Protection of Child Rights (section 31 r/w Rule 27)
2. Appointment of State Advisory Council (section 34)
3. Rules made for carrying out the provisions of the Act (section 38)
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THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
S.N
o
Obligation of the States
Current Status of Impleme ntation (Carried out/not carried out) with details as to the date of order
Detailed reasons for failure including Received date by which the implementation would stand carried out
(a) (b) (c) (d)
Steps taken Circumstances Person who Dates on
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which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton
1. Constitution of Juvenile Justice Board (section 4)
2. Establishment of Observation Homes (section 8)
3. Establishment of Special Homes – If any, details. (section 9)
4. Constitution of child Welfare Committee (section 29)
5. Establishment of Children’s Homes (section 34)
6. Appiontment of Inspection
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Committee – If any, details (section 35)
7. Recognition of Shelter Homes – If any, details (section 37)
8. Creation of Fund for the welfare of juveniles (section 61)
THE COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005
S.N
o
Obligation of the States
Current Status of Implementati on (Carried out/not carried out) with details as to the date of order
Detailed reasons for failure including Received date by which the implementation would stand carried out
(a) (b) (c) (d)
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Steps taken Circumstances Person who Dates on which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton
1. Constitution of State Commission for Protection of Child Rights (section 17)
2. Appointment of Chairperson and other members (section 18)
3. Appointment of Secretary & other officers for carrying out the functions of the State Commission (section 21(1)
4. Annual &
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Special Reports submitted by State Commission to the State. If any, details (section 23(1))
5. Constitution of Children’s Court (section 25)
6. Appointment of Special Public Prosecutor (section 26)
7. Grants by the State Government to the State Commission. If any, details (section 28(1)
8. Rules made to carry out the provisions of the Act (Section 36(1).
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