Benefits Of Beneficial Legislations On Child/Juvenile Care & Protection Shall Be Extended To All Categories Of Children: SC [Read Judgment]
SC said 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 exhaustive.
In significant stride, the Supreme Court on Thursday issued guidelines to protect and augment the rights and welfare of children and for the proper implementation of beneficial legislations like 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
The judgment, delivered by a Bench comprising Justice Madan B. Lokur and Justice Deepak Gupta, deals with several issues such as social audits, de-institutionalization, training of personnel, rehabilitation and social-reintegration, utilization of grants and minimum standards of care.
At the outset the bench held that the definition of the expression “child in need of care and protection” under Section 2(14) of the JJ Act should not be interpreted as an exhaustive definition.
“The definition is illustrative and the benefits envisaged for children in need of care and protection should be extended to all such children in fact requiring State care and protection”. 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”
The petition was taken up suo motu by the Court on the basis of a letter and news article forwarded to it in September, 2007, by one A.S. Choudhury. The article published in the Hindi newspaper ‘Hindustan’ was titled “Orphanage or Places for Child Abuse (translated)”. The article had exposed systemic sexual abuse of children in orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as government institutions.
As per the article, a sting operation had 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. The author had thereafter opined that the problem of sexual abuse of children, especially in government institutions, has become a serious problem and requires immediate redressal.
The Court had then taken up the issue, and passed several orders over the years, seeking to expand the scope of the PIL to include rights of children in general. It had also appointed Advocate Aparna Bhat as Amicus curiae.
The Court had, however, subsequently passed a detailed order in December, 2013, lamenting that despite the directions issued, little or no progress was made by the States in protecting the rights of children. Specific information was then sought from each State and Union Territory, regarding efforts taken by them in this regard.
Commenting on the responses received from the States, the Court had observed, “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.”
It had thereafter decided to restrict the scope of the petition to the rights and welfare of children in need of care and protection.
Here are the guidelines issued by the Court:
“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 extended to all such children in fact requiring State care and protection.
- The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31st December, 2017 with the entire data being confirmed and validated. The information should be available with all the concerned officials. The registration process should also include a data base of all children in need of care and protection which should be updated every month. While maintaining the database, issues of confidentiality and privacy must be kept in mind by the concerned authorities.
- The Union Government and the governments of the States and Union Territories are directed to enforce the minimum standards of care as required by and in terms of the JJ Act and the Model Rules positively on or before 31st December, 2017.
- The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme. Returning the grants as unspent or casual utilization of the grants will not ensure anybody’s benefit and is effectively wasteful expenditure.
- It is imperative that the Union Government and the governments of the States and Union Territories must concentrate on rehabilitation and social re-integration of children in need of care and protection. There are several schemes of the Government of India including skill development, vocational training etc which must be taken advantage of keeping in mind the need to rehabilitate such children.
- The governments of the States and Union Territories are directed to set up Inspection Committees as required by the JJ Act and the Model Rules to conduct regular inspections of child care institutions and to prepare reports of such inspections so that the living conditions of children in these institutions undergo positive changes. These Inspection Committees should be constituted on or before 31st July, 2017 and they should conduct the first inspection of the child care institutions in their jurisdiction and submit a report to the concerned government of the States and Union Territories on or before 31st December, 2017.
- The preparation of individual child care plans is extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution. While this process may appear to be long drawn and cumbersome, its necessity cannot be underestimated in any circumstances. The process of preparing individual child care plans is a continuing process and must be initiated immediately and an individual child care plan must be prepared for each child in each child care institutions on or before 31st December, 2017.
- Wherever the State Commission for Protection of Child Rights has not been established or though established is not fully functional in the absence of a Chairperson or any one or more Members, the governments of the States and Union Territories must ensure that all vacancies are filled up with dedicated persons on or before 31st December, 2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection.
- The training of personnel as required by the JJ Act and the Model Rules is essential. There are an adequate number of academies that can take up this task including police academies and judicial academies in the States. There are also national level bodies that can assist in this process of training including bodies like the Bureau of Police Research and Training, the National Judicial Academy and others including established NGOs. Wherever possible training modules should be prepared at the earliest.
- It is time that the governments of the States and Union Territories consider de-institutionalization as a viable alternative. It is not necessary that every child in need of care and protection must be placed in a child care institutions. Alternatives such as adoption and foster care need to be seriously considered by the concerned authorities.
- The importance of social audits cannot be over-emphasized. The necessity of having a social audit has been felt in some statutes which have been mentioned above and also by the Comptroller and Auditor General of India. That being the position, it is imperative that the process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights. This is perhaps the best possible method by which transparency and accountability in the management and functioning of child care institutions and other bodies under the JJ Act and Model Rules can be monitored and supervised.
- While the Juvenile Justice Committee in each High Court is performing its role in ensuring the implementation of the JJ Act and Model Rules, there is no doubt that each Committee will require a small Secretariat by way of assistance. We request each Juvenile Justice Committee to seriously consider establishing a Secretariat for its assistance and we direct each State Government and Union Territory to render assistance to the Juvenile Justice Committee of each High Court and to cooperate and collaborate with the Juvenile Justice Committee in this regard.
- We acknowledge the contribution made by Ms. Aparna Bhat in taking keen interest in the issues raised in this PIL and for rendering effective assistance to this Court at all times. The Supreme Court Legal Services Committee will give an honorarium of Rs. 2 lakhs to Ms. Aparna Bhat out of the funds available for juvenile justice issues.
- While there may be some other issues specifically concerning children in need of care and protection we leave these issues open for consideration and grant liberty to the learned Amicus to move an appropriate application in this regard including any application for modification or clarification of the directions given above.
- The Union of India is directed to communicate our directions to the concerned Ministry or Department of each State and Union Territory for implementation and to collate necessary information regarding the implementation of these directions with the assistance of the National Commission for the Protection of Child Rights and the State Commission for the Protection of Child Rights. A status report in this regard should be filed in this Court on or before 15thJanuary, 2018. The Registry will list this case immediately thereafter.”
Read the Judgment here.