On Wednesday, February 05, the Allahabad High Court issued notices on a PIL, seeking apposite directions for constitution valid Juvenile Justice Boards and Child Welfare Committee in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, in the state of UP.
The Petitioner, Praveen Kumar Sharma had contended before the division bench of Justice Biswanatha Somadder and Justice Y.K. Srivastava that contrary to the stance of Section 4 of the Juvenile Justice Act, 2015, the working of JJ Boards and CWCs had come to a standstill in the state.
It was brought to notice of the court that since the three years tenure of the erstwhile JJ Board and CWC had expired in December, 2019, the District Probation Officer of different districts issued notices to all the Child Welfare Committees and the Juvenile Justice Boards across the state, directing them to not function further till any orders are passed by the State Government.
The Petitioner submitted that from a conjoint reading of Section 27 of the Act and Rule 5 of the Model Rules, 2016, it is clear that fresh appointments shall be done by the State Government once the three years term of the bodies expire.
Thus, "the State Government was duty bound to issue fresh advertisements and notifications for the appointment of the members."
"since last one month, there had been no adjudication with the proceedings under the Act, relating to children in conflict with law. The object of the JJ Act was to bring the neglected juvenile into the main stream of national life, however due to the highhandedness of the authorities, the entire object is being frustrated," the Petitioner submitted.
The Petitioner further informed the court that on January 31, 2020, the govt. issues orders stating that till the fresh appointment of permanent members of JJ Board and CWC, the ADM shall be appointed as a member of CWC and Judicial Magistrate as a member of JJ Board.
This, as per the Petitioner, is "malfeasance" on part of the authorities.
Notably, as per Section 4 of the JJ Act it is mandatory that the Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class with atleast three years of experience and two social workers from two different reputed non-government organizations amongst which one shall be a woman.
Further, Section 7 of the Act stipulates that no order passed by the Board shall be invalid by the reason only of the absence of any member during any stage of proceedings: Provided that there shall be atleast two members including the Principal Magistrate present at the time of final disposal of the case or in making an order Section 18(3).
Thus the Petitioner contended that "it is incumbent upon the state government to ensure that there should be at least two members on the Juvenile Justice Board to ensure its smooth functioning for the disposal of the cases relating to children in conflict with law under the Act."
The plea further asserts that Rule 15(2) of the JJ (Care and Protection of Children) Model Rules, 2016, specifically provides that the Chairperson and the members of the Committee shall be appointed by the State Government on the recommendation of the Selection Committee. However, the govt. had proceeded to appoint ADM as the only member of the Committee without consulting the Selection Committee, making the appointment ultra vires.
Reliance was placed on K. Kuppusamy & Anr. v. State of TN & Ors., 1998 (8) SCC 469, to contend that statutory rules cannot be overridden by executive orders.
Taking note of the submissions, the bench said,
"We direct the learned advocate for the State to take specific instructions from the concerned authority of the State as to when the State proposes to constitute valid Juvenile Justice Boards and Child Welfare Committees in accordance with the provisions of the relevant statute," the order read.
The state has been directed to file its reply by February 12, 2020.
Case Details:Case Title: Praveen Kumar Sharma v. State of UPCase No.: PIL No. 222/2020Quorum: Justice Biswanatha Somadder and Justice Y.K. SrivastavaAppearance: Senior Advocate Anurag Khanna assisted by Advocate Shivam Shukla (for Petitioner); Advocate AK Roy (for State)
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