The Lucknow bench of the Allahabad High Court has directed the existing members of the Juvenile Justice Boards and Child Welfare Committee of the state, whose term expired in December last year, to continue to function and discharge their duties until fresh appointments.
This, despite Rule 5(2) and 15(4) of the Juvenile Justice (Care and Protection of Children) Rules, 2019, that prohibits appointment of a members of JJBs and CWCs, respectively, for two continuous terms.
"We are conscious of the rule position which prohibits appointment of a member of CWC or JJB for two continuous terms, but we are also conscious of the need to protect the best interest of children…
We order that all members of CWCs and JJBs, who were functioning till December, 2019 based on their selection and appointment made earlier, shall continue to function as such and discharge their duties under the Act, 2015, as they were discharging earlier, under order of this Court… This interim arrangement shall continue only till the new incumbents are selected, appointed and take charge," the bench comprising Justices Devendra Kumar Upadhyaya and Rajan Roy.
Pertinently, the term of several members of the erstwhile JJ Boards and CWCs of the state had expired in December, 2019. However, the Selection Committee could not hold the selection nor recommend the names for appointment as members of JJBs and CWCs.
In this backdrop, on January 31, 2020, the govt. issued 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.
The high court said that aforesaid govt. order, though passed with a good intention, is not in consonance with the law.
"We do not doubt the intent of the Government, however, we find that its order dated 31.01.2020 is not in tune with the provision of the Act, 2015 and the Rules framed thereunder. For selection and appointment of members of the CWC, there are certain conditions including qualifications prescribed… Similar is the situation so far as Juvenile Justice Boards are concerned," it said.
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 at least 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 at least two members including the Principal Magistrate present at the time of final disposal of the case or in making an order Section 18(3).
Similarly, Section 27(2) of the JJ Act stipulates that a CWC shall consist of a Chairperson and four other members, who are actively involved in health, education or welfare activities pertaining to children for at least seven years or are practicing professionals with a degree in child psychology or psychiatry or law or social work or sociology or human development.
On this basis, the high court held,
"the arrangement sought to be made through the Government Order 31.01.2020 is susceptible to challenge for reasons stated herein above which could compromise the best interest of the child and the Act, 2015 itself, as such, the need to provide a better solution to the problem.
… We are conscious of the rule position which prohibits appointment of a member of CWC or JJB for two continuous terms, but we are also conscious of the need to protect the best interest of children under the Act, 2015 and the importance of duties assigned to CWCs and JJBs under the said Act, 2015 and the Rules framed thereunder. Therefore, we find ourselves compelled to pass necessary orders for ensuring smooth and unhindered functioning of CWCs and JBBs.
In view of the aforesaid, we are of the view that appropriate interim arrangement is required to be made so that functioning of CWCs and JJBs throughout the State of Uttar Pradesh does not come to a standstill and to this effect we order that all members of CWCs and JJBs, who were functioning till December, 2019 based on their selection and appointment made earlier, shall continue to function as such and discharge their duties under the Act, 2015, as they were discharging earlier, under order of this Court. They shall be paid remuneration, if any, as earlier. However, their continuance as such shall not be treated an appointment for the purposes of Rule 5(2) and 15(4) of the Rules, 2019 and no rights shall accrue to them to continue once the new incumbent joins or this Court otherwise restrains them from functioning. This interim arrangement shall continue only till the new incumbents are selected, appointed and take charge."
The court has directed the State Government to make all efforts to ensure that the new appointees to the CWCs and JJBs take charge by 1st of July, 2020. To this end, it has directed the Selection Committee to make its recommendation to the State Government by May 31, 2020, whereupon the government will scrutinize the matter and issue appointment letters to the eligible and suitable candidates within ten days.
The high court also clarified that the order, essentially in conflict with the 2019 Rules, had been passed in "peculiar and unforeseen circumstances".
"We make it clear that we have passed this order in the peculiar and unforeseen circumstances which have presented before us as in the event we do not interfere as aforesaid it will result in utter chaos and confusion so far as the implementation of the Act 2015 is concerned in the entire State of Uttar Pradesh."
Earlier this month, a division bench at the Principal seat of the Allahabad High Court had in Praveen Kumar Sharma v. State of UP, PIL No. 222/2020, sought reply from the state government as to when it proposes to constitute valid Juvenile Justice Boards and Child Welfare Committees in accordance with the Act.
Last week, Justice Biswanath Somadder and Justice Dr. YK Srivastava disposed of the PIL after it was informed that the concerned respondent authority has taken effective steps in that direction.
"It is evident from the above, that the concerned respondent authority has taken effective steps to constitute valid Juvenile Justice Boards and Child Welfare Committees in accordance with the provisions of the relevant statute. As such, no further interference is required in respect of this Public Interest Litigation (PIL). The Public Interest Litigation (PIL), stands disposed of accordingly," it held.
Case Title: Anoop Gupta v. Union of India & Ors.
Case No.: WP (M/B) No. 3340/2008
Quorum: Justices Devendra Kumar Upadhyaya and Rajan Roy
Appearance: Advocates Umesh Verma and Adarsh Mehrotra (for Petitioner); CSC, ASG Amit Kumar Singh Bhadauri, Apoorva Tiwari(Amicus Curiae), GK Singh, MS Pawar, Nishant Shukla and Som Kartik Shukla (for State)
Click Here To Download Order
Case Title: Praveen Kumar Sharma v. State of UP
Case No.: PIL No. 222/2020
Quorum: Justice Biswanath Somadder and Justice Dr. YK Srivastava
Appearance: Advocate Shivam Shukla (for Petitioner); Advocate AK Roy (for State)