Supreme Court of India
RE. EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE STATE OF TAMIL NADUversusUNION OF INDIA & ORS.
- Citation
- 2013 INSC 838
- Decided
- 16 December 2013
Holding
The Court held that the persistent non‑compliance of the States warrants fresh mandatory directions, including the filing of detailed affidavits within eight weeks, and warned that contempt proceedings may be initiated for further default.
Summary
The Supreme Court heard a writ petition concerning the exploitation of children in orphanages in Tamil Nadu and the failure of several States and Union Territories to implement protective legislation. Earlier orders dated 3 January 2013 and 7 February 2013 had directed the States to operationalise the Protection 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, but many States had either not constituted the required commissions or had left them merely on paper. The Court observed that such non‑compliance undermines constitutional duties under Articles 21, 21A, 23, 24, 45 and 51A(k) and could attract contempt proceedings. Consequently, the Court issued fresh mandatory directions requiring the Chief Secretaries of all States to file affidavits within eight weeks detailing the status of commissions, appointments, rules, special courts and other obligations under the three Acts. The order also stipulated that a senior officer must appear before the Court if the affidavit is not filed, signalling the Court’s intent to enforce compliance and curb child exploitation.
Issues considered
- The extent of compliance by States and Union Territories with the Supreme Court's earlier directions to implement the Protection of Children from Sexual Offences Act, 2012, the Right to Education Act, 2009 and the Commission for Protection of Child Rights Act, 2005.
- What further procedural directions can the Court issue to ensure full implementation and to address the exploitation of children in orphanages.
- Whether the failure to constitute State Commissions and related institutions amounts to contempt of court.
Legislation cited
Subjects
child exploitationorphanagesstate complianceprotective legislationcontempt of courtchild rightsSupreme Court directions
Judgment
[2013) 17 S.C.R. 1087
RE. EXPLOITATION OF CHILDREN IN ORPHANAGES IN A
THE STATE OF TAMIL NADU
v.
UNION OF !NOIA & ORS.
(Writ Petition (Crl.) No.102 of 2007)
B
DECEMBER 16, 2013
[SURINDER SINGH NIJJAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Child Welfare - Directions passed by the Supreme Court c
- To all the States and Union Territories - To implement
protective provisions contained in Protection of Rights of
Children from Sexual Offences Act, 2012 - Rights of Children
to Free and Compulsory Education Act, 2009 and the
Commission for Protection of Child Rights Act - The Court
had also directed the States and Union Territories to establish D
protection institutions/implementation institutions, with
necessary Rules and Regulations, and to file an affidavit
indicating the time frame within which State Commission for
the protection of children would be established - Writ petition
indicating non-compliance of the directions - Held: It is the E
bounden duty of the States u!Arts. 21, 21A, 23, 24, 45 and
51 A(k) of the Constitution to create and maintain a protective
and healthy environment for children - There is little or no
progress in compliance of the directions - Some of the States
have not constituted the State Commissions, and some of the
States which have established the Commission, have not F
completely constituted the same by either 'not appointing
1
Chairman or Members - Hence further directions B(e issued
to ensure that exploitation of children in all spheres of life is
brought to an end with utmost expedition - Chief Secretaries
of all the States are directed to file affidavits disclosing full' G
details with regard to the implementation of the obligations
specified under the above-mentioned three Acts - Protection
of Child from Sexual Offences Act, 2012 - Right of Children
to Free and Compulsory Education Act, 2009 - Commission
1087 H
1088 SUPREME COURT REPORTS [2013] 17 S.C.R.
A fOr Protection of Child Rights Act, 2005 - Constitution of India,
1950 - Arts. 21, 21A, 23, 24, 45 and 51A(k)
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No.102 of 2007.
Under Article 32 of the Constitution of India.
B
A. Mariarputham, AG, Paras Kuhad, Indira Jaising, ASGs,
C.S. Rajan, lrshad Ahmad, Dr, Manish Singhvi, Krishna Sarma,
Ajay Bansal, Manjit Singh, AAGs, Aparna Bhatt (AC), P.
Ramesh Kumar, D. Bharathi Reddy, Abhijit Sengupta, Gopal
C Singh, Manish Kumar, Rituraj Biswas, Sanjay R. Hegde, Naresh
K. Sharma, Dharmendra Kumar Sinha, Pragyan P. Sharma,
Heshu Kayina, P.V. Yogeswaran, Sunita Sharma, P.L. Nigam,
Swati Vijaywargiya, B.K. Prasad, B.V. Bairam Das, D.L.
Chidananda, A. Deb Kumar, Sushma Suri, Sonakshi Malhan,
Ashok K. Srivastava, Asha G. Nair, Shadman Ali, Gunwant
D Dara, S. Wasim A. Qadri, Zaid Ali, D.S. Mahra, Anil Katiyar,
S.N. Terdal, Sapam Biswajit Meitei, Khwairakpam Nobin
Singh, Ameet Singh, Mukul Singh, Pragati Neekhra, Samar
Vijay Singh, Amit Lubhaya, Suryanarayana Singh, Hemantika
Wahi, Anuvrat Sharma, Riku Sarma, Navnit Kumar (for Mis
Corporate Law Group), S. Thananjayan, Anil Shrivastav, V.G.
E Pragasam, S.J. Aristotle, Prabu Ramasubramanian, Jayesh
Gaurav, Gopal Prasad, Balaji Srinivasan, Ranjan Mukherjee,
S.C Ghosh, S. Bhowmick, R.P. Yadav, Kuldip Singh, Devendra
Singh, Jasleen Chahal, Pardaman Singh, Rajeev Kumar,
Gaurav Yadav, Bina Madhavan, Jatinder Kumar Bhatia, Mukesh
F Verma, C.D. Singh, Sunny Choudhary, Dr. Abhishek Atrey,
Ashutosh Kr. Sharma, Ashok Panigrahi, Santosh Kumar, Aruna
Mathur, Yusuf (for Arputham Aruna & Co.), A. Subhashini, M.
Yogesh Kanna, A. Santha Kumaran Vanita Chandrakant Giri,
Vivekta Singh, Anil Antil, Tarjit Singh {for Kamal Mohan Gupta),
K. Enatoli Serna, Amit Kumar Singh, D. Mahesh Babu, Aditya
G Jain, Balasubramaniam, K.V. Jagdishvaran, G. Indira,
Abhishek Kumar, Pandey, Aniruddha P. Mayee, Charudatta
Mahindarkar, Lagnesh Mishra, V.N. Raghupathy, Anip
Sachthey, Mohit Paul for the appearing parties.
The following Order of the Court was delivered
H
RE. EXPLOITATION OF CHILDREN'iN ORPHANAGES IN THE 1 ~9
STATE OF TAMIL NADU v. UNION OF INDIA
ORDER .A
1. We have heard very lengthy submissions from the
Amicus Curie Ms. Aparna Bhat, Ms. Indira Jaising, ASG, Mr.
Parc:is Kuhad, ASG.
2. It has been brought to our notice that inspite of the B
emphatic directions that have been issued by this court on 3rd
January, 2013 directing all the States and the l.Jnion 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 C
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 D
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 E
of receipt of the certified copy of tbe order. Sadly, we have to
notice that inspite of the concern shown not 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 F
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. Th is\apart,
necessary rules and regulations have also not been framed.
This, in our opinion, would be sufficient justification for this Court G
to take a serious view and initiate appropriate proceedings for
contempt of court against the defaulting States and the Union
Territories.
3. "Given the. l!ckadaisical rnC!.nner in which the States and
the Union Territories have responded to the concern shown by H
'
1090 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 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 of the States under Articles 21, 21A, 23, 24, 45 and 51A
(k) to create and maintain a protective and healthy environment
tn which children who are the future of this .country can bloom
8 and subsequently become m_ature 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
c the children in all spheres of life is brought to an end with utmoi:t
expedition.
4. We may notice af this stage that pursuant to our earlier
directions Tripura, Dadar and Nagar Haveli, Lakshwadeep,
Chandigarh, Andaman and Nicobar, Pondicherry and Daman
D 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
completely constituted the same by either not appointing a
Chairperson or Members are as under:
E
. 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.
F 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
G 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.
H
RE. EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 1091
STATE OF TAMIL NADU v. UNION OF INDIA
Tamil Nadu has appointed a Chairperson but no Member A
has been appointed.
Nagaland - Nothini;t has been done, i.e. no Chairperson
or Member has been appointed.
Similarly in U.P., nothing has been done as neither the
B
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 C
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 D
children is covered by relevant legislation. The three prominent
Acts have already been listed herelnabove.
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 wbich notices have been issued in this matter E
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 :
F
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 G
of such Chairpersons and members?
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 H
1092 SUPREME COURT REPORTS [2013] 17 S.C.R.
A the remuneration structure of the Chairperson,
Members and supports staff including Member
Secretary of the State Commissions?
i
e. · The Chief Secretaries of the States in their affidavits
to also indicate whether Special Courts have been
.B 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
c to Education Act, 2009?
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
D Juvenile Justice (Care and Protection of Children)
Act, 2000, read with Rule 71 of the said Act?
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
E 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
F the issues with respect to the failure to implement the directions
of the Court. If for any reason, the affidavit, as directed for, is
not filed by the Chief Secretary before the next date of hearing,
th1;m also, the officer of the rank referred above shall remain
present in person to explain the reasons for the State's failure
G 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.
H Kalpana K. Tripathy Directions issued.
ANNEXURE
THE PROTECTJON OF CHILDREN FROM- SEXUAL OFFENCES ACT, 2012
rs.No
~ .
Obligation of the States Curre t Detailed reasons for/failti.re ~eluding Received . date.· by 11
Status' of which the
Implcrilentat implementation woulil
ion (Canied stand carried out I
out/not !
carried out) !
'
I witp
as to
details
the
i
date of order
- ---~
(a) (b) (c) (d)
Steps taken
Towards
Circumstances Person who Dates On which
which rendered was respon- the matter was
I
I
Implementa- implementation swk·f6r.. monitored by
ti on impossible implemen- Chief Secretfily I
tation "/towards I
;
en~uring im_ple- j
... ..me,r:i.tato_n. '
'
~-
1. Constitution of Sp~cial
Court (section'28)
r----- - - -1
2. 1---AppointmenlOfSpecial
Public Prosecutor
. I
i
- - - - (section 32) ' ' '
I
3_ Framing of Guidelines
for L1se of NGOs, experts
etc. to be associated __j
THE RIGHT OF CHIL~N TO FREE & COMPULSORY EDUCATION ACT, 2009
......
. s_-No-IObligatiO-n of the j-(~tu:Te~t Detailed reasons for failure ~Cluding ReceiW(.f-da!e by which the 0
I States .
Status of implementation would ,,..
CD
I ion (Carried
Implementat stand carried out
l Iearned out)
out/not en
c
I th details · "lJ
I to the
Im
Al
_ ---~-- _ of order ___ _ ------- - - ----- ---------1 s:::
I (a) (b) (c) (d) m
i ()
Steps taken Circumstances Person who Dates on which 0
Towards which rendered was respon..: · llie ·mattei: was c
Implementa- implementation sible for monitored _by Al
tion impossible implemen- Chief Secretary -I
tation towards Al
_t- ----~r---
ensuring imple- m
I
r
-+ _
l 1. -
I
1
Constit-u tio_n_
State Co1nmissions
-Of
I
-
n~ '!n taton
- - - - - - - - - - - - - - - - - ---~~--------!-----
I~
"lJ
0
I I for Protection of
I
/
-tt. Child
(section 31
Rights
r/w
1__ _ Rule 27) _ J~
2. Appointment of I ......
State Advisory i~
Council (section ;...
! 34) "'-!
Rules made "for
0 :>
- carrying out the en
provisions of the (')
I --
:______ L____ _
A~t_i~t::~9-1:1. l§.l ---- - -----f-- ------ ~
;o
!Tl
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
~No Obligation of Current Received date by which the en~
the States Status of
Impleme
ntation
I implementation would stand
carried out
~Q
"-! ~
I'
(Carried o-
m
,, 0
""'
out/flat 1
z
Il carried
out) v.;th I
I ;;!
s:: 0,,
· ·detail~· as ·I·-·
to the
-o
r- ::c
I dat~ of
z-
)> r-
order
--------- ------ - ---- ---
o O
- - - - ------
c ;o
1- .. .. (a)
Steps taken
Towards
(b) (c) (d)
Circumstances Person who Dates on Which
which rendered was respon- the matter was
Implementa- implementation sible for monitored by
~o
0 ;o
z -0
m
:<: z
Cz
I ti on impossible implemen- Chief Secretary
0 ::c
I ta ti on towards
ensuring imple-
, , )>
_z
z )>
_ I -m
r
I :
--k
mentaton
0 G)
i cOnstituti-z;-1-1___::./- ------
IM )>en
~----~---·--------~-
I
Juvenile z
r--
Justice Board
I (section 41 I m
:i!
L
Establishment
of Observation
Ho roes
I (section 8) -·
-
__J
i co -
0
(11
......
~ Establishment 0
f of Special co
Homes If
m
any, details.
ls<:_ction 9 ~-------- en
1 4. I Constitution c:
of child "'O
-1
I
Welfare ::0
I i Cornmit_tee 1
m
3:
' ~ecuon..±'.lL_ j -----------·-
m
I5 Establishment -I (')
1 of Children's
\Homes 0
_ _ . ,. Lscct.!_!].!!_3_il __ _ ---- c:
6. 1 App1ontment t ::0
of inspection -I
Committee - If ::0
any, details m
section~ ~ ----+--------~ "'O
7. Recognition of 0
Shelter Homes J
I ~
tr
details
any,
lscc~on 12)_ ~
l __ _
(J)
8 Creatio11 of I ';;:)
I
_ _ __L_ _
0
Fund for
I \vclfare
the
.....
I : juveniles
of
I ~
L ~ection !l L_ 6 _J_ --- ......
-...i
en
(')
::0
~
;o
[Tl
THE COMMISSiqN FOR PROTECTION OF CHILD RIGHTS ACT, 2005.
~
"ti
Received date J>y which- tl1e en r-
S.No Obligation of Current Detailed reasons for failure including
the States Status of
implementation would :iil Q
stand carried ·out ~>.
Implementatio m~
n (Carried o-
1 out/not -n~
I
carried out)
with cj_etails as
;;!
;s:: -n
0
j to the date of . -,.... :x:
()
order .
..
z-
)> ,....
f--.-
(a) (b) (c) (d) oO
c ;om
Steps taken Circumstances Person who Dates on which :<: z
Towards which rendered was respon- the matter was c
zz-
.. ... lmplementa- imple_µl,f!p._tation sible for
implemen-
1nonitored by
Chief ~retary
-o
0 ;o
tion impossible
ta tion tOWards ,Z "ti
ensuring imple- 0 :x:
..,, )>
mentaton _z
z )>
0 Gl
----- -m
I )> en
1. Constitution ! z
of State -t
Com.!1J.ission ' :x:
m
for Protection
of . Child
.....
0
Rights (section I co
17l . -.J
.
2. Appointment
of
Chairperson
and other
. ~
members 0
'section 181
co
- - -· -- ! 00
3. Appointment
of Secretary & i
other officers en
for
out
<;arrying
the
c\)
fµnctions of I ::u
the State
'C'Oi::l'lrnissiorr · · Ii m
s:
I section 2 !1!1 _
4. Annual &
---- . --·- - - ----- --- - m
Special ! 0
' c0
Reports
... ·state·
submitted by
::u
Commission
to the State. If
I -;
I
any, details
Im
::u
- 'section 23'1 1' .
5. Constitution \)
9f Children's
I0
~
Court (~ection
I
~ ... ---
I
~- - ~-· -· -·
6. Appointment
of Special
Public
Prosecutor
7:· ·- 1_J~e~tion
26}
Grants by the
.L J
I
State I
I
Government
to the State
Cowmission.
If any, details
.
Isection 2af ii ... ------ .. - -- --- .
8. Rules made to
carry out the I
I
provisions of
the Act
'Section 3611 l.
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