Supreme Court of India
RE: EXPLOITATION OF CHILDREN LN ORPHANAGES LN THE STATE OF TAMIL NADUversusUNION OF LNDIA & ORS.
- Citation
- 2017 INSC 450
- Decided
- 5 May 2017
- Disposal
- Directions issued
- Bench
- MADAN B LOKUR
Holding
The definition of "child in need of care and protection" in Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 is illustrative, not exhaustive, and must be given a broad, purposive construction to include all children requiring State protection, and the State must implement the statutory mechanisms for registration, standards, audits, and rehabilitation accordingly.
Summary
The Supreme Court heard a public‑interest writ petition alleging systematic sexual abuse of children in orphanages in Tamil Nadu and the broader failure of the State to protect children in need of care and protection. The Court examined the scope of the term "child in need of care and protection" under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and held that it must be given a broad, purposive interpretation to include victims of sexual abuse, trafficking and children in conflict with the law. It observed that many child‑care institutions remained unregistered, that minimum standards of care were not being enforced, and that grants under the Integrated Child Protection Scheme were largely unspent due to lack of will. The Court also noted the dysfunction of the National and State Commissions for Protection of Child Rights and the absence of regular social audits and proper training of personnel. Consequently, the Court issued a series of directions mandating registration of all child‑care institutions, enforcement of minimum standards, preparation of individual child‑care plans, conduct of social audits, filling of commission vacancies, and the use of technology for data‑base creation, all to be complied with by 31 December 2017. The petition was allowed with these comprehensive directions to ensure the protection and rehabilitation of children.
Issues considered
- The proper interpretation of "child in need of care and protection" under the JJ Act, 2015
- Whether all child‑care institutions must be registered under Section 41 of the JJ Act
- The obligation of State and Union governments to enforce minimum standards of care in child‑care institutions
- The requirement and feasibility of conducting social audits of child‑care institutions
- The utilization of grants under the Integrated Child Protection Scheme
- The functioning and vacancy‑filling of the National and State Commissions for Protection of Child Rights
- The need for training of personnel dealing with children as per Model Rules, 2016
- The viability of de‑institutionalisation and promotion of foster care and adoption
Legislation cited
- Commissions for Protection of Child Rights Acts. 13, s. 16, s. 24
- Constitution of Indias. Art.39(j)
- Immoral Traffic (Prevention) Act
- Juvenile Justice (Care and Protection of Children) Acts. 2(14), s. 41, s. 53, s. 54
- Protection of Children from Sexual Offences Acts. 44
- Right of Children to Free and Compulsory Education Act
Subjects
child protectionjuvenile justiceorphanagessexual abuseregistration of child care institutionsminimum standards of caresocial auditde‑institutionalisationtraining of personnelCPCR ActPOCSO ActConvention on the Rights of the Child
Judgment
[2017] 4 S.C.R. 625
RE: EXPLOITATION OF CHILDREN lN ORPHANAGES lN THE A
STATE OF TAMIL NADU
v.
UNION OF lNDIA & ORS.
(Writ Petition (Criminal) No.102 of2007) B
MAY05,2017
(MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015:
s.2(14) - Children in need of care and protection - Who is a C
child in need of care and protection - The provisions of the Protection
of Children from Sexual Offences Act, 2012 (POCSO Act) do not
provide any definition of a child in need of care and protection - A
child victim of sexual abuse or sexual assault or sexual harassment
is a child in need of care and protection - Similarly, a cliild accused
D
ofan offence and brought before the Juvenile Justice Board or any
other authority might also be a child in need of care and protection
- Although a child in need of care and protection is defined in.
s.2(14) of the JJ Act, 2015, the definition does not specifically
include some categories of children - Consequently, since f/;e JJ
Act is intended for the benefit of children and is intended to protect E
and foster their rights, the definition of a child in need of care and
protection has to be given a broad interpretation - It must also
include victims of sexual abuse or sexual assault or sexual
harassment under the POCSO Act as also victims of child trafficking
- Such children must also be given protection under the provisions F
of the JJ Act being victims of crime under the POCSO Act an(i the
Immoral Traffic (Prevention) Act, 1956 - Commissions for Protection
of Child Rights Act, 2005 - Right of Children to Free and Compulsory
Education Act, 2009 - Protection of Children from Sexual Offences
Act, 2012 - Immoral Traffic (Prevention) Act, 1956 - Child abuse -
Trafficking of children. G
s.41 - Child care institµtions - Shelter Homes - Children in
need of care and protection are given shelter in homes thm are
managed by the State Government or by_NGOs or by voluntary
organizations - s.41 of the JJ Act which mandates, notwithstanding
H
625
626 SUPREME COURT REPORTS ''"'': 7] 4 S.C.R.
A anything contained in.any other law/or the time being in force,
that all institutions, whether run by a State Government or by
voluntary organizations or NGOs which are meant, either wholly
or partially, for housing children in need of care and protection
shall be registered under the JJ Act in such manner as •nay be
B prescribed within six months of the commencement of the said Act -
The JJ Act came into force on 15'h January, 2016 but the process of
registration is not yet complete - The Union Government and the
governments of the States and Union Territories are directed to
complete the process of registration of all child care institutions by
31-'' December, 2017 with the entire data being confirmed and
C validated - 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 - Juvenile Justice (Care and Protection of Children)
D Model Rules, 2016 - r.21.
Minimum Standards of care and protection of children -
Art.3(3) of the CRC specifically obligates the State Parties te ensure
that institutions responsible for care and protection of children shall
conform to standards laid down by competent authorities,
particularly in areas of safety, health, staff and supervision -
E However, the minimum standards of care prescribed for institutions
cannot be ensured if the child care institution is not identified and
regist'!red - The Model Rules deal with the staffing pattern of child
care institutions, physical infrastructure, clothing, bedding, toiletries
and other articles, sanitation and hygiene, daily routine, nutrition
F and diet scale, medical health, mental health, education, vocational
and recreational facilities and genuine efforts in the rehabilitation
and re-integration of such children into society - All these
requirements are rendered unenforceable in the absence of
registration of child care institutions - If the officers of the State do
not ensure that minimum standards of care are followed in the child
G care institutions, they could well be guilty of negligence - 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 31'' December, 2017 - Juvenile Justice (Care and Protection
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 627
STATE OF T. N. v. UNION OF INDIA
of Children) Mode/Rules, 2016 - Convention on the Rights of the A
Child (CRC) - Art.3(3).
Jacob Mathew v. State of Punjab [2005] 2 Suppl.
SCR 307 : (2005) 6 SCC 1 - relied on.
Charlesworth & Percy on Negligence lO'h Edition
(2001) - referred to. B
Utilization of grants - It is the constitutional obligation of
the State to ensure that for safeguarding and fostering the rights of
children, adequate funds are available particularly for children who
are in need of care and protection - Problem is the absence of a
will to gainfully utilize the available grants - The State cannot C
conflate non-availability of funds to shirk their obligations with
inefficient utilization of grants - The 'governments of the States
an<j Union Territories are directed to draw up plans for full and
proper utilization ofgrants (along with expenditure statemf!nts) given
by the Union Government under the Integrated C,hild Protection D
Scheme.
National and State Commissions - Establishment of - The
CPCR Act provides for the constitution of a National Commission
for Protection of Child Rights (NCPCR) and for the constitution of ·
State Commissions for Protection of Child Rights (SCPCR) - These E
Commissions are intended to function under the provisions of the
CPCR Act - In the implementation of the POCSO Act, the NCPCR
and the SCPCR play vital role - s.44 of the POCSO Act places a
great burden on the shoulders of the NCPCR and the SCPCRs - It
is imperative that the NCPCR and the SCPCR be allowed to function
in terms of the CPCR Act and the POCSO Act and only for the F
benefit of children - These Commissions are under an obligation to
take action wherever necessary including approaching the
Constitutional Courts wherever necessary - These Commissions
are under an obligation to prepare annual reports and if necessary
special reports but it has been pointed out that this requirement has G
hardly been implemented mainly because of a lack of interest that
these Commissions have shown in functioning under the statute and
also partly because of the large number of vacancies in these
Commissions - Wherever the State Commission for Protection of
Child Rights has not been established or though established is not
H
A fully functional in the absence of a Chairperson or any one or
more Members, the governments of the States and Union Tei ritories
must ensure that all vacancies are filled up with dedicated persons
on or before 31'' December, 2017 - The SCPCRs so constituted
must publish an Annual Report so that everyone is aware of their
activities and can contribute individual(y or collectively for the
B
benefit of children in need of care and protection - Commissions
for Protection of Child Rights Act, 2005.
ss.53, 54 - Rehabilitation and social re-integration - With
regard to the ji1ture of children in need of care and protection, the
JJ Act contains obligatory provisions such as s.53 which deals with
c rehabilitation and social re-integration services in child care
institutions - This provision requires the State to take care of the
basic requirements of children in such institutions including children
with special needs, legal aid where required and more importantly
·assistance in obtaining proof of identity - Proof of identify is crucial
D for the welfare of the child, otherwise he or she is reduced to a mere
,statistic - The provision for rehabilitation and re-integration services
has several facets and cannot be read in isolation but must be read,
inter alia, in conjunction with s.54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act -
Inspection Committees are required to be set up which shall
E mandatorily visit all facilities housing children in the area allocated,
at least once in three months in a team of not less than three members,
of whom at least one shall be a woman and one shall be a medical
officer - It is imperative that the Union Government and the
;governments of the States and Union Territories must concentrate
F 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 etr: which
must be taken advantage of keeping in mind the need to rehabilitate
such children.
G Individual child care plans - 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 every1 child in each child care institution - While
this process may appear to be long drawn and cumbersGme, its
necessity cannot be underestimated in any circumstances - The
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 629
STATE OF T. N. v. UNION OF INDIA
process of preparing individual child care plans is a continuing A
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 31" December. 2017.
Training of personnel - r.89 of the Model Rules concerns
itself with training of personnel dealing with children - This rule B
provides for a minimum period of 15 days training to various
categories of personnel under the JJ Act including the staff of
Children s Courts, Principal Magistrates and Members of Juvenile
Justice Boards, Chairpersons and Members of Child Welfare
Committies, Police Officers including persons in charge of child
care institutions etc. - r.89 of the Model Rules also postulates that c
the Judicial Academy and the Police Academy in the States as well
as the State Legal Services Authorities prepare appropriate training
modules, training manuals and provide training to personnel -
Untrained or inadequately trained personnel can unwittingly play
havoc with the lives of victims of sexual abuse or sexual assault or D
sexual harassment - 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 pos!:ible E
training modules should be prepared at the earliest-Juvenile Justice
(Care and Protection of Children) Model Rules, 2016 - r.89.
ss. 44, 45 - De-institutionalization - Art.20 of the CRC
obligates the State Parties to provide special protection and
assistance to children temporarily or permanently deprived offamily F
environment - Art.20 illustrates alternate care in the form of foster
placement, adoption "or if necessary placement In suitable
institution" - It is clear that the first option exercised by the
authorities should not be institutionalization of a child in need of
care and protection and the same is a measure of the last resqrt - G
Art.40(4) of the CRC pertaining to children accused of violating
the law also states that the State Parties shall ensure "care, guidance,
supervision, counseling, probation, foster care. education and
vocational training and other alternatives to institutional care" -
Indeed, in keeping witli the spirit of the CRC, the JJ Act itself
H
630 SUPREME COURT REPORTS [2017] 4 S.C.R.
A encourages alternatives to institutionalization such as adoption
(Chapter VIIJ).foster care (s.44) and Sponsorship (s.45) - The Union
Government has since framed the Adoption Regulations, 2017 as
well as the Model Guidelines for Foster Care, 2016 - These need to
be implemented by all concerned including the Courts, particularly
those dealing with issues of adoption - However, training in the
B
understanding and appreciation of the JJ Act, the Model Rules,
Regulations and Guidelines is imperative and merely handing over
copies of these documents to the concerned personnel even if they
are judicial officers or police officers or government functionaries
is not enough - It is not necessary that every child in need of care
C 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 - Convention on the Rights
of the Child (CRC) - Arts.20, 40.
Juvenile Justice Committee -High Courts have a constitutional
D obligation to ensure that the rights of all citizens, including children,
as guaranteed under the Constitution are preserved, protected and
respected - With this in mind, all the High Courts have since set up
a Juvenile Justice Committee consisting of Judges of the High Court
and these Committees ensure that the provisions of the .4ct are
implemented in letter and spirit - It is equally the obligation of the
E concerned officials of the State, including the police, to render all
assistance to each Juvenile Justice Committee to ensure that the
goals envisaged by the JJ Act and the constitutional vision. are
successfully achieved in the shortest possible time - The governments
of the States and Union Territories are directed to set up Inspection
p 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 fn these
institutions undergo positive changes - These Inspection
Committees should be constituted on or before 31" July, 2017 and
they should conduct the first inspection of the child care institutions
G in their jurisdiction and submit a report to the concerned government
of the States and Union Territories on or before 31'' December,
2017 - While the Juvenile Justice Committee in each High Court is"
performing its role in ensuring the implementation of the JJ Act and
Model Rules, each Committee would require a small Secretariat by
H'
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 631
STATE OF T. N. v. UNION OF INDIA
way of assistance - Juvenile Justice· Committee to seriously consider A
establishing a Secretariat for its assistance - Each State Government
and Union Territory is directed 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.
Social audit - Necessity of - Held: For the purpos'e of B
ensuring that the implementation of the JJ Act is proceeding in the
right direction, it is necessary that a social audit be conducted every
year - The requirement of a social audit is necessary not onl7 for
purposes of introspection but also transparency and accountability
in the effective implementation of the JJ Act - There cannot be any
reason to avoid conducting social audits, more particularly since C
they have been encouraged by the Mahatma Gandhi National Rural ·
Employment Guarantee Act, 20,05 as well as by the Integrated Child
Protection Scheme, by the Comptroller and Auditor General of India
a_nd the National Food Security Act, 2013 - It is imperative that the
process of conducting a social audit must be taken up in right D
earnestness by the National Commission for the Protection of Child
Rights as well as by each State Commission for the Protection of
Child Rights.
Technology and computers - Maintenance of records of child
care i-nstitutions - There is no data base of all the child care E
institu(ions in the country - State Governments have not even
validated the available data or undertaken the mapping of child
care ins:itutions in collaboration with the Union Government -
This is an essential first step since it is difficult to imagine how
children in .child care institutions can be cared for. if there is no
F
record of the number of institutions, number of children in such
institutions, relevant information regarding the children etc. -
Therefore, technology can be put to good use for collection, revision
and access of records of children in need of care and protection
and the child care institutions - lt is imperative for the Union
Government as well as the State Governments to make out a complete G
list of all child care institutions along with their addresses and the
person in charge or the principal officer as well as full details of
the children residing in these child care institutions - Availability
of all this information is possible only with the use of technology
and a massive computerization program - Similady, for the effective
H
632 SUPREME COURT REPORTS [2017] 4 S.C.R.
A functioning of the Juvenile Justice Boards as well as the Child
Welfare Committees, it is necessary that they should be equipped
with computers and printers along with uninterrupted power supply
units so that their day to day functioning can be taken care of
Interpretation of statutes - Beneficial legislation ::uch as
B Juvenile Justice (Care and Protection of Children) Act, 2015 -
Interpretation of - Held: Beneficial legislations demand an
expansive view to be taken by the Courts and all concerned - Jn
order to prevent injustice or to promote justice and to effectuate the
object and purpose of the welfare legislation, broad interpretation
C should be given, even if it requires a departure from literal
construction - The definition of a child in need of care and protection
given in s.2(14) of the JJ Act should be given a broad and purposeful
interpretation - It ought not to be treated as exhaustive but
illustrative and furthering the requirements of social justice -
Juve11ile Justice (Care and Protection of Children) Act, 2015 -
D s.2(14).
Workmen v. Management of American Express
International Banking Corporation (1985) 4 SCC 71;
Regional Director, ES! Corporation. v. Francis De Costa
[1992) 3 SCR 23 : 1993 Supp (4) sec 100; MSR
E Leathers v. S. Palaniappan [2012) 9 SCR 165 : (2013)
1 SCC 177; Badshah v. Urmila Badshah Godse [2013)
10 SCR 259 : (2014) 1 SCC 188; Abhiram Singh v.
C.D. Commachen [2017) 1 SCR 158 : (2017) 2 SCC
629 - relied on.
F Constitution of India - Art.39(j) - Though the D!rective
Principles of State Policy are fundamental to the governance of the
country, they are not enforceable - However, once a directive
principle is enforced through law, the State must be obligated to
enforce the statute to uphold its constitutional obligation - JJ Act is
G a medium for the State to honour the Directive Principles of State
Policy particularly under Art. 39(/) of the Constitution by giving
opportunities to children to develop in a healthy manner. and in
conditions of freedom and dignity - Juvenile Justice (Care and
Protection of Children) Act, 2015.
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 633
STATE OF T. N. v. UNION OF INDIA
Bandhua Mukti Morcha v. Union of India [1984) 2 A
SCR 67 : (1984) 3 SCC 161 - relied on.
Convention on the Rights of the Child: Art.19- lndia acceded
to the Convention on the Rights of the Child (CRC) on the 11th
December, 1992 -Art.19 of the CRC obligates the State Parties to
"take all appropriate legislative, administrative, social and B
educational measures to protect the child from all forms of physical
or mental violence, irijury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse - Trafficking
of children - Child abuse.
Case Law Reference c
[1984] 2 SCR 67 relied on Para 13
(1985) 4 sec 11 relied on Para 19
[1992) 3 SCR 23 relied on Para 20
D
[2012) 9 SCR 165 relied on Para 21
[2013) 10 SCR 259 relied on Para 21
[2017) 1 SCR 158 relied on Para 21
[2005) 2 Suppl. SCR 307 relied on Para 31 E
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 102 of2007.
Under Article 32 of the Constitution oflndia.
F
Maninder Singh, ASG, Ms. V. Mohana, Basant R, Sr. Advs,
Purushaindra Kaurav, AAG, Ms. Aparna Bhat (A. C.), Ms. Joshita Pai,
Mayank_Sapra, K. Parameshwar, Meenesh Kr. Dubey, Ms. Rashrni
Malhotra, B. K. Prasad, S. A. Haseeb, Ms. Swarupma Chaturvedi,
G. S. Makker, Ravindera Kumar Verma, Mukul Singh, Mukesh Kumar
Maroria, Ms. Munmun Goswami, Rohit Rao N, Mukund P. lJnny, G
Mrs. Anil Katiyar, Ms. Sushma Suri, Ms. Anindita Pujari, Ashok K.
Srivastava, Ms. Bansuri Swaraj, Prateek Rusia, Ms. Shreya Bhatnagar,
C. D. Siiigh, Raghenth Basant, Ms. Aanchal Tikmani, Misha! Johari,
Advs. for the appearing parties.
H
634 SUPREME COURT REPORTS [2017] 4 S.C.R.
A The Judgment of the Court was delivered by
MADAN B. LOKUR, J. I. Jhis writ petition was taken up on
the basis of an article published in the Hindi newspaper "Hindustan"
(Lucknow Edition) on 4'hJuly, 2007. The article was written by Ms.Anjali
Sinha and the translated caption of the article is "Orphanage or Places
B for Child Abuse". The article was forwarded to this Court by one A.S.
Choudhury along with a letter and that is the genesis of this petition
which was registered as a Public Interest Litigation (PIL) on lO'h
Septe:nber, 2007. Ms. Apama Bhat was appointed as Amicus Curiae to
assist this Court. At the outset we must and do acknowledge the unstinting
and excellent efforts put in by Ms. Apama Bhat over the last I 0 years in
C rendering assistance in this matter.
2. Broadly, the article written by Ms. Anjali Sinha mentions that
orpha:iages in Mahabalipuram in Tamil Nadu, run by NGOs as well as
government institutions were reportedly involved in systematic sexual
abuse of children. A sting operation indicated that sexual services of
D 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.
3. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National
E Commission for Women participated and it was acknowledged that
government schools have become unsafe for girl students due to sexual
abuse. The incident of an eight year old girl who was harassed by her
Principal was mentioned and it was noted that the Principal was only
transferred out by way of punishment. Another incident was mentioned
F where the school teacher misbehaved with students in the presence of
other atudents in a closed room.
4. The then Ministry of Family and Child Welfare along with
UNICEF brought out a report on the condition of children in which it
was reported that 53% of children suffered from sexual abuse. Children
G were reported to be the subject of institutional abuse as well as by
relatives.
5. On these broad facts Ms. Anjali Sinha suggested \hat the
problem of sexual abuse of children especially in government institutions
has become a.serious problem and requires immediate redressal. She
H made some suggestions including a Counseling Cell in each school where
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 635
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
children are taught how to recognize abuse and providing a complaint A
mechanism .accessible to children in case of any such incident.
Proceedings in this Court
6. Over the years, this Court passed several orders and also
mentioned that certain other issues such as trafficking of children, schools
being occupied by Central Para Military Forces and the right to education B
guaranteed to children require consideration. Jn other words, this Court
sought to expand the scope of this PIL to include the rights of children in
general.
7. In an order passed on 7'h February, 2013 the learned Addit;onal
Solicitor General and the learnedAmicus submitted that the main reason C
for this Court issuing various orders is to ensure that the provisions for
the rights of children as well as provisions for proper facilities to children
in education as also health are implemented. It was submitted that
obviously the rights of children can be adequately secured only if the
monitoring and controlling provisions contained in statutes relating to D
children such as 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 are
fully implemented.
E
8. A detailed order was passed by this Court on ! 6'h December,
2013 lamenting that despite the directions issued, little or no progress
. was made by the States in protecting the rights of children. As far as the
Commissions for the Protection of Child Rights are concerned, they
exist only on paper since in some cases the Chairperson had not oeen
appointed or the Members had not been appointed or no rules and .F
regulations had been framed. This Court observed that the lackadaisical
manner in which the States and the Union Territories had responded to
the rights of children made it necessary to draw attention to the
constittitional rights guaranteed to children. It was observed tha~ the
inaction of the States was in the teeth of the directions given by this G
Court and additionally the States and Union Territories ought to realize
that they have to operate in accordance with the provisions of the
Constitution of India.
9. Accordingly, specific information was sought from each State
and Union Territory regarding efforts made by the respective H
636 SUPREME COURT REPORTS [2017] 4 S.C.R.
A governments. Affidavits were filed by the States and Union Territories
from time to time as an attempt to respond to the questions raised by this
Court regarding action taken by the concerned governments in protecting
the rights of children as well as implementation of the statutes mentioned
above. The responses were disheartening then and the situation has not
B 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 con~ern for
children.
10. On 201hMarch, 2015 this Court raised the need for a social
c audit in terms of Rule 64 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 and the utilization offunds given to the States and
Union Territories under the Integrated Child Protection Scheme.
11. On l 7'hApril, 2015 this Court raised the issue of a concurrent
monitoring audit under the Integrated Child Protection Scheme as well
D as the establishment of Juvenile Justice Boards, Child Welfare
Committees, Special Juvenile Police Units, functioning of Child Care
Institutions and functioning of adoption agencies.
12. On 3l"July, 2015 at the instance of the learned Amicus, the
issue of formulating Child Care Plans was discussed in addition fo laying
E down a policy for conducting social audits. On 28'h August, 2015, the
issue of vacancies in the National Commission for the Protection of
Child Rights was raised by this Court. On 30'hOctober, 2015 the format
for social audits was discussed, in the context of finalizing something
workable and pragmatic.
F 13. Since it appeared that there was a lack of seriousness and
more tragically a lack of empathy towards the well being and welfare of
children amongst some of the States and Union Territories and c:implete
apathy with respect to the disturbingly increasing instances of child sexual
abuse, often by someone in a position of authority and ineffective
G implementation of the laws passed by Parliament virtually making
parliamentary legislation irrelevant, we heard detailed submissions of all
the parties with the intention of passing appropriate directions so as to
ensure the meaningful implementation·ofthe statutes already enacted
by Parliament. It must be appreciated that the Juvenile Justice '(Care
and Protection of Children) Act, 2015 is a medium for the State to honour
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 637
STATE OF T. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
the Directive Principles of State Policy particularly under Article 39(£) A
of the Constitution by giving opportunities to children to develop in a
h1:althy manner and in conditions of freedom and dignity. Indeed, though
the Directive Principles of State Policy are fundamental to the governance
of the country, they are not enforceable However, as held in Bandhua
Mukti Morcha v. Union ofIndia, once a directive principle is enforced B
through law the State must be obligated to enforce the statute to uphold
its constitutional obligation. 1
· 14. In this context, it is pertinent to note that India acceded to the .
Convention on the Rights of the Child (CRC) on the 11th December,
1992. Article 19 of the CRC obligates the State Parties to "take all C
appropriate legislative, administrative, social and educational measures
to protect the child from all forms of physical or mental violence, ir.jury
or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse ...."
15. Keeping all this in mind, the learnedAmicus focused on'three
principal issues namely ( 1) Children in need of care and protection; {2) D
Traffickrd children (3) Street children. We do not propose to con:;ider
the plight of trafficked or street children, since that would mean losing
focus on the issues raised by Ms. Anjali Sinha. We leave open the issues
of trafficked children and street children for consideration in an
appropriate case. E
16. On the rights of children in need of care and protection it was
submitted that issues relating to child care institutions whether managed
by the State Government or by NGOs or other voluntary organizations
need to follow certain minimum standards .of care and in addition,
rehabilitation of such children must be a priority. F
Children in need of care and protection
17. Who is a child in need of care and protection? The provisions
of the Protection of Children from Sexual Offences Act, 2012 (for short
the 'POCSO Act') do not provide any definition of a child in need of
care and protection. But no one can deny that a child victim of sexual G
abuse or sexual assault or sexual harassment is a child in need of care
and protection. Similarly in a given case,a child accused of an offence
and brought before the Juvenile Justice Board or any other authority
might also be a child in need of care and protection.
1
(1984) 3 sec 161 H
638 SUPREME COURT REPORTS [2017) 4 S.C.R.
A 18. Even though a child in need of care and protection is defined
in Section 2(14) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as the JJ Act) the definition does not
specifically include some categories of children. 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
B
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
C view to be taken by the Courts and all concerned.
19. In Workmen v. Management of American Express
International Banking Corporation2 this Court held in paragraph 4 of
the Report that:
"The principles of statutory construction are well settled. Words
D occurring in statutes of liberal import such as social welfare
legislation and human rights' legislation are not to be put in
Procrustean beds or shrunk to Liliputian dimensions. In construing'·
these legislations the imposture of literal construction :nust be
avoided and the prodigality ofits misapplication must be recognised
and reduced."
E
20. A similar view was expressed in Regional Director, ES!
Corporation. v. Francis De Costa 3 when it was observed that "It is
, settled law that to prevent injustice or to promote justice and to effectuate
the object and purpose of the welfare legislation, broad interpretation
should be given, even ifit requires a.departure from literal construction."
F 21. The necessity of giving a purposeful interpretation to a provision
in a statute was recognized in MSR Leathers v. S. Palaniappan4 when
this Court observed that:
" .....one of the salutary principles of interpretation of statutes is
to adopt an interpretation which promotes and advances the object
G sought to be achieved by the legislation, in preference to an
interpretation which defeats such object. This Court has in a Jong
line of decisions recognised purposive interpretation as a sound
2 {1985)4SCC71
'1993 Supp (4) sec 100
H • (2013) 1 sec 177 .
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 639
STATE .OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
principle for the courts to adopt while interpreting statutory A
provisions."
A similar' view was expressed, though in a different context, in Badshah
v. Urmila Badshah Godse. 5 A far more detailed discussion or. the
subject is to be found in the Constitution Bench decision of this Court in
Abhiram Singh v. C.D. Commachen. 6 B
22. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad
and purposeful interpretation - it ought not to be treated as exhaustive
but illustrative and furthering the requirements of social justice. This
understanding would also be in consonance with Article 40 of the CRC c
which stipulates that the "State Parties shall recognize rights of every
child accused of an offence and treatment of such a child shall be in a
manner consistent with promotion of the child's dignity and worth".
23. LeamedAmicus drew our attention to decisions rendered by
some High Courts which have taken a broad based approach to the D
meaning of a child in need of care and protection and some other High
Courts that have adopted a comparatively narrow interpretation. These
decisions were rendered in the context of the Juvenile Justice (Care and
Protection) Act, 2000 and would not really be applicable insofar as the
JJ Act is concerned. However, this does not detract from her submission
that a child in need of care and protection must be given a wider meaning E
and in addition to some children in conflict with law as discussed above,
it must also include victims of sexual abuse or sexual assault or sexual
harassment under the POCSO Act as also victims of child trafficking.
Such children must also be given protection under the provisions of the
JJ Act being victims of crime under the POCSO Act and the Immoral F
Traffic (Prevention) Act, 1956.
Child care institutions
24. Children in need of care and protection are given shelter in
homes that are managed by the State Government or by NGOs ur by
voluntary organizations. In this context, it is necessary to draw attention G
to Section 41 of the JJ Act which mandates, notwithstanding anything
contained in any other law for the time being in force, that all institutions,
'(2014) 1sec188
• <2011) 2 sec 629
H
640 SUPREME COURT REPORTS [2017) 4 S.C.R.
A whether run by a State Government or by voluntary organizations or
NGOs which are meant, either wholly or partially, for housing children in
need of care and protection shall be registered under the JJ Act in such
manner as may be prescribed within six months of the commencement
of the said Act. The JJ Act came into force on l S1h January, 2016 but we
B were informed that the process of registration is underway and not yet
complete.
25. In this day and age when high quality technology is avaiiable
and thre is no shortage of manpower in the country we are uaable to
appreciate why the provisions of Section 41 of JJ Act have not yet been
fully implemented particularly as regards registration of child care
c institutions. It is virtually impossible to find out what is going on within its
four walls. The article by Ms. Anjali Sinha is a prime example of what
can happen in child care institutions. It is not clear from the article .whether
all the institutions referred to were registered or not, but surely the
government run institutions must have been registered or licensed.
D Therefore, if activities of the nature mentioned by Ms. Anjali Sinha in
her article are carried out in government run institutions, one can only
imagine what possibly can go wrong in unregistered institutions, which
are managed beyond the law.
26. Apart from their registration, the statute requires quite a few
E salutary actions to be taken by such institutions including recording the
residential capacity and purpose of the child care institt1tion. Rule 21 of
the Juvenile Justice (Care and Protection of Children) Model Rules,
2016 (hereinafter referred to as the Model Rules) specifies the manner
of registration of child care institutions and provides, inter alia, the
availability of the bye-laws and memorandum of association, office
F bearers etc. of such institutions. The State Government is obligated to
consider an application for registration ofa child care institution (in Form
27) iP- light of aspects like whether provision exists for the care and
protection of children, their health, education, boarding and lodging
facilities, vocational studies and rehabilitation (among others things). It
G is only then that a certificate of registration can be issued. The State
Government is also obligated to conduct an inspection of an applicant
institution and it appears to us that if such an inspection is faithfully and
sincerely carried out, it will reveal the dark underbelly, if any, of a dubious
child care institution such as those referred to by Ms. Anjali Si11ha. The
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 641
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
strict implementation of the provisions of the JJ Act will go a long way in A
making the life of children in such child care institutions safer and far
more comfortable than it has been and also reduce the possibility of
crimes such as trafficking, sexual abuse or sexual assault or sexual
harassment of children. If the registration of child care institutions is not
complete, their management obviously cannot be supervised. Therefore, B
a misstep in the very first stage could have a chain reaction and perhaps
disastrous consequences in some cases as is evident from the incidents
of cliild abuse in institutions as brought out by Ms. Anjali Sinha.
Minimum Standards of care
27. Article 3 of the CRC mandates that all actions concerning c
children undertaken by public or private social welfare institutions, c0urts
oflaw, administrative authorities or legislative bodies shall have the best
interest of the children as a primary consideration. Article 3(3) of the
CRC specifically obligates the State Parties to ensure that institutions
responsible for care and protection of children shall conform to standards
laid down by competent authorities, particularly in areas of safety, health, D
staff and supervision. However, the minimum standards of care prescribed
for institutions cannot be ensured if the child care institution if not
identified and registered.
28. In this regard it is necessary to draw attention to the provisions
of Chapter VI of the Model Rules particularly the series of rules starting E
from Rule 26 onwards. Amongst other things, these Rules deal with the
staffing plttern of child care institutions, physical infras~ructure, clo6ing,
bedding, toiletries and other articles, sanitation and hygiene, daily routine,
nutrition and diet scale, medical health, mental health, education, vocational
and recreational facilities and genuine efforts in the rehabilitation and F
re-integration of such children into society. All these requirements are
rendered unenforceable in the absence of registration of child care
institutions.
2<;. The Integrated Child Protection Scheme, which also concerns
itself with the minimum standards of care in child care institutions, refers G
to several of these requirements and also draws attention to the
rehabilitation programme of children and their recreation. The minimum
standards of care prescribed for child care institutions must be adhered
to in letter and spirit and not only on paper.
H
642 SUPREME COURT REPORTS (2017] 4 S.C.R.
A 30. We have been given to understand by the learnedAmicus that
unfortunately, even in registered child care institutions, many of the
statutory facilities and requirements are missing. If that be so, we can
only imagine the living conditions of children in unregistered institutions.
31. In a given case, failure to maintain a basic or minimum standard
B of care can be actionable as negligence. In Jacob Mathew v. State of
Pu11jab 1 this Court cited Charlesworth & Percy on Negligence 8 and
held that the essential components of negligence are: ( 1) the existence
of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard of care, prescribed by the law,
C thereby committing a breach of such duty; and (3) damage, which is
both causally connected with such breach and recognized by <he law,
has been suffered by the complainant. Effectively therefore, if the officers
of the State do not ensure that minimum standards of care are followed
in the child care institutions, they could well be guilty of negligence.
Since ours is a welfare State it would be diffi~ult for uncaring officers to
D absolve themselves of a charge of negligence and also perhaps of a
violation of the human rights of children.
Utilization of grants
32. During the course of hearing, we found that many oftht: Model
E Rules though workable and beneficial, exist only on paper and.there has
been no serious attempt to implement the provisions or the requirements
under the Integrated Child Protection Scheme. One of the concerns that
kept coming up as an excuse for non-implementation offhe Rules was a
so-called shortage of funds. We are surprised that such an excuse.was
advanced even though a large amount allocated towards child welfare is
F lying unspent. ·
33. Really therefore, the problem is not a lack of funds but the
absence of a will to gainfully utilize the available grants. In this context,
learned Amicus brought to our notice by way of an example, the statement
of expenditure under the Integrated Child Protection Scheme for the
G year 2013-14. This indicates that the unspent grant is over Rs.3000 lakhs.
(This figure does not include unspent amounts by the State of Andhra ·
Pradesh and the State ofUttarakhand). Therefore, it cannot be said that
there is a shortage of funds. The chart brought on record is as follows:-
' c2oos) 6 sec 1
H ' I 0'" Edition (200 I)
. RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 643
STATE OFT. N; v. UNION OF INDIA [MADAN B. LOKUR, J.]
-... )
A
Year-wise details of unspent grants
SI. No. Name of the State Unspent
(Amount in
Lakhs)
B
2013-14
I Andhra Pradesh 2999.28*
2 Arunachal Pradesh 147.05
3 ·Assam 148.47 c
4 Bihar 442.14
5 Chhattisgarh 0.00
6 Goa -
D
7 Gujarat 545.23
8 Haryana 2.38.92
9 Himachal Pradesh 138.10
IO Jammu & Kashmir - E
11 Jharkhand 147.21
12 ·Karnataka 57.94
13 Kera la 291.52 F
;
14 Madhya Pradesh I 084.67
15 Maharashtra 0.00
16 Manipur 473.13 ' G
17 Meghalaya 0.00
18 Mizoram 0.00
H
644 SUPREME COURT REPORTS [2017] 4 S.C.R.
A
19 Nagaland 0.00
20 Orissa 2.63
21 Punjab 749.37
B
22 Rajasthan 253.33
23 Sikkim 50.36
c 24 Tamil Nadu 589.22
25 Tripura 0.00
26 Uttar Pradesh 99.92
D 27 Uttarakhand 333.92*
28 West Bengal 268.95
29 Andaman & Nicobar Island -
E
30 Chandigarh 25.17
31 Dadra & Nagar Haveli 9.63
F 32 Daman & Diu 58.63
33 Delhi 676.68
34 Lakshadweep -
G
35 Puducherry -
Total 6498.27
H * States have not submitted their Statement of Expenditure (SOE)
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 645
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.}
We are told that the same situation continued for subsequent years as A
well. ·
34. No doubt, it is the consti~tional obligation of the State to ensure
that for safeguarding and fostering the rights of children, adequate funds
are available particularly for children who are in need of care and
protection. The State cannot conflate non-availability of funds to shirk B
their obligations with inefficient utilization of grants. We are pained that
such an excuse is being trotted out.
National and State Commissions
35. Parliament has, of course, appreciated the need for prote..:ting
the rights of children in many of the ways that we have mentioned above C
and that is why the Commissions for Protection of Child Rights Act,
2005 was enacted. In fact the Preamble to the said Act is extremely
significant and brings into focus not only the necessity of protecting the
rights of children generally but also as a part of our obligations to the
international community. The Preamble to the Commissions for Protection D
of Child Rights Act, 2005 (hereinafter referred to as 'the CPCR Act')
reads as follows:
"An Act to provide for the constitution of a National
Commission and State Commissions for Protection of Child
Rights and Children s Courts for providing speedy trial of E
offences against children or of violation of child rights and
for matters connected therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN) General
Assembly Summit in 1990, which adopted a Declaratio:i on
Survival, Protection and Development of Children;
F
AND WHEREAS India has also acceded to the Convention on
the Rights of the Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it
incumbent upon the signatory States to take all necessary steps to
protect children's rights enumerated in the Convention; G
AND WHEREAS in order to ensure protection of rights of children
one of the recent initiatives that the Government have taken for
Children is the adoption ofNational Charter for Children, 2003;
AND WHEREAS the UN General Assembly Special Session on
H
646 SUPREME COURT REPORTS [2017] 4 S.C.R.
A Children held in May 2002 adopted an Outcome Document titled
"A World Fit for Children" containing the goals, objectives,
strategies and activities to be undertaken by the member countries
for the current decade;
AND WHEREAS it is expedient to enact a law relating to children
B to give effect to the policies adopted by the Government inJhis
regard, standards prescribed in the CRC, and all other ;·elevant
international instruments;"
36. To fulfill the obligations to children, the CPCRAct provides
for the constitution ofa National Commission for Protection of Child
c Rights (for short 'the NCPCR') and for the constitution of State
Commissions for Protection of Child Rights (for short 'the SCPCR').
These Commissions are intended to function under the provisions of the
CPCRAct and their vast range of functions has been delineated in Section
13 as well as in Section 24 of the CPCR Act.
D 37. It was pointed out by the learned Amicus that the NCPCR
and the SCPCR can play a very crucial role in fosterin& child rights.
This deserves to be recognized, but is unfortunately overlooked both by
the Union Government as well as by the State Governments. She pointed
out that there are a large number of vacancies in many of these bodies
'·
and in fact the NCP~£ was, at one time, without any Chairperson for
E more than a year. Some of the State Governments have also not bothered
to fill up the vacancies in the SCPCR and some others have used the
SCPCR as a sinecure for some favourites. This again, as pointed out, is
nothing but providing lip service to the provisions of a parliamentary
legislation and not giving serious attention to the constitutional rights of
F children.This is certainly not acceptable .
.. '
38. Similarly, in the implementation of the POCSO Act, the NCPCR
and the SCPCR have a vital role to play. As mentioned above, issues of
sexual abuse or sexual assault or sexual harassment complained of by
Ms. Anjali Sinha need attention and Section 44 of the POCSO Act places
_ G a great burden on the shoulders of the NCPCR and the SCPCRs. These
authorities have an obligation to monitor the implementation of the POCSO
Act ac is evident from Section 44 thereof which reads as follows:
"44. Monitoring of implementation of Act - (1) The National
Commission for Protection of Child Rights constituted under
Section 3, or as the case may be, the State Commission for
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 647
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.] ·
Protection of Child Rights constituted under Section 17, of the A
Commissions for Protection of Child Rights Act, 2005 (4 of2006),
shall, in addition to the functions assigned to them under that Act,
also monitor the implementation of the provisions of this Act in
such manner as may be prescribed.
(2) The National Commission or, as the case may be, the State B
C0mmission, referred to in sub-section (1 ), shall, while inquiring
into any matter relating to any offence under this Act, have the
same powers as are vested in it under the Commissions for
Protection of Child Rights Act, 2005 (4 of2006).
(3) The National Commission or, as the case may be, the State c
Commission, referred to in sub-sectiop. ( 1), shall, also include, its
activities under this section, in the annual report referred to in
Section 16 of the Commissions for Protection of Child Rights Act,
2005 (4 of2006)."
39. In our opinion, it is imperative that the NCPCR and the SCPCR D
be allow'!d to function in terms of the CPCR Act and the POCSO Act
and only for the benefit of children. These Commissions are under an
obligation to take action wherever necessary including approaching the
Constitutional Courts wherever necessary. These Commissions are under
an obligation to prepare annual reports and if necessary special reports
but it has been pointed out that this requirement has hardly been E
implemented mainly because of a lack of interest that these Commissions
have sho~n in functioning under the statute and also partly because of
the large number of vacancies in these Commissions.
40. This is not to suggest that the NCPCR or the SCPCRs are not
doing a good job. On the contrary, the NCPCR has oflate begun taking F
its statutory obligations quite seriously and there are a few SCPCRs that
are also faithfully performing their functions under the relevant statutes.
On the other hand, there are some SCPCRs that are not performing
well at all or are defunct and headless. It is difficult to appreciate '1ow,
under these circumstances, the JJ Act or the POCSO Act can at all be G
implemented, let alone implemented effectively.
41. Needless to say, it is obligatory on the part of the Union
Government as well as of the State Governments to ensure that the
provisions of laws enacted by Parliament are faithfully and sincerely
H
648 SUPREME COURT REPORTS [2017] 4 S.C.R.
A implemented and the statutory Commissions constituted under the
provisions of the CPCRAct must be allowed to function as inde~endent
statutory bodies under the provisions of the said Act, the POCSO A.ct as
well as the JJ Act.
42. The rule oflaw includes adherence to parliamentary legislation
B by all concerned including State Governments and the Union Government
and it would be extremely unfortunate if the concerned gove:nments
voluntarily and knowingly flout the provisions oflaw solemnly enacted
by Parliament. We need say nothing more on this subject, except that
laws solemnly enacted by Parliament cannot be insulted by putting hurdles
C in the effective functioning of these Commissions, such as by not
.appointing the Chairperson or Members.
Rehabilitation and social re-integration
43. With regard to the future of children in need of care and
protection, the JJ Act contains obligatory provisions such as Se<:tion 53
D which deals with rehabilitation and social re-integration services in child
care institutions. This provision requires the State to take care of the
basic requirements of children in such institutions including children with
special needs, legal aid where required and more importantly assistance
in obtaining proof of identity. There have been instances brought to our
notice where children;particularly in the case of abandoned children, are
E unable to give any information about their parentage or permanent address
etc. In such cases, proof of identify is crucial for the welfare of the
child, otherwise he or she is reduced to a mere statistic.
44. The provision for rehabilitation and re-integration services has
several facets and cannot be read in isolation but must be read, inter
F alia, in conjunction with Section 54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act. Inspection
Committees are required to be set up which shall mandatorily visit all
facilities housing children in the area allocated, at least once in three
months in a team of not less than three members, of whom at least one
G shall be a woman and one shall be a medical officer. Their Inspection
Reports are required to be furnished to the District Child Protection Unit
or the State Government, as the case may be, for further action. Form
46 of the Model Rules prepared under Rule 41 thereof is quite exhaustive
and ifthe Form is filled up with due seriousness it will go a long way inl
improving the living conditions of children in child care institutions.
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 649
STATE OF T. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
45. The importance ofrehabilitation and social re-integration clearly A
stands out if we appreciate the objective of the JJ Act which is to foster
restorative justice. There cannot be any meaningful rehabilitation.
particularly of a child in conflict with law who is also a child in net:d of
care and protection unless the basic elements and principles of restorative
justice are recognized and practised.
B
46. Unfortunately, one of the problems faced in introducing
restorative justice is that a child in a child care institution is treated as a
num!;wr and no effort is made to introduce any individual child care pliin
postulated by Rule 19 of the Model Rules read with Form 7. Learned
Amicus informed us that the Form is very rarely filled up (if at all) and
little or no attention is paid to the needs of each child including a child in C
conflict with law. She submitted that specific directions should be gi~en
for the preparation of individual child care plans in every child care
institution since that is really the heart of rehabilitation and social re-
integration of a child in need of care and protection. Of course, some
expertise is involved in this exercise but as we had mentioned earlier, D
there is no shortage of manpower in our country and it is only the will of
the State Governments, Union Territories and the Union Government
which is coming in the way of the effective implementation of the
provisions of the JJ Act, Model Rules and filling up various Forms and
· their analysis.
E
Training of personnel
47. One of the more important issues raised by the learned Amicus
in the context of rehabilitation and social re-integration is to be found in
Rule 89 of the Model Rules which concerns itself with training of
personnel dealing with children. This rule provides for a minimum period E
of 15 days training to various categories of personnel under the JJ Act
including the staff of Children's Courts, Principal Magistrates and
Members of Juvenile Justice Boards, Chairpersons and Members of
Child Welfare Committees, Police Officers including persons in cJ.iarge
of child care institutions etc. Rule 89 of the Model Rules also postulates
that the Jtidicial Academy and the Police Academy in the States as well G
as the State Legal Services Authorities prepare appropriate training
modules, training manuals and provide training to personnel. It was pointed
out by the learned Amicus that this rule is being followed more in the
breach and there is hardly any Judicial Academy or Police Academy or
H
650 SUPREME COURT REPORTS [2017) 4 S.C.R.
A State Legal Services Authority which conducts 15 days training
programmes. This is quite unfortunate to say the least.
48. The importance of quality training can best be understood by giving
a negative example, which is that unless proper training is imparted to
the concerned personnel, it is quite possible that strange practices and
B procedures may evolve due to the absence of proper guidance. It has
been brought to our notice in cases of adoption of children some extremely
unusual and impracticable orders have been passed by the concerned
"Courts. It is high time that the High Courts exercise their supervisory
jurisdiction and intervene and take appropriate remedial steps. It is also
high time that training of personnel be given due importance. We may
C note here that it was brought to our attention by the leamedAmicus that
untrained or inadequately trained personnel can unwittingly play havoc
with the lives of victims of sexual abuse or sexual assault o; sexual
harassment.
De-institutionalization
D
49. In the context ofrehabilitation and social re-integration, it was
submitted before us that institutionalization of children is not necessarily
the only available option. This submission of the learned Amicus also
finds ,;upport in Article 20 of the CRC. The Article obligates the State
Parties to provide special protection and assistance to children temporarily
E or permariently deprived of family environment. The Article illastrates
alternate care in the form of foste.r placement, adoption "or if necessary
placement in suitable institution". It is clear that the first option exercised
by the authorities should not be institutionalization of a child in need of
·care and protection and the same is a measure of the last resort. Article
F 40(4) of the CRC pertaining to children accused of violating the law also
states that the State Parties shall ensure "care, guidance, supervision,
counseling, probation, foster care, education and vocational trail".ing and
other !llternatives to institutional care". Indeed, in keeping with the spirit ._,..
of the CRC, the JJ Act itself encourages alternatives to institutionalization
such as adoption (Chapter VIII), foster care (Section 44) and Sponsorship
G (Section 45). This too needs some serious thought, as submitted by the
learned Amicus.
50. The learned Additional Solicitor General brought to our notice
that the Union Government has since framed the Adoption Regulations,
2017 as well as the Model Guidelines forFosterCare, 2016. These need
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 651
STATE OFT. N. v. UNION OF INDIA [MADAN B. -LOKUR, J.]
to be implemented by all concerned including the Courts, particularly A
those dealing with issues of.adoption. However, as mentioned above,
training in the understanding and appreciation of the JJ Act, the MOdel
Rules, Regulations and Guidelines is imperative and merely handing over
copies of these documents to the concerned personnel even if they are·
judicial officers or police officers or government functionaries is not
B
enough. Some sort of training is absolutely necessary so that the aims
and objects of the various statutory provisions enacted for the benefit of
children and to foster their rights are implemented in letter and spirit.
51. We must emphasize, at this stage that .it is absolutely necessary for
all stakeholders having interest in the welfare of children towork together
towards a common goal. This teamwork would include not onl~ the c
government machinery but also the police, civil society and the judiciary.
Juvenile Justice Committee
52. That the judiciary is not far behind in fulfilling its constitutional
responsibilities is obvious from the fact that the rather slack D
implementation of the Juvenile Justice (Care and Protection ofChikiren)
Act, 20()!) even after four years of its enactment, compelled the Chief
Justice oflndia to request all the High Courts to set up a Juvenile Justice
Committ..:e to ensure effective implementation ofthe said Act and monitor
the activities under the said A.ct. The High Courts have a {;Onstitutional
obligation to ensure that the rights of all citizens, including children, as E
guaranteed under the Constitution are preserved, protected and respected.
With this in mind, all the High Courts have since set up a Juvenile Justice
Committee consisting of Judges of the High Court and these Committees
ensure that the provisions of the Act are implemented in letter and spirit.
For bette; co-ordination on issues relating to children, some High Courts F
have also provided a Secretariat for the Juvenile Justice Committee.
53. With the passage of time, it has been realized that the
importance of the Juvenile Justice Committee in the High Court cannot
be overemphasized. It is time for all of us to now realize that judges are
no longer required to remain in an ivory tower. Judges of all the Courts G
including the Constitutional Couns have non-judicial duties and obligations
to perform so that the fundamental rights of the people are respected. It
is this realization that led the Constitutional Courts to exercise jurisdiction .
in social justice issues through Public Interest Litigation and it is this that
requires judges of the Courts to ensure access to justice under the Legal
H
652 SUPREME COURT REPORTS [2017] 4 S.C.R.
A Services Authorities Act, 1986 to indigent people and those who cannot
afford legal services due to financial or other constraints. It is very much
in keeping with this constitutional obligation and goals that the concern
and involvement of each Juvenile Justice Committee in the effective
implementation of the Act is an absolute necessity. It is equally the
B obligation of the concerned officials of the State, including the police, to
render all assistance to each Juvenile Justice Committee to ensure that
the goals envisaged by the JJ Act and the constitutional vision are
successfully achieved in the shortest possible time .
..
Social audit
c· 54. For the purposes of ensuring that the implementaticm of the JJ
Act is proceeding in the right direction, it is necessary that a social audit
be conducted every year. Social audits give reasons for introspection as
well as for improvement jn the services.
55. Social audit has gained relevance as a tool of public
D accountability. It has been defined as "an assessment of a department's
non financial objectives through systematic and regular monitoring on
the basis of the views of its stakeholders. "9 A social audit is considered
novel as it is supposed to serve as a supplement to a conventional
Government Audit, often done in 12 month cycles generating an audit
report every time. 10 In fact, in the Report of the Task Group on Social
E Audit by the Office of the Comptroller and Auditor General, it was opined
that social audit be brought into the mainstream of auditing by the Indian
Audit and Accounts Department as an essential process and tool ill all
the performance audits of social sector programmes as they afford an
opportunity to strengthen the micro level scrutiny of the programme
F planning, implementation and monitoring. 11
56. The requirement of a social audit is necessary not only for
purposes of introspection but also transparency and accountability in the
effective implementation of the JJ Act. There cannot be any reason to
avoid conducting social audits, more particularly since they have been
G encouraged by the Mahatma Gandhi National Rural Employment
' Social Audit: A Toolkit, A Guide for Performance Improvement and Qutoome
Measurement available at https://cgg.gov.in/publicationdownloads2a/
Social%20Audit%20Toolkit%20Final.pdf.
'"Ibid
11 Report of the Task Group on Social Audit, Office of the Comptroller and Auditor
H General oflndia, (2010) at pg 5 •
•
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 653
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.] ·
Guarantee Act, 2005 as well as by the Integrated Child Protection A
Scheme, by the Comptroller and Auditor General oflndia and the National
Food Security Act, 2013. The impression given to us is that for ~ome
.inexplicable reason the Union Government is shying away from social
audits.
57. In the hearing on l 7'h April, 2015, the learned Additional Solicitor B
General informed us that no social audit was carried out despite the rule
being notified in 2007. The Union of India was then directed to finalize a
policy for conducting social audits. In the hearing on 30'h October, 2015
we were informed that the formats for social audit have been mo~e or
less finalized. In its affidavit filed sometime in November2015, the Union
of India has annexed copies of Model Social Audit Formats for Child C
Welfare Committees, Juvenile Justice Boards, Special Juvenile Police
Units, Children Homes, Specialized Adoption Agencies, Open Shelter/
Shelter Homes, Observation Homes and Special Homes. It is stated in
the affidavit that these formats will be circulated for pilot testing by
selected States as mentioned in an earlier affidavit dated 29'h Oct0ber, D
2015. .
58. We have not been informed whether any steps have been
taken to conduct social audits in terms of the Model Formats prepared
by the Union of India or the result of the pilot testing, if any. It is therefore
necessary to ensure that these formats are tested out with urgency so E
that the implementation of the JJ Act is made more meaningful.
Technology and computers
59. We have been given to understand that there is no data base
of all the child care institutions in the country. State Governments have
not even validated the available data or undertaken the mapping of child F
care institutions in collaboration with the Union Government. This is an
essential first step since it is difficult to imagine how children in child
care institutions can be cared for if there is no record of the number of
institutions, number of children in such institutions, relevant information
regarding the children etc. Therefore technology can be put to good use G
for collection, revision and access of records of children in need of care
and protection and the child care institutions.
60. It is imperative for the Union Government as well as the State
Governments to make out a complete list of all child care institutions
along with their addresses and the person in charge or the prin.:ipal H
.,
654 SUPREME COURT REPORTS [2017] 4 S.C.R.
A officer as well as full details of the children residing in these child care
institutions. Learned Amicus submitted that all these details, though
necessary, are.not available with the Union Government or the NCPCR.
Availability ofall this information is possible only with the use of technology
and a massive computerization program.
B 61. Similarly, for the effective functioning of the Juvenile Justice
Boards as well as the Child Welfare Committees, it is necessary that
they should be equipped with computers and printers along with
uninterrupted power supply units so that their day to day functioning can
be taken care of. Learned Amicus pointed out that perhaps this may be
asking for too much since she has received complaints to the effect that
C very cften stationery is not available with the Child Welfare Committees
or the Juvenile Justice Boards and an appropriate requisition has to be
made to the State Government or the local authority, which is leisurely
processed. In our opinion if this submission were to be accepted it would
indicate a very sorry state ofaffairs in which the Juvenile Justice Boards
D and the Child Welfare Committees are made to function. This step-child
attitude cannot be permitted to continue since these statutory bodies are
vital for having necessary supervision over child care institutions within
their jurisdiction.
Directions
E 62. In view of the above discussion, the following directions are
issued:
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 oenefits
F envisaged for children in need of care and protection should be extended
to all such children in fact requiring State care and protection.
2. 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 31" December, 2017 with the
G 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.
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 655
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
3. The Union Government and the governments of the States and A
Union Territories are directed to enforce the minimum standards of care
as requir~d by and in terms of the JJ Act and the Model Rules positively
on or before 31" December, 2017. ' ·
4. The governments of the States and Union Territories should
draw up plans for full and proper utilization of grants (along with B
expenditure statements) given by the Union Government unde; 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.
5. It is imperative that the Union Government and the governments c
of the Sates 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.
D
6. 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 ofchild 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 ai:d they E
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.
7. The preparation of individual child care plans is extremely
important and all governments of the States and Union Territories '.llust F
ensure th!lt 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 G
child care plan must be prepared for each child in each child care
institutions on or before 31st December, 2017.
8. 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 H
656 SUPREME COURT REPORTS [2017) 4 S.C.R.
A governments of the States and Union Territories must ensure that all
vacan.:ies are filled up with dedicated persons on or before 31 "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.
B 9. 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
C established NGOs. Wherever possible training modules should be
prepared at the earliest.
10. 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
D placed in a child care institutions. Alternatives such as adoption and
foster care need to be seriously considered by the concerned authorities.
11. 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
E Auditor General oflndia. 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
p accoiintability in the management and functioning of child care institutions
and other bodies under the JJ Act and Model Rules can be monitored
and supervised.
12. While the Juvenile Justice Committee in each High Court is
performing its· role in ensuring the implementation of the JJ Act and
G 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
rende: assistance to the Juvenile Justice Committee of each High Court
and to cooperate and collaborate with the Juvenile Justice Committee in
H this rt:gard.
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 657
STATE OF T. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
13. We acknowledge the contribution made by Ms. Aparna Bhat A
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.
14. While there may be some other issues specifically concerning B
children in ne~d 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.
15. The Union of India is directed to communicate our directions c
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 Commi~sion
for the P~otection of Child Rights. A status report in this regard should
be filed in this Court on or before 15'hJanuary, 2018. The Registry will D
list this case immediately thereafter.
Devika Gujrnl Directions issued.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "child protection"Sign in to search