RE:EXPLOI.OF CHILN.INJ ORPH.IN ST.OF T.N vs. UNION OF INDIA & ORS

Page 1 JUDGMENT REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CRL.) No.102 of 2007 Re. Exploitation of Children in Orphanages in the State of Tamil Nadu ...Petitioner(s)

Versus Union of India & Ors. … Respondent(s) O R D E R 1. We have heard very lengthy submissions from the Amicus Curie Ms. Aparna Bhat, Ms. Indira Jaising, ASG, Mr. Paras Kuhad, ASG. 2. It has been brought to our notice that inspite of the emphatic directions that have been issued by this court on 3rd January, 2013 directing all the States and 1

Page 2 JUDGMENT the Union 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 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 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 of receipt of the certified copy of the order. Sadly, we have to notice that inspite of the concern shown not 2

Page 3 JUDGMENT 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 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. This apart, necessary rules and regulations have also not been framed. This, in our opinion, would be sufficient justification for this Court to take a serious view and initiate appropriate proceedings for contempt of court against the defaulting States and the Union Territories. 3. Given the lackadaisical manner in which the States and the Union Territories have responded to the concern shown by 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 3

Page 4 JUDGMENT of the States under Articles 21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy environment in which children who are the future of this country can bloom and subsequently become mature 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 the children in all spheres of life is brought to an end with utmost expedition. 4. We may notice at this stage that pursuant to our earlier directions Tripura, Dadar and Nagar Haveli, Lakshwadeep, Chandigarh, Andaman and Nicobar, Pondicherry and Daman 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 4

Page 5 JUDGMENT completely constituted the same by either not appointing a Chairperson or Members are as under: 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. 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 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. 5

Page 6 JUDGMENT Tamil Nadu has appointed a Chairperson but no Member has been appointed. Nagaland – Nothing has been done, i.e. no Chairperson or Member has been appointed. Similarly in U.P., nothing has been done as neither the 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 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 children is covered by relevant 6

Page 7 JUDGMENT legislation. The three prominent Acts have already been listed hereinabove. 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 which notices have been issued in this matter 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 : 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 of such Chairpersons and members? 7

Page 8 JUDGMENT 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 the remuneration structure of the Chairperson, Members and supports staff including Member

Secretary

of the State Commissions? e. The Chief Secretaries of the States in their affidavits to also indicate whether Special Courts have been 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 to Education Act, 2009? 8

Page 9 JUDGMENT h. Whether all Institutions run by the State Governments

Voluntary Organisations for Children in need care and protection have been registered under the provisions of Section 34 of the Juvenile Justice (Care and Protection of Children) Act, 2000, read with Rule 71 of the said Act? i. 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 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 the issues with respect to the failure to implement the directions of the 9

Page 10 JUDGMENT Court. If for any reason, the affidavit, as directed for, is not filed by the Chief Secretary before the next date of hearing, then also, the officer of the rank referred above shall remain present in person to explain the reasons for the State’s failure 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. ………………………....J. [Surinder Singh Nijjar] ……..……………………………J. [Fakkir Mohamed Ibrahim Kalifulla] New Delhi; December 16, 2013. 10

Page 11 JUDGMENT ANNEXURE THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 S.N o Obligation of the States Current Status

of Implementa tion (Carried out/not carried out) with details as to the date

of order Detailed reasons for failure including Received date by which

the implementation would stand carried out (a) (b) (c) (d) Steps taken Circumstances Person who Dates on which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton

Prosecutor (section 32) 3. Framing of Guidelines 11

Page 12 JUDGMENT for use of NGOs, experts etc. to be associated with the pre- trial & trial stage to assist the child (section 39) 4. Public Awareness about the Act & any Periodic Training imparted to the officers of the Govt. etc. (section 43)

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Page 13 JUDGMENT THE RIGHT OF CHILDREN TO FREE & COMPULSORY EDUCATION ACT, 2009 S.N o Obligation of the States Current Status

of Implementa tion (Carried out/not carried out) with details as to the date

of order Detailed reasons for failure including Received date by which the implementation would stand carried out (a) (b) (c) (d) Steps taken Circumstances Person who Dates on which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton

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Page 14 JUDGMENT 1. Constitution

of State Commissions for Protection of Child

Rights (section 31 r/w Rule 27) 2. Appointment

of State

Advisory Council (section 34) 3. Rules made for carrying out the provisions of the Act (section 38) 14

Page 15 JUDGMENT THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 S.N o Obligation of the States Current Status of Impleme ntation (Carried out/not carried out) with details as to the date of order Detailed reasons for failure including Received date by which the implementation would stand carried out (a) (b) (c) (d) Steps taken Circumstances Person who Dates on

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Page 16 JUDGMENT which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton 1. Constitution of

Juvenile Justice Board (section 4) 2. Establishment of Observation Homes (section 8) 3. Establishment of

Special Homes – If any, details. (section 9) 4. Constitution of

child Welfare Committee (section 29) 5. Establishment of Children’s Homes (section 34) 6. Appiontment of Inspection 16

Page 17 JUDGMENT Committee – If any, details (section 35) 7. Recognition of

Shelter Homes – If any, details (section 37) 8. Creation

of Fund for the welfare

of juveniles (section 61) THE COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005 S.N o Obligation of the States Current Status

of Implementati on (Carried out/not carried out) with details as to the date of order Detailed reasons for failure including Received date by which the implementation would stand carried out (a) (b) (c) (d)

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Page 18 JUDGMENT Steps taken Circumstances Person who Dates on which Towards which rendered was respon- the matter was Implementa- implementation sible for monitored by tion impossible implemen- Chief Secretary tation towards ensuring imple- mentaton

State Commission for Protection of

Child Rights (section 17) 2. Appointment of Chairperson and

other members (section 18) 3. Appointment of Secretary &

other officers

for carrying out the functions of the State Commission (section 21(1) 4. Annual

& 18

Page 19 JUDGMENT Special Reports submitted by State Commission to the State. If any, details (section 23(1)) 5. Constitution of Children’s Court (section 25) 6. Appointment of

Special Public Prosecutor (section 26) 7. Grants by the State Government to the State Commission. If any, details (section 28(1) 8. Rules made to carry out the provisions of the Act (Section 36(1). 19