Sampurna Behura vs Union of India & Ors.

(b) At the national level, the NCPCR is an institution consisting of eminent persons and experts in their respective fields. As such, they are expected to look at issues concerning the welfare of children in the national perspective taking into consideration the views of every SCPCR and other stakeholders. At the State level, the SCPCR is an equally significant body consisting of eminent persons and experts. They are expected to take policy decisions for the benefit of the children in their State, regardless of which State the children originally belong to, for there might be children of one State who are in need of care and protection but in a Child Care Institution of another State. The functions of the NCPCR and the SCPCR are more or less the same except that one performs these functions at the national level, while the other performs these functions at the State level. [Paras 57, 58] [969B-D]

(c) Both the NCPCR and the SCPCR have a range and variety of functions to perform and each one of them entails a great deal of responsibility. It is given to understand that both the Government of India and the State Governments have not been giving these bodies the freedom to decide on broad policy matters and indeed in some instances, particularly relating to the SCPCR, vacancies have not been filled up for several months. Unfortunately, at one point of time, even the position of the Chairperson of the NCPCR was lying unfilled for several months, until, on the directions of this Court, the position was eventually filled up. Unless the NCPCR and the SCPCRs are given due importance by the Government of India and the State Governments and vacancies are filled up in time, the enforcement of the rights of children will remain on the back burner and any number of welfare schemes formulated by the Government of India or by the State Governments will remain unimplemented or their implementation will remain sketchy and symbolic. [Para 59] [971-B-E]

(d) There is hope and trust that those in authority and power in the Government of India and in the State Governments appreciate the importance of adhering to the provisions of the laws enacted by Parliament and ensure that the NCPCR at the National level and the SCPCR at the State level actually function and perform their duties and recognize their responsibilities. [Para 60] [971E-F]

(ii) State Child Protection Society and the District Child Protection Unit

(a) The constitution of the State Child Protection Society and the District Child Protection Unit need serious consideration so that all stake-holders, including the police and NGOs are actively involved in the performance of the functions, duties and responsibilities of these two bodies. The functions of the State Child Protection Society and the District Child Protection Unit are detailed in Rule 84 and Rule 85 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 framed by the Government of India. The functions are varied, extensive and geared to improve the living conditions of children through different strategies and with the involvement of all stake-holders. [Para 61, 62] [972-A-C]

(b) Section 106 of the JJ Act provides for the constitution of a State-level Child Protection Society and a District-level Child Protection Unit. Section 106 JJ Act broadly indicates that the primary function of the State Child Protection Society and the District Child Protection Unit is to ensure implementation of the JJ Act. In addition, these bodies are obliged to ensure that the institutions under the JJ Act are established and maintained, competent authorities in relation to children and their rehabilitation are in place and these two bodies are also required to coordinate with Government officials as well as NGOs to discharge their wide-ranging functions. The involvement of civil society through NGOs is a progressive step and these two bodies are expected to take their assistance from time to time. If these two bodies actually perform their duties, responsibilities and functions in the manner expected of them, the implementation of the JJ Act would no longer be an issue. Unfortunately, these bodies are not functioning in many places or in the manner in which they are expected to and in several districts the District Child Protection Unit has not even been constituted. There is expectation that remedial steps to be taken by all concerned. [Paras 63-65] [972-D, G-H; 973-A-B]

(iii) Juvenile Justice Boards and Child Welfare Committees

(a) The appointment of some social workers as members of the JJB is not necessarily in accordance with the provisions of Section

4 of the JJ Act. The selection of social workers as members of the JJB is required to be carried out in accordance with the provisions of Rule 88 read with Rule 87 of the Model Rules. The appointment of social workers is serious business, inasmuch as they bring their experience - practical and professional - while conducting an enquiry under the JJ Act. This becomes all the more important when it is appreciated that the social workers can also conduct an enquiry independent of the Principal Magistrate as provided for in Section 7 of the JJ Act. However, the final disposition of the enquiry cannot be without the Principal Magistrate as mandated in the proviso to sub-section (3) of Section 7. Thus, there is a heavy responsibility on the social workers to make a meaningful contribution during the course of an enquiry and also at the time of its disposition. [Paras 67, 68] [973-E; 974-C-E]

(b) The training of the Principal Magistrate as well as the social workers is extremely important and this is provided for in Rule

89 of the Model Rules. Unfortunately, the duration of training and the curriculum and course have not yet formulated, and the nature of training given to the Principal Magistrate and the social workers is somewhat ad hoc and unstructured. The lack of meaningful and effective training (and refresher courses) can have a vital impact on the ultimate disposition of an enquiry as also on the rehabilitation and reintegration of a juvenile in conflict with law who is before the JJB. Serious thought is required to be given to this not only from the point of view of awareness of the law and child rights but also from the point of view of sensitization of the JJBs, case management and creation of a child friendly ambience and environment within the JJB for a juvenile in conflict with law. [Para 69] [974-F-H]

(c) If there are a large number of inquiries pending, it is the obligation of the JJB to sit on a daily basis so that the enquiry is concluded within the time limit prescribed by the JJ Act. Where a large number of inquiries are pending, it would be worthwhile for the State Government and the High Court to consider having more than one JJB. [Para 71] [975-E-F]

(d) JJB is virtually in the nature of a court, although it does not conduct a trial, but only conducts an enquiry. Nevertheless, it does need adequate staff to perform its functions in an efficient manner. The JJB also has several administrative functions and they need due attention so that there is effective coordination between the JJB, the officials of the Observation Home, the police, the juvenile in conflict with law and the parents of that juvenile and lawyers representing the police as well as the juvenile in conflict with law. These administrative duties need attention if the JJB is to function effectively and a casual statement that the JJB has adequate staff, though possibly correct, is neither here nor there considering the requirements of the stake-holders who attend the enquiry before the JJB. [Para 72] [973-A-C]

(e) There is a dire need to have quality legal aid lawyers who can assist juveniles in conflict with law. This is an issue that must be taken up with all earnestness by the State Legal Services Authority. Unless a child is given adequate legal representation, it may impact his or her future, more so if the child in conflict with law is found guilty and placed in a Special Home. On its part, NALSA has brought out a manual for training of legal aid lawyers and it is believed that it will be extremely useful not only for legal aid lawyers who are representing juveniles in conflict with law, but also for legal aid lawyers generally. Similarly, prosecutors also need to be sensitized and the State Governments would take necessary steps to educate and train them keeping in mind the primary objective of the JJ Act, which is to reintegrate a juvenile in conflict with law in society and to rehabilitate that juvenile. [Para 73] [976-D-F]

(f) It is clear from Rule 64 of the Modal Rules that a Probation Officer has a very important role to play in ensuring that a juvenile in conflict with law is given adequate representation and a fair hearing before the JJB and the enquiry is conducted in a manner that is conducive to the rehabilitation of the juvenile in conflict with law. In this regard, the preparation of an individual care plan and post release plan gain immense significance and Probation Officer has an important role to play. [Para 75] [978-F-G]

(g) It is of great importance that a Probation Officer should be given adequate training, sensitization and awareness of his or her duties and responsibilities. NALSA has made a significant contribution in this regard by preparing a training module for Probation Officers. It is expected all the State Governments as well as MWCD to ensure that training is given to Probation Officers on the lines suggested by NALSA with improvements being made in adult learning techniques, training methodology, the curriculum and the course content in due course of time. The said conclusions are equally applicable to the CWCs. [Para 76] [978-G-H; 979-A]

(iv) Use of technology

(a) The use of technology, both by the JJBs as well as by the CWCs is extremely important and it is disheartening to note from the affidavits and submissions made by MWCD that there is an acute shortage of computers and peripherals with the JJBs and CWCs. Technology is important not only for the effective functioning of the JJBs and CWCs, but also to deal with issues that would arise from time to time concerning the tracing and tracking of missing children, the rescue of children working in hazardous industries, trafficked children, children who leave the Child Care Institutions, victims of child sexual abuse and followup action, among several other requirements. It is well-known that our country is a technological power-house and if advantage is not taken of the resources available and fully utilize the benefits of technology through computers and the internet for the benefit of children, our status as a technological power-house would be in jeopardy and would remain only on paper. Data, particularly of the magnitude of the kind, can be easily collected through the use of computers and internet. This would be of great assistance in planning and management of resources and MWCD and others concerned with child rights must take full advantage. [Para 79] [979-E-H; 980-A]

(b) The use of computers and peripherals would make an immense contribution to the administrative functioning of the JJBs and CWCs. Both the Government of India and the State Governments need to look into this and provide necessary software and hardware to the JJBs and the CWCs for obvious reasons. The Police authorities in Telangana and AP in consultation with the Juvenile Justice Committee of the High Court have made considerable use of information and communication technology and innovative steps must be encouraged. Similarly, the use of video conferencing could also be considered in appropriate cases where some inconvenience to the juvenile in conflict with law necessitates the use of video conferencing facilities. [Para 80] [980-B-C]

(c) MWCD must be complimented for bringing out an online Central Level Monitoring System. This online system is working rather effectively although it would need upgrading from time to time as the months go by. The unfortunate part is that there does not seem to be much active cooperation extended by the State Governments in updating the information on the Central Level Monitoring System. Needless to say, updating information is extremely important so that there can be efficient planning which will ultimately lead to better management of issues concerning children. The State Governments are required to fill up the information on the Central Level Monitoring System once a quarter and surely that cannot be a difficult task. [Para 81] [980D-E, F]

(v) Role of Police

(a) An extremely important stake-holder in the effective implementation of the JJ Act is the local police. Section 107 mandates the appointment of a Child Welfare Police Officer and a Special Juvenile Police Unit in each district. The SJPU must also include two social workers having experience of work in the field of child welfare, one of them being a woman. The responsibility for appointment lies on the State Government. Many States have actually appointed CWPOs and set up SJPUs. Unfortunately, their duties and responsibilities have not been clearly identified but are generally stated in Rule 86 of the Model Rules. Also no system of effective training for CWPOs and SJPUs has evolved and many of them exist only symbolically and only because the law requires them to exist. Since the duties and responsibilities of the CWPOs and SJPUs have not been specified or identified, it is high time that the Bureau of Police Research & Development and the National Police Academy in consultation with the State Police Academies identify the functions, duties and responsibilities of the CWPOs and SJPUs. In this regard, NALSA has prepared Guidelines for Training Juvenile/Child Welfare Officers attached to every police station and members of the Special Juvenile Police Unit. Perhaps this could be a starting point for their training through the Bureau of Police Research & Development and the Police Academies. [Paras 82, 83] [980-GH; 981-E-H]

(b) With regard to the Police generally, it was submitted that due to the policy of rotation, it often happens that soon after a police officer completes his or her training that officer is transferred out to another department. This is a waste of effort and one of the ways of resolving problems arising out of transfers is for every State Police Academy to conduct regular training programmes under the guidance of senior police officials of the State and for the State Government to optimally utilize the services of its officers. Similarly, the Government of India is required to involve Railway Police for dealing with children. No information or data is forthcoming in this regard. The Government of India through the Railways is expected to look into the matter with some degree of urgency. A large number of runaway children and children on drugs are found in railway stations (and other places) working as rag-pickers or performing other menial activities. It was submitted that even otherwise, there is rampant drug abuse among such children. Efforts must be made to establish de-addiction centres especially for such children and also generally for juveniles in conflict with law and children in need of care and protection. [Para 86] [982-E-G]

(vi) Child Care Institutions

(a) Many of the Child Care Institutions are housed in run-down buildings and are hardly conducive to comfortable living even to a minimum degree. State Governments must appreciate that they are not doing any charity by putting up children in Child Care Institutions - they are merely performing their statutory and constitutional obligations. There is, therefore, an urgent need to make an evaluation and assessment of all the Child Care Institutions in every State to ascertain their condition, the infrastructure requirements and staffing requirements. Children live in these Institutions, not because they want to but because they have no other option, since most of them are children in need of care and protection. The obligation of society is to provide solace and comfort to these children and adherence to the minimum standards of care. Model Rules contain details for improved Child Care Institutions and their requirements. [Para 87] [982-G-H; 983-A-C]

(b) There are additional duties and responsibilities obligated by the Constitution on the State Governments such as providing education, health-care (both physical and psychological) and adequate nutrition. These are huge areas that need to be looked into with all sincerity by the bodies and institutions established under the Commissions for Protection of Child Rights Act, 2005 and the JJ Act. But, in such exceptional circumstances, the courts are constitutionally obliged to issue a continuing mandamus in public interest for implementation of the laws enacted by Parliament, which is essentially the primary responsibility of the Executive. If the Executive ignores the mandate of Parliament with continuing callousness, it would only be to the detriment of the children of the country. [Para 88] [984-B-D]

(c) MWCD has made considerable efforts in ensuring that Child Care Institutions run and managed by individuals and NGOs are registered in accordance with the provisions of the JJ Act. There has been some resistance to registration from some institutions, thus, it is made clear that the law has to be obeyed as long as it exists on the statute books. It might be uncomfortable for those who manage some of these Child Care Institutions, but registration is compulsory and in public interest to ensure that minimum standards of care are maintained and the children in those Institutions are well looked after. Occasionally there are allegations originating from Child Care Institutions of trafficking and child sexual abuse, some of which may be unverified, but to avoid any such shameful allegations it is necessary that their registration, their management and functioning are strictly monitored by the State Governments and by MWCD. [Para 89] [983-G-H; 984-A-B]

(d) It was suggested by the counsel that in all Child Care Institutions, there should be a segregation of children in terms of age and wherever applicable segregation based on the nature of the offence allegedly committed so that the possibility of sexual abuse or any other kind of violence is eliminated. Additionally, all such institutions should be advised to provide vocational or continuing education with a view to re-settling children in conflict with law and children in need of care and protection by reintegrating and mainstreaming them in society. It was emphasized that there should be adequate staff available in all Child Care Institutions so that they are able to perform their duties efficiently. It was also suggested that the location of the JJBs and CWCs should be in close proximity of the Child Care Institutions to avoid children having to travel long distances for their appearance before these statutory bodies. All these suggestions and recommendations made by the counsel are issues of concern and must be dutifully addressed by the State Governments and the SCPCRs. [Paras 90, 91] [984-F-H; 985-A]

(e) The submissions made with regard to Child Care Institutions was that District Legal Services Authorities may make unscheduled visits to them to ascertain whether they are in fact functioning as they should, is definitely worth implementing and NALSA is expected to go ahead with the suggestion. In fact, the Chief Justices Conference in 2006 had specifically adverted to the appointment of Visitors to Child Care Institutions and in the Chief Justices Conference in 2013 and 2015 improving the living conditions in Child Care Institutions was also adverted to. NALSA and District Legal Services Authorities to respect the views expressed in the Chief Justices Conferences. [Para 92] [985-B-C]

(vii) Juvenile Justice Fund

(a) The JJ Act provides for the constitution of a Juvenile Justice Fund. It is quite distressing to note that some of the State Governments have not even set up the Juvenile Justice Fund while one or two State Governments have set up the Fund with an embarrassing amount of only a few thousand rupees. It is wondered how the welfare of children can be looked after by these State Governments with such a pittance in the kitty. Obviously, these State Governments are not seriously concerned about the welfare of children, which is a pity. This is official apathy to the rights of children and a cause for worry. [Para 93] [985-D-F]

(viii) Evaluation and assessment

(a) It would be appropriate if some sort of an evaluation or social audit is carried out every six months for the next couple of years to monitor and supervise the implementation of the JJ Act. More than sufficient time has already elapsed since the Act of 2000 was enacted by Parliament and certainly the children of the country deserve much better and cannot wait for another 15 or 16 years for the effective implementation of the JJ Act. Most of the children who were born when the Act of 2000 was enacted are nearing adulthood and many of them have not had the benefit of the provisions of the Act of 2000. This mistake, a serious one, cannot be repeated in the implementation of the JJ Act. [Para 94] [985-G-H; 986-A]

2. Conclusions and directions:

Keeping in mind the concerns expressed by the counsels and the need to invigorate the juvenile justice system in the country, the following directions are given:

(i) The Ministry of Women and Child Development in the Government of India and the State Governments should ensure that all positions in the NCPCR and the SCPRs are filled up well in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children.

(ii) The NCPCR and the SCPCRs should take their duties, functions and responsibilities with great earnestness keeping in mind the faith reposed in them by Parliament. These bodies have a very significant and proactive role to play in improving the lives of children across the country.

(iii) The State level Child Protection Societies and the District level Child Protection Units have an enormous responsibility in ensuring that the JJ Act is effectively implemented and Child Care Institutions are managed and maintained in a manner that is conducive to the well being of children in all respects including nutrition, education, medical benefits, skill development and general living conditions. These two bodies would be well advised to take the assistance of NGOs and civil society.

(iv) The State Governments must ensure that all positions in the JJBs and CWCs are filled up expeditiously and in accordance with the Model Rules or the Rules framed by the State Government. Any delay in filling up the positions might adversely impact on children and this should be avoided.

(v) The JJBs and CWCs must appreciate that it is necessary to have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time and justice is given to all juveniles in conflict with law and social justice to children in need of care and protection.

(vi) The NCPCR and the SCPCRs must carry out timebound studies on various issues, as deemed appropriate, under the JJ Act. Based on these studies, the State Governments and the Union Territories must take remedial steps.

(vii) The NCPCR and the SCPCRs must carry out a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers. It must be emphasised that the role of a Probation Officer is critical for the rehabilitation and social reintegration of a juvenile in conflict with law and due importance must be given to their duties as postulated in the Model Rules and Rules, if any.

(viii) MWCD must continue to make creative use of information and communication technology not only for the purpose of collecting data and information but also for other issues connected with the Act such as having a database of missing children, trafficked children and for follow up of adoption cases etc.

(ix) There is a need to set up Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. It is necessary to clearly identify the duties and responsibilities of such Units and Officers and wherever necessary, guidance from the available expertise, either National Police Academy or Bureau of Police Research and Development or NGOs must be taken for the benefit of children.

(x) The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event.

(xi) The management of Child Care Institutions is extremely important and State Governments and Union Territories would be well advised to ensure that all such institutions are registered so that children can live a dignified life and issues of missing children and trafficking are also addressed.

(xii) State Governments and Union Territories would be well advised to appoint eminent persons from civil society as Visitors to monitor and supervise the Child Care Institutions in all the districts. This will ensure that the management and maintenance of these Institutions are addressed.

(xiii) The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State Governments and the Union Territories. If financial resources are not made available for the welfare of the children we shudder to think what could be better utilization of the funds.

(xiv) NALSA has done a remarkable job in collecting data and information relating to the JJ Act, as evidenced by the three part Report prepared by it. NALSA is requested to carry forward the exercise and complete a similar Report preferably before 30th April, 2018 to assist all the policy making and decision taking authorities to plan out their affairs.

(xv) All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position. A very positive step has been taken in this regard by NALSA and it is expected that the NCPCR with the assistance of the SCPCRs to carry forward this initiative so that there is meaningful implementation of the JJ Act.

(xvi) Each High Court and the Juvenile Justice Committee of each High Court to continue its proactive role in the welfare of children in their State. To make the involvement and process more meaningful, Chief Justice of every High Court is requested to register proceedings on its own motion for the effective implementation of the 2015 Act so that road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee are meaningfully addressed after hearing the concerned governmental authorities. [Para 95] [986-B-H; 987-A-H; 988-A-H; 989-A-F]

3. The Chief Justice of each High Court is requested to seriously consider establishing child friendly courts and vulnerable witness courts in each district. Inquiries under the JJ Act and trials under other statutes such as the Protection of Children from Sexual Offences Act, 2012, the Prohibition of Child Marriage Act, 2006, trials for sexual offences under the Penal Code and other similar laws require to be conducted with a high degree of sensitivity, care and empathy for the victim. [Para 96] [989-F-G]

Sheela Barse II v. Union of India (1986) 3 SCC 632; Sheela Barse v. Union of India (1988) 4 SCC 226 : [1988]

2 Suppl. SCR 643; Court on its own motion v. State of Punjab and The National Commission for the Protection of Child Rights (NCPCR) v. The State of Haryana and Others Decided on 9 th April, 2013, MANU/PH/0599/2013; Naisul Khatun v. State of Assam and Ors. 2011 Cri LJ 326 : 2010 SCC Onluine Gau 225; The Matter of Letter of Sanat Kumar Sinha (Chief Co-ordinator), Bal Sakha v. The State of Bihar through the Chief Secretary, Govt. of Bihar and Ors. MANU/BH/0384/2008 – referred to.