1. PIL concerning systematic sexual abuse of children in orphanages and the failure of State governments to implement child protection statutes. (Para 1 , 2 , 3 , 4 , 5 )
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2017 Supreme(SC) 440
SUPREME COURT OF INDIA
Madan B. Lokur, Deepak Gupta, JJ.
Re: Exploitation of Children in Orphanages in the State of Tamil Nadu - Petitioner
Versus
Union of India & Ors. - Respondents
Writ Petition (Criminal) No. 102 of 2007
Decided On : 05-05-2017
Important Points
IMPORTANT POINT
Directions for implementation of child care schemes given.
Directions for implementation of child care schemes given.
Subject
Constitutional Law - Child Rights
Act Referred
COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT: S.13, S.14
COMMISSIONS FOR PROTECTION OF CHILD RIGHTS ACT: S.17
CONSTITUTION OF INDIA: Art.39(f), Art.19
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN ACT: S.2(14), S.41, S.54
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN MODEL RULES: R.21, R.19, R.89
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN RULES: R.64
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE ACT: .
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: S.44
COMMISSIONS FOR PROTECTION OF CHILD RIGHTS ACT: S.17
CONSTITUTION OF INDIA: Art.39(f), Art.19
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN ACT: S.2(14), S.41, S.54
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN MODEL RULES: R.21, R.19, R.89
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN RULES: R.64
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE ACT: .
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: S.44
Headnote
(a) Constitution of India – Article 39(f) – Directive principles of State Policy – Though fundamental to governance, not enforceable – But once a directive principle is enforced through law the State must be obligated to enforce the statute to uphold its constitutional obligation. (Para 13)
(1984) 3 SCC 161 – Relied upon
(b) Protection of Children from Sexual Offences Act, 2012 – Section 2 and section 2(14), Juvenile Justice (Care and Protection of Children) Act, 2015 – Does not define a child n need of care and protection – However, held, a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection – Similarly, 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 – Section 2(14) of JJ Act must be given a broad and purposeful interpretation. (Para 17, 18, 21, 22)
(1985) 4 SCC 71; 1993 Supp (4) SCC 100; (2013) 1 SCC 177; (2014) 1 SCC 188; (2017) 2 SCC 629 – Relied upon
(c) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 41 r/w Rule 21 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 – Mandate for registering child care homes – within six month of the Act coming into force on 15th January, 2016 – Non completion of the process of registration deprecated. (Para 24, 25)
(d) Integrated Child Protection Scheme – Minimum standards – Lack of in even registered institutions – Negligence of officers lamented. (Para 31)
(2005) 6 SCC 1 – Relied upon
(e) Commissions for Protection of Child Rights Act, 2005 – Section 13 and 24 – National and State Commissions for Protection of Child Rights – Posts of Chairpersons lying vacant – No acceptable. (Para 37)
(f) Protection of Children from Sexual Offences Act, 2012 – Section 44 – Implementation – Monitoring obligatory. (Para 41, 42)
(g) Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 44 and 45 – Adoption, sponsorship etc. should be encouraged – Adoption Regulations, 2017. (Para 49)
(h) Mahatma Gandhi National Rural Employment Guarantee Act, 2005; Integrated Child Protection Scheme; National Food Security Act, 2013 – Social audit of child care scheme – Should be carried out by Comptroller and Auditor General of India – Need emphasised. (Para 56, 57)
Facts of the case;
This writ petition (PIL) concerns with sexual abuse of children in government schools and orphanages.
During the proceedings the Supreme Court sought to expand the scope of this PIL to include the rights of children in general.
The court focused on the rights of children in need of care and protection.
Finding of the Court:
The child care schemes need to be implemented sincerely.
Result: A status report in this regard should be filed in this Court on or before 15th January, 2018. The Registry will list this case immediately thereafter.
Judgement Key Points
The Supreme Court of India has emphasized the importance of ensuring the effective implementation of child care schemes and safeguarding the rights of children in need of care and protection. It has underscored that laws enacted by Parliament, such as the Juvenile Justice Act and the Protection of Children from Sexual Offences Act, are designed to promote social justice and the welfare of children, and their proper enforcement is a constitutional obligation of the State (!) (!) . The Court has highlighted that broad and purposive interpretation of relevant statutes is essential to prevent injustice and to align with international commitments, such as the Convention on the Rights of the Child, which obligates the State to protect children from all forms of violence and abuse (!) (!) (!) .
Furthermore, the Court has called for rigorous registration, monitoring, and standard-setting for child care institutions to ensure minimum standards of care, safety, and hygiene, emphasizing that unregistered or poorly managed institutions pose significant risks to children's well-being (!) (!) (!) . It has also stressed the importance of training personnel involved in child welfare to ensure that their actions are informed, sensitive, and aligned with legal provisions (!) (!) .
The Court has reiterated the need for a comprehensive and systematic approach involving technology, social audits, and active oversight by statutory bodies to promote transparency, accountability, and continuous improvement in child protection efforts (!) (!) (!) . It has further emphasized that the de-institutionalization of children, through fostering alternatives such as adoption and foster care, is a vital aspect of child welfare, and that all stakeholders must work collaboratively to realize these objectives (!) (!) .
Finally, the Court recognizes the crucial role of specialized commissions and judicial oversight in ensuring the effective implementation of child rights laws, urging the government to fill vacancies and strengthen these bodies to fulfill their constitutional and statutory mandates (!) (!) (!) . Overall, the Court’s directives aim to create a safe, nurturing, and rights-based environment for children, reflecting a deep commitment to their dignity, safety, and development.
Legal Category Hierarchy
Table of Contents
2. Submissions that child protection laws are poorly implemented, child care institutions lack registration and standards, and statutory commissions remain dysfunctional. (Para 7 , 15 , 16 , 23 , 30 , 37 , 46 , 47 , 49 )
3. Observations on systemic state apathy, failure to register institutions, under-utilization of funds, and the necessity of purposeful interpretation of beneficial legislation. (Para 8 , 9 , 13 , 25 , 26 , 31 , 32 , 33 , 34 , 37 , 39 , 40 , 42 , 45 , 48 , 54 , 56 , 59 , 60 , 61 )
4. Beneficial social welfare legislation must be interpreted broadly and purposefully to advance the legislative object rather than adhering to literal construction. (Para 18 , 19 , 20 , 21 , 22 )
5. Directions issued for mandatory registration of child care institutions, enforcement of care standards, filling commission vacancies, and conducting annual social audits. (Para 62 )
6. How should the expression child in need of care and protection under Section 2(14) of the JJ Act be interpreted?
It should be given a broad and purposeful interpretation, treated as illustrative rather than exhaustive, to ensure that all children requiring state care and protection receive benefits, consistent with social justice and the Convention on the Rights of the Child. (Para 18 , 22 )
7. What is the legal significance of registering child care institutions under the JJ Act?
Registration under Section 41 is mandatory for all institutions housing children. It is the essential first step for supervision, ensuring minimum standards of care, and preventing crimes like trafficking and sexual abuse. (Para 24 , 25 , 26 )
8. Can state officers be held liable for failure to maintain minimum standards of care in child care institutions?
Yes, failure to maintain basic or minimum standards of care can be actionable as negligence, as it constitutes a breach of the duty to take care owed to the children. (Para 31 )
9. What are the obligations of the NCPCR and SCPCR regarding the POCSO Act?
Under Section 44 of the POCSO Act, these commissions are obligated to monitor the implementation of the Act, inquire into offences, and include these activities in their annual reports. (Para 38 , 39 )
10. What is the purpose of conducting social audits in the implementation of the JJ Act?
Social audits serve as a tool for public accountability, transparency, and introspection, allowing for the assessment of non-financial objectives through stakeholder views to improve services and monitoring. (Para 54 , 55 , 56 )
JUDGMENT :
Madan B. Lokur, J.
1. This writ petition was taken up on the basis of an article published in the Hindi newspaper “Hindustan” (Lucknow Edition) on 4thJuly, 2007. The article was written by Ms. Anjali Sinha and the translated caption of the article is “Orphanage or Places 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 10th September, 2007. Ms. Aparna 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. Aparna Bhat over the last 10 years in rendering assistance in this matter.
2. Broadly, the article written by Ms. Anjali Sinha mentions that orphanages 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 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 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 where the school teacher misbehaved with students in the presence of other students 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 were reported to be the subject of institutional abuse as well as by relatives.
5. On these broad facts Ms. Anjali Sinha suggested that the problem of sexual abuse of children especially in government institutions has become a serious problem and requires immediate redressal. She made some suggestions including a Counseling Cell in each school where children are taught how to recognize abuse and providing a complaint 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 guaranteed to children require consideration. In 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 7th February, 2013 the learned Additional Solicitor General and the learned Amicus submitted that the main reason 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 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.
8. A detailed order was passed by this Court on 16th 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 b
