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SUPREME COURT OF INDIA
Madan B. Lokur, Deepak Gupta, JJ.
Sampurna Behura – Petitioner
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CIVIL) NO. 473 OF 2005
Decided On : 09-02-2018
(b) Child laws – Implementation – Commissions for Protection of Child Rights Act, 2005 – Section 13 – National Commission for Protection of Child Rights (the NCPCR) and State Commission for Protection of Child Rights (SCPCR) – Vacancies need to be filled up – Need freedom to decide on broad policy matters. (Para 59)
MANU/PH/0599/2013 – Referred
(c) Juvenile Justice (Care and Protection of Children) Model Rules, 2016 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 106 r/w Rule 84 and Rule 85 – Functions of State Child Protection Society and the District Child Protection Unit – Implementation of the Act and establishment and maintenance of institutions thereunder – Not established in every State and district. (Para 64, 65)
(d) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 4 – Juvenile Justice Board (JJB) – Suggestion for Circuit Board in certain areas – Appointment of social workers as members of the JJB – Has to be in accordance with provisions of Rule 88 r/w Rule 87, Model Rules – Training of Principal Magistrate and social workers – Functioning of JJB. (Para 66, 68, 71, 72)
2011 Cri LJ 326 : 2010 SCC Online Gau 225 – Cited with approval
(1986) 3 SCC 632; (1988) 4 SCC 226 – Referred
(e) Juvenile Justice (Care and Protection of Children) Model Rules, 2016 – Rule 64 – Probation Officer – Role and functions – Training. (Para 75)
(f) Child laws – JJB and CWC – Use of technology – Computers and peripherals – Video conferencing – Online Central Level Monitoring System. (Para 80, 81)
(g) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 107 – Role of police – Child Welfare Police Officer (‘CWPO’) and Special Juvenile Police Unit (‘SJPU’) – Training – a
MANU/BH/0384/2008 – Cited with approval
(h) Commissions for Protection of Child Rights Act, 2005 – Child care institutions – Urgent need for evaluation and assessment – Registration. (Para 87, 89)
Facts of the case:
This case highlights the issue of non-implementation of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015.
Concerned with the plight of children in the country, Sampurna Behura filed a writ petition under Article 32 of the Constitution drawing attention to several Articles of the Constitution which impose primary responsibility on the State to ensure that the needs of children are met and their basic human rights are protected.
She has also stated in the writ petition that the Act of 2000 was passed by Parliament bearing in mind various standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 and other relevant international instruments.
The main burden of the writ petition is the failure of State Governments to implement various provisions of the Act of 2000 including, inter alia, the establishment of Child Welfare Committees, Juvenile Justice Boards, Special Juvenile Police Units, establishment of appropriate Homes for children in need of care and protection, improving the living conditions of juveniles in conflict with law, medical facilities for children in the custody of the State and several other human rights issues.
The prayer in the Public Interest Litigation is to the effect that the Chief Secretaries and the Directors General of Police and Superintendents of Police of all the States should forthwith implement the Act of 2000 in its true spirit.
There is also a prayer that all respondent States be directed to provide basic amenities like nutritious food, proper and hygienic accommodation, educational facilities, recreational facilities and rehabilitation centres for juveniles in various Homes and to direct the Collectors of each district to involve reputed NGOs in implementing the orders of the Supreme Court.
Finding of the Court:
Deficiencies have to be addressed.
Result: Directions given.
JUDGMENT
Madan B. Lokur, J.
1. What can a citizen do if the State pays no attention to his or her fundamental or human or statutory right, nor takes serious interest in fulfilling its constitutional or statutory obligations? What if that citizen is a voiceless child or someone whose voice cannot be heard over the din of governance – for example, physically or mentally challenged persons, senior citizens, and other disadvantaged sections of society such as scheduled castes, tribals and several others? The aggrieved would perhaps approach the judiciary (if he or she could and as a last resort) for the enforcement of a human right. Should the judiciary take corrective steps and be accused of ‘judicial activism’ or overreach – or should the cynics and skeptics have their day resulting in the grievance of the voiceless and the disadvantaged remaining unheard and the fundamental and human rights lying unaddressed?
2. These questions arise in the context of the virtual non-implementation or tardy implementation of laws beneficial to voiceless (and sometimes silenced) children, particularly, the Juvenile Justice (Care and Protection of Children) Act, 2000 (the Act of 2000) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act). We record and acknowledge our appreciation for the efforts of Sampurna Behura in highlighting some of these issues by way of a Public Interest Litigation and to learned counsel for the appearing parties in rendering assistance enabling us to address some of these issues by not making these proceedings adversarial, but a constructive effort for the benefit of the children of our country. No one has any doubt that it is time for the State to strongly and proactively acknowledge that even children in our country have fundamental rights and human rights and they need to be enforced equally strongly.
3. If Nelson Mandela is to be believed, “Our children are our greatest treasure. They are our future. Those who abuse them tear at
the fabric of our society and weaken our nation [Address by President Nelson Mandela at National Men's March, Pretoria on 22 November 1997].”Our policy and decision makers need to heed this advice and warning and appreciate that they are not doing any favour to the children of our country by caring for them – it is their constitutional obligation and the social justice laws enacted by Parliament need to be effectively and meaningfully enforced.
Background and Chief Justices Conferences
4. In a prescient understanding of child rights, the Chief Justices’ Conference held in 2006 (presided by the Chief Justice of India with participation by the Chief Justice of every High Court) the following resolution was passed:
“a) That High Courts will impress upon the State Governments to set up Juvenile Justice Boards, wherever not set-up. The Chief Justices may nominate a High Court Judge to oversee the condition and functioning of the remand/observation homes established under the Juvenile Justice (Care and Protection of Children) Act, 2000.
b) The Chief Justices of the High Courts will expedite the matter with the respective State Governments for setting up of Juvenile Justice Boards, wherever they have not yet been set up.
c) The Chief Justices of the High Courts will nominate a Judge to make periodical visits to Juvenile Homes, wherever set up, and the learned Judge may suggest remedial measures for the betterment of the conditions of the juvenile homes and inmates.”
5. The above resolution was passed almost six years after the Act of 2000 came into force – meaning thereby that even about six years after Parliament enacted a law for the benefit of children, the State Governments had not taken steps to fulfill one basic requirement of the law, that is, to set up Juvenile Justice Boards.
6. In 2009 the Chief Justices’ Conference discussed the progress made in setting-up of Juvenile Justice Boards and the resolution passed in the Conference in 2006 was reiterated indicating that
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