2012 Supreme(Guj) 523

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Rohit Sitapatikumar Verma
Versus
State of Gujarat & Ors.
Writ Petition (PIL) No. 92 of 2012—Decided on 08/11/2012

Point in Issue :
Whether in the present case Court can issued directions to respondent to enact legislation for effective functioning of the Act

Headnote:Head Note :

       (a) Juvenile Justice (Care and Protection of Children) Act, 2000 (Central Act 56 of 2000) — Sections 8, 29, 29(1), (5), 30(2), 34, 68, 68(1) & (2) — Rules framed under the Act (As amended by amendment Act 33 of 2006) Rules 20, 24(4), 27(4), 29 & 30 — Gujarat Juvenile Justice (Care & Protection of Children) Rules, 2011 — Rules 19, 24 & 27 — Writ petition (PIL) — Seeking appropriate steps for effective functioning of Child Welfare Committee constituted under the Act and also to make payment of compensation to parents of Juvenile A — The committee under the Rule 24 of Rules 2011 meet a minimum of one day a week, therefore, Juvenile A had to remain at observation/remand home from 17.04.2012 to 19.04.2012 — Court considered the reasonableness of the Rule and observed that Rules are framed by State Government under authority under Rules framed by Central Government under Rule 29 of the Rules framed by Central Government State Government are to make Rules for better implementation and administration of the provisions of the Act in it’s true spirit and substance — In the case what is submitted is that State Government while framing Rules ought to have kept in mind the object of the Act and Rules should have provided for meeting of committee for a minimum of three days in a week instead of one day in a week suffice it say that writ of mandamus cannot be issued to the legislature to enact a particular legislation — In this regard Court held that it could only say that it is for the State Government to take notice of Rule 24(4) of Rules 2011 and may consider to increase the number of sittings in a week so that problem like the one with Juvenile A has happened may not happen — Court accordingly disposed off the petitions with certain directions — So for the relief as prayed for compensation is concerned Court held that no case has been made out for payment of any mandatory compensation to the parents of Juvenile A who was kept in remand home.

       Held :

       In the present case, we also propose to examine the reasonableness of Rule 24(4) of the Rules, 2011, which provides that the Committee shall meet a minimum of one day a week. We may give one simple illustration envisaging a hypothetical situation. Take a case where a juvenile in need of care and protection is picked up by the authorities under the Act. As provided under Rule 27 of the Rules, 2011, such a juvenile in need of care and protection shall be produced before the Committee within 24 hours by any of the persons enumerated under the Rules. We have been informed by Mr. Jani, the learned Government Pleader, that the Committee meets once a week on every Thursday. Take a case where a juvenile is picked up by the authorities under the Act on Friday. As provided under the Rule 27(4) of the Rules, if the committee is not sitting, then such a juvenile will be produced before the single member of the Committee as per the provisions laid down under Sub-section (2) of Section 30 of the Act for being placed in a safe custody of parent or guardian or fit person or fit institutions, as the case may be, till such time that the child can be produced before the Committee. The Rule 27(5) further provides that in case even if the single member is not available, or that the hours are odd, the juvenile would be taken by the nongovernmental organization or Childline or Police to an appropriate institution for children registered under the Act with all the necessary documents, and would be placed in such institution till the time of production before the Committee. Thus, if a juvenile is picked up by the authorities on Friday and even if he is produced within 24 hours before a single member of the Committee and for any reason, if the single member of the Committee is not accessible, then such a juvenile would remain at an institution till next Thursday i.e. the day on which the Committee would assemble, despite the fact that the parent or guardian would be ready and willing to take the juvenile with them on adducing the necessary documentary proof. If such a situation arises like in the present case and if the juvenile is kept at an observation/ remand home, where he may mingle with juveniles in conflict with law, then the very object and the purpose with which the Act has been enacted would get frustrated.

        [Para 26]

       What then is the remedy to take care of such a situation ? Whether this Court sitting in a writ jurisdiction under Article 226 of the Constitution can direct the State Government to amend its Rule 24(4) of the Rules, 2011 providing that the Committee shall meet a minimum of three days a week, which would better subserve the object of the Act which is essentially enacted for juveniles in need of care and protection. [Para 27]

       It would not be open to the Court to direct what type of rules should be framed, unless the challenge is to the constitutional validity of the Rule and the Court strikes down the Rule as ultra vires on the ground of unreasonableness or arbitrariness or on any other grounds on which a subordinate legislation can be challenged. In the present case, there is no challenge to the validity of the Rule 24(4) of the Rules, 2011, but what has been submitted before us is that the State Government while framing the Rule ought to have kept in mind the object of the Act and the Rule should have provided for meeting of the Committee for a minimum of three days in a week instead of one day in a week. In our opinion, the position of law is no longer res integra. The writ of mandamus cannot be issued to the legislature to enact a particular legislation.

        [Para 32]

       It is for the State Government to take notice of Rule 24(4) of the Rules, 2011 and may consider to increase the number of sittings in a week. [Para 35]

       Court, however, propose to dispose of this Public Interest Litigation by issuing the following directions :

       (i) If a child in need of care and protection is picked up by the authorities and if the persons enumerated in Rule 27 of the Rules, 2011, are unable to produce the child before the Committee within 24 hours on account of the Committee not sitting, then in such a case the child should be produced before the single member of the Committee at the earliest for being placed in safe custody of the parent or guardian or a fit person, as the case may be, till such time that the child could be produced before the committee and in the event, even if the single member is not accessible or that the hours are odd, the child shall be taken to the Children’s Home as provided under Rule 30 of the Rules, 2011 or at the Shelter Home as provided under Rule 31 of the Rules, 2011, but in any event, such a child in need of care and protection shall not be taken to an observation/remand home, where he would mingle with the juveniles in conflict with law.

       (ii) If the single member is also not accessible for the child to be produced for being placed in safe custody of a parent or a guardian at the time when the Committee is not sitting, then within the shortest possible period, the child should be once again produced before any other available single member, but the authorities shall not wait till the time the Committee convenes a meeting, which is ordinarily convened once in a week. [Para 36]

       Head Note :

       (b) Constitution of India, 1950 — Article 226 — Public interest litigation — Allowding of — Scope — Indicated.

       Held :

       Ordinarily, the Court would allow litigation in public interest if it is found :

       (i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

       (ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

       (iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

       (iv) That such person or group of persons is not a busybody or a meddlesome interloper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

       (v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

       (vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

       (vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

       (viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

       (ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

       (x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest. [Para 6]

       Law Laid Down :

       The writ of mandamus cannot be issued to the legislature to enact a particular legislation

       Case Law Analysis :

       Pratap Singh vs. State of Jharkhand and another, (2005) 3 SCC 551 [Para 23];; Hamdard Dawakhana and another vs. The Union of India and others, AIR 1960 SC 554 [Para 29];; Indian Express Newspapers (Bombay) Pvt. Ltd. vs. Union of India 1985 (1) SCC 641 [Para 33];; Supreme Court Employees Welfare Association vs. Union of India 1989 (4) SCC 187 [Para 34].—Relied on