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2015 Supreme(Ker) 680
IN THE HIGH COURT OF KERALA
Ashok Bhushan and A.M. Shaffique, JJ.
Rajendra Prasad and Ors. – Appellants
Vs.
Union of India and Ors. – Respondents
W.P. (C) Nos. 14259, 14604, 23875 of 2014 and 15844 of 2015
Decided On: 06.07.2015
For the Appellant :T.A. Shaji, Senior Advocate, Sandhya Raju, B.H. Mansoor and K. Paul Kuriakose, Advocates
For the Respondents:N. Nagaresh, P. Parameswaran Nair, Assistant Solicitor Generals, K.P. Dandapani, Advocate General, K.A. Jaleel, Additional Advocate General, N. Nandakumara Menon, V.P. Seemandini, Senior Advocates, T.T. Muhamood, Special Government Pleader, C.S. Dias,P. Chandrasekhara Pillai, S. Subhash Chand, Standing Counsels, A. Mohammed Savad, B.S. Swathy Kumar, M.R. Anison, T.K. Hassan, K.P. Geetha Mani, P.A. Rinusa, Annie Jacob, Roshen D. Alexander, P.A. Mohammed Shah, T. Reshma, A.K. Rajesh, Venkatesh Gopi, Joju Kynady, Elvin Peter P.J., Advocates and Devan Ramachandran, Amicus Curiae
Headnote:
Orphanages and other Charitable Homes (Supervision and Control) Act, 1960 - Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 34(3) - Kerala Juvenile Justice (Care and Protection of Children) Rules, 2014 - Rule 2(n) - Child Trafficking - Issues relating to child's rights, children who are in need of care and protection and child trafficking have arisen in these group of writ petitions - Alleging illegal transfer of children to Kerala amounting to child trafficking - Whether the child who is housed in an orphanage registered under the 1960 Act can be said not be a child in need of care and protection or institutions/orphanages which are registered under Act, 1960 also need registration under the 2000 Act to house a child - Whether Section 34(3) of 2000 Act mandates obtaining registration by all institutions/orphanages run by private organisations, which are housing children, who need care and protection - Held, Institutions/Orphanages, which are registered under 1960 Act also need compulsory registration under the 2000 Act to house a child, who is in need of care and protection - Orphanage or Children Home only with the prior permission of the Orphanage Control Board and with the recommendations of concerned State Government - Such provisions have been inserted in Regulation it is clear that no Orphanages or Children Homes or any other Institution can admit any child from outside the State without fulfilling the above two conditions - It is clear that the above prohibition is with regard to every child who has not completed 18 years and who is received by a Home maintained or intended to be maintained for the reception, protection, care and welfare of the children.
Ashok Bhushan, J.
1. These writ petitions raise concern for young children who are future of our country. A society shapes as its children are shaped. The obligation to bring up children is not only the obligation of the parents alone, but the society and State has also to play an affirmative role in bringing right environment for all round development of children which is also the constitutional philosophy. Important issues relating to child's rights, children who are in need of care and protection and child trafficking have arisen in these group of writ petitions. We shall consider the facts and pleadings separately as emerged from the pleading of the parties.
WP(C) No. 14259 of 2014
This Public Interest Litigation has been filed by two registered organizations working for the advancement of right of children. Petitioners have approached this Court alleging illegal transfer of children to Kerala amounting to child trafficking. Petitioners have referred to newspaper reports; Ext. P1 dated 25/05/2014, a news item published in the New Sunday Express with heading "Cops Rescue 456 Kids from Train", another report with heading "Alleged Child Trafficking: 183 kids to be sent to CWC" dated 26/05/2014, report dated 27/05/2015 with heading "8 Held in connection with trafficking of Kids" which were published by the New Indian Express and lastly the newspaper report dated 28/05/2013 with heading "Orphanages Traffic Children to Extract Govt. Funds, Says Report". Petitioners contend that as per the newspaper reports, the illegal transfer of children to Kerala are from the States of Bihar, Jharkhand and West Bengal and they have conducted a fact finding of the incident. Petitioners submit that these children belonging to extremely impoverished communities were brought to the orphanages in Kerala under the guise of giving them free education. The children, aged from 5 to 12, were not even aware of their location, address. It is stated that the children reached Palakkad through Patna - Ernakulam Express. About 458 children arrived from Bihar and Jharkhand. Approximately 232 girl children were there and among them 68 children were sent to Mukkam orphanage and rest of 164 girls were accommodated in the local orphanages. The next day another batch of children were found to be transferred from West Bengal. These children had documents, but it is seen forged. Further it is stated that money was collected from the parents to bring them to the orphanages in Kerala. It was found that most of the children trafficked from Bihar are belonging to Villages like Koukhaya, Gouda. It was found that around 183 children were brought to Calicut District Child Welfare Committee and were sent to Government Home. Petitioners referred to the United Nations Protocol to prevent, suppress and punish trafficking in persons, especially women and children adopted in November, 2000. It is pleaded that children belonging to extremely poor families were brought promising free food and shelter and parents were coerced to send their children to these orphanages which are not fit institutions as per the Juvenile Justice (Care and Protection of Children) Act, 2000. It is pleaded that children in orphanages imply that children those who do not have parents, consequently they become children in need of care and protection. As per the Juvenile Justice (Care and Protection of Children) Act, 2000, Children in need of care and protection are to be presented before the Child Welfare Committee. It is pleaded that the institutions like orphanages are running without being properly monitored under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and thousands of children were brought from outside States. It is submitted that children have a right to live in their own community and culture. Being plucked from their natural habitat, culture and language to an alien culture, habitat and languages would cause immense psychological strain on the tender mind
