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PUNJAB & HARYANA HIGH COURT
Surya Kant and Augustine George Masih JJ.
Chandigarh Administration
Versus
Nemo
CIVIL WRIT PETITION No. 8760 of 2009,
Decided On : JUNE 9, 2009
(B) Criminal Law--Rape--Of Inmate of Nari Niketan by Guard--Guidelines issued for such like institution to carry out sweeping administration reforms--Held;
[a] there shall be a notified Medical Board headed by the Director, Health Services, UT, Chandigarh and should also consist of all possible subject specialists, necessarily including a Gynaecologist; a Skin Specialist and a Counsellor etc. as Members, who shall be required to visit, fortnightly and examine each and every inmate of the Nari Niketan, Ashreya or any other Government run/aided institution of this kind. The Medical Board shall submit its periodical report to the Secretary, Department of Health, UT Administration, who shall be required to satisfy himself regarding the adequate medical aid and assistance to the inmates;
[b] the periodical examination of the inmates of the Nari Niketan, Ashreya or any other Institution shall necessarily include their examination as to whether or not the inmate has been subjected to any sexual or digital abuse;
[c] in case the medical Board finds any inmate to be a victim in terms of the direction [b] above, the matter shall be reported to the local police forthwith and further legal action, as per the law, shall follow;
[d] the petitioner Administration is directed to provide the best medical treatment to all the inmates of the Government run/aided Institutes and no plea or pretext of the financial constraints or non-availability of adequate funds shall be entertained in this regard;
[e] we further direct that there shall be constituted a Monitoring Committee consisting of at least five members which shall include not less than three NGOs/Social Workers of high repute in the specialised field and preferably to be headed by an NGO/ Social Worker only, along with two members who shall be responsible officers of the Chandigarh Administration and are empowered to accord necessary sanction for the day-to-day expenditure, as may be incurred to provide basic amenities to the inmates of all the Government run/aided Institutes. The composition, administrative and financial structure of the Monitoring Committee shall be duly notified by the Chandigarh Administration.
[f] there shall be a list duly notified by the Home Secretary of the Chandigarh Administration, within one month of the receipt of a copy of this judgment, of the NGOs, Social Workers, the Human Right Activists, Volunteers including Lawyers inclined to provide free legal aid services, who shall be given visiting rights, not less than once in a week, however preferably between 7 AM to 7 PM, to all the Welfare Institutions including Nari Niketan and Ashreya. We direct that any report submitted by such a visitor regarding poor/mal-functioning or on improvement thereof, shall be considered and acted upon by the Competent Authority of the Chandigarh Administration within one month from the date of its receipt and if found not feasible, to communicate its reasoned decision to the visitor concerned within the above stipulated period;
[g] the description and the particulars of each inmate, along with photographs, if possible, and their latest status of the educational pursuit, shall be displayed on the website of the Department concerned and/or the Chandigarh Administration and shall be updated from time to time. Any suggestions, remarks or views received on the website or otherwise shall also be dealt with and disposed of in accordance with law and within one month from the date of their receipt;
[h] we further direct the petitioner Administration to start community kitchen in all the Government run/aided Institutions and if the inmates include females also, by employing the female staff only. The petitioner Administration, with the approval of the Monitoring Committee constituted above, may also involve the inmates in the cooking process, however, by ensuring that no risk is caused to their mental and physical health. It is directed that all the inmates shall be provided nutritious, healthy and adequate food. The Monitoring Committee as well as the NGOs/Social Workers to whom visiting rights shall be provided as directed above, shall be permitted and are expected to test the quality of the food;
[i] we also direct the petitioner Administration not to keep/employ male employees for the internal functioning of the Institutions unless all the inmates are males only. The petitioner Administration shall also explore the feasibility of employing retired Lady Police Officers/Officials or in the alternate Ex-Army Personnel for the outer security purposes of such Institutions; (Para 40)
Surya Kant, J.
1. The Chandigarh Administration has filed this writ petition purportedly in public interest, seeking permission for medical termination of the pRegulation ncy of a mentally retarded girl [the name withheld and here-in-after referred to as the victim], who was previously an inmate of the Nari Niketan, Sector 26, Chandigarh and has presently been shifted to Ashreya - a Home for the mentally challenged, located in Sector 47, Chandigarh. The medical termination of pRegulation ncy of the victim has been sought on the strength of the medical opinion dated 27.5.2009 given by the Multidisciplinary Medical Board of the Government Medical College and Hospital, Sector 32, Chandigarh.
2. The following facts would unfold the pathetic story of physical and mental abuse of a hapless girl in a Government-run Institute :-
[a] The victim, an orphan, was under the guardianship of New Delhi Missionary of Charity till 28th December, 1998. It appears that as per the records maintained by the Missionary of Charity in New Delhi, she was born on 8th December, 1991. As the girl was mentally retarded, the New Delhi Missionary of Charity put her under the guardianship of Missionary of Charity, Sector 23A, Chandigarh and made her join the Government Institute for Mentally Retarded Children, Sector 32, Chandigarh. While studying there, she ran away from the said Institute on 20th March, 2005. She was later on traced by the police and brought to the Nari Niketan, Sector 26, Chandigarh. On 13th March, 2009, the victim was shifted to Ashreya - a newly established Institute. Both Nari Niketan as well as Ashreya are Government institutes, run by the Chandigarh Administration under the administrative control of the Director, Social Welfare and the Director-Principal, Government Medical College and Hospital, Chandigarh, respectively. When shifted from Nari Niketan to Ashreya, the victim was understood to be about 16 years of age.
[b] After the victim was shifted to Chandigarh, one Roshan Ara Khatun, wife of Mohammad Farukh, claimed her custody under the mistaken belief that she was her lost daughter Reshma but soon thereafter "admitted" her mistake and declined to keep her. According to Roshan Ara Khatun, she was convinced that the victim was not her daughter for the reason that there was no mark of a cut on the waist of her daughter Reshma which is noticeable on the waist of the victim. Consequently, the victim was brought back to the Nari Niketan under the orders of the Sub Divisional Magistrate, who had earlier, even without proper verification, handed-over the custody of the victim to Roshan Ara Khatun.
[c] The petitioner claims that on 16th May, 2009, a Medical Social Worker and a Staff Nurse working in Ashreya observed that the victim had a feeling of nausea and complained of pain in lower abdomen. The victim also disclosed to them that she had missed her last two menstrual periods. The Medical Social Worker and the Staff Nurse, on their own, conducted a pRegulation ncy test from the victims urine and found it to be positive. The authorities of the Government Medical College and Hospital were immediately informed and the next day being a Sunday, a Medical Board comprising two Gynaecologists and a Radiologist was constituted on 18th May, 2009, who, on clinical examination of the victim, found out that she was 8- 10 weeks pRegulation nt. The pRegulation ncy was re-confirmed by the Radiologist on the basis of the ultra-sound examination done on the same day and as per the report, the pRegulation ncy was of 9 weeks 1 day +- 3 days of Gestation. Due to the increasing abdominal pain, the victim was admitted to the Gynae Ward of the Hospital and thereafter, an ossification test is said to have been conducted on 20th May, 2009, which set her bone age to be between 19-20 years.
[d] The pRegulation ncy of an unwed mentally retarded girl having been confirmed, the authorities swang into motion and informed the Chandigarh Police on 18th
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