SAMPURNA BEHURA versus UNION OF INDIA & ORS.

[2018] 2 S.C.R.

SAMPURNA BEHURA

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 473 of 2005)

BFEBRUARY 09, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Public Interest Litigation: Non-implementation or tardyimplementation of laws beneficial to children-Juvenile Justice Actof 2000 and 2015 – Failure of State Governments to implementCvarious provisions of the Act of 2000 including, inter alia, theestablishment of Child Welfare Committees, Juvenile Justice Boards,Special Juvenile Police Units, establishment of Homes for childrenin need of care and protection, improving the living conditions ofjuveniles in conflict with law – Writ petition u/Art. 32 seekingDdirections to the Chief Secretaries and the Directors General ofPolice and Superintendents of Police of all the States to forthwithimplement the Act of 2000 and directions to States to provide basicamenities – Held: Keeping in view the need to strengthen the juvenilejustice system in the country, issuance of certain directions to Statesfor proper implementation of the Juvenile Justice Act – Chief JusticeEof each High Court to establish child friendly courts and vulnerablewitness courts in each district – Juvenile Justice (Care andProtection of Children) Act, 2000 – Juvenile Justice (Care andProtection of Children) Act, 2015 – Constitution of India – Art. 32.

Disposing of the writ petition, the CourtF

HELD: 1. Suggestions and recommendations:

(i) National and State Commissions for Protection of Child Rights

(a) The Commissions for Protection of Child Rights Act, 2005provides for the Central Government constituting body to beGknown as the NCPCR (National Commissions for Protection ofChild Rights) at the national level and the State Governmentsconstituting body to be known as the SCPCR (StateCommissions for Protection of Child Rights) at the State level.[Para 56] [968-C]

(b) At the national level, the NCPCR is an institution consistingof eminent persons and experts in their respective fields. As such,they are expected to look at issues concerning the welfare ofchildren in the national perspective taking into consideration theviews of every SCPCR and other stakeholders. At the State level,the SCPCR is an equally significant body consisting of eminentpersons and experts. They are expected to take policy decisionsfor the benefit of the children in their State, regardless of whichState the children originally belong to, for there might be childrenof one State who are in need of care and protection but in ChildCare Institution of another State. The functions of the NCPCRand the SCPCR are more or less the same except that oneperforms these functions at the national level, while the otherperforms these functions at the State level. [Paras 57, 58] [969-B-D]

(c) Both the NCPCR and the SCPCR have range and variety offunctions to perform and each one of them entails great deal ofresponsibility. It is given to understand that both the Governmentof India and the State Governments have not been giving thesebodies the freedom to decide on broad policy matters and indeedin some instances, particularly relating to the SCPCR, vacancieshave not been filled up for several months. Unfortunately, at onepoint of time, even the position of the Chairperson of the NCPCRwas lying unfilled for several months, until, on the directions ofthis Court, the position was eventually filled up. Unless theNCPCR and the SCPCRs are given due importance by theGovernment of India and the State Governments and vacanciesare filled up in time, the enforcement of the rights of children willremain on the back burner and any number of welfare schemesformulated by the Government of India or by the StateGovernments will remain unimplemented or their implementationwill remain sketchy and symbolic. [Para 59] [971-B-E](d) There is hope and trust that those in authority and power inthe Government of India and in the State Governments appreciatethe importance of adhering to the provisions of the laws enactedby Parliament and ensure that the NCPCR at the National leveland the SCPCR at the State level actually function and performtheir duties and recognize their responsibilities. [Para 60] [971-E-F]

[2018] 2 S.C.R.

A(ii) State Child Protection Society and the District Child ProtectionUnit

(a) The constitution of the State Child Protection Society and theDistrict Child Protection Unit need serious consideration so thatall stake-holders, including the police and NGOs are activelyBinvolved in the performance of the functions, duties andresponsibilities of these two bodies. The functions of the StateChild Protection Society and the District Child Protection Unitare detailed in Rule 84 and Rule 85 of the Juvenile Justice (Careand Protection of Children) Model Rules, 2016 framed by theGovernment of India. The functions are varied, extensive andCgeared to improve the living conditions of children throughdifferent strategies and with the involvement of all stake-holders.[Para 61, 62] [972-A-C]

(b) Section 106 of the JJ Act provides for the constitution of aState-level Child Protection Society and District-level ChildDProtection Unit. Section 106 JJ Act broadly indicates that theprimary function of the State Child Protection Society and theDistrict Child Protection Unit is to ensure implementation of theJJ Act. In addition, these bodies are obliged to ensure that theinstitutions under the JJ Act are established and maintained,Ecompetent authorities in relation to children and theirrehabilitation are in place and these two bodies are also requiredto coordinate with Government officials as well as NGOs todischarge their wide-ranging functions. The involvement of civilsociety through NGOs is progressive step and these two bodiesare expected to take their assistance from time to time. If theseFtwo bodies actually perform their duties, responsibilities andfunctions in the manner expected of them, the implementation ofthe JJ Act would no longer be an issue. Unfortunately, thesebodies are not functioning in many places or in the manner inwhich they are expected to and in several districts the DistrictGChild Protection Unit has not even been constituted. There isexpectation that remedial steps to be taken by all concerned.[Paras 63-65] [972-D, G-H; 973-A-B]

(iii) Juvenile Justice Boards and Child Welfare Committees

(a) The appointment of some social workers as members of theHJJB is not necessarily in accordance with the provisions of Section

4 of the JJ Act. The selection of social workers as members ofthe JJB is required to be carried out in accordance with theprovisions of Rule 88 read with Rule 87 of the Model Rules. Theappointment of social workers is serious business, inasmuch asthey bring their experience - practical and professional - whileconducting an enquiry under the JJ Act. This becomes all themore important when it is appreciated that the social workerscan also conduct an enquiry independent of the PrincipalMagistrate as provided for in Section 7 of the JJ Act. However,the final disposition of the enquiry cannot be without the PrincipalMagistrate as mandated in the proviso to sub-section (3) ofSection 7. Thus, there is heavy responsibility on the socialworkers to make meaningful contribution during the course ofan enquiry and also at the time of its disposition. [Paras 67, 68][973-E; 974-C-E](b) The training of the Principal Magistrate as well as the socialworkers is extremely important and this is provided for in Rule89 of the Model Rules. Unfortunately, the duration of trainingand the curriculum and course have not yet formulated, and thenature of training given to the Principal Magistrate and the socialworkers is somewhat ad hoc and unstructured. The lack ofmeaningful and effective training (and refresher courses) can havea vital impact on the ultimate disposition of an enquiry as also onthe rehabilitation and reintegration of juvenile in conflict withlaw who is before the JJB. Serious thought is required to begiven to this not only from the point of view of awareness of thelaw and child rights but also from the point of view of sensitizationof the JJBs, case management and creation of child friendlyambience and environment within the JJB for juvenile in conflictwith law. [Para 69] [974-F-H]

(c) If there are large number of inquiries pending, it is theobligation of the JJB to sit on daily basis so that the enquiry isconcluded within the time limit prescribed by the JJ Act. Wherea large number of inquiries are pending, it would be worthwhilefor the State Government and the High Court to consider havingmore than one JJB. [Para 71] [975-E-F]

(d) JJB is virtually in the nature of court, although it does notconduct trial, but only conducts an enquiry. Nevertheless, it

Adoes need adequate staff to perform its functions in an efficientmanner. The JJB also has several administrative functions andthey need due attention so that there is effective coordinationbetween the JJB, the officials of the Observation Home, thepolice, the juvenile in conflict with law and the parents of thatjuvenile and lawyers representing the police as well as theBjuvenile in conflict with law. These administrative duties needattention if the JJB is to function effectively and casual statementthat the JJB has adequate staff, though possibly correct, is neitherhere nor there considering the requirements of the stake-holderswho attend the enquiry before the JJB. [Para 72] [973-A-C]C(e) There is dire need to have quality legal aid lawyers who canassist juveniles in conflict with law. This is an issue that must betaken up with all earnestness by the State Legal ServicesAuthority. Unless child is given adequate legal representation,it may impact his or her future, more so if the child in conflictDwith law is found guilty and placed in Special Home. On its part,NALSA has brought out manual for training of legal aid lawyersand it is believed that it will be extremely useful not only for legalaid lawyers who are representing juveniles in conflict with law,but also for legal aid lawyers generally. Similarly, prosecutors alsoneed to be sensitized and the State Governments would takeEnecessary steps to educate and train them keeping in mind theprimary objective of the JJ Act, which is to reintegrate juvenilein conflict with law in society and to rehabilitate that juvenile.[Para 73] [976-D-F]

(f) It is clear from Rule 64 of the Modal Rules that ProbationFOfficer has very important role to play in ensuring that juvenilein conflict with law is given adequate representation and fairhearing before the JJB and the enquiry is conducted in mannerthat is conducive to the rehabilitation of the juvenile in conflictwith law. In this regard, the preparation of an individual care planGand post release plan gain immense significance and ProbationOfficer has an important role to play. [Para 75] [978-F-G]

(g) It is of great importance that Probation Officer should begiven adequate training, sensitization and awareness of his orher duties and responsibilities. NALSA has made significantHcontribution in this regard by preparing training module for

Probation Officers. It is expected all the State Governments aswell as MWCD to ensure that training is given to ProbationOfficers on the lines suggested by NALSA with improvementsbeing made in adult learning techniques, training methodology,the curriculum and the course content in due course of time. Thesaid conclusions are equally applicable to the CWCs. [Para 76][978-G-H; 979-A]

(iv) Use of technology

(a) The use of technology, both by the JJBs as well as by theCWCs is extremely important and it is disheartening to note fromthe affidavits and submissions made by MWCD that there is anacute shortage of computers and peripherals with the JJBs andCWCs. Technology is important not only for the effectivefunctioning of the JJBs and CWCs, but also to deal with issuesthat would arise from time to time concerning the tracing andtracking of missing children, the rescue of children working inhazardous industries, trafficked children, children who leave theChild Care Institutions, victims of child sexual abuse and follow-up action, among several other requirements. It is well-knownthat our country is technological power-house and if advantageis not taken of the resources available and fully utilize the benefitsof technology through computers and the internet for the benefitof children, our status as technological power-house would bein jeopardy and would remain only on paper. Data, particularly ofthe magnitude of the kind, can be easily collected through theuse of computers and internet. This would be of great assistancein planning and management of resources and MWCD and othersconcerned with child rights must take full advantage. [Para 79][979-E-H; 980-A]

(b) The use of computers and peripherals would make an immensecontribution to the administrative functioning of the JJBs andCWCs. Both the Government of India and the State Governmentsneed to look into this and provide necessary software andhardware to the JJBs and the CWCs for obvious reasons. ThePolice authorities in Telangana and AP in consultation with theJuvenile Justice Committee of the High Court have madeconsiderable use of information and communication technologyand innovative steps must be encouraged. Similarly, the use of

Avideo conferencing could also be considered in appropriate caseswhere some inconvenience to the juvenile in conflict with lawnecessitates the use of video conferencing facilities. [Para 80][980-B-C]

(c) MWCD must be complimented for bringing out an onlineBCentral Level Monitoring System. This online system is workingrather effectively although it would need upgrading from time totime as the months go by. The unfortunate part is that there doesnot seem to be much active cooperation extended by the StateGovernments in updating the information on the Central LevelMonitoring System. Needless to say, updating information isCextremely important so that there can be efficient planning whichwill ultimately lead to better management of issues concerningchildren. The State Governments are required to fill up theinformation on the Central Level Monitoring System once aquarter and surely that cannot be difficult task. [Para 81] [980-DD-E, F]

(v) Role of Police

(a) An extremely important stake-holder in the effectiveimplementation of the JJ Act is the local police. Section 107mandates the appointment of Child Welfare Police Officer andEa Special Juvenile Police Unit in each district. The SJPU mustalso include two social workers having experience of work in thefield of child welfare, one of them being woman. Theresponsibility for appointment lies on the State Government. ManyStates have actually appointed CWPOs and set up SJPUs.FUnfortunately, their duties and responsibilities have not beenclearly identified but are generally stated in Rule 86 of the ModelRules. Also no system of effective training for CWPOs and SJPUshas evolved and many of them exist only symbolically and onlybecause the law requires them to exist. Since the duties andresponsibilities of the CWPOs and SJPUs have not been specifiedGor identified, it is high time that the Bureau of Police Research& Development and the National Police Academy in consultationwith the State Police Academies identify the functions, duties andresponsibilities of the CWPOs and SJPUs. In this regard, NALSAhas prepared Guidelines for Training Juvenile/Child WelfareHOfficers attached to every police station and members of the

Special Juvenile Police Unit. Perhaps this could be startingpoint for their training through the Bureau of Police Research &Development and the Police Academies. [Paras 82, 83] [980-G-H; 981-E-H]

(b) With regard to the Police generally, it was submitted that dueto the policy of rotation, it often happens that soon after policeofficer completes his or her training that officer is transferredout to another department. This is waste of effort and one ofthe ways of resolving problems arising out of transfers is for everyState Police Academy to conduct regular training programmesunder the guidance of senior police officials of the State and forthe State Government to optimally utilize the services of itsofficers. Similarly, the Government of India is required to involveRailway Police for dealing with children. No information or datais forthcoming in this regard. The Government of India throughthe Railways is expected to look into the matter with some degreeof urgency. large number of runaway children and children ondrugs are found in railway stations (and other places) working asrag-pickers or performing other menial activities. It was submittedthat even otherwise, there is rampant drug abuse among suchchildren. Efforts must be made to establish de-addiction centresespecially for such children and also generally for juveniles inconflict with law and children in need of care and protection. [Para86] [982-E-G]

(vi) Child Care Institutions

(a) Many of the Child Care Institutions are housed in run-downbuildings and are hardly conducive to comfortable living even toa minimum degree. State Governments must appreciate that theyare not doing any charity by putting up children in Child CareInstitutions - they are merely performing their statutory andconstitutional obligations. There is, therefore, an urgent need tomake an evaluation and assessment of all the Child CareInstitutions in every State to ascertain their condition, theinfrastructure requirements and staffing requirements. Childrenlive in these Institutions, not because they want to but becausethey have no other option, since most of them are children inneed of care and protection. The obligation of society is to providesolace and comfort to these children and adherence to the

BCD

FGH

[2018] 2 S.C.R.

Aminimum standards of care. Model Rules contain details forimproved Child Care Institutions and their requirements. [Para87] [982-G-H; 983-A-C]

(b) There are additional duties and responsibilities obligated bythe Constitution on the State Governments such as providingBeducation, health-care (both physical and psychological) andadequate nutrition. These are huge areas that need to be lookedinto with all sincerity by the bodies and institutions establishedunder the Commissions for Protection of Child Rights Act, 2005and the JJ Act. But, in such exceptional circumstances, the courtsare constitutionally obliged to issue continuing mandamus inCpublic interest for implementation of the laws enacted byParliament, which is essentially the primary responsibility of theExecutive. If the Executive ignores the mandate of Parliamentwith continuing callousness, it would only be to the detriment ofthe children of the country. [Para 88] [984-B-D]

D(c) MWCD has made considerable efforts in ensuring that ChildCare Institutions run and managed by individuals and NGOs areregistered in accordance with the provisions of the JJ Act. Therehas been some resistance to registration from some institutions,thus, it is made clear that the law has to be obeyed as long as itEexists on the statute books. It might be uncomfortable for thosewho manage some of these Child Care Institutions, butregistration is compulsory and in public interest to ensure thatminimum standards of care are maintained and the children inthose Institutions are well looked after. Occasionally there areallegations originating from Child Care Institutions of traffickingFand child sexual abuse, some of which may be unverified, but toavoid any such shameful allegations it is necessary that theirregistration, their management and functioning are strictlymonitored by the State Governments and by MWCD. [Para 89][983-G-H; 984-A-B]

G(d) It was suggested by the counsel that in all Child CareInstitutions, there should be segregation of children in termsof age and wherever applicable segregation based on the natureof the offence allegedly committed so that the possibility of sexualabuse or any other kind of violence is eliminated. Additionally,Hall such institutions should be advised to provide vocational or

continuing education with view to re-settling children in conflictwith law and children in need of care and protection byreintegrating and mainstreaming them in society. It wasemphasized that there should be adequate staff available in allChild Care Institutions so that they are able to perform theirduties efficiently. It was also suggested that the location of theJJBs and CWCs should be in close proximity of the Child CareInstitutions to avoid children having to travel long distances fortheir appearance before these statutory bodies. All thesesuggestions and recommendations made by the counsel are issuesof concern and must be dutifully addressed by the StateGovernments and the SCPCRs. [Paras 90, 91] [984-F-H; 985-A]

(e) The submissions made with regard to Child Care Institutionswas that District Legal Services Authorities may makeunscheduled visits to them to ascertain whether they are in factfunctioning as they should, is definitely worth implementing andNALSA is expected to go ahead with the suggestion. In fact, theChief Justices Conference in 2006 had specifically adverted tothe appointment of Visitors to Child Care Institutions and in theChief Justices Conference in 2013 and 2015 improving the livingconditions in Child Care Institutions was also adverted to.NALSA and District Legal Services Authorities to respect theviews expressed in the Chief Justices Conferences. [Para 92][985-B-C]

(vii) Juvenile Justice Fund

(a) The JJ Act provides for the constitution of Juvenile JusticeFund. It is quite distressing to note that some of the StateGovernments have not even set up the Juvenile Justice Fundwhile one or two State Governments have set up the Fund withan embarrassing amount of only few thousand rupees. It iswondered how the welfare of children can be looked after by theseState Governments with such pittance in the kitty. Obviously,these State Governments are not seriously concerned about thewelfare of children, which is pity. This is official apathy to therights of children and cause for worry. [Para 93] [985-D-F]

(viii) Evaluation and assessment

(a) It would be appropriate if some sort of an evaluation or social

ABC

Aaudit is carried out every six months for the next couple of yearsto monitor and supervise the implementation of the JJ Act. Morethan sufficient time has already elapsed since the Act of 2000was enacted by Parliament and certainly the children of the countrydeserve much better and cannot wait for another 15 or 16 yearsfor the effective implementation of the JJ Act. Most of theBchildren who were born when the Act of 2000 was enacted arenearing adulthood and many of them have not had the benefit ofthe provisions of the Act of 2000. This mistake, serious one,cannot be repeated in the implementation of the JJ Act. [Para94] [985-G-H; 986-A]C2. Conclusions and directions:

Keeping in mind the concerns expressed by the counsels andthe need to invigorate the juvenile justice system in the country,the following directions are given:

D(i) The Ministry of Women and Child Development in theGovernment of India and the State Governments shouldensure that all positions in the NCPCR and the SCPRsare filled up well in time and adequate staff is provided tothese statutory bodies so that they can function effectivelyand meaningfully for the benefit of the children.E(ii) The NCPCR and the SCPCRs should take their duties,functions and responsibilities with great earnestnesskeeping in mind the faith reposed in them by Parliament.These bodies have very significant and proactive role toplay in improving the lives of children across the country.F(iii) The State level Child Protection Societies and theDistrict level Child Protection Units have an enormousresponsibility in ensuring that the JJ Act is effectivelyimplemented and Child Care Institutions are managed andmaintained in manner that is conducive to the well beingGof children in all respects including nutrition, education,medical benefits, skill development and general livingconditions. These two bodies would be well advised totake the assistance of NGOs and civil society.

(iv) The State Governments must ensure that all positionsHin the JJBs and CWCs are filled up expeditiously and in

accordance with the Model Rules or the Rules framed bythe State Government. Any delay in filling up the positionsmight adversely impact on children and this should beavoided.

(v) The JJBs and CWCs must appreciate that it isnecessary to have sittings on regular basis so that aminimal number of inquiries are pending at any given pointof time and justice is given to all juveniles in conflict withlaw and social justice to children in need of care andprotection.

(vi) The NCPCR and the SCPCRs must carry out time-bound studies on various issues, as deemed appropriate,under the JJ Act. Based on these studies, the StateGovernments and the Union Territories must takeremedial steps.

(vii) The NCPCR and the SCPCRs must carry out studyfor estimating the number of Probation Officers requiredfor the effective implementation of the JJ Act. Based onthis study, the State Government must appoint thenecessary number of Probation Officers. It must beemphasised that the role of Probation Officer is criticalfor the rehabilitation and social reintegration of juvenilein conflict with law and due importance must be given totheir duties as postulated in the Model Rules and Rules,if any.

(viii) MWCD must continue to make creative use ofinformation and communication technology not only for thepurpose of collecting data and information but also forother issues connected with the Act such as having adatabase of missing children, trafficked children and forfollow up of adoption cases etc.

(ix) There is need to set up Special Juvenile Police Unitsand appoint Child Welfare Police Officers in terms of theJJ Act at the earliest and not only on paper. It is necessaryto clearly identify the duties and responsibilities of suchUnits and Officers and wherever necessary, guidance fromthe available expertise, either National Police Academy

or Bureau of Police Research and Development or NGOsmust be taken for the benefit of children.

(x) The National Police Academy and State PoliceAcademies must consider including child rights as partof their curriculum on regular basis and not as an isolatedor sporadic event.

(xi) The management of Child Care Institutions isextremely important and State Governments and UnionTerritories would be well advised to ensure that all suchinstitutions are registered so that children can live adignified life and issues of missing children and traffickingare also addressed.

(xii) State Governments and Union Territories would bewell advised to appoint eminent persons from civil society asVisitors to monitor and supervise the Child Care InstitutionsDin all the districts. This will ensure that the managementand maintenance of these Institutions are addressed.

(xiii) The JJ Fund is bit of an embarrassment with anabsence of an effective response from the StateGovernments and the Union Territories. If financialresources are not made available for the welfare of thechildren we shudder to think what could be betterutilization of the funds.

(xiv) NALSA has done remarkable job in collecting dataand information relating to the JJ Act, as evidenced bythe three part Report prepared by it. NALSA is requestedto carry forward the exercise and complete similarReport preferably before 30[th] April, 2018 to assist all thepolicy making and decision taking authorities to plan outtheir affairs.

(xv) All authorities such as JJBs and CWCs, ProbationGOfficers, members of the Child Protection Societies andDistrict Child Protection Units, Special Juvenile PoliceUnits, Child Welfare Police Officers and managerial staffof Child Care Institutions must be sensitized and givenadequate training relating to their position. very positiveHstep has been taken in this regard by NALSA and it is

expected that the NCPCR with the assistance of theSCPCRs to carry forward this initiative so that there ismeaningful implementation of the JJ Act.

(xvi) Each High Court and the Juvenile Justice Committeeof each High Court to continue its proactive role in thewelfare of children in their State. To make the involvementand process more meaningful, Chief Justice of every HighCourt is requested to register proceedings on its ownmotion for the effective implementation of the 2015 Actso that road-blocks if any, encountered by statutoryauthorities and the Juvenile Justice Committee aremeaningfully addressed after hearing the concernedgovernmental authorities. [Para 95] [986-B-H; 987-A-H;988-A-H; 989-A-F]3. The Chief Justice of each High Court is requested toseriously consider establishing child friendly courts andvulnerable witness courts in each district. Inquiries under the JJAct and trials under other statutes such as the Protection ofChildren from Sexual Offences Act, 2012, the Prohibition of ChildMarriage Act, 2006, trials for sexual offences under the PenalCode and other similar laws require to be conducted with highdegree of sensitivity, care and empathy for the victim. [Para 96][989-F-G]

Sheela Barse II v. Union of India (1986) 3 SCC 632;Sheela Barse v. Union of India (1988) 4 SCC 226 : [1988]2 Suppl. SCR 643; Court on its own motion v. State ofPunjab and The National Commission for the Protectionof Child Rights (NCPCR) v. The State of Haryana andOthers Decided on 9[th] April, 2013, MANU/PH/0599/2013; Naisul Khatun v. State of Assam and Ors. 2011 CriLJ 326 : 2010 SCC Onluine Gau 225; The Matter ofLetter of Sanat Kumar Sinha (Chief Co-ordinator), BalSakha v. The State of Bihar through the Chief Secretary,Govt. of Bihar and Ors. MANU/BH/0384/2008 – referred to.

Case Law Reference

(1986) 3 SCC 632[1988] 2 Suppl. SCR 6432011 Cri LJ 326:2010 SCC

referred toPara 22referred toPara 24referred toPara 70

ACIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.473 of 2005

Under Article 32 of The Constitution of India.

Colin Gonsalves, Sr. Adv., Ms. Sneha Mukherjee, Ms. JyotiMendiratta, Advs. for the Petitioner.B

S. Wasim A. Qadri, R. K. Rathore, Ms. Sunita Sharma, Ms.Gunwant Dara, A. A. Raj, B. V. Balram Das, G. S. Makker, Raj Bahadur,Shailender Saini, Saeed Qadri, Vikas Bansal, Gagan Gupta, SaurabhGupta, Advs. for the Respondents.

CThe Judgment of the Court was delivered by

MADAN B. LOKUR, J. 1. What can citizen do if the Statepays no attention to his or her fundamental or human or statutory right,nor takes serious interest in fulfilling its constitutional or statutoryobligations? What if that citizen is voiceless child or someone whoseDvoice cannot be heard over the din of governance – for example,physically or mentally challenged persons, senior citizens, and otherdisadvantaged sections of society such as scheduled castes, tribals andseveral others? The aggrieved would perhaps approach the judiciary (ifhe or she could and as last resort) for the enforcement of humanright. Should the judiciary take corrective steps and be accused of ‘judicialEactivism’ or overreach – or should the cynics and skeptics have theirday resulting in the grievance of the voiceless and the disadvantagedremaining unheard and the fundamental and human rights lyingunaddressed?

2. These questions arise in the context of the virtual non-Fimplementation or tardy implementation of laws beneficial to voiceless(and sometimes silenced) children, particularly, the Juvenile Justice (Careand Protection of Children) Act, 2000 (the Act of 2000) and the JuvenileJustice (Care and Protection of Children) Act, 2015 (the JJ Act). Werecord and acknowledge our appreciation for the efforts of SampurnaBehura in highlighting some of these issues by way of Public InterestGLitigation and to learned counsel for the appearing parties in renderingassistance enabling us to address some of these issues by not makingthese proceedings adversarial, but constructive effort for the benefitof the children of our country. No one has any doubt that it is time for theState to strongly and proactively acknowledge that even children in our

country have fundamental rights and human rights and they need to beenforced equally strongly.

3. If Nelson Mandela is to be believed, “Our children are ourgreatest treasure. They are our future. Those who abuse them tear atthe fabric of our society and weaken our nation.”[1] Our policy and decisionmakers need to heed this advice and warning and appreciate that theyare not doing any favour to the children of our country by caring forthem – it is their constitutional obligation and the social justice lawsenacted by Parliament need to be effectively and meaningfully enforced.

Background and Chief Justices Conferences

4. In prescient understanding of child rights, the Chief Justices’Conference held in 2006 (presided by the Chief Justice of India withparticipation by the Chief Justice of every High Court) the followingresolution was passed:

“a) That High Courts will impress upon the State Governmentsto set up Juvenile Justice Boards, wherever not set-up. The ChiefJustices may nominate High Court Judge to oversee the conditionand functioning of the remand/observation homes establishedunder the Juvenile Justice (Care and Protection of Children) Act,2000.

b) The Chief Justices of the High Courts will expedite the matterwith the respective State Governments for setting up of JuvenileJustice Boards, wherever they have not yet been set up.

c) The Chief Justices of the High Courts will nominate Judgeto make periodical visits to Juvenile Homes, wherever set up,and the learned Judge may suggest remedial measures for thebetterment of the conditions of the juvenile homes and inmates.”

5. The above resolution was passed almost six years after the Actof 2000 came into force – meaning thereby that even about six yearsafter Parliament enacted law for the benefit of children, the StateGovernments 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 progressmade in setting-up of Juvenile Justice Boards and the resolution passed

1 Address by President Nelson Mandela at National Men’s March, Pretoria on 22November 1997

Ain the Conference in 2006 was reiterated indicating that little or noprogress had still been made by the State Governments in setting upJuvenile Justice Boards. So, almost decade had gone by withoutcompliance by the State Governments of basic statutory obligation laiddown by Parliament.

B7. In 2013 the issue of strengthening the juvenile justice systemwas again discussed at the Chief Justices’ Conference and the resolutionspassed in 2006 and 2009 were reiterated. In addition, the mandate ofsetting up Child Welfare Committees in all districts was also emphasizedto meet the requirements of children in need of care and protection andto give full effect to the provisions of the Act of 2000. It was the furtherCresolved:

“It was further resolved that Juvenile Justice Committees, ashad been set up in the Delhi High Court, under the guidance ofthe Chief Justice and senior judges and others concerned withthe welfare of juveniles and the working of the Juvenile Justice(Care and Protection of Children) Act, 2000, be set up in all theHigh Courts to monitor the implementation of the provisions ofthe Act in their true spirit.

It was noticed that the State Governments had not taken serioussteps to establish and set-up the various Homes, referred to inthe Juvenile Justice (Care and Protection of Children) Act, 2000,as amended in 2006 and the Juvenile Justice (Care and Protectionof Children) Rules, 2007. It was noticed that the conditions inthe Remand/ Observation Homes and Shelter Homes are not upto the standard and lot of improvement was required to makethese facilities meaningful, as envisaged under the above Actand Rules. It was also noticed that After-care Homes foradolescents passing into adulthood and, in particular girls, havenot been taken up seriously by the concerned Authorities. TheChief Justices shall take up the matter with the State Governmentsfor improving the conditions of the various Homes, referred to inthe above Act and the Rules, and to provide for permanent staffto run the said establishments, as it was reported by some of theChief Justices that many of the employees of the Homes hadbeen working on an ad-hoc basis, even for as many as fifteenyears. The Chief Justices were requested to take up the matter

with the State Authorities to ensure that services of such persons,who have been working on ad-hoc basis, are regularised, ifnecessary, by creation of posts.

Particular notice was taken of the fact that the provisions of theJuvenile Justice (Care and Protection of Children) Act, 2000,had not yet been implemented in the State of Jammu andKashmir.”

8. In 2015 the issue of strengthening the juvenile justice systemwas once again discussed at the Chief Justices’ Conference and thefollowing resolution passed:

“Resolved that the High Courts shall continue to take all stepsnecessary, including evolving ways to ensure greater sensitivity,to effectively deal with cases in the field of Juvenile Justice intheir respective States. The High Courts should ensure thatconstitution of Juvenile Justice Boards and Child WelfareCommittees are in place, that visits are regularly made to theJuvenile Homes, Special Homes, Observation Homes, ShelterHomes and Rescue Centres etc. and that such homes are set upwherever they have not already been set up. It shall also beensured that the requisite facilities are provided as per theStandards, Rules, Policies and Guidelines in all such Homes/Centres. The assistance of State Legal Services Authorities andDistrict Legal Services Authorities shall also be taken in thisregard.”

9. Finally, in 2016 at the Chief Justices’ Conference the followingresolution was passed:

“The Conference has noted the necessity for ensuring institutionalsupport for juveniles in conflict of law and children in need ofcare and protection.

Resolved that:

(i) cases pending for period in excess of one year be disposedof on priority by the JJBs;

(ii) Juvenile Justice Committees of the High Courts shall monitorthe pendency and disposal of adoption cases and applicationsfor declaring children free for adoption on priority basis;

A(iii) steps be taken to ensure that every district is equipped witha Child Protection Unit, Special Juvenile Police Unit, ObservationHomes and Children Homes;

(iv) pending cases of orphaned, abandoned and surrenderedchildren be monitored by the Juvenile Justice Committees of HighBCourts;

(v) training and refresher training be imparted to judicial officers;

(vi) vacancies in juvenile justice institutions be filled up on amission mode basis in three months; and

(vii) State Legal Services Authorities should actively dischargeCtheir role.”

10. At this stage, it may be mentioned that pursuant to theresolutions passed in the Chief Justices’ Conferences, every High Courthas constituted Juvenile Justice Committee headed by judge of theHigh Court to take stock of and look into issues concerning children. WeDmay note that every High Court has responded more than positively andeach Juvenile Justice Committee has brought about some improvementsin the living conditions in Homes and in the well-being and lives of manychildren.

11. Appreciating that the judiciary has constitutional obligation

to ensure that everybody acts in the best interests of the child, the ChiefEJustice of India set up Committee in the Supreme Court to address theissues of effective implementation of the Act of 2000 – such is theimportance given by the judiciary to the rights of children.

12. Notwithstanding nudging by the judiciary, judicial ‘activism’

and criticism of it, over the last decade or so, State Governments andFUnion Territories have not fully complied with the provisions of lawsolemnly enacted by Parliament for the benefit of children. In manyinstances, only cosmetic changes have been introduced at the groundlevel with the result that voiceless children continue to be subjects ofofficial apathy. However, it must be acknowledged that the Union ofGIndia through the Ministry of Women and Child Development (for shortMWCD) has taken some bold steps in recognizing the rights of thechildren and giving them some importance. Nevertheless, the overallpicture relating to the recognition of the rights of children and theirrealization is far from satisfactory and remains gloomy as we continueto trudge along the long and winding road.H

Writ petition in Public Interest

13. Sampurna Behura, the petitioner before us, has done herMasters in Sociology and was pursuing her Doctoral Thesis in the samesubject at the relevant time. She has been involved in handling cases ofchild sexual abuse, street children and working children and has alsoundertaken various studies on child rights.

14. Concerned with the plight of children in the country, SampurnaBehura filed writ petition under Article 32 of the Constitution drawingattention to several Articles of the Constitution which impose primaryresponsibility on the State to ensure that the needs of children are metand their basic human rights are protected. The Articles in the Constitutionreferred to by her include those in the Chapter on Directive Principles ofState Policy. She has also drawn attention to the Convention on theRights of the Child adopted by the General Assembly of the UnitedNations on 20[th] November, 1989. The Convention, to which India is asignatory, emphasizes inter alia, securing the best interests of the child,social reintegration of child victims etc.

15. She has also stated in the writ petition that the Act of 2000was passed by Parliament bearing in mind various standards prescribedin the Convention on the Rights of the Child, the United Nations StandardMinimum Rules for the Administration of Juvenile Justice, 1985 (theBeijing Rules), the United Nations Rules for the Protection of JuvenilesDeprived of their Liberty, 1990 and other relevant internationalinstruments.

16. The main burden of the writ petition is the failure of StateGovernments to implement various provisions of the Act of 2000 including,inter alia, the establishment of Child Welfare Committees, JuvenileJustice Boards, Special Juvenile Police Units, establishment of appropriateHomes for children in need of care and protection, improving the livingconditions of juveniles in conflict with law, medical facilities for childrenin the custody of the State and several other human rights issues. It is on thesebroad facts and averments that relief was prayed for in public interest.

17. The writ petition also drew attention to surveys and researchesconducted in 2004-2005 in various States but it is not necessary to referto them in any great detail, notwithstanding their significance andimportance, since they might have lost immediate relevance with thepassage of time.

18.The prayer in the Public Interest Litigation is to the effect thatthe Chief Secretaries and the Directors General of Police andSuperintendents of Police of all the States should forthwith implementthe Act of 2000 in its true spirit.

19.There is also prayer that all respondent States be directed toBprovide basic amenities like nutritious food, proper and hygienicaccommodation, educational facilities, recreational facilities andrehabilitation centres for juveniles in various Homes and to direct theCollectors of each district to involve reputed NGOs in implementing theorders of this Court.

C20.The Act of 2000 has since been repealed and what is now inforce is the JJ Act. The repeal of the Act of 2000 does not at all changethe sum and substance of the reliefs claimed in the Public InterestLitigation. As such this petition though filed way back in 2005 is notinfructuous, the issues raised being very much topical and alive eventoday.D

Proceedings in this Court

21. The writ petition was first taken up for consideration on 26[th]September, 2005 when notices were issued to all the respondents (Unionof India and States). After service of notice (which itself took about oneEyear!) the matter was taken up on 3[rd] January, 2007 and it was observedthat the prayer in the writ petition was for forthwith implementation ofthe Act of 2000 in its true letter and spirit and that the petition highlightedsome provisions of the said Act which had not been implemented despitea number of years having elapsed. It was noted that the writ petitionhighlights the horrible conditions in some Homes for children and thatFthis was violation of Article 21 of the Constitution. Under thesecircumstances, the Court required detailed affidavits to be filed by therespondent States through the Chief Secretary of each State.

22. Reference was made in the order dated 3[rd] January, 2007 toSheela Barse II v. Union of India[2]which also dealt with abandoned orGdestitute children lodged in various jails across the country for “safecustody”. It was noted in that decision that the National Policy for theWelfare of Children contained the following preamble:

“The nation’s children are supremely important asset. Theirnurture and solicitude are our responsibility. Children’sH2 (1986) 3 SCC 632

programmes should find prominent part in our national plansfor the development of human resources, so that our childrengrow up to become robust citizens, physically fit, mentally alertand morally healthy, endowed with the skill and motivations neededby society. Equal opportunities for development of all childrenduring the period of growth should be our aim, for this wouldserve our large purpose of reducing inequality and ensuring socialjustice”.

23. The Court noted in that decision that if child is nationalasset (as per the National Policy), it is the duty of the State to look afterthe child with view to ensuring full development of the personality andthat is why statutes dealing with children provide that child shall not bekept in jail. It was directed that on no occasion should children be keptin jail and if State Government does not have sufficient accommodationin its remand homes or observation homes for children, they should bereleased on bail instead of being subjected to incarceration in jail.

24. It was also emphasized that Juvenile Courts should be set upin each district and there must be special cadre of Magistrates whoare suitably trained for dealing with cases against children. Some otherdirections were also issued but they arise out of the Childrens’ Act andare presently not relevant. Reference was also made in the order toSheela Barse v. Union of India[3]wherein this Court reiterated itsdecision referred to above.

25. It was noted that Juvenile Justice Boards (for short ‘JJBs’)and Child Welfare Committees (for short ‘CWCs’) under the Act of2000 have been constituted in very few districts. It was also noted thatsome observation homes are like prisons with uniformed or armed police.

26. After few subsequent hearings and completion of pleadings,the Court impleaded the National Commission for Protection of ChildRights (the NCPCR) by an order dated 14[th] February, 2011 and theNational Legal Services Authority (for short ‘NALSA’) by an orderdated 11[th] July, 2011. In the hearing on 19[th] August, 2011 quite fewsuggestions were made by NALSA in respect of child rights. We willconsider these submissions at the appropriate stage.

27. During the course of hearing, the Court lamented the confusionand uncertainty about the availability of statistics relating to the number3 (1988) 4 SCC 226

Aof juveniles in conflict with law in each district and details of such children.This made it difficult to make an effective plan for providing legal aid orproviding appropriate Homes. The State Legal Services Authorities weretherefore required to collect data and NALSA was required to makedata available to the Court for issuing further directions. The Court alsoobserved that CWCs and JJBs are not functional or not constituted inBevery district. Accordingly the State Legal Services Authorities wererequested to coordinate with the appropriate Department in the StateGovernment to ensure that CWCs and JJBs are established as per theAct of 2000.

28. Pursuant to the order dated 19[th] August, 2011 detailed andCexcellent Report was prepared by NALSA in three parts on the existingfacilities for implementation of the Act of 2000, with the month and yearof reporting being August 2011.

29. When the case was again taken up on 12[th] October, 2011 theCourt reiterated the importance of the directions passed on 19[th] August,D2011 and also added focus to setting up Special Juvenile Police Unitsunder Section 63 of the Act of 2000. Directions were given in this regardto the Home Department and the Director General of Police of all theStates and Union Territories to ensure that there is at least one policeofficer in every Police Station who has the necessary aptitude and isEgiven appropriate training and orientation to function as Juvenile orChild Welfare Officer. The State Legal Services Authorities and NALSAwere requested to provide necessary training and orientation in phasesto such officers.30. The Home Department and the Directors General of PoliceFwere also directed to ensure that Special Juvenile Police Units are setup in every district and city to coordinate and upgrade the treatment ofjuveniles in conflict with law and children in need of care and protectionas required by sub-section (3) of Section 63 of the Act of 2000.

31. When the case was taken up for consideration on 11[th]GSeptember, 2015 by the Social Justice Bench of this Court, it was noticedthat the Union of India had filed affidavits on 31[st] July, 2015 and 9[th]September, 2015. From reading of these affidavits, it appeared that alarge number of Homes were not registered under the provisions of theAct of 2000. Since this was matter of concern (with possibility oftrafficking of children), the learned Additional Solicitor General appearingH

for the Union of India was requested to look into the matter and hesubmitted that the Union of India had initiated steps to ensure that theHomes run by NGOs get registered under the Act of 2000 in fewmonths time.

32. Soon thereafter, the JJ Act was passed by Parliament andbrought into force on 15[th] January, 2016. The JJ Act brought in severalchanges in the juvenile justice regime but the substratum of the petitionfiled by Sampurna Behura remained unaffected.

33. Her PIL was taken up on 15[th] February, 2016 in the abovebackground and after hearing learned counsel for the parties and goingthrough various orders passed by this Court from time to time, thefollowing issues were identified as needing serious consideration anddeliberation:

1.Constitution of State Child Protection Society.

2.Constitution of State Commissions for the Protection of ChildRights.

3.Establishment of Juvenile Justice Boards (JJBs) in every district(if necessary more than one in some districts) and their training.

4.Establishment of Child Welfare Committees (CWCs) and theirtraining.

5.Appointment of Probation Officers and their training.

6.Establishment of Special Juvenile Police Units in every PoliceStation, their training and updating the Police Training Manual.

7.Provision for legal aid lawyers and their training.

8.Proper selection of members of JJBs and CWCs.

9.Assessment of manpower requirements of JJBs and CWCs andfilling up the vacancies.

10.Furnishing of on-line quarterly reports by the State Governments.

11.Significance of Social Investigation Report.

12.Principal Magistrates should exclusively deal with Juvenile Justiceinquiries.

13.Registration of child care institutions.

A14.Improvement of living conditions in government run child careinstitutions.

15.Establishment of Juvenile Justice Fund.

34. Thereafter, the matter was taken up on 9[th] May, 2016 whenthe learned Additional Solicitor General stated that the process ofBcollecting and updating information online was underway in MWCDand was proceeding at fast pace and that he expected it to be completedvery soon. He also stated that the names of persons in various positions,such as members of JJBs and CWCs would be placed on the website ofMWCD so that it would be easy to contact them whenever necessary.CLearned Additional Solicitor General stated that the assistance of theState Governments and the Union Territories was required for completingthe project. Accordingly this Court directed the State Governments andthe Union Territories to render necessary assistance to the Union ofIndia for updating the information and keeping it updated from time totime.

35. As far as NALSA is concerned, it submitted on record copyof the Training Module for Legal Services Lawyers and ProbationOfficers but it was suggested by the learned Senior Counsel appearingfor NALSA that since the Modules were prepared on the basis of theJuvenile Justice (Care and Protection of Children) Rules, 2007 NALSAEwould conduct some pilot training programmes to ascertain their efficacyand subsequently bring them in line with the new Rules to be framedunder the JJ Act.

36. In the hearing on 22[nd] August, 2016 the Union of India wasrequired to consider the feasibility of urgently providing computers andFinternet connectivity to the Juvenile Justice Boards and Child WelfareCommittees.

37. The matter was again taken up on 17[th] February, 2017 bywhich time considerable progress had been made by MWCD in theonline collection of information to the extent that Central LevelGMonitoring Format had been prepared which could easily be filled up bythe States and Union Territories for providing full information whichcould be collated.

38. We also required, in addition to the collated information, thatthe State Commission for Protection of Child Rights (SCPCR) shouldHbe in place in every State and Union Territory. It may be mentioned that

the SCPCR is body constituted under the provisions of the Commissionsfor Protection of Child Rights Act, 2005 with variety of functions asdetailed in Section 13 of the said Act.

39. On 5[th] April, 2017 and on 11[th] July, 2017 we noted theinformation made available on the composition and constitution of theSCPCRs and on an overall view of the matter it was found that largenumber of vacancies existed and that little or nothing was being done bysome of the State Governments to fill them up or to show any urgency inrespect of protection of the rights of children.

40. Subsequently, on 15[th] November, 2017 we required MWCDto inform us of the amounts lying in the Juvenile Justice Fund in eachState and Union Territory.

41. With all this information available on record in some form orthe other, we heard the submissions of learned counsel for the parties on20[th] November, 2017 and reserved judgment.

42. We have gone into detail with regard to some of the moreimportant proceedings that have taken place in the matter from the timewhen the Public Interest Litigation was instituted only to highlight variousdimensions to the problems faced by children and the casual approachthat most State Governments and Union Territories have towards therights of children. It is easy to forget that children also deserve dignifiedtreatment and merely because they have no voice in the affairs of State,it does not mean that they are inconsequential members of society whocan be compelled to live in conditions that are uncomfortable (to say theleast) and who have little or no access to justice.

Affidavits filed by MWCD

43. During the progress of the case, MWCD filed few statusreports and affidavits.

44. In an affidavit filed on 31[st] July, 2015 the status of an onlineCentral Level Monitoring System being implemented by MWCD wasindicated. Briefly, each State and Union Territory is given login ID andpassword to access the formats, feed data and submit Reports to MWCD.Very broadly, the areas covered by the Reports are Homes and Children,Open Shelters, Specialized Adoption Agencies, Non-Institutional Care,Child Welfare Committees, Juvenile Justice Boards and Service DeliveryStructures. This is very forward-looking step and major attempt to

Acollect information so that the JJ Act could be effectively implementedand the planning process more structured rather than ad hoc.

45. MWCD filed another affidavit on 8[th] September, 2015 whichindicated requests made to States and Union Territories to adhere to therequirements of entering information in the software as required by theBCentral Level Monitoring System. An indication was given in the affidavitregarding the extent of compliance. For the period 2014-15 it was statedthat while most States and Union Territories had provided the necessaryinformation, as many as 7 States were not fully compliant. For the period2015-16 most States did not provide the necessary information. Thosewho did were Assam, Union Territory of Chandigarh, Chhattisgarh,CHimachal Pradesh, Madhya Pradesh, Meghalaya, Mizoram, Nagaland,Punjab, Tamil Nadu and Tripura.

46. MWCD filed status report on 4[th] December, 2015 giving thedetails of Child Care Institutions and their registration as well as theavailability of Probation Officers in the States and Union Territories.DUnfortunately, as per the affidavit the status was quite unsatisfactory inthe sense that not many Child Care Institutions had been registered andthere was serious shortage of Probation Officers. In further affidavitof 12[th] February, 2016 MWCD stated that steps were being taken forthe registration of Child Care Institutions and it also indicated the role ofEa Probation Officer in the scheme of things.

47. In yet another affidavit filed by MWCD on 29[th] March, 2016a factual response was given with regard to the 15 issues identified bythis Court on 15[th ]February, 2015.

48. MWCD filed its final status report on 3[rd ]May, 2016 in which itFwas stated that some formats for information given in the Central LevelMonitoring System were added in view of the 15 issues identified by thisCourt.

49. In the affidavit dated 11[th] January, 2017 it was disclosed byMWCD that the availability and use of computers and peripherals forGjuvenile justice issues was in quite poor state. In fact, completeinformation in this regard was not made available to MWCD by theStates and Union Territories.

50. In the final affidavit filed by MWCD it was disclosed that aNational Consultation was held on 26[th ]September, 2017 and it appearsHfrom reading of the affidavit that there is considerable improvement in

the understanding of child rights and juvenile justice issues by theparticipants, but there is still lot to be done. Unfortunately, the minutesof the National Consultation have not been placed on record.

Information and data provided by NALSA

51. As far as NALSA is concerned, it had carried out remarkablestudy and placed on record three part Report on issues pertaining toJuvenile Justice Boards, Child Welfare Committees and Homes underthe Act of 2000. Even though the reports prepared by NALSA areextremely useful, since they are now quite dated (with data upto August2011) they are not being referred to in any detail.

52. NALSA gave another Report on 20[th ]July, 2015 in which itwas pointed out that large number of inquiries are pending before theJJBs. It was pointed out that in Uttar Pradesh alone there are 34,569inquiries pending and in district Durg in Chhattisgarh, there are 1883inquiries pending before the JJBs. It was pointed out in the report thatmany of the JJBs did not sit on regular basis with some sitting maybeonce or twice week. It was also pointed out that in some places thedistance between the Observation Home and the JJB was considerable.It was submitted that there was need for Probation Officers whowould deal exclusively with juvenile justice issues.

53. At this stage, it may be mentioned that in May 2016 TrainingModule for Probation Officers was brought out by NALSA. This TrainingModule has since been utilized by NALSA and we have been given tounderstand that it has been found to be extremely useful and beneficialas training guide.

Submissions made by the petitioner

54. On its part, the petitioner submitted large number of stepsthat need to be taken to improve the lives of children in Child CareInstitutions and enable them to live with dignity. Suggestions were alsogiven by the petitioner on 10[th] and 25[th ]September, 2013 and 10[th ]May,2016 on several aspects of child rights and juvenile justice. Most ofthese suggestions complement the suggestions given by NALSA.

Discussion, suggestions and recommendations

(i) National and State Commissions for Protection of Child Rights

55. Child related laws enacted by Parliament provide for twoextremely important policy and decision-making institutions in respect of

Achildren and child rights, namely the NCPCR and the SCPCRs. Similarly,two extremely important bodies have been provided for at the ground orgrass-roots level for implementation of the JJ Act, namely the StateChild Protection Society and the District Child Protection Unit. In ouropinion, if these institutions and bodies perform their duties as requiredby the laws made by Parliament, under the supervision and guidance ofBthe concerned State Government and the Government of India, recognitionand enforcement of child rights could actually become reality in ourcountry.

56. The Commissions for Protection of Child Rights Act, 2005provides for the Central Government constituting body to be known asCthe NCPCR at the national level and the State Governments constitutinga body to be known as the SCPCR at the State level. The compositionof the NCPCR is provided for in Section 3 of the statute while similarcomposition of the SCPCR is provided for in Section 17 of the statute.Section 3 of the Commissions for Protection of Child Rights Act readsDas follows:

“3. Constitution of National Commission for Protection ofChild Rights.—(1) The Central Government shall, bynotification, constitute body to be known as the NationalCommission for Protection of Child Rights to exercise the powersEconferred on, and to perform the functions assigned to it underthis Act.

(2) The Commission shall consist of the following Members,namely:—

(a) Chairperson who, is person of eminence and has doneFoutstanding work for promoting the welfare of children; and

(b) six Members, out of which at least two shall be women, fromthe following fields, to be appointed by the Central Governmentfrom amongst persons of eminence, ability, integrity, standingand experience in,—

(i) education;

(ii) child health, care, welfare or child development;

(iii) juvenile justice or care of neglected or marginalized childrenor children with disabilities;

(iv) elimination of child labour or children in distress;

(v) child psychology or sociology; and

(vi) laws relating to children.

(3) The office of the Commission shall be at Delhi.”

57. It is quite apparent that at the national level, the NCPCR is aninstitution consisting of eminent persons and experts in their respectivefields. As such, they are expected to look at issues concerning the welfareof children in the national perspective taking into consideration the viewsof every SCPCR and other stakeholders. At the State level, the SCPCRis an equally significant body consisting of eminent persons and experts.They are expected to take policy decisions for the benefit of the childrenin their State, regardless of which State the children originally belong to,for there might be children of one State who are in need of care andprotection but in Child Care Institution of another State.58. The functions of the NCPCR and the SCPCR are more orless the same except that one performs these functions at the nationallevel, while the other performs these functions at the State level. Section13 of the Commissions for Protection of Child Rights Act, 2005 detailsthe functions of the NCPCR and this reads as follows:

“13. Functions of Commission.—(1) The Commission shallperform all or any of the following functions, namely:—

(a) examine and review the safeguards provided by or underany law for the time being in force for the protection of childrights and recommend measures for their effectiveimplementation;

(b) present to the Central Government, annually and at suchother intervals, as the Commission may deem fit, reports uponthe working of those safeguards;

(c) inquire into violation of child rights and recommend initiationof proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights ofchildren affected by terrorism, communal violence, riots, naturaldisaster, domestic violence, HIV/AIDS, trafficking, maltreatment,torture and exploitation, pornography and prostitution andrecommend appropriate remedial measures;

(e) look into the matters relating to children in need of specialcare and protection including children in distress, marginalizedand disadvantaged children, children in conflict with law, juveniles,children without family and children of prisoners and recommendappropriate remedial measures;

(f) study treaties and other international instruments and undertakeperiodical review of existing policies, programmes and otheractivities on child rights and make recommendations for theireffective implementation in the best interest of children;

(g) undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of thesociety and promote awareness of the safeguards available forprotection of these rights through publications, the media, seminarsand other available means;

(i) inspect or cause to be inspected any juvenile custodial home,or any other place of residence or institution meant for children,under the control of the Central Government or any StateGovernment or any other authority, including any institution runby social organisation; where children are detained or lodgedfor the purpose of treatment, reformation or protection and takeup with these authorities for remedial action, if found necessary;

(j) inquire into complaints and take suo motu notice of mattersrelating to,—

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for protection andFdevelopment of children;

(iii) non-compliance of policy decisions, guidelines or instructionsaimed at mitigating hardships to and ensuring welfare of thechildren and to provide relief to such children,

or take up the issues arising out of such matters with appropriateauthorities; and

(k) such other functions as it may consider necessary for thepromotion of child rights and any other matter incidental to theabove functions.

(2) The Commission shall not inquire into any matter which ispending before State Commission or any other Commissionduly constituted under any law for the time being in force.”

59. It will be seen from the above that both the NCPCR and theSCPCR have range and variety of functions to perform and each oneof them entails great deal of responsibility. We have been given tounderstand that both the Government of India and the State Governmentshave not been giving these bodies the freedom to decide on broad policymatters and indeed in some instances, particularly relating to the SCPCR,vacancies have not been filled up for several months. In fact, the NCPCRwas compelled to file writ petition in the Punjab and Haryana HighCourt for mandamus to the State Governments of Punjab and Haryanaand the Union Territory of Chandigarh to fill up the vacancies of membersof the SCPCR.[4] Unfortunately, at one point of time, even the position ofthe Chairperson of the NCPCR was lying unfilled for several months,until, on the directions of this Court, the position was eventually filled up.We need hardly say that unless the NCPCR and the SCPCRs are givendue importance by the Government of India and the State Governmentsand vacancies are filled up in time, the enforcement of the rights ofchildren will remain on the back burner and any number of welfareschemes formulated by the Government of India or by the StateGovernments will remain unimplemented or their implementation willremain sketchy and symbolic.

60. We hope and trust that those in authority and power in theGovernment of India and in the State Governments appreciate theimportance of adhering to the provisions of the laws enacted by Parliamentand ensure that the NCPCR at the National level and the SCPCR at theState level actually function and perform their duties and recognize theirresponsibilities.

(ii) State Child Protection Society and the District Child ProtectionUnit

61. In the absence of any clear-cut guidelines on who should beappointed to these two bodies, the State Governments have found aneasy way out by appointing Government officials only and leaving out

4 Court on its own motion v. State of Punjab and The National Commission for theProtection of Child Rights (NCPCR) v. The State of Haryana and Others, Decided on9th April, 2013 and reported as MANU/PH/0599/2013

Amembers of civil society. In our opinion, the constitution of the StateChild Protection Society and the District Child Protection Unit need seriousconsideration so that all stake-holders, including the police and NGOsare actively involved in the performance of the functions, duties andresponsibilities of these two bodies.

B62. The functions of the State Child Protection Society and theDistrict Child Protection Unit are detailed in Rule 84 and Rule 85 of theJuvenile Justice (Care and Protection of Children) Model Rules, 2016framed by the Government of India. [It may be noted that some Stateshave framed their independent Rules, but we are not referring to them].The functions are varied, extensive and geared to improve the livingCconditions of children through different strategies and with the involvementof all stake-holders.

63. For the effective implementation of the JJ Act and the policieslaid down by the NCPCR and the SCPCRs, Section 106 of the JJ Actprovides for the constitution of State-level Child Protection SocietyDand District-level Child Protection Unit. Section 106 of the JJ Actreads as follows:

“106. State Child Protection Society and District ChildProtection Unit.---—Every State Government shall constitutea Child Protection Society for the State and Child ProtectionEUnit for every District, consisting of such officers and otheremployees as may be appointed by that Government, to take upmatters relating to children with view to ensure theimplementation of this Act, including the establishment andmaintenance of institutions under this Act, notification ofFcompetent authorities in relation to the children and theirrehabilitation and co-ordination with various official and non-official agencies concerned and to discharge such other functionsas may be prescribed.”

64. perusal of the above provision broadly indicates that theGprimary function of the State Child Protection Society and the DistrictChild Protection Unit is to ensure implementation of the JJ Act. Inaddition, these bodies are obliged to ensure that the institutions under theJJ Act are established and maintained, competent authorities in relationto children and their rehabilitation are in place and these two bodies arealso required to coordinate with Government officials as well as NGOs

to discharge their wide-ranging functions. The involvement of civil societythrough NGOs is progressive step and these two bodies are expectedto take their assistance from time to time.

65. If these two bodies actually perform their duties, responsibilitiesand functions in the manner expected of them, the implementation of theJJ Act would no longer be an issue. Unfortunately, we have been informedthat these bodies are not functioning in many places or in the manner inwhich they are expected to and in several districts the District ChildProtection Unit has not even been constituted. We expect remedial stepsto be taken by all concerned.

(iii)Juvenile Justice Boards and Child Welfare Committees

66. With regard to the establishment of JJBs, we were given tounderstand that most districts now have JJB, but it is high time thatevery district in every State must have JJB. An exception could perhapsbe made, such as in some districts of Arunachal Pradesh where there isperhaps no juvenile crime or, there could be some districts where thenumber of inquiries are very few in which event the JJB may appropriatelyschedule its sittings. Similarly, ‘circuit JJB’ could be considered if thereare some adjacent districts where the number of pending inquires isquite few.

67. We have also been given to understand that the appointmentof some social workers as members of the JJB is not necessarily inaccordance with the provisions of Section 4 of the JJ Act. The relevantprovision in this regard reads as follows:

“4. Juvenile Justice Board :– 1. xxx xxx xxx

2. Board shall consist of Metropolitan Magistrate or JudicialMagistrate of First Class not being Chief Metropolitan Magistrateor Chief Judicial Magistrate (hereinafter referred to as PrincipalMagistrate) with at least three years experience and two socialworkers selected in such manner as may be prescribed, of whomat least one shall be woman, forming Bench and every suchBench shall have the powers conferred by the Code of CriminalProcedure, 1973 (2 of 1974) on Metropolitan Magistrate or, asthe case may be, Judicial Magistrate of First Class.

3. No social worker shall be appointed as member of the Boardunless such person has been actively involved in health, education,

Aor welfare activities pertaining to children for atleast seven yearsor practicing professional with degree in child psychology,psychiatry, sociology or law.

4. xxx xxx xxx

5. The State Government shall ensure that induction training andBsensitization of all members including Principal Magistrate ofthe Board on care, protection, rehabilitation, legal provisions andjustice for children, as may be prescribed, is provided within aperiod of sixty days from the date of appointment.

6. and 7. Xxx xxx xxx.”

C68. The selection of social workers as members of the JJB isrequired to be carried out in accordance with the provisions of Rule 88read with Rule 87 of the Model Rules. It must be appreciated that theappointment of social workers is serious business, inasmuch as theybring their experience - practical and professional - while conducting anenquiry under the JJ Act. This becomes all the more important when it isDappreciated that the social workers can also conduct an enquiryindependent of the Principal Magistrate as provided for in Section 7 ofthe JJ Act. However, the final disposition of the enquiry cannot be withoutthe Principal Magistrate as mandated in the proviso to sub-section (3) ofSection 7 of the JJ Act. There is therefore heavy responsibility on theEsocial workers to make meaningful contribution during the course ofan enquiry and also at the time of its disposition.

69. In this context, it is important to note that the training of thePrincipal Magistrate as well as the social workers is extremely importantand this is provided for in Rule 89 of the Model Rules. Unfortunately, theFduration of training and the curriculum and course have not yet formulated,and the nature of training given to the Principal Magistrate and the socialworkers is somewhat ad hoc and unstructured. The lack of meaningfuland effective training (and refresher courses) can have vital impact onthe ultimate disposition of an enquiry as also on the rehabilitation andreintegration of juvenile in conflict with law who is before the JJB.GSerious thought is required to be given to this not only from the point ofview of awareness of the law and child rights but also from the point ofview of sensitization of the JJBs, case management and creation of achild friendly ambience and environment within the JJB for juvenile inconflict with law. It appears to us that not much thought has been givenHto these aspects of the functioning of the JJBs and that is perhaps the

reason why very large number of inquiries are pending as mentionedabove, with the State of Uttar Pradesh topping the list.

70. On the functioning of the JJBs, it is worth referring to thefollowing passage from decision of the Gauhati High Court in NaisulKhatun v. State of Assam and Ors.[5]

“The second disturbing aspect of the case is that it appears theJuvenile Justice Board constituted under section 4 of the Act didnot actually sit or assemble to deal with the case of the juvenile.We say so because from the original case records we find thatall the order sheets passed in the matter, including those refusingbail, to juvenile have all been signed only by the PrincipalMagistrate of the Juvenile Justice Board. There is nothing tosuggest that the two social worker members of the Board evermet to consider the request of the juvenile’s father to grant himbail. This is rather unfortunate because the application of mindhas to be by the Juvenile Justice Board and not only by thePrincipal Magistrate.”71. The submissions made before us by learned counsel for thepetitioner as well as by learned counsel appearing for NALSA suggestthat the JJBs do not have daily sittings. Of course, this would dependupon the number of inquiries pending before each JJB, but clearly ifthere are large number of inquiries pending, it is the obligation of theJJB to sit on daily basis so that the enquiry is concluded within the timelimit prescribed by the JJ Act. It does not serve any purpose at all if anenquiry remains pending for considerable period of time - no onebenefits by the delay in the disposition of an enquiry. In this context, wemay also add that where large number of inquiries are pending, itwould be worthwhile for the State Government and the High Court toconsider having more than one JJB. In Delhi, for instance, there are asmany as three JJBs functioning at any given point of time and that isbecause of the large number of pending enquiries. Similar steps can betaken by some of the other State Governments as well as by the HighCourts after evaluating and making an assessment of the need for morethan one JJB being established in district.

72. During the course of hearing, we had emphasized the needfor study to be conducted by the State Governments on whether there

5 2011 Cri LJ 326 = 2010 SCC Online Gau 225

Ais adequate staff available with the JJBs. Unfortunately, the responsewas rather poor and we were only told that there is adequate staffavailable. It must be appreciated that JJB is virtually in the nature of acourt, although it does not conduct trial, but only conducts an enquiry.Nevertheless, it does need adequate staff to perform its functions in anefficient manner. The JJB also has several administrative functions andBthey need due attention so that there is effective coordination betweenthe JJB, the officials of the Observation Home, the police, the juvenile inconflict with law and the parents of that juvenile and lawyers representingthe police as well as the juvenile in conflict with law. These administrativeduties need attention if the JJB is to function effectively and casualCstatement that the JJB has adequate staff, though possibly correct, isneither here nor there considering the requirements of the stake-holderswho attend the enquiry before the JJB.

73. In this context, it must also be mentioned that there is direneed to have quality legal aid lawyers who can assist juveniles in conflictDwith law. This is an issue that must be taken up with all earnestness bythe State Legal Services Authority. Unless child is given adequatelegal representation, it may impact his or her future, more so if the childin conflict with law is found guilty and placed in Special Home. On itspart, NALSA has brought out manual for training of legal aid lawyersand we believe that it will be extremely useful not only for legal aidElawyers who are representing juveniles in conflict with law, but also forlegal aid lawyers generally. Similarly, prosecutors also need to besensitized and we hope that the State Governments will take necessarysteps to educate and train them keeping in mind the primary objective ofthe JJ Act, which is to reintegrate juvenile in conflict with law in society

Fand to rehabilitate that juvenile.

74. In the context of conducting an effective enquiry, the role of aProbation Officer cannot be underestimated nor can we underestimatethe significance of an accurate Social Investigation Report prepared bya Probation Officer. The duties of Probation Officer have been detailedGin Rule 64 of the Model Rules and this reads as follows:

“64. Duties of Probation Officer. — (1) On receipt ofinformation from the Police or Child Welfare Police Officer underclause (ii) of sub-section (1) of section 13 of the Act, withoutwaiting for any formal order from the Board, the Probation OfficerHshall inquire into the circumstances of the child as may have

bearing on the inquiry by the Board and submit socialinvestigation report in Form 6 to the Board.

(2) The social investigation report should provide for riskassessment, including aggravating and mitigating factorshighlighting the circumstances which induced vulnerability suchas traffickers or abusers being in the neighbourhood, adult gangs,drug users, accessibility to weapons and drugs, exposure to ageinappropriate behaviours, information and material.

(3) The Probation Officer shall carry out the directions givenby the Board and shall have the following duties, functions andresponsibilities:

(i) To conduct social investigation of the child in Form 6;

(ii) To attend the proceedings of the Board and the Children’sCourt and to submit reports as and when required;

(iii) To clarify the problems of the child and deal with theirdifficulties in institutional life;

(iv) To participate in the orientation, monitoring, education,vocational and rehabilitation programmes;

(v) To establish co-operation and understanding between the childand the Person- in-charge;

(vi) To assist the child to develop contacts with family and alsoprovide assistance to family members;

(vii) To participate in the pre-release programme and help thechild to establish contacts which could provide emotional andsocial support to the child after release;

(viii) To establish linkages with Probation Officers in otherDistricts and States for obtaining social investigation report,supervision and follow-up;

(ix) To establish linkages with voluntary workers andorganisations to facilitate rehabilitation and social reintegrationof children and to ensure the necessary follow-up;

(x) Regular post release follow-up of the child extending helpand guidance, enabling and facilitating their return to socialmainstreaming;

A(xi) To prepare the individual care plan and post release plan forthe child;

(xii) To supervise children placed on probation as per the individualcare plan;

(xiii) To make regular visits to the residence of the child underBhis supervision and places of employment or school attended bysuch child and submit periodic reports as per Form 10;

(xiv) To accompany children where ever possible, from the officeof the Board to the observation home, special home, place ofsafety or fit facility as the case may be;

C(xv) To evaluate the progress of the children in place of safetyperiodically and prepare the report including psycho-social andforward the same to the Children’s Court;

(xvi) To discharge the functions of monitoring authority whereso appointed by the Children’s Court;

D(xvii) To maintain diary or register to record his day to dayactivities such as visits made by him, social investigation reportsprepared by him, follow up done by him and supervision reportsprepared by him;

(xviii) To identify alternatives of community services and toEestablish linkages with voluntary sector for facilitatingrehabilitation and social reintegration of children; and

(xix) Any other task as may be assigned.”

75. It is clear from reading of the above provision that ProbationOfficer has very important role to play in ensuring that juvenile inFconflict with law is given adequate representation and fair hearingbefore the JJB and the enquiry is conducted in manner that is conduciveto the rehabilitation of the juvenile in conflict with law. In this regard, thepreparation of an individual care plan and post release plan gain immensesignificance and Probation Officer has an important role to play in this.

76. Once again, it is of great importance that Probation Officershould be given adequate training, sensitization and awareness of his orher duties and responsibilities. NALSA has made significant contributionin this regard by preparing training module for Probation Officers. Weexpect all the State Governments as well as MWCD to ensure thattraining is given to Probation Officers on the lines suggested by NALSAH

with improvements being made in adult learning techniques, trainingmethodology, the curriculum and the course content in due course oftime.

77. The submissions made by learned counsel for all the partiesand our views and conclusions pertaining to the JJBs are equallyapplicable to the CWCs and it is not necessary to repeat them. However,it might be noted that it is not always necessary for the State LegalServices Authority to appoint legal aid lawyers to assist the CWC - thiswould depend on case to case basis and only as an Amicus Curiae forthe purpose of advising the CWC on question of law, should the needarise.

78. We were informed, somewhat unfortunately, that ChildWelfare Committees are sometimes treated as ‘second class bodies’and that payment of honorarium is not made to them on regular basis.In addition, they are compelled to hold their sittings in buildings with verypoor infrastructure facilities. This is sad commentary on the workingof the JJ Act for which the full responsibility rests on the shoulders ofthe concerned State Governments who must remedy the situation.

(iv)Use of technology

79. The use of technology, both by the JJBs as well as by theCWCs is extremely important and we are disheartened to note from theaffidavits and submissions made by MWCD that there is an acuteshortage of computers and peripherals with the JJBs and CWCs.Technology is important not only for the effective functioning of theJJBs and CWCs, but also to deal with issues that would arise from timeto time concerning the tracing and tracking of missing children, the rescueof children working in hazardous industries, trafficked children, childrenwho leave the Child Care Institutions, victims of child sexual abuse andfollow-up action, among several other requirements. It is well-knownthat our country is technological power-house and if we are unable totake advantage of the resources available with us and fully utilize thebenefits of technology through computers and the internet for the benefitof children, our status as technological power-house would be injeopardy and would remain only on paper. Data, particularly of themagnitude of the kind that we are concerned with, can be easily collectedthrough the use of computers and the internet. This would be of greatassistance in planning and management of resources and MWCD andothers concerned with child rights must take full advantage of this.

A80. That apart, there can be no doubt that the use of computersand peripherals would make an immense contribution to the administrativefunctioning of the JJBs and CWCs. Both the Government of India andthe State Governments need to look into this and provide necessarysoftware and hardware to the JJBs and the CWCs for obvious reasons.We were informed by learned counsel that the Police authorities inBTelangana and Andhra Pradesh in consultation with the Juvenile JusticeCommittee of the High Court have made considerable use of informationand communication technology and we are of the view that innovativesteps must be encouraged. Similarly, the use of video conferencing couldalso be considered in appropriate cases where some inconvenience toCthe juvenile in conflict with law necessitates the use of video conferencingfacilities.81. In the context of the use of technology, MWCD must becomplimented for bringing out an online Central Level Monitoring System.We have been told by the learned Additional Solicitor General that thisDonline system is working rather effectively although it would needupgrading from time to time as the months go by. The unfortunate part isthat there does not seem to be much active cooperation extended by theState Governments in updating the information on the Central LevelMonitoring System. In one of the affidavits filed by MWCD and advertedto above, it was stated that while almost every State Government hasEfilled up the relevant information for the year 2014-15, but the responsewas rather lukewarm with regard to the period 2015-16. Needless tosay, updating information is extremely important so that there can beefficient planning which will ultimately lead to better management ofissues concerning children. We may mention that the State GovernmentsFare required to fill up the information on the Central Level MonitoringSystem once quarter and surely that cannot be difficult task.

(v) Role of Police

82. An extremely important stake-holder in the effectiveimplementation of the JJ Act is the local police. Section 107 of the JJ ActGmandates the appointment of Child Welfare Police Officer (for short‘CWPO’) and Special Juvenile Police Unit (for short ‘SJPU’) in eachdistrict. The SJPU must also include two social workers having experienceof work in the field of child welfare, one of them being woman. Theresponsibility for appointment lies on the State Government. Section 107of the JJ Act reads as follows:H

“107. Child Welfare Police Officer and Special JuvenilePolice Unit. — 1. In every police station, at least one officer,not below the rank of assistant sub-inspector, with aptitude,appropriate training and orientation may be designated as thechild welfare police officer to exclusively deal with children eitheras victims or perpetrators, in co-ordination with the police,voluntary and non-governmental organisations.

2. To co-ordinate all functions of police related to children, theState Government shall constitute Special Juvenile Police Unitsin each district and city, headed by police officer not below therank of Deputy Superintendent of Police or above and consistingof all police officers designated under sub-section (1) and twosocial workers having experience of working in the field of childwelfare, of whom one shall be woman.

3. All police officers of the Special Juvenile Police Units shallbe provided special training, especially at induction as childwelfare police officer, to enable them to perform their functionsmore effectively.

4. Special Juvenile Police Unit also includes Railway policedealing with children.”

83. We have been given to understand by learned counsel for theparties that many States have actually appointed CWPOs and set upSJPUs. Unfortunately, their duties and responsibilities have not beenclearly identified but are generally stated in Rule 86 of the Model Rules.We have also been given to understand that no system of effectivetraining for CWPOs and SJPUs has evolved and many of them existonly symbolically and only because the law requires them to exist. Sincethe duties and responsibilities of the CWPOs and SJPUs have not beenspecified or identified, it is high time in our opinion, that the Bureau ofPolice Research & Development and the National Police Academy inconsultation with the State Police Academies identify the functions, dutiesand responsibilities of the CWPOs and SJPUs. In this regard, we maynote that NALSA has prepared Guidelines for Training Juvenile/ChildWelfare Officers attached to every police station and members of theSpecial Juvenile Police Unit. Perhaps this could be starting point fortheir training through the Bureau of Police Research & Developmentand the Police Academies.

A84. The importance of training can be appreciated from theallegations made before the Patna High Court in The Matter of Letterof Sanat Kumar Sinha (Chief Co-ordinator), Bal Sakha v. The Stateof Bihar through the Chief Secretary, Govt. of Bihar and Ors.[6] Itwas alleged in that case that child was handcuffed by policemen inuniform during his transit from the Police Station to the Civil Court forBhis appearance before the Chief Judicial Magistrate. Additionally, it wasalleged that contrary to the provisions of the Act of 2000 the identity ofthe child was disclosed. Of course, the Patna High Court took up theissue with due seriousness but such situation ought not to have occurredat all and could have been avoided through proper training andCsensitization.

85. With regard to the Police generally, it was submitted that dueto the policy of rotation, it often happens that soon after police officercompletes his or her training that officer is transferred out to anotherdepartment. This is waste of effort and one of the ways of resolvingDproblems arising out of transfers is for every State Police Academy toconduct regular training programmes under the guidance of senior policeofficials of the State and for the State Government to optimally utilizethe services of its officers.

86. Similarly, the Government of India is required to involveERailway Police for dealing with children. No information or data isforthcoming in this regard and learned counsel for the parties were unableto assist us insofar as this aspect is concerned. We expect the Governmentof India through the Railways to look into the matter with some degreeof urgency. We were told by learned counsel that large number ofrunaway children and children on drugs are found in railway stationsF(and other places) working as rag-pickers or performing other menialactivities. It was submitted before us that even otherwise, there is rampantdrug abuse among such children. Efforts must be made to establish de-addiction centres especially for such children and also generally forjuveniles in conflict with law and children in need of care and protection.

G(vi)Child Care Institutions

87. There is lot to be said with regard to Child Care Institutions.Many of them are housed in run-down buildings and are hardly conduciveto comfortable living even to minimum degree. State Governments

must appreciate that they are not doing any charity by putting up childrenin Child Care Institutions - they are merely performing their statutoryand constitutional obligations. There is, therefore, an urgent need to makean evaluation and assessment of all the Child Care Institutions in everyState to ascertain their condition, the infrastructure requirements andstaffing requirements. Children live in these Institutions, not becausethey want to but because they have no other option, since most of themare children in need of care and protection. The obligation of society isto provide solace and comfort to these children and adherence to theminimum standards of care. Model Rules contain details for improvedChild Care Institutions and their requirements. The State Governmentshave merely to adhere to these minimum requirements. The condition ofsome State managed Child Care Institutions is best illustrated by theobservations made by the Punjab and Haryana High Court in Court onits own motion v. State of Punjab (supra) to the following effect:“….The sordid state of the said Observation Home depictedthat Observation Home at Sonepat had two barracks and frontside courtyard with high walls. The entry gate was similar to jailgate. The Home was having no source of recreation facilities orplayground for the juveniles housed therein. The courtyard wasfilled with stagnated water due to blockage of drainage systemand there was hardly any place for going out of barrack forusing courtyard. Enquiry revealed that there was no arrangementfor potable water. The bathrooms and kitchen were also indeplorable condition. The Observation Home was managed bya single teacher who, besides performing job of teacher, wasalso looking after the overall administration of the Home. In thismanner, no meaningful education was being imparted to thechildren. The Observation Home was found to be worse than aprison. Observation Home at Hoshiarpur (Punjab) was found tobe no better with almost similar dilapidated conditions…..”

88. There are, of course, additional duties and responsibilitiesobligated by the Constitution on the State Governments such as providingeducation, health-care (both physical and psychological) and adequatenutrition. These are huge areas that need to be looked into with all sincerityby the bodies and institutions established under the Commissions forProtection of Child Rights Act, 2005 and the JJ Act. Concerned citizenslike Sampurna Behura can only highlight the systemic implementation

Alapses and flaws and hope that the State Governments and the variousbodies constituted under statutes enacted by Parliament perform theirduties and functions. But, in such exceptional circumstances, the courtsare constitutionally obliged to issue continuing mandamus in publicinterest for implementation of the laws enacted by Parliament, which isessentially the primary responsibility of the Executive. If the ExecutiveBignores the mandate of Parliament with continuing callousness, it willonly be to the detriment of the children of our country.

89. In this context, we may add that MWCD has madeconsiderable efforts in ensuring that Child Care Institutions run andmanaged by individuals and NGOs are registered in accordance withCthe provisions of the JJ Act. We are quite surprised that there has beensome resistance to registration from some institutions, as informed bythe learned Additional Solicitor General, and therefore we must make itclear that the law has to be obeyed as long as it exists on the statutebooks. It might be uncomfortable for those who manage some of theseDChild Care Institutions, but registration is compulsory and in public interestto ensure that minimum standards of care are maintained and the childrenin those Institutions are well looked after. We may note that occasionallythere are allegations originating from Child Care Institutions of traffickingand child sexual abuse, some of which may be unverified, but to avoidany such shameful allegations it is necessary that their registration, theirEmanagement and functioning are strictly monitored by the StateGovernments and by MWCD.

90. It was suggested by learned counsel that in all Child CareInstitutions, there should be segregation of children in terms of age andwherever applicable segregation based on the nature of the offenceFallegedly committed so that the possibility of sexual abuse or any otherkind of violence is eliminated. Additionally, all such institutions should beadvised to provide vocational or continuing education with view to re-settling children in conflict with law and children in need of care andprotection by reintegrating and mainstreaming them in society. All theseGare issues of serious concern and need to be addressed by the StateGovernments and SCPCRs.

91. It was emphasized that there should be adequate staff availablein all Child Care Institutions so that they are able to perform their dutiesefficiently. It was also suggested that the location of the JJBs and CWCsHshould be in close proximity of the Child Care Institutions to avoid children

having to travel long distances for their appearance before these statutorybodies. All these suggestions and recommendations made by learnedcounsel are issues of concern and must be dutifully addressed by theState Governments and the SCPCRs.

92. One of the submissions made with regard to Child CareInstitutions was that District Legal Services Authorities may makeunscheduled visits to them to ascertain whether they are in factfunctioning as they should. We are of opinion that this ‘Visitor’ system isdefinitely worth implementing and we expect NALSA to go ahead withthe suggestion given. In fact, the Chief Justices Conference in 2006 hadspecifically adverted to the appointment of Visitors to Child CareInstitutions and in the Chief Justices Conference in 2013 and 2015improving the living conditions in Child Care Institutions was also advertedto. NALSA and the District Legal Services Authorities must respect theviews expressed in the Chief Justices Conferences.

(vii) Juvenile Justice Fund

93. The JJ Act provides for the constitution of Juvenile JusticeFund. The learned Additional Solicitor General placed before us figuresrelating to the contribution of the State Governments in the JuvenileJustice Fund. We are quite distressed to note that some of the StateGovernments have not even set up the Juvenile Justice Fund while oneor two State Governments have set up the Fund with an embarrassingamount of only few thousand rupees. We wonder how the welfare ofchildren can be looked after by these State Governments with such apittance in the kitty. Obviously, these State Governments are not seriouslyconcerned about the welfare of children, which is pity. This is yetanother example of official apathy to the rights of children and causefor worry.

(viii) Evaluation and assessment

94. Finally, it would be appropriate if some sort of an evaluation orsocial audit is carried out every six months for the next couple of yearsto monitor and supervise the implementation of the JJ Act. More thansufficient time has already elapsed since the Act of 2000 was enactedby Parliament and certainly the children of our country deserve muchbetter and cannot wait for another 15 or 16 years for the effectiveimplementation of the JJ Act. Most of the children who were born whenthe Act of 2000 was enacted are nearing adulthood and many of them

Ahave not had the benefit of the provisions of the Act of 2000. This mistake,a serious one at that, cannot be repeated in the implementation of the JJAct. It is said that children are the future of the country and if they arenot looked after, it is the future of the country that is at stake.

Conclusions and DirectionsB

95. Keeping in mind the concerns expressed by all learned counseland the need to invigorate the juvenile justice system in the country, weare of the view that the following directions ought to be given and we doso.

1.The Ministry of Women and Child Development in theCGovernment of India and the State Governments shouldensure that all positions in the NCPCR and the SCPRs arefilled up well in time and adequate staff is provided to thesestatutory bodies so that they can function effectively andmeaningfully for the benefit of the children.D2.The NCPCR and the SCPCRs should take their duties,functions and responsibilities with great earnestness keepingin mind the faith reposed in them by Parliament. positionin these statutory institutions is not sinecure. These bodieshave very significant and proactive role to play in improvingEthe lives of children across the country.3.The State level Child Protection Societies and the Districtlevel Child Protection Units have an enormous responsibilityin ensuring that the JJ Act is effectively implemented andChild Care Institutions are managed and maintained in amanner that is conducive to the well being of children in allFrespects including nutrition, education, medical benefits, skilldevelopment and general living conditions. These two bodieswould be well advised to take the assistance of NGOs andcivil society to ensure that the JJ Act serves the purposefor which it is enacted by Parliament.

4.The State Governments must ensure that all positions inthe JJBs and CWCs are filled up expeditiously and inaccordance with the Model Rules or the Rules framed bythe State Government. Any delay in filling up the positionsmight adversely impact on children and this should beHavoided.

5.The JJBs and CWCs must appreciate that it is necessaryto have sittings on regular basis so that minimal numberof inquiries are pending at any given point of time and justiceis given to all juveniles in conflict with law and social justiceto children in need of care and protection. This is aconstitutional obligation.

6.The NCPCR and the SCPCRs must carry out time-boundstudies on various issues, as deemed appropriate, under theJJ Act. Based on these studies, the State Governments andthe Union Territories must take remedial steps.

7.In particular the NCPCR and the SCPCRs must carry outa study for estimating the number of Probation Officersrequired for the effective implementation of the JJ Act.Based on this study, the State Government must appointthe necessary number of Probation Officers. It must beemphasised that the role of Probation Officer is criticalfor the rehabilitation and social reintegration of juvenile inconflict with law and due importance must be given to theirduties as postulated in the Model Rules and Rules, if any,framed by the State Governments and the Union Territories.

8.The MWCD must continue to make creative use ofinformation and communication technology not only for thepurpose of collecting data and information but also for otherissues connected with the JJ Act such as having databaseof missing children, trafficked children and for follow up ofadoption cases etc. With the utilization of technology to thefullest extent, administrative efficiency will improveconsiderably, which in turn will have positive impact onthe lives of children.

9.It is important for the police to appreciate their role as thefirst responder on issues pertaining to offences allegedlycommitted by children as well as offences committedagainst children. There is therefore need to set upmeaningful Special Juvenile Police Units and appoint ChildWelfare Police Officers in terms of the JJ Act at the earliestand not only on paper. In this context, it is necessary toclearly identify the duties and responsibilities of such Units

988SUPREME COURT REPORTS

and Officers and wherever necessary, guidance from theavailable expertise, either the National Police Academy orthe Bureau of Police Research and Development or NGOsmust be taken for the benefit of children.

10.The National Police Academy and State Police AcademiesBmust consider including child rights as part of theircurriculum on regular basis and not as an isolated orsporadic event.

11.The management of Child Care Institutions is extremelyimportant and State Governments and Union TerritoriesCwould be well advised to ensure that all such institutionsare registered so that children can live dignified life inthese Institutions and issues of missing children andtrafficking are also addressed.

12.State Governments and Union Territories would be wellDadvised to appoint eminent persons from civil society asVisitors to monitor and supervise the Child Care Institutionsin all the districts. This will ensure that the managementand maintenance of these Institutions are addressed. Wehave no doubt that the State Legal Service Authorities andthe District Legal Service Authorities will extend fullEassistance and cooperation to the government authoritiesin this venture as well as to the Visitors.

13.The JJ Fund is bit of an embarrassment with an absenceof an effective response from the State Governments andthe Union Territories. If financial resources are not madeFavailable for the welfare of the children we shudder to thinkwhat could be better utilization of the funds.

14. NALSA has done remarkable job in collecting data andinformation relating to the JJ Act, as evidenced by the threepart Report prepared by it. We request NALSA to carryGforward the exercise and complete similar Reportpreferably before 30[th] April, 2018 to assist all the policymaking and decision taking authorities to plan out theiraffairs.

15.The importance of training cannot be over-emphasized. ItHis vital for understanding and appreciating child rights and

for the effective implementation of the JJ Act. All authoritiessuch as JJBs and CWCs, Probation Officers, members ofthe Child Protection Societies and District Child ProtectionUnits, Special Juvenile Police Units, Child Welfare PoliceOfficers and managerial staff of Child Care Institutions mustbe sensitized and given adequate training relating to theirposition. very positive step has been taken in this regardby NALSA and we expect the NCPCR with the assistanceof the SCPCRs to carry forward this initiative so that thereis meaningful implementation of the JJ Act.

16.Since the involvement of the State Governments and theUnion Territories is critical to child rights and the effectiveimplementation of the JJ Act, it would be appropriate if eachHigh Court and the Juvenile Justice Committee of eachHigh Court continues its proactive role in the welfare ofchildren in their State. To make the involvement and processmore meaningful, we request the Chief Justice of everyHigh Court to register proceedings on its own motion forthe effective implementation of the Juvenile Justice (Careand Protection of Children) Act, 2015 so that road-blocks ifany, encountered by statutory authorities and the JuvenileJustice Committee of the High Court are meaningfullyaddressed after hearing the concerned governmentalauthorities. copy of this judgment and order should besent by the Secretary General of this Court to the RegistrarGeneral of each High Court for being placed before theChief Justice of every High Court for initiating suo motu

proceedings.

96. Finally, we request and urge the Chief Justice of each HighCourt to seriously consider establishing child friendly courts and vulnerablewitness courts in each district. Inquiries under the JJ Act and trials underother statutes such as the Protection of Children from Sexual OffencesAct, 2012, the Prohibition of Child Marriage Act, 2006, trials for sexualoffences under the Indian Penal Code and other similar laws require tobe conducted with high degree of sensitivity, care and empathy for thevictim. It is often said that the experience in our courts of juvenileaccused of an offence or the victim of sexual offence is traumatic. Weneed to have some compassion towards them – even juveniles in conflict

Awith law, since they are entitled to the presumption of innocence - andestablishing child friendly courts and vulnerable witness courts is perhapsone manner in which the justice delivery system can respond to easetheir pain and suffering. Another advantage of such child friendly courtsand vulnerable witness courts is that they can be used for trials in whichadult women are victims of sexual offences since they too are oftenBtraumatized by the not so friendly setting and environment in our courts.

97. We record our appreciation for Sampurna Behura forhighlighting the issues raised in this Public Interest Litigation and to learnedcounsel for the appearing parties in not making this an adversarialproceeding, but constructive effort for the benefit of the children ofCour country.

98. The petition stands disposed of.

99. The Registry should list the matter on 13[th] March, 2018 fordirections after obtaining response from the Registrar General of eachDHigh Court.

Nidhi Jain Petition disposed of.