Bombay High Court
Article In Mumbai Mirror vs The Secretary on 16 September, 2010
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud, R.P. Sondurbaldota
1 S.M.PIL-182/010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SUO MOTU PUBLIC INTEREST LITIGATION NO.182 OF 2010
Article in Mumbai Mirror ] Petitioner
]
Vs.
The Secretary,
Department of Women & Child
ig ]
Development, ] Respondents
Govt. of Maharashtra, ]
Mantralaya, Mumbai & Ors. ]
None for Petitioner.
Mrs. Jyoti S. Pawar, Additional Govt. Pleader for respondent no.1.
Mr. Niteen V. Pradhan with Ms. Ameeta Kutti Krishnan for
respondent no.2.
Ms. Asha Bajpayee Amicus Curiae present.
Coram : Dr. D.Y. Chandrachud &
Smt.R.P. SondurBaldota, JJ.
Date : September 16, 2010
ORAL JUDGMENT (Per Dr. D.Y. Chandrachud, J.)
1. Five mentally challenged children lodged at a Children's Home have died of malnutrition and disease. One child is alleged to have been raped. Another is missing. The case highlights the plight of children desperately in need of care and ::: Downloaded on - 09/06/2013 16:26:00 ::: 2 S.M.PIL-182/010 protection. Their needs have been ignored in years of neglect.
Their right to life under the Constitution has been brazenly infringed. The solemn covenants of the Convention on the Rights of the Child have remained an unachieved illusion. The Court has had to act suo motu because the mentally challenged are unable to secure the protection of their human rights or access to justice. The Court is constrained to intervene to ensure that those who are under a public duty to act, act in accordance with law. Development without freedom is meaningless. Much like a desolate sky bereft of the twitter of the birds or the trees of an urban environment where the roots lie buried in layers of concrete. Like the barren earth parched by drought - its deep crevices bearing testimony to muted tales of untold suffering. A society which bears her children to die of starvation has unanswered questions which cannot be answered. Neither constitutional freedom nor growth in a global society can be achieved when the young die without a morsel of food and clean water. We write in great anguish over the deprivations faced by our young and the disabled but in the determined hope that judicial review can activate a democratic deficit of governance.
::: Downloaded on - 09/06/2013 16:26:00 :::3 S.M.PIL-182/010
2. This Court took Suo Moto cognizance of an article which appeared in the Mumbai Mirror of 24 August 2010 on the inhuman condition in which the inmates of a Children's Home at Shahpur in the District of Thane lived. The Court issued notices on 3 September 2010 to the State Government, the Child Welfare Committee, Thane and the person incharge of the institution.
3. The institution in question is Satkarm Balgriha. All the children, lodged at the Home are mentally challenged. The report in the Mumbai Mirror highlighted that five children had died out of extreme starvation and malnutrition. The report disclosed the unsanitary conditions in which the children had been housed and the lack of basic facilities. The article noted that the Child Welfare Committee (CWC) of Thane District had failed to take adequate remedial steps despite a visit in July.
The news report raised fundamental questions about the denial of human rights to mentally challenged children and the apathy and neglect of those conducting the institution and of public functionaries vested with statutory powers under the Act.
4. In response to the notice issued by the Court, CWC has appeared through counsel. The State Government has filed an ::: Downloaded on - 09/06/2013 16:26:00 ::: 4 S.M.PIL-182/010 affidavit-in-reply of the Deputy Commissioner (Child Welfare), Commissioner of Women and Child Development, Maharashtra State, Pune. The affidavit-in-reply confirms the correctness of what has been stated in the newspaper report. The irresistible conclusion is that there is a complete breakdown of the regulatory machinery in the State of Maharashtra designed for the protection of children under Juvenile Justice (Care and Protection) Act 2000. Before we deal with the facts, which have come on record, it would be necessary to note that many of the salutary provisions which have been made in the Act and the Rules have not been implemented by the State. Section 62 provides for the constitution of Central, State, district and city advisory boards by the State Government to advise that Government on matters relating to the establishment and maintenance of homes, mobilization of resources, provision of facilities for education, training and rehabilitation of children in need of care and protection and juveniles in conflict of law.
Section 62-A, which was inserted by Amendment Act 33 of 2006, provides that every State Government shall constitute a Child Protection Unit for the State and Units for every District, consisting of officers and other employees as may be appointed ::: Downloaded on - 09/06/2013 16:26:00 ::: 5 S.M.PIL-182/010 by that Government, to take up matters relating to children in need of care and protection and juveniles in conflict with law with a view to ensure the implementation of the Act including the establishment and maintenance of homes, notification of competent authorities in relation to these children and their rehabilitation and co-ordination with various official and non official agencies concerned. Rule 63 of the Juvenile Justice (Care and Protection of Children) Rules 2007 requires each State Government to constitute Inspection Committees at the level of every city, district and state. The Inspection Committees have to visit and oversee conditions in the institutions and the appropriateness of the processes for safety and well being and to review the standards of care and protection followed by the institutions, enquire into incidents involving the violation of child rights and to discharge other functions. Rule 81 requires the constitution of District Child Protection Units to co-ordinate and implement child rights and protection activities at the district level. Before the court, it is an admitted position that none of these bodies has been formed in the State of Maharashtra. There is a failure on the part of the State Government to comply with its mandatory obligations under the ::: Downloaded on - 09/06/2013 16:26:00 ::: 6 S.M.PIL-182/010 Juvenile Justice (Care and Protection of Children) Act, 2000 and Rules framed thereunder.
5. The consequence of the neglect and apathy on the part of the State Government are borne out by what happens in institutions where children who are desperately in need of care are lodged. In the present case, the institution, was to house children who are mentally challenged. The institution was given a registration certificate by the Commissioner, Women and Child Development, Pune on 19 November 2009. After the institution was granted recognition, mentally disabled children from other children's homes were transfered to this particular home. The government is now examining as to why children from other homes for the mentally retarded were transfered to this home, instead of admitting a fresh batch of children in need of care and protection. Between 9 April 2010 and 24 July 2010, five children between the ages of nine and twelve died either due to severe malnutrition or diseases contracted as a result. One girl inmate is alleged to have been sexually abused by the person incharge of the home. An F.I.R. is said to have been lodged at Shahpur on 4 September 2010. The home at Shahpur was inspected by the District Women and Child ::: Downloaded on - 09/06/2013 16:26:00 ::: 7 S.M.PIL-182/010 Development Officer (DWCDO) on 4 August 2010 and he had requested the CWC to transfer five inmates of the institute who were severely sick to other children's' home by a letter dated 5 August 2010. Despite this, the children were not shifted save and except for one child who was seriously ill and was shifted to Premdan Children's Home at Airoli. Belatedly after the report in the Mumbai Mirror was published, steps were taken to shift all the eighteen children. Among them, six male inmates were found to be extremely sick and malnourished and they were shifted to Central Hospital, Ulhasnagar for treatment. Seven other male inmates were shifted to the Government Children's Home for the Handicapped, at Ulhasnagar, while five girls were shifted to Premdan at Airoli an institution which is run by an N.G.O. Following what has now become a familiar line of action after the incident has taken place and irreversible damage has been done, the Commissioner, Women and Child Development appointed the Assistant Commissioner (Child Development) to enquire into the incident and a report has been submitted on 28 August 2010. A notice to show cause was issued to the DWCDO on 28 August 2010 and to the CWC, Thane on 2 September 2010. The Government has stated in its affidavit that it is ::: Downloaded on - 09/06/2013 16:26:00 ::: 8 S.M.PIL-182/010 investigating the procedures involved in granting approval to such homes, the process for inspection and the criteria laid down for grant of approval. The Government is in the process of determining whether N.G.Os should be allowed to apply for running institutions even before they have identified needy or mentally challenged children and whether the financial condition of the proposer should be considered merely on the basis of a one-time bank statement or whether an institution must demonstrate an independent source of revenue including donors. The State Government is also considering as to whether such institutions should be allowed to be housed in remote and inaccessible areas where it is difficult to obtain the service of doctors and psychiatrists. Moreover it has been stated that the Government is in the process of deciding whether the entire regulatory framework should be placed under the control of the Commissioner for Handicapped working under the Social Justice Department. These measures should have been taken much earlier. There is no justification for the state to wait until innocent lives are lost for the regulatory machinery to be set in motion.
::: Downloaded on - 09/06/2013 16:26:00 :::9 S.M.PIL-182/010
6. The issues which have been raised in the present case, would have to be dealt with by taking immediate action to protect the welfare of children involved, as well as by issuing systemic directions to the State Government. The facts which have been stated in the judgment earlier are adequate to support an inference that the provisions of the Juvenile Justice Act and the Rules have remained only on paper and that there has been a total failure of the implementing machinery prescribed under the Act. It appears that it is only when newspaper articles are published and the court is constrained to take suo moto congnizance that the authorities have responded by taking certain measures.
7. Firstly, it would be necessary for the court to ensure the well being and welfare of the eighteen children, who have been transferred from the home. The children have been housed either at the Government Children's Home for the Handicapped at Ulhasnagar or at Premdan Sanstha, Airoli. A report in the Mumbai Mirror dated 16 September 2010 notes that one of the rescued children is since missing from the Government Home at Ulhasnagar. This has been confirmed by the A.G.P. on instructions and a complaint has been lodged at the local Police ::: Downloaded on - 09/06/2013 16:26:00 ::: 10 S.M.PIL-182/010 Station and the care taker has been suspended.
8. We direct that (i) Steps shall be taken by the Secretary, Women and Child Development Department, forthwith to ensure the security of all the inmates who have been lodged in the two homes; (ii) Steps shall be taken immediately with the assistance of the local Police Station to trace the child found missing from the Ulhasnagar Children's Home; (iii) Every inmate (including the missing child after he his found) shall be subject to medical and psychiatric evaluation at the local Civil Hospital with a view to ascertain the condition of each child. Medical reports shall be prepared for each child separately and shall, besides specifying the condition of the child, indicate the line of rehabilitative treatment. This exercise shall be carried out forthwith; (iv) Immediate steps shall be taken for providing rehabilitative support including medical and psychiatric support as is considered necessary by the evaluating doctors for the welfare of the children. We direct that the medical and psychiatric evaluation shall be completed within two weeks from today and a report shall be placed on the record elaborating the steps which have been taken to initiate rehabilitative treatment.
::: Downloaded on - 09/06/2013 16:26:00 :::11 S.M.PIL-182/010
9. We request Ms.Asha Bajpayee, who has been appointed as Amicus Curiae to visit the two homes namely Premdan Sanstha, Airoli, Navi Mumbai and the Government Children's Home for the Handicapped at Ulhasnagar and to submit a report before this court by the next date of hearing after conducting an inspection and ascertaining what steps have been taken in compliance with the directions of the Court.
10. From the material which has placed by the State Government on record, it appears that the process of granting recognition to such childrens' homes is flawed. Even a prima facie reading of the application submitted for the recognition of the home in question, shows that it had virtually no credentials or expertise in conducting a children's home for mentally challenged children. A leave and license agreement was produced in support of the application which records that certain premises which were intended as spaces for shops were to be utilised for conducting a children's home. How such an application could have been granted in the first place defies explanation. The affidavit filed by the State states that the procedures under the Act for grant of recognition to childrens' homes in the State are being reconsidered and revamped. We ::: Downloaded on - 09/06/2013 16:26:00 ::: 12 S.M.PIL-182/010 direct that this exercise shall be completed within four weeks' from today and a streamlined procedure for scrutinising and processing applications for the conduct of children's homes shall be formulated within that period. The procedure shall take due care to ensure that all applications are carefully scrutinised in order to verify the expertise of the persons involved in submitting the proposal. Norms shall be framed in regard to infrastructural facilities which must be made available, the finances that must be available to run the home, the nature of personnel who would be employed to conduct and manage the home, the availability of medical and psychiatric facilities, the nutritional requirements of the inmates and the provision of vocational training. The state government shall prescribe uniform parameters which must be observed by all such homes.
11. Rule 55 of the Juvenile Justice (Care and Protection of Children) Act 2000 provides for the constitution of a management committee for every institution. The District Protection Officer is to be the chair-person of the management committee. Detailed provisions have been made in Sub-Rule 3 of Rule 55 for the constitution of management committees. The State Government shall within a period of four weeks from ::: Downloaded on - 09/06/2013 16:26:00 ::: 13 S.M.PIL-182/010 today ensure that Rule 55 is complied with by the constitution of management committees in every children's home in the state of Maharashtra.
12. We also direct that within a period of four weeks from today, the State Government shall take necessary steps for the constitution of advisory boards under Section 62, Child Protection Units under Section 62-A, inspection committees under Rule 63 and District Protection Units under Rule 81.
This Court is constrained to issue peremptory directions for compliance within a time schedule in view of the negligence on the part of the State to comply with its mandatory obligations under the Act and rules. Where there is a failure by the State to discharge its mandatory obligations under the law, particularly in a case such as the present where the human rights of those unable to seek access to justice is in issue, the Court has to issue a directions that ensure the implementation of the provisions of the Act in the public interest. We clarify that the pendency of these proceedings shall not restrain the State Government from taking action in pursuance of the show cause notices that have been already issued to the institutions and the child welfare committee. The enquiry shall be ::: Downloaded on - 09/06/2013 16:26:00 ::: 14 S.M.PIL-182/010 completed and reports shall be placed on record by the next date of hearing.
13.The reports in regard to the condition of the children and the steps taken shall be considered by the Court two weeks from today. The proceedings shall stand over for monitoring compliance to 30 September 2010. The Secretary, Women and Child Development Department is directed to ensure that all necessary co-operation including the facility of transport is made available to the Amicus Curiae to visit the institutions and to carry out inspection.
(Smt. R.P. SondurBaldota,J.) (Dr. D.Y. Chandrachud, J.) ::: Downloaded on - 09/06/2013 16:26:00 :::