Madhya Pradesh High Court
Laxmi Narayan Shrivastava vs The State Of Madhya Pradesh on 25 October, 2018
Equivalent citations: AIRONLINE 2018 MP 975
Bench: Sanjay Yadav, Vivek Agarwal
1
W.P. No. 8797/2016
(Laxmi Narayan Shrivastava Vs. State of M.P. and others)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE VIVEK AGARWAL
Writ Petition No. 8797/2016
Laxmi Narayan Shrivastava
Vs.
State of M.P. & others
********************
Shri Amit Lahoti, learned counsel for the petitioner.
Shri N.S. Kirar, learned Government Advocate for
respondents No. 1 to 4/State.
Shri Vivek Khedkar, learned Assistant Solicitor General
for respondent No. 5/Union of India.
********************
Whether approved for reporting : Yes/No
ORDER
(25/10/2018) Per Justice Sanjay Yadav:
Petitioner, a practicing Advocate, being perturbed with the manner in which the Child Care Institution, Children Home and Observation Home being maintained by the functionaries of the State of 2 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) Madhya Pradesh and concerned with the betterment of children alleged to be in conflict with law who being ignored by the Central and State Government, present petition is filed in public interest seeking direction to respective Governments to take immediate measures as per the stipulations contained in the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Rules framed thereunder, viz, the Juvenile Justice (Care and Protection of Children) Model Rules, 2016. And to achieve the goal set by the National Charter for Children, 2003, adopted vide Resolution No. 6-15/98- C.W. dated 09/02/2004 by the Ministry of Human Resources Department, Government of India. (2) Pertinently, initially the relief sought by the petitioner was confined only to the Shishu Grih and Observation Home in district Guna. Later on, the scope of the petition was expanded by order dated 25/01/2017 when it was noticed that the Child Care Institution, Children Home and Observation Home in the entire 9 districts, viz, Gwalior, Shivpuri, Morena, Bhind, Sheopur, Ashoknagar, Vidisha, Datia and Guna, falling within the jurisdiction of this Court were 3 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) either not functional or were in unattended state. (3) During course of proceedings various orders were issued and status reports were sought from the State functionaries as also from Principal Magistrates of Juvenile Justice Board of these 09 districts. We noticed contradictory stands by the State functionaries and the Principal Magistrates. We will advert to it later.
(4) The mandates of Articles 15(3) 1, 21A2, 243, 39(e)4, 39(f)5, 456, 51A7 prompted the Central Government to moot the National Policy for Children
1. Nothing in this article shall prevent the State from making any special provision for women and children. [Article 15(3)]
2. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. [Article 21A]
3. No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. [Article 24]
4. that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. [Article 39(e)]
5. that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. [Article 39(f)]
6. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. [Article 45]
7. It shall be the duty of every citizen of India--
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years. [Article 51A] 4 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) in 1974 for providing adequate services to children, both before and after birth and throughout the period of growth, to ensure their full physical, mental and social development; to affirm best interest of children must be protected through combined action of the State, Civil Society, Communities and families in their obligations in fulfilling children's basic needs in the context of intrinsic and attendant duties of children and inculcating in children a sound sense of values directed towards preserving and strengthening the family, society and the Nation. In furtherance to the said Policy, the Central Government announced National Charter for Children, in the year 2003, vide Resolution No. 6- 15/98-C.W. dated 9th February, 2004, to address the root causes that negate the healthy growth and development of children, and to awaken the conscience of the community in the wider societal context to protect children from all forms of abuse, while strengthening the family, society and the Nation by:-
(i) undertaking all appropriate possible measures to ensure and protect the survival, 5 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) life and liberty of all children;
(ii) undertaking all appropriate measures to address the problems of infanticide and foeticide, especially of female child and all other emerging manifestations that deprive the girl child of her right to survive with dignity;
(iii) adopting measures to ensure that all children enjoy the highest attainable standards of health, and provide for preventive and curative facilities at all levels especially immunization and prevention of micro-nutrient deficiencies for all children.
(iv) taking measures to cover, under primary health facilities and specialised care and treatment, all children of families below the poverty line.
(v) taking measures to provide adequate pre‐ natal and post‐natal care form others along with immunization against preventable diseases.
(vi) undertaking measures to provide for a national plan that will ensure that the mental health of all children is protected.
(vii) taking steps to ensure protection of 6 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) children from all practices that are likely to harm the child's physical and mental health.
(viii) taking steps to provide all children from families below the poverty line with adequate supplementary nutrition and undertake adequate measures for ensuring access to safe drinking water and environmental sanitation and hygiene.
(5) The National Policy for the Children 1974 and the National Charter for Children, 2003 paved the passage for enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 envisaging the provisions for care and measures for protection of children. The Act was amended in 2006 and 2011. As during the course of implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institution, inadequate provisions of counter offences against children such as corporal 7 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) punishment, sale of children, for adoption purposes etc., led the Parliament review the existing laws and enact the Juvenile Justice (Care and Protection of Children) Act, 2015, to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, hereinunder and for matters connected therewith or incidental thereto. Having provided exhaustive, self explanatory definition of the expression as what an "abandoned child" would mean; and what would be the "best interest of child"; and who is the "child in conflict with law"; and who is the "child in need of care and protection", "orphan", "surrendered child"
and what "children homes", "child care institution", "observation home", "open shelter", "special home", are and what they should be like including the 8 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) facilities to be made available at those places by the State Government and its functionaries, the Parliament has now enacted a self sustained code, not only defining the various facets of a vulnerable child but also provides mechanism to deal with the same though law enforcing agencies. The Act is a mandate to be strictly, scrupulously followed by all the stackholders. Alas! they have failed in achieving the goal, as a result whereof, the child in distress, remains distressed because of lack of care and protection. A hypocritic approach of the functionaries who are at the helm of the affairs and the stackholders assigned the duties under the Act 2015 are to be blamed. It is because of this we have contradictory status before us by two different authorities.
(6) The picture which emerges is gloomy; whereas, the functionaries of the State have all praise for themselves by showing figures; however in reality, in field, these figures get evaporated, either because the work is not accomplished, or because of the inefficiency of the workforce deployed to work. The inefficiency is due to non-interest, insensitivity. 9 W.P. No. 8797/2016
(Laxmi Narayan Shrivastava Vs. State of M.P. and others) Because of which led Hon'ble Supreme Court issue following directions in Sampurna Behura Vs. Union of India and others [(2018) 4 SCC 433]:-
"94. Keeping in mind the concerns expressed by all learned counsel and the need to invigorate the juvenile justice system in the country, we are of the view that the following directions ought to be given and we do so:
94.1. The Ministry of Women and Child Development in the Government of India and the State Governments should ensure that all positions in the NCPCR and the SCPCRS are filled up well in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children.
94.2. The NCPCR and the SCPCRS should take their duties, functions and responsibilities with great earnestness keeping in mind the faith reposed in them by Parliament. A position in these statutory institutions is not a sinecure.
These bodies have a very significant and proactive role to play in improving the lives of children across the country. 94.3. The State-level Child Protection Societies and the District-level Child Protection Units have an enormous responsibility in ensuring that the JJ Act is effectively implemented and Child Care Institutions are managed and maintained in a manner that is conducive to the well-being of children in all respects including nutrition, education, medical benefits, skill development and general living conditions. These two bodies would be well advised to take the assistance of NGOs and civil society to ensure that the JJ Act serves the purpose for which it is 10 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) enacted by Parliament.
94.4. The State Governments must ensure that all positions in the JJBs and CWCs are filled up expeditiously and in accordance with the Model Rules or the Rules framed by the State Government. Any delay in filling up the positions might adversely impact on children and this should be avoided.
94.5. The JJBs and CWCs must appreciate that it is necessary to have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time and justice is given to all juveniles in conflict with law and social justice to children in need of care and protection. This is a constitutional obligation.
94.6. 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 State Governments and the Union Territories must take remedial steps. 94.7. In particular the NCPCR and the SCPCRs must carry out a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers. It must be emphasised that the role of a Probation Officer is critical for the rehabilitation and social reintegration of a juvenile in conflict with law and due importance must be given to their duties as postulated in the Model Rules and Rules, if any, framed by the State Governments and the Union Territories.
94.8. The MWCD must continue to make creative use of information and communication technology not only for the purpose of collecting data and information but also for other issues 11 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) connected with the JJ Act such as having a database of missing children, trafficked children and for follow up of adoption cases etc. With the utilization of technology to the fullest extent, administrative efficiency will improve considerably, which in turn will have a positive impact on the lives of children. 94.9. It is important for the police to appreciate their role as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children. There is therefore a need to set up meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In this context, it is necessary to clearly identify the duties and responsibilities of such Units and Officers and wherever necessary, guidance from the available expertise, either the National Police Academy or the Bureau of Police Research and Development or NGOs must be taken for the benefit of children.
94.10. The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event.
94.11. The management of Child Care Institutions is extremely important and State Governments and Union Territories would be well advised to ensure that all such institutions are registered so that children can live a dignified life in these Institutions and issues of missing children and trafficking are also addressed.
94.12. State Governments and Union Territories would be well advised to appoint eminent persons from civil society as Visitors to monitor and 12 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) supervise the Child Care Institutions in all the districts. This will ensure that the management and maintenance of these Institutions are addressed. We have no doubt that the State Legal Service Authorities and the District Legal Service Authorities will extend full assistance and cooperation to the government authorities in this venture as well as to the Visitors.
94.13. The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State Governments and the Union Territories. If financial resources are not made available for the welfare of the children we shudder to think what could be better utilization of the funds. 94.14. NALSA has done a remarkable job in collecting data and information relating to the JJ Act, as evidenced by the three part Report prepared by it. We request NALSA to carry forward the exercise and complete a similar Report preferably before 30th April, 2018 to assist all the policy making and decision taking authorities to plan out their affairs.
94.15. The importance of training cannot be over-emphasized. It is vital for understanding and appreciating child rights and for the effective implementation of the JJ Act. All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position. A very positive step has been taken in this regard by NALSA and we expect the NCPCR with the assistance of the SCPCRs to carry forward this 13 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) initiative so that there is meaningful implementation of the JJ Act.
94.16. Since the involvement of the State Governments and the Union Territories is critical to child rights and the effective implementation of the JJ Act, it would be appropriate if each High Court and the Juvenile Justice Committee of each High Court continues its proactive role in the welfare of children in their State. To make the involvement and process more meaningful, we request the Chief Justice of every High Court to register proceedings on its own motion for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities. A copy of this judgment and order should be sent by the Secretary General of this Court to the Registrar General of each High Court for being placed before the Chief Justice of every High Court for initiating suo motu proceedings.
(7) In view whereof, the State and its functionaries and the agencies deployed by it besides being bound to follow the mandate of the Act of 2015 and the Rules made thereunder and the directions in Sampurna Behura (supra), scrupulously, are directed to take up on priority basis the steps to:
(i) constitute State Child Protection Society and District Child Protection Unit, and further 14 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) develop mechanism to centrally control and supervision their activities.
(ii) appoint Special Juvenile Police Unit and the Child Welfare Police Officers who shall co-
ordinate with other State and non-State functionaries and stackholders and a centralized Authority to monitor the function.
(iii) to plan out the scheme which aims at integrating juvenile justice system with human resources development.
(iv) to ensure imparting of vocational or continuing education with a view to resettle the children.
(v) to visit these child care institutions impromptu and unscheduled, to get the correct picture of these homes, which besides controlling the irregularity, the inefficiency, the lackadaisical working of the staff.
(vi) to construct separate buildings for those juvenile who are in conflict with law and those who are in need and care, the two are to be kept apart.
(vii) create in each district, Juvenile Justice Fund 15 W.P. No. 8797/2016 (Laxmi Narayan Shrivastava Vs. State of M.P. and others) for the welfare and rehabilitation of the children dealt with under the Act of 2015 and the Rules made thereunder and make provisions for mandatory corporate funding to these funds.
(viii) mechanism be set up for speedy and effective disposal of cases regarding adoption and its monitoring after adoption.
(ix) Public at large be made aware through electronic media and through other mode of information that they should not be the passers-
by but must inform the concerned agency whenever and wherever they came across a distressed child.
(8) It is expected of the State and non-State Government functionaries and the stackholders at the helm of the affairs relating to juvenile care and protection to work in tandem to achieve the goal set vide Act of 2015.
(9) The petition is disposed of finally in above terms. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
(25/10/2018) (25/10/2018)
Shubhankar*
SHUBHANKAR
MISHRA
2018.10.26 10:08:25
+05'30'