Kerala High Court
Bachpan Bachao Andolan vs State Of Kerala on 17 November, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 17th day of November 2021 / 26th Karthika, 1943
WP(C) NO. 23669 OF 2019(S)
PETITIONERS
1. BACHPAN BACHAO ANDOLAN,
CHARITABLE SOCIETY HAVING ITS OFFICE AT L-6,
KALKAJI, NEW DELHI-110 019, REPRESENTED BY ITS
GENERAL SECRETARY, MR.R.S. CHAURASIA.
2. SAMPURNA BEHURA, PROGRAM-DIRECTOR,
BACHPAN BACHAO ANDOLAN, L-6,
KALKAJI, NEW DELHI-110 019.
RESPONDENTS
1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE SECRETARY, SOCIAL JUSTICE DEPARTMENT,
STATE OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR, STATE PROGRAMME MANAGEMENT UNIT,
WOMEN AND CHILD DEVELOPMENT DEPARTMENT,
POOJAPPURA, THIRUVANANTHAPURAM-695 012.
4. KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS,
REPRESENTED BY THE CHAIRPERSON, T.C.14/2036,
VANROSS JUNCTION, KERALA UNIVERSITY. P.O.,
THIRUVANANTHAPURAM-695 034.
5. THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695 010.
6. THE KERALA STATE LEGAL SERVICES AUTHORITY,
ERNAKULAM, REPRESENTED BY THE MEMBER SECRETARY,
NIYAMA SAHAYA BHAVAN, HIGH COURT BUILDING,
KOCHI-682 031.
P.T.O.
Writ Petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be pleased
to direct the 1st respondent to:
1. furnish the details of the process adopted to make appointments to the 4th
respondent.
2. to file a status report regarding the performance of the functions by the
State Child Protection Society and District Child Protection Unit and the
method and procedure of appointments made to both.
3. to file a status report stating the reasons for such huge pendency despite
regular sittings and direct the Juvenile Justice Boards and Child Welfare
Commissions to work every day till the pendency is reduced.
4. to provide information as to how they are conducting regular inspections of
Child Care Institutions, under the terms of the Juvenile Justice Act.
And further direct the 4th respondent to provide a status report regarding how
they function pending disposal of the Writ Petition.
This petition again coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and this court's order dated
23/10/2019 and upon hearing the arguments of M/S DEEPU THANKAN, ANNU YADAV,
LAKSHMI SREEDHAR, PRAGYAN PRADIP SHARMA, SAPNA NAHARWAL, SHASHI CHOURASIA &
UMMUL FIDA, Advocates for the petitioners, SRI.V.
TEKCHAND,SRI.V.MANU,GOVERNMENT PLEADER FOR R1 TO R3 & R5, SRI.THOUFEEK AHAMED,
Advocate for R4 and of M/S. SANTHOSH MATHEW, ARUN THOMAS, JENNIS STEPHEN,
VIJAY V. PAUL, KARTHIKA MARIA & ANIL SEBASTIAN PULICKEL, Advocates for R6, the
court passed the following:
P.T.O.
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
-----------------------------------------------
W.P(C). No. 7380 of 2018 (S)
and
W.P(C). No. 23669 of 2019 (S)
----------------------------------------------
Dated this the 17th day of November, 2021
ORDER
S. Manikumar, CJ.
Pursuant to the judgment in Sampurna Behura v. Union of India and Others reported in [2018 (4) SCC 433], wherein directions have been issued by the Hon'ble Supreme Court to monitor implementation of laws beneficial to children ie., Juvenile Justice (Care and Protection of Children) Act, 2015, this Court has instituted a suo motu Writ Petition No.7380 of 2018. Directions issued by the Hon'ble Supreme Court, which necessitated initiation of suo motu writ petition are as under:
"95. 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.
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 SCPRs 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.
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 W.P(C). 7380/2018 & 23669/2019 2 significant and proactive role to play in improving the lives of children across the country.
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 enacted by Parliament.
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.
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.
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.
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.
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 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, W.P(C). 7380/2018 & 23669/2019 3 administrative efficiency will improve considerably, which in turn will have a positive impact on the lives of children.
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.
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.
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.
12. State Governments and Union Territories would be well advised to appoint eminent persons from civil society as Visitors to monitor and 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.
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.
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.
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 W.P(C). 7380/2018 & 23669/2019 4 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 initiative so that there is meaningful implementation of the JJ Act.
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."
2. .The State Government has filed a detailed counter affidavit dated 7.11.2019, relevant paragraphs are extracted hereunder:
Submissions as regards paragraph 95.1 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
1. As per Section 17 (2) of the Commission for Child Rights Act 2005, a State Commission, constituted in terms of Section 17 (1) of the said Act, is to have a Chairperson and six other members. As on this date, the Kerala State Commission for Protection of Child Rights is having a Chairman and six Members.
2. The Present Chairman of the Kerala State Commission for Protection of Child Rights is Shri. P. Suresh. The Members are (1) Smt. Sreela Menon W.P(C). 7380/2018 & 23669/2019 5 N., (2) Sri. M.P. Antoni, (3) Sri. C.J. Antony, (4) Sr. Biji Jose CMC, (5) Fr. Philip Parakatt P.V. and (6) Sri. K. Nazeer. The appointment of the Chairperson of the Kerala State Commission for Protection of Child Rights was notified as per G.O. (P) No. 13/2018/SJD dated 29.09.2018.
True photocopy of the G.O. (P) No. 13/2018/SJD dated 29.09.2018 is produced herewith and marked as Exhibit R1 (a). The Government appointed six members to the said Commission and the same was notified as per G.O. (P) No. 6/2017/SJD dated 29.04.2017. True photocopy of the G.O. (P) No. 6/2017/SJD dated 29.04.2017 is produced herewith and marked as Exhibit R1 (b). The selection process of two persons appointed as per Exhibit R1 (b) was invalidated by this Hon'ble Court and hence Exhibit R1 (b) was amended as per G.O. (P) No. 4/2019/SJD dated 03.04.2019 whereby two new persons were appointed. True copy of the G.O. (P) No. 4/2019/SJD dated 03.04.2019 is produced herewith and marked as Exhibit R1 (c). It is most humbly submitted that the first respondent has ensured that all vacancies in the Kerala State Commission for Child Rights have been filled up.
Submissions as regards paragraph 95.3 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
3. The Integrated Child Protection Scheme (hereinafter referred to as "the ICPS" for short) has been implemented in Kerala. The State Child Protection Society (SCPS) was registered under Travancore-Cochin Literary Scientific and Charitable Societies Act on 16-12-2011. At the district level, District Child Protection Unit, Child Welfare Committee, Juvenile Justice Board, Juvenile Justice Institutions, Special Juvenile Police Unit, Sponsorship Foster Care Approval Committee and District Inspection Committee are functioning under ICPS. W.P(C). 7380/2018 & 23669/2019 6
4. At present, there are 27 Government run Child Care Institutions (hereinafter referred to as "the CCIs" for short) under the Directorate of Women and Child Development. All the said 27 CCIs have been registered as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the JJ Act"
for short). Directions have been issued to develop Individual Care Plan for all the residents of the CCIs and for delivering services on the basis of such Individual Care Plans. All Caretakers of CCIs have been given training on Institutional Management during May and June 2017. Necessary infrastructure facilities have been provided to the Juvenile Justice Institutions under the Directorate. The details of various types of CCIs functioning under ICPS in the State are as follows.
Sl
Type of Home No.
No.
1 A. Government Government Children Home 15
2 Government Observation Home 9
3 Government Special Home 2
4 Government Place of Safety 1
5 B.Private/NGO Open Shelter 4
6 Special Adoption Agency (SAA) 17
7 Nirbhaya Home 14*
8 NGO run Children's Homes 755
Total 817
*Run by N.G.Os on behalf of Government. On an average 75% of the total inmates are below the age of 18 years.
5. The District level Child Protection Unit consists of a District Child Protection Officer (DCPO), Protection Officer (Institutional Care), Protection Officer (Non institutional Care), Legal cum Probation Officer, Social Worker, Outreach Worker, Counsellor, Assistant cum Data Entry Operator, Data Analyst. Steps are being taken to make sure that all the DCPO Officers are housed at the District Head Quarters. Some of the W.P(C). 7380/2018 & 23669/2019 7 DCPO posts have been filled with officers from Social Justice Department. This will be discontinued and transferred /qualified officers from Woman and Child Development Directorate will be posted in their place.
6. The State Adoption Resource Agency (SARA) is meant for looking the matters relating to adoption, foster care and sponsorship. A counselling centre has been set-up at the State office of SARA. SARA Governing body has been reconstituted as per GO (Rt) No.702/2017/SJD dated 23.10.2017 (Exhibit R1 (d)), with Special Secretary, Social Justice, Woman and Child Development Department as Chairperson.
7. The statistics regarding adoption during the year 2019 up to September is as follows:
No. of Specialised Adoption Agency (SAA) 17 In country adoption 94 Inter country adoption 68. It is submitted that some of the children admitted in the CCIs are as "Children in Conflict with Law" (hereinafter referred to as "the CCL" for short) and some are mentally challenged or having serious behavioural problems. To enable the segregation of children on the basis of their state of mind or differential ability, it has been decided to create three levels of homes in the State. This will be conducive for assessing the behavioural problems, if any of the children and also for preparation and implementation of Individual Chile Care Plan (ICP). The proposed three levels of homes are:
(a) First Level (Entry Homes) - where any child will be admitted W.P(C). 7380/2018 & 23669/2019 8 directly. 16 CCIs run by the Government have been designated as 'Entry Homes.' Children admitted in the said entry homes will be subjected to assessment by a multi-disciplinary team consisting of psychiatrist, child psychologist, psychiatric nurse, Social Worker, Special Educator, and then ICP will be prepared.
(b) Second Level Home (Children Home II) -Those found eligible and recommended by the multi-disciplinary team will be moved to the Second Level Home. This second level homes are planned to be established through NGOs, either as an exclusive home or as individual admissions to reputed homes. Those left in the Entry Homes will be subjected to psycho-social counseling and other rehabilitation measures. Their behavioral issues are planned to be rectified and rehabilitated.
(c) Third Level - Homes are to be called ''Thejomaya". The Thejomaya home was announced in the budget for 2018-2019.
First home will soon be set up in association with District Panchayath Ernakulam. In these homes, very bright children or promising children from second level homes as well as Nirbhaya homes (renamed as Women and Children Homes) are to be admitted and they will be given the facilities to pursue higher studies. It is planned to associate reputed NGOs for providing psycho-social, health, education care and the model is to be piloted shortly.
9. With the Participation of NGOs and Civil Society, the Government has started some projects in order to ensure that the objectives under the JJ Act are fulfilled.
Programmes Implemented by ICPS, Kerala
i) KAVAL The Kaval Project for the rehabilitation of Children in Conflict with Law (CCL) is innovative programme of the Government of Kerala. The project extends psycho-social care to children with the support of NGOs. NIMHANS Provides technical support to the W.P(C). 7380/2018 & 23669/2019 9 project. The Project addresses not just the Child, but also her/his family. In most cases, children who have committed crimes are given bail, and then completely forgotten. Only in rare cases, especially if considered dangerous to the society, they are sent to the Observation Homes. Many of the children who are sent back are virtually abandoned by their families and are likely to fall back into crime. The Project provides a sense of direction to the children and their families. The project is now implemented only in nine districts and has been hugely successful in bringing down recidivism and also in reintegration of the child to the main stream.
ii) "SARANABALYAM"
This is an effort by the Government to make Kerala a beggar free and child labour free State. It was piloted in one district and has now been extended to whole of the State. The project includes rescue, field visit to check/identify children engaged in child labour/begging, carry out DNA test to identify the accompanying adult and necessary rehabilitation. So far 76 children have been rescued in the State from the clutches of beggar mafia.
iii) VIGNANA DEEPTHI This is an initiative by the State Government to overcome the insufficiency of funds under the Central Sponsorship Scheme. The State is committed towards deinstitutionalisation concept and is making all efforts to retain children in their own homes Rs.2000/- per month is disbursed per child and now 730 children are benefitted under the scheme. This scheme is initiated in addition to the scheme operated through the financial assistance extended by the State.
iv) BALANIDHI (JJ Fund) Balanidhi (Juvenile Justice Fund) was constituted as provided for W.P(C). 7380/2018 & 23669/2019 10 in Section 105 of JJ Act to ensure better care and protection of children who comes under the purview of the JJ Act. This was announced/inaugurated in January, 2018 and as part of attracting public interest to the scheme and thus to mobilise public fund, Smt.K.S.Chithra, the renowned singer has been made as the brand ambassador of the Programme.
v) KARUTHAL KARUTHAL is a programme of the Directorate of Women and Child Development to find out the children in vulnerable situation. The general objective of vulnerability mapping is to identify areas or places in the State of Kerala where children are vulnerable. Vulnerability mapping of children was started as a pilot programme in 2 districts.
vi) UJWALABALYAM UJWALA BALYAM awards are meant for children excelling in arts/sports/literature/social & cultural avenues. Award of Rs.25,000/-, Trophy and certificate are given to one child from each district in every year.
vii) DISHA DISHA is a programme initiative to identify and nurture arts and sports talents of children residing in CCIs.
viii) HARIDODAYAM HARIDODAYAM is a programme for participatory agricultural activities in CCIs, with the support of Krishi Vigyan Kendra to promote life skills and employability skills.
ix) GURUKULAM GURUKULAM is an initiative to strengthen the mental health and academic skills (Mathematics, Science and Arts) of Children of W.P(C). 7380/2018 & 23669/2019 11 CCIs, through Theatre Workshops, group therapy, behaviour modification techniques etc. For providing better care and protection to the children in the CCIs, a lot of activities like infrastructural developments of institutions, posting of counsellors, psychologists, special educators and Yoga, Arts and Sports trainers in various CCIs etc were done.
x) Varnachirakukal Varnachirakukal is the programme exclusively for children from CCIs for improving talent in arts and culture in every year and also give annual performance award for best performing CCI.
10. Kerala State was hit by an unprecedented monsoon rainfall and floods during August 2018. Apart from the regular schemes as mentioned above, a special programme to reduce the mental trauma of children affected with the floods was held during August 2018. The psycho-social issues, as an aftermath of the floods, posed a substantial challenge which might continue over an extended period of time. The Government identified that there were emotional reactions of irritability, sleeplessness, panic attack, withdrawal, anger, anxiety and nightmares in children. As a measure to help the children to cope up with the situation, the Government sought the help of NIMHANS for providing psycho social support to children. Thus, approximately forty thousand children were given psycho social support.
11.
12. The State has made all earnest attempts to provide care and attention to children. But there are certain difficulties being faced by the State in its implementation and the same are brought to the notice of this Honourable Court.
W.P(C). 7380/2018 & 23669/2019 12
i) Inadequacy of Fund for ICPS:
ICPS is a Centrally Sponsored Scheme. While an amount of Rs.161.78 crore is being spent on the Integrated Child Development Scheme (ICDS), the amount spent on ICPS, which mainly deals with protection of rights of children is very minuscule. The ICPS Scheme need to be revised to carry out the objectives of child rights protection and welfare in tune with the vast requirements of the JJ Act and the Rules framed there under. As mentioned above, the State has introduced several innovative schemes for rehabilitating CCL and The Children in Need of Care and Protection (CNCP), using its own plan funds. ICPS of the State is looking after the rights issues of children and acts as the Apex body for child Protection. The ICPS scheme is a 60:40 (in some cases 65:35). Centrally sponsored scheme and the State receives around Rs. 12-15 Crores on an average every year, in installments. With these funds as well as State Funds, the repair/ maintenance/establishment charges of the 27 Government run homes, grants to NGO run Child Care Institutions, various schemes for Child rights protection, establishment costs of JJB, CWC etc. are managed. The ICPS has only very few staff, and that too appointed, on contract, and no permanent posts have been created. The existing central scheme need be revised and more funds have to be provided in the following areas for implementing JJ Act 2015 effectively and efficiently.
(a) Recreation facilities, sports activities, gardening etc must be made compulsory as part of rehabilitation services for all CCIs so that the fruitful energy of the children get exhausted and is not diverted otherwise.
W.P(C). 7380/2018 & 23669/2019 13
b) Providing child care as per the standards laid down by the Act/Rules
c) For giving rehabilitation services including education and skill development etc for the children.
d) For infrastructure, staff and other establishment of JJBs/CWCs
e) For immediate relief and victim compensation
f) For higher studies for children, allocation for welfare, education of children etc. Fund utilisation Details (Rs. in Lakhs) Fin. GoI State total Expendi- Status of Year Contribution Contributi ture Utilization on 2016-17 764.82 1512.42 2277.24 2277.24 Fully Utilized 2017-18 1301.58 1050.93 2352.51 2352.51 Fully Utilized 2018-19 1184.11 237.14 1421.25 1421.25 as on 26/12/2018
ii) Inadequate staff in ICPS System As per ICPS guidelines issued by the Government of India, only contract staff can be engaged. Absence of permanent staff creates difficulty in implementing and monitoring the scheme as well as in exercising the statutory powers. Child protection is one area which need more attention in the current scenario of high number of abuse occurring all over the country.
The statistics of contract staff in ICPS is as follows:
W.P(C). 7380/2018 & 23669/2019 14 Designation Sanctioned Mode of Present Need to be post appointment Status Additionally sanctioned Programme Manager 2 Contract 1 Administrative Officer 1 Deputation 1 Accounts officer 1 Deputation 1 Assistant Cum Data 4 Contract 4 4 Entry Operator Accountant 2 Contract 2 Programme Officer 3 Contract 2 2 Accountant officer 1 Contract 1 (Government of India has been requested to sanction more posts so as to enable the smooth functioning of the system). Thus 14 staff on contract is thrust with the responsibility for implementing the provisions of the JJ Act in around 800 homes with around 22,000 inmates and to run the various schemes as well as to compile the activities and statistics of different schemes as mentioned above.
iii) Inadequate Statutory Powers for SARA:
All the powers related to adoption inside the country are vested on Central Adoption Resources Authority(CARA). The State authority with the Secretary to the Government has very little powers. Because of this reason, the State cannot interfere into the decisions taken against "best Interests of the child". The State Adoption Resource Agency (SARA) need more powers to correct such wrong doings.
Submissions as regards paragraph 95.4 and 95.5 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
13. All the Child Welfare Committees (hereinafter referred to as "the CWCs" for W.P(C). 7380/2018 & 23669/2019 15 short) and Juvenile Justice Boards (hereinafter referred to as "the JJBs" for short) have been reconstituted. The Child Welfare Committees were reconstituted as per G.O. (P) No. 2/2019/SJD dated 06.03.2019 (Exhibit R1
(e)) and G.O. (P) No. 08/2019/SJD dated 12.08.2019(Exhibit R1 (f)). The Members of all Juvenile Justice Boards were appointed as per G.O. (P) No.
03./2019/SJD dated 06.03.2019 (Exhibit R1 (g)).
14. There is also a major hurdle in the effective functioning of CWC.
According to JJ Act, CWC shall meet at least 20 days in a month. As per Rule 16(7) of Juvenile Justice (Care and Protection of Children) Model Rules 2016, the CWCs shall sit on all working days for a minimum of six hours commensurate with the working hours of a Magistrate Court. The functions and responsibilities of CWCs include conducting at least two inspection visits per month of residential facilities of CNCP and recommending action for improvement in quality of services to the District Child Protection Unit and to the State Government. But there is no provision for full time members in CWCs while the State Commission for Protection of Child Rights has such a provision. As per JJ Act and Model Rules 2016, there is no requirement of submission of a declaration leaving the profession to work as Chairperson or members of CWC. If provision for full time members in CWC, who cannot engage themselves in any other profession is made, CWCs can function more efficiently, can dispose off cases without delays, can meet regularly with full quorum and thus the interests of the child will not be compromised.
15. Now Judicial First Class Magistrate is acting as the Principal Magistrate of Juvenile Justice Board. These judicial officers are burdened with other judiciary related work as they are holding additional charge of JJB and W.P(C). 7380/2018 & 23669/2019 16 there is considerable delay in the disposal of cases as well. Therefore, independent, full time Magistrates need to be given charge of JJBs.
16. Based on the directions from Hon'ble High Court, District Juvenile Justice Committees have been constituted in all the 14 districts as per G. O (Rt.) No. 169/2019/SJD dated 25.03.2019 (Exhibit R1 (h)) to coordinate effectively the various activities of the stakeholders at the district level through periodical consultation and to oversee effective functioning of child Care Institutions and to ensure that the rights of the children in the district are not violated.
Submissions as regards paragraph 95.7 and 95.8 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
17. There are 40 Probation Officers now working in the State. There is a Data management and monitoring system in place for 'Track Child', 'CARINGS' and Quarterly Progress Report. The data base of Children on adoption\foster care has been prepared and maintained by the Government. A website is also being developed. The Central Government has been requested to develop a web portal for monitoring cases coming before JJBs, CWCs and POCSO courts etc. Submissions as regards paragraphs 95.9 and 95.10 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
18. In accordance with Section 107 of the JJ Act, a police officer, not below the rank of Additional Sub Inspector, has been designated as Child Welfare Police Officer in all the Police Stations. Special Juvenile Police Units have been constituted in 19 Police districts including the Child W.P(C). 7380/2018 & 23669/2019 17 Welfare Police Officers, two social workers including a woman, under the DySP/ACP, District Crime Branch. In Railway Police also, SJPU has been constituted under DySP, DCRB. The State Police Chief has been requested to take necessary action to strengthen the SJPU in order to increase the conviction rate in POCSO cases and for speedy investigation of cases booked. It has also been requested to seek the expertise of National Police Academy or the Bureau of Police Research and Development and to frame Standard Operating Procedure/Guidelines to make the SJPU more effective. Appointing counselors in police stations is under the consideration of Government.
Submissions as regards paragraph 95.11 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
21. There are 817 CCIs in the Sate registered under the JJ Act, wherein 22,241 Children are being housed. The Hon'ble Supreme Court, in judgment dated 5/5/2017 in Writ Petition (Crl)No. 102/2007, ordered that State must take steps to ensure that all CCIs should be registered before 31st December 2017. The State Government took steps for completing the registration process before the time limit. In this aspect, it is submitted that this Hon'ble Court, in its judgment dated 20/12/2017 in W.P.(C) 11599/201, ordered that the charitable institutions which were not established or maintained by the Government by itself or through another, would have to apply for registration under JJ Act 2015, but they could not be categorized as CCI under Section 41 (2) of JJ Act 2015 and they could not be directed to provide the facilities prescribed in the JJ Model rules and the obligation to provide such facilities to children was on the State, the Union and the State Governments. This W.P(C). 7380/2018 & 23669/2019 18 Hon'ble Court further ordered that the stipulation in the JJ Act for takeover of management of the institution had to be read down as facilitating only the takeover of children therein by the State Government, to be housed in such places with provision for facilities as prescribed in the Model Rules. The Government, going by the mandate of the said judgment, is not entitled to takeover those institutions which violated the provisions of JJ Act and Model rules.
22. There are 126 Yatheemkhanas functioning in the State under the Samastha Yatheemkhana Coordination Committee. 181 CCIs have been converted into Hostels, Madrasas, Dhars etc .Some of the Child Care institutions have been converted into Hostels. At present there is no law for regulating the Hostels. Government has initiated steps for making law to regulate Hostels functioning in the State.
Submissions as regards paragraph 95.12 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
23. For regular inspection and monitoring by JJBs on matters regarding functioning of CCIs, State Government has constituted State Level and District Level Inspection Committee with persons working in the field, as per the JJ Act 2015. The District Level Inspection Committees have inspected 125 institutions and State Level Inspection committee has inspected eight institutions so far. A training programme was conducted to familiarise the members of the Inspection Committees about the JJ Act, Model Rules, child rights etc. Government is planning to conduct more such training programmes.
Submissions as regards paragraph 95.13 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005 W.P(C). 7380/2018 & 23669/2019 19
24. For the implementation of JJ Fund, a separate bank account was opened in the name of "Balanidhi". The Government of Kerala has created a Head of account for JJ fund and there is a budget provision of Rs. 10 lakh for the year 2019-20. Famous play back singer Smt. K.S. Chithra has been made as the brand ambassador of the Balanidhi and a short film has been made to attract more funds to the "Balanidhi''. By using this funds Government intends to bring more children under sponsorship programme. If Government of India provide financial assistance for one time corpus fund, more children can be brought under the purview of the JJ Fund.
Submissions as regards paragraph 95.15 of the judgment of the Honourable Apex Court in Writ Petition (Civil) No. 473 of 2005
25. Trainings based on the JJ Act 2015, POCSO Act 2012, JJ Model Rule 2016 are given to all Members of CWCs & JJBs, Probation Officers, DCPUs, CWPOs, and Staff of CCIs. In this training programme SI, ASI, one police officer who have in the charge of child welfare officer from all police station for each district of Kerala have been attended. All Staff in DCPUs are given induction training by ICPS. Training was given to other staffs especially caretakers by ICPS. In the year 2017 -2018, 10 training programmes were organized for the staff of DCPUs, CWCs, JJBs, SAA's, Open Shelter and CCIs. (396 persons were trained. Training regarding the Track child web portal was given by faculties from NIC. Training for Superintendents and caretakers was given by qualified doctors, psychologist and psychiatric social worker and experts concerning J.J Act, POCSO Act, mental health, Child W.P(C). 7380/2018 & 23669/2019 20 psychology etc.) Other Submissions
26. There has been no Court in the State exclusively for POCSO cases till recently. The Additional Sessions Court, Ernakulam, for the trial of cases relating to atrocities and sexual violence towards women and children, have been notified as Special court under POCSO Act also. In Thiruvanthapuram and Kozhikode, Additional Sessions Courts for the trial of cases relating to atrocities and sexual violence towards women and children are notified as Children's Court under the Commission for Protection of Child Rights Act, 2005 (hereinafter referred to as "the CPCR Act" for short. In remaining 11 district, the First Additional Sessions Courts have been notified as Children' Courts under the CPCR Act. By virtue of Section 28 of POCSO Act, these children' courts are deemed as Special Courts for the purpose of POCSO cases. These courts deal with other cases also.
27. The State government has accorded administrative sanction to refurbish the Additional Sessions Court, Ernakulam, as child friendly court. Recently sanction has also been issued for establishing an exclusive POCSO court at Ernakulam. Government of India has come up with a new scheme for setting up Fast Track Special Courts (hereinafter referred to as "the FTSCs " for short) for expeditious trial of cases of Rape and POCSO Act. These courts will be set up in temporary basis for two financial years 2019-20 &2020-21, engaging retired judicial officers also. Funding pattern will be on 60: 40 ratio between Centre and State. As per this scheme, the number of FTSCs proposed for the State is 57. The total cost for setting up these courts is Rs. 42.75 Crores and State Government has to bear Rs.17 Crore for starting these courts. The proposal for establishing 28 FTSCs have been submitted to Government of India for approval.
W.P(C). 7380/2018 & 23669/2019 21
28. As regards the staff strength in the Kerala State Commission for Protection of Child Rights, there are admittedly 43 personnel therein. Regarding the alternate office building sought for by the Commission, it is submitted that the said proposal has been dropped by the Government on the basis of a request to the said effect from the Commission.
29. The State of Kerala is making every earnest attempt for implementation of the JJ Act. This Honourable Court may be pleased to accept this affidavit to the files of the case.
3. Additional Law Secretary to Government, Registrar & Appellate Authority (RTI), Kerala State Commission for Protection of Child Rights, Thiruvananthapuram has filed a detailed counter affidavit on behalf of the 4th respondent/Kerala State Commission for Protection of Child Rights.
The relevant paragraphs are extracted hereunder:-
"4 This affidavit makes an earnest attempt in the opinion of this respondent, submit before this Hon'ble Court the following challenges faced by the respondent in the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 in the State
1) Vacancies in the SCPCR Section 17 of the CPCR Act, 2005 mandates that the SCPCR should consists of a Chairperson and six Members. Even though six members were appointed by the State Government on May 2017, a Single Bench of the Hon'ble High Court quashed the appointment proceedings of 2 members and the Division Bench upheld the same Against the decision of the High Court, a Special Leave Petition is now pending before the Hon'ble Supreme Court (SLP(C) No. 10571/2018) From March 2018 onwards, the post of the Chairperson is vacant and now a member is working as Acting Chairperson. Instead of 6 members and Chairperson, only 3 members and an Acting Chairperson are there in the Commission. Since the Commission has to perform variety of W.P(C). 7380/2018 & 23669/2019 22 functions as envisaged under section 13 of the CPCR Act and is vested with monitoring powers under section 109 of the JJ Act, 2015, the above said vacancies are creating serious impediments in the effective functioning of the Commission especially in monitoring the implementation of JJ Act in the State.
2) Dearth of adequate staff:
As part of the monitoring powers under section 109 of the JJ Act, it was decided to setup a JJ Cell in the Commission. On 03-01-2017, the Commission requested the government to create the posts of a Senior Technical Officer, 3 Case Workers, 1 Data Entry Operator and 1 Office Attendant in the JJ Cell. The government have sanctioned only 2 posts i.e.,. one Senior Technical Officer and one Case Worker vide G.O. (Rt)No.363/2018/SJD dated 18-06-2018, on contract basis. The absence of adequate staff in a statutory body like this respondent Commission is creating hurdles in discharging its functions, especially in t monitoring the implementation of JJ Act and other child laws in the State. When staffs posted on deputation from other departments are repatriated to their parent department, substitutes are not posted in time and a longtime gap is taken to post such substitutes.
3) Absence of infrastructure facilities:
The Commission is now functioning in a two storied building at Thiruvananthapuram, which has no space to provide a record room and library. Presently the number of staff working in the office is 43. There is no adequate working space and no child friendly atmosphere for children coming to this respondent's office. In these circumstances, the Commission decided to change the building and requested sanction from the government for the same, but the file is still pending with the government.
Vacancies in child Welfare committees and Juvenile Justice Boards:
Child Welfare Committee is a quasi judicial authority under the JJ Act to deal with children in need of care and protection and Juvenile Justice board the judicial authority to deal with children in conflict with law even though the committee is a statutory body having tenure of three years from the date of its constitution, the presently functioning Committees are continuing for the last seven years. As per information provided by the Dept of Social Justice, the said Committees and Boards are not reconstituted to work in a full-fledged manner in all the fourteen districts of the State. The posts of Chairperson or Member or both are vacant in these statutory bodies. It is submitted that the government is now helpless W.P(C). 7380/2018 & 23669/2019 23 in filling up the vacancies in both these bodies as five Writ Petitions viz 24721/2017, 20122/2017, 31049/2017, 31096/2017 and 31608/2017 are pending before this Hon'ble Court for the last one year. Hence a speedy disposal of the above Writ petitions is highly necessary for the statutory constitution of Child Welfare Committees in the State.
5) Constitution of Special Juvenile Police Units:
It is mandated in section 107 of the 33 Act to constitute Special Juvenile Police Units to deal exclusively with children who are either victims or perpetrators, Even though SJPUS referred under section 107 of 33 Act are established in each district in the State vide Circular No. 36/2011 dated 28-12-2011, they are not strictly constituted as envisaged in the provisions of the Act. Presently the Deputy Superintendent of Police of the District Crime Records Bureau in all districts is designated as the Nodal Officer of SIPU. It is submitted that directions may be given to the State Government to constitute SIPUs to deal exclusively with cases relating to children, as provided in the Act.
6) Non-Registration of Child Care Institutions:
The Supreme Court had directed the State Government to ensure that all child care institutions in the State must be registered under section 41 of the JJ Act. Presently 817 such Institutions have been registered which include institutions owned by Govt and those under Orphanage Control Board. Decision with respect to registration of 126 of such institutions is now pending before the Hon'ble Supreme Court. The Commission has also observed that some institutions including Nirbhaya Shelter Homes housing child victims of sexual offences are not registered properly and that in certain such institutions child and adult victims are residing together in contravention of the provisions of the JJ Act. There is no effective mechanism in the government to monitor the functioning of all child care institutions including Nirbhaya Shelter Homes as well as rehabilitation of the children residing there.
7) Constitution of Juvenile Justice Fund:
Juvenile Justice Fund has been constituted in the State under section 105 of the JJ Act. As per Rule 84(xii) of the Model Rules 2016, the State Child Protection Society is the authority to monitor and administer the fund including disbursal of funds to District Child Protection Units, Special Juvenile Police Units and police stations. But it has repeatedly come to the notice of the Commission that the Police Officers accompanying child victims of sexual abuse for medical examination and other related purposes and transferring children to other States are W.P(C). 7380/2018 & 23669/2019 24 spending their own money for travelling and related expenses and difficulties are being faced in the reimbursement of the same from the above Fund.
8) Constitution of Inspection Committees:
Even though Inspection Committees are constituted in the State as well as District level under section 54 of the JJ Act vide G.O. (Rt)No.508/2017/SJD dated 28-07-2017, they have not started.
functioning in the State.
9) Establishment of Children's Courts and Special Courts:
Even though Special Courts and Children's Courts are to be constituted exclusively for dealing with cases of children as per the relevant provisions of the law, Sessions Courts are designated to perform the functions of Special Courts as well as Children's Courts in most of the districts.
As part of monitoring, this respondent Commission is collecting data relating to cases of children from various District Courts in the State. But the same is not received accurately in a time bound manner from some of the Courts.
10) Appropriate training and measures:
It is desirable that appropriate training may be provided to Judges of Children's Court, Special Courts, Family Courts and Magistrates of Juvenile Justice Boards dealing with cases of children in need of care and protection as well as children in conflict with law for the effective implementation of the Juvenile Justice Act and the Model Rules.
11) Social Audit:
The Commission has now undertaken the process of social audit as mandated by the Apex Court in W.P (Crl.) No.102 of 2007 with a view to improve the conditions of children living in Child Care Institutions managed by government as well as others. As a first step, the Commission has decided to conduct a pilot Social Audit in four Child Care Institutions in the State. The Commission faces the same difficulties as enumerated in Item. No.3 above, in the case of social audit also.
One Pilot Social Audit is over and methodology is finalised by the Expert Committee consisting of Sri. S.M. Vijayanand, IAS (Former Chief Secretary) Sri. V.N. Jithendran, IAS (Former Director, Department of W.P(C). 7380/2018 & 23669/2019 25 Social Justice), Dr. Abey George (Director of Social Audit, Govt of Kerala), Dr. Gita Gopal (Former Gender Advisor, Department of Social Justice) and Dr Jyothi Kishan (Assistant Professor, Tata Institute of Social Sciences) as per Order No S$19/A3/2017/KeSCPCR dated 01-12- 2017"
4. The Member Secretary, Kerala State Legal Services Authority/6 th respondent has filed a counter affidavit dated 2.8.2018. Relevant portions are extracted hereunder:
This Affidavit is being filed to assist the Honourable Court in its efforts to secure and protect child rights through the suo motu Writ Petition W.P (C) 7380 of 2018. It contains the remarks of the 6 Respondent with respect to the guidelines and directions that the Honourable Supreme Court has laid down in paragraph 95 of its judgment dated 09.02.2018 in W.P (C) No. 473 of 2005. The information about working of various institutions/statutory bodies constituted under the 3) Act was obtained from the department of social justice and the same are submitted herewith appropriately. It also contains brief submissions about the activities undertaken by the 6 Respondent for the betterment of the Juvenile Justice system.
3. In paragraphs 95 (1) and 95 (2) of its judgment in W.P. (C) No. 473 of 2005, the Honourable Supreme Court has dealt with the functioning of the National Commission for the Protection of Child Rights and the State Commission for the Protection of Child Rights In this regard, it is submitted that the State of Kerala has constituted a State Commission for the Protection of Child Rights. However, it is submitted that certain posts of members of this Commission are currently lying vacant, including that of the Chairperson.
W.P(C). 7380/2018 & 23669/2019 26 4 In paragraph 95 (3) of its judgment in W.P. (C) No. 473 of 2005, the Honourable Supreme Court has discussed the importance of State level Child Protection Societies and District-level Child Protection Units. In this regard, it is submitted that the legal obligation to form these two bodies is founded on S. 106 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Act also prescribes that these bodies have the responsibility to take up matters relating to children with a view to ensuring the implementation of this Act, including the establishment and maintenance of institutions under the Act, notification of competent authorities in relation to the children and their rehabilitation and co- ordination with various official and non official agencies and to discharge such other functions as may be prescribed It is submitted that in Kerala, the State-level Child Protection Society has been registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act on 16.12.2011. Similarly, the District Child Protection Unit [DCPU] has been constituted in all 14 districts in the year 2014.
5. In paragraphs 95 (4) and 95 (5) of its judgment in W.P. (C) No. 473 of 2005, the Honourable Supreme Court has discussed the significance of the proper functioning of the Juvenile Justice Boards and the Child Welfare Committees. Regarding Juvenile Justice Boards, it is submitted that :
a. The State government has constituted one Juvenile Justice Board in each of the 14 districts of the State.
b. The Honourable High Court has designated a Judicial First Class Magistrate as Principal Magistrate for the Juvenile Justice Board in each district. S. 4 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides that apart from W.P(C). 7380/2018 & 23669/2019 27 the Principal Magistrate, there shall be two other members in a Juvenile Justice Board. In this regard, it is submitted that the term of office of these members have in fact expired, and they are continuing as members as the State government is yet to reconstitute the Juvenile Justice Boards.
c. Further, with respect to the resources available to the Juvenile Justice Board, it is submitted that each of the Juvenile Justice Boards in the District are presently provided the service of one Assistant and one data entry operator. It is humbly submitted that this extent of support in the form of personnel may not be adequate for a proper and effective functioning of the Juvenile Justice Boards as envisaged by the Parliament and the Honourable Supreme Court.
d. Regarding frequency of sittings, it is submitted that the Juvenile Justice Boards work every day when the pendency of cases with it crosses 100.
e. Regarding training, it is submitted that induction training is given to the members of the Juvenile Justice Board, and training and refresher programmes are conducted for them as well as the Principal Magistrates by the Kerala Judicial Academy from time to time.
f. Regarding legal aid, it is submitted that all the District Legal Services Authorities have a dedicated panel of lawyers for providing legal aid in the concerned Juvenile Justice Board. The Legal Service Clinics have also been set up in Juvenile Justice Boards, and the Panel Lawyers and Para Legal Volunteers make regular visits to the same.
W.P(C). 7380/2018 & 23669/2019 28
6. Regarding Child Welfare Committees, it is submitted that: a. As required under Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015, a Child Welfare Committee has been established for each district in Kerala. However, the State government has terminated the functioning of the Child Welfare Committees in Alappuzha and Wayanad districts, and have given additional responsibility for these districts to the Child Welfare Committees in Kottayam and Kozhikode respectively.
b. The Child Welfare Committees have women members too.
However, the Child Welfare Committees are not functioning at full strength currently. Not only are the terms of members of the Child Welfare committees long over, but the reconstitution of These committees, it is learnt, is stalled due to some Writ Notions that have been filed before the Honourable Court. It is humbly submitted that this delay in reconstituting the Child We are committees has had an adverse impact on implementation and enforcement of child rights effectively in the State of Kerala c. Regarding resources available at their disposal, like with Juvenile Justice Boards, each of the child Welfare committees are provided the service of one Assistant and one data entry operator.
d. The members of the Child Welfare Committees receive induction training e The Child Welfare committees sit on an average for 20 days every month.
W.P(C). 7380/2018 & 23669/2019 29 f. Regarding legal aid, it is submitted that the District Legal Services Authorities have dedicated panets of lawyers for Child Welfare Committees. They visit these committees periodically.
7. It is submitted that the 6 Respondent is not in a position to provide data in respect of the directions laid down by the Honourable Supreme Court in paragraphs 95 (6) and 95 (7) of its judgment in W.P (C) No. 473 of 2005.
8 In paragraph 95 (8) of its judgment in W.P. (C) No. 473 of 2005, the Honourable Supreme Court discusses the significance of using Information and Communication Technology for the purposes of collecting data, maintaining databases, and improving efficiency.
9. Paragraphs 95 (9) and 95 (10) of the judgment in W.P (C) No. 473 of 2005 deal with the role of the police, and specifically the Child Welfare Police Officer and the Special Juvenile Police Units, in furthering child rights. With respect to Child Welfare Police Officers, is submitted that S 107 of the Juvenile Justice (Care and Protection of Children) Act, 2015 mandates that in every police station, there should be at least one officer, not below the rank of Assistant Sub Inspector, with aptitude, appropriate training and orientation, who may be designated as the Child Welfare Police Officer to exclusively deal with children either as victims or perpetrators, in coordination with police, voluntary and non- governmental organisations. Such Child Welfare Police Officers are available in every police station, although whether their number in each police station is adequate is something that deserves consideration by this Hon'ble Court. It is submitted that striking Child Welfare Police Officers are not available with the railway W.P(C). 7380/2018 & 23669/2019 30 police authorities, and appropriate explanation for the same may be sought from the 1st Respondent.
10. With respect to Special Juvenile Police Units, it is submitted that the 1st Respondent is mandated to constitute them in each district and city They are to be headed by a police officer not below the rank of a Deputy Superintendent of Police, and consist of police officers who have been designated as Child Welfare Police Officers along with two social workers having experience of working in the field of child welfare, of whom one shall be a woman. It is submitted that though the 1st Respondent has constituted Special Juvenile Police Units in 19 police stations, that number is not encouraging Further, Special Juvenile Police Units have not been constituted with respect to the railway police authorities. In order to not further harm the interests of vulnerable children, the reasons for why full compliance with the legal mandate regarding Special Juvenile Police Units has not been achieved may be sought from the 1 st Respondent, and other measures may be taken to strengthen the system of Special Juvenile Police Units.
11. With respect to both Child Welfare Police Officers and Special Juvenile Police Units, it is submitted that the 6 Respondent and the legal services institutions under it are prepared to provide adequate support by deputing competent panel lawyers for imparting legal awareness as a part of enhancing their training.
12. Paragraph 95 (11) of the judgment in W.P. (C) No. 473 of 2005 deals with Child Care Institutions. In this regard, it is submitted that: a. The Juvenile Justice (Care and Protection of Children) Act, 2015 provides that rehabilitation and social integration of children shall be undertaken, based on the individual care plan W.P(C). 7380/2018 & 23669/2019 31 of the child, preferably through family based care such as by restoration to family, or guardian with or without supervision or sponsorship, or adoption or foster care. It makes it clear that the restoration and protection of children in need of care and protection shall be the prime objective of Children's Homes, Specialised Adoption Agencies or open shelters. Children in need of care and protection has to be placed in foster care, including group foster care through orders of the Child Welfare Committees. It states that the State government shall make rules for the purpose of undertaking various programmes of sponsorship of children such as individual sponsorship, group sponsorship or community sponsorship.
b. In fulfillment of its obligation to establish and maintain by itself or through voluntary or non-governmental organizations as many registered open shelters as may be required, the 1st Respondent has opened four open shelters, housing 194 children as on 01.04.2018.
c. S. 47 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides that there shall be, in every district or group of districts, Observation Homes, for the temporary reception, care and rehabilitation of any child as alleged to be in conflict with the law, during the pendency of any enquiry under the Act.
d. Further, under S. 48, it is the responsibility of the State Government to establish Special Homes.
e. The State government also has the obligation to establish at least one place of safety in the state to house a person above W.P(C). 7380/2018 & 23669/2019 32 the age of eighteen years, or child in conflict with law who is between the age of sixteen or eighteen years and is accused of or convicted for committing a heinous offence. Although such a place of safety has not yet been established in Kerala, it is understood that the construction of a building intended to serve as one, in Thrissur, is complete.
f. The Juvenile Justice (Care and Protection of Children) Act, 2015 also states that every district shall have Children's Home for placement of children in need of care and protection.
g. S. 51 of the Juvenile Justice (Care and Protection of Children) Act prescribes Fit Facilities, to temporarily take the responsibility of a child for a specific purpose 220 such Fit Facilities have been identified in the state.
h. S 41 of the Juvenile Justice (Care and Protection of Children) Act. 2015 provides for registration of all Child Care Institutions within a period of six months from the date of commencement of the Act. However, the data on any such registration is not available with the 6 Respondent.
i. Regarding legal services, it is submitted that the District Legal Services Authorities have ensured that the panel lawyers and Para-legal Volunteers (PLVS) visit these Child Care Institutions periodically Legal service is also provided by the District Legal Services Authorities to these Child Care Institutions
13. Paragraph 95 (12) of the judgment in W.P. (C) No. 473 of 2005 deals with the appointment of eminent persons from civil society as W.P(C). 7380/2018 & 23669/2019 33 Visitors to the Child Care Institutions. In line with the specific statement of the Honourable Supreme Court in this paragraph about the role of the legal services authorities, it is submitted that the 6 Respondent and the District Legal Services Authorities can extend full assistance to the 1 Respondent in this regard.
14. Paragraph 95 (13) of the judgment in W.P (C) No. 473 of 2005 concerns the Juvenile Justice Fund. In this regard, it is submitted that the 1st Respondent has constituted the Juvenile Justice Fund as per S. 105 of the Juvenile Justice (Care and Protection of Children) Act, 2015. As on 01.04.2018, the extent of amounts in the Juvenile Justice Fund was Rs. 14.50 lakhs. Although these funds are distributed to the District Child Protection Units, they are not disbursed to the Special Juvenile Police Units and police stations.
15. The Honourable Supreme Court in paragraph 95 (14) of the judgment in W.P.(C)No.473 of 2005 has dealt with the role of NALSA in collecting. data and information related to the Juvenile Justice (Care and Protection of Children) Act. In this regard, it is submitted a detailed report has been submitted by the Respondent herein to NALSA. A copy of the report is produced herewith and marked as Exhibit R-6(1) The said report was prepared in the light of the direction of the Honourable Supreme Court in this paragraph that NALSA should carry forward its data collection initiatives.
16 Paragraph 95 (15) of the judgment in W.P. (C) No. 473 of 2005 deals with the importance of training for authorities who are involved in the protection of child rights. In this regard, it is submitted that appropriate training of stakeholders is essential for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act. There are various stakeholders who W.P(C). 7380/2018 & 23669/2019 34 provide such training programmes that help to update knowledge about the working of the juvenile justice system. The 6th Respondent and the District Legal Services Authorities have conducted awareness programs for various stakeholders in this respect. Further, NALSA has released a training module for probation officers and the panel of lawyers who are deputed to the Juvenile Justice Boards. The training programme based on this will be started soon in association with the Kerala Judicial Academy. The Kerala Judicial Academy has also undertaken training programmes independently. It is also submitted that the 6th Respondent has organised training and orientation programmes for the Juvenile or Child Welfare Officers. The District and Taluk Legal Services Institutions are conducting sensitisation and awareness programmes for juveniles in conflict with the law and for their parents. The Kerala Judicial Academy in association with the Social Justice Department conducted a training program for the panel lawyers who work with the Juvenile Justice Board on 10th November 2017 at Judicial Academy, Kochi. Further, DLSA Kozhikode has started a project, ALERT, for making Kozhikode district a total POCSO literacy district. This programme is conducted as part of the effectuation of NALSA Scheme, 2015 for Child Friendly Legal Services and attempts to sensitise all the police officers in the district. In the second phase which is currently in progress, the target group is teachers.
17. Paragraph 95 (17) of the judgment in W.P.(C) No 473 of 2005 contains the request of the Honourable Supreme Court of India to the Chief Justices of High Courts to take steps to establish child friendly courts. In this regard, it is submitted that child friendly courts are certainly the need of the hour The 6th Respondent had passed a resolution in its Authority meeting pursuant to which the 1 st W.P(C). 7380/2018 & 23669/2019 35 Respondent was requested to establish child friendly courts Such courts have been established at New Delhi, Bangalore and Hyderabad. It is essential to establish a special court for the trial of sexual offences against children with similar or better facilities. It is also submitted that as resolved in its meeting held on 16.02 2017, the 6th Respondent had requested the 1st Respondent to make the POCSO courts child friendly and also to introduce video conferencing facility for examination of victims. However, a decision on this request remains pending. There may be a direction to the 1"
respondent to start child friendly courts in all the districts.
18. To reiterate the role of the 6th Respondent and the legal services institutions in the implementation of the Juvenile justice system, it is submitted that legal aid clinics were established in all the Juvenile Justice Boards in Kerala during the year 2015 Legal aid is provided through the said legal aid clinics through panel lawyers deputed from the District Legal Services Authorities/Taluk Legal Services Committees. The District Legal Services Authorities and Taluk Legal Services Committees are deputing Parà legal volunteers to visit the Correctional Centres, Children's Homes, Juvenile Homes, Observation Homes, After Care Homes etc. to provide necessary assistance to the inmates, The Secretary of DLSAS also make periodic visits to the Children's Homes, Observation Homes, Correctional Centres etc.
19. It is submitted that providing adequate compensation to children who are victims of offences also deserves serious consideration. In this regard, the following data with respect to compensation under the Protection of Children from Sexual Offences Act, 2012 is submitted:
W.P(C). 7380/2018 & 23669/2019 36 Number of cases in which compensation is 57 peid under Protection of Children from Sexual offices Act, 2012 in 2016 and 2017 a interim 15 b. Final 42 Number of beneficianes 57 Compensation paid for the victims under the POCSO Act, 2012 a. Interim Compensation 11,80,000 b. Final Compensation 1.24.25.000 c. Total 1.36.05.000 Number of cases in which compensation is paid as per the recommendations of Juvenile Justice Board in 2016 and 2017 Interim 2 Final 1 Number of beneficiaries 3 Amount of Compensation paid to the victims a Interim Compensation - 1.73.000 b Final Compensation 1,00.000 c Total 2.73.000
20 It is also submitted, with respect to action against the trafficking of children, the 6th Respondent has commenced the novel concept of Anti Human Trafficking Clubs wherein student groups from colleges act as facilitators to the police in identifying human trafficking cases and rehabilitating victims while also simultaneously ensuring the accountability of prosecuting agencies. The statewide launch of Anti Human Trafficking Clubs under the joint aegis of the 6th Respondent and the Anti Human Trafficking (AHT) wing of the Kerala State Police took place on 06.02.2016 The guidelines for the functioning of such clubs have been framed. The Memorandum of Understanding signed by the Member Secretary of the 6th Respondent and the State Nodal officer, Anti Human Trafficking Cell has been sent to the government for necessary sanction and the same is pending.
W.P(C). 7380/2018 & 23669/2019 37
21. Further, it is submitted that the 6 Respondent and the District Legal Services Authority, Kannur had acted on certain reports it had received of child trafficking and incoming child labour from other States. As per the directions of the Honourable Executive Chairman of the 6 Respondent, the Secretary of the District Legal Services Authority, Kannur conducted an enquiry into the allegations. Based on the enquiry report, the Honourable Executive Chairman of the 6 Respondent directed the State Nodal Officer for Anti Human Trafficking, District Collector of Kannur, Chairman of the Child Welfare Committee and the District Social Justice Officer to take necessary action. The District Legal Services Authority, Kannur was directed to continue observing the situation. It is submitted that with the help of Child Line, the police have registered 15 cases of child labour and child trafficking in the month of June, 2016 in Kannur district. Investigation into these cases is progressing. It is further submitted that as per a direction from the 6 Respondent, the District Collector issued a deadline of 10 days to send back children employed in Kannur to their home states, and also announced a drive against child labour thereafter. Finally, it is also submitted that the District Legal Services Authority, Kannur has introduced a project to form ward/division level bodies named 'Niyama Jyothi' to assist the Taluk Legal Services Committees in their functions.
22 It is humbly submitted that in the experience and opinion of the 6th Respondent, these are the challenges faced in the pursuit of the enforcement of child rights:
a. Lack of awareness, among both children and adults including police officers, about the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.
W.P(C). 7380/2018 & 23669/2019 38 b. Lack of communication between the Child Welfare Police Officer and the probation officers.
c. Difficulties in the proper rehabilitation of children in conflict with the law.
d. On a related note, providing effective legal aid to juveniles in conflict with the law, especially "repeat offenders", in the context of rehabilitation and reintegration into society. Properly following up their cases is also presently difficult.
e. The special attention that is needed to be given to the treatment of psychiatric issues.
f. Implementation of 'Kaval, a bio-psycho community level intervention programme, needs to be made statewide.
g. Further study and research is required for executing the provisions of S. 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
h. Providing effective legal aid to child victims under the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015 through Legal:
Services Institutions and Clinics.
i. Lack of infrastructural support, human resources and counselling support.
W.P(C). 7380/2018 & 23669/2019 39 j. A detailed study is required to understand the social and family background of the juvenile who, for example, may be in conflict with the law.
k. Lack of proper follow up with respect to juveniles in conflict with the law by probation officers and other authorities after inquiry. by the Juvenile Justice Boards.
I. Effective implementation of the provisions dealing with corporal punishment, especially in schools and Child Care Institutions.
m. Effective coordination of Child Line and other stakeholders under the Juvenile Justice (Care and Protection of Children) Act, 2015 so as to ensure the timely reporting of offences against children.
n. Providing effective legal aid to children in need of care and protection, and their guardians, and effecting the coordination of stakeholders through Legal Services Institutions.
o. Providing competent legal services to juveniles in conflict with the law and children in need of care and protection through the legal services clinics attached to Juvenile Justice Boards and Child Welfare Committees p. Conducting de-addiction programmes for juveniles in conflict with the law as well as child victims who are victims of substance abuse including drug abuse.
q. Providing effective psychological counselling for juveniles in conflict with the law and children in need of care and protection and, their guardians and parents, for proper reintegration into society." W.P(C). 7380/2018 & 23669/2019 40
5. Mr. Pragyan Pradip Sharma, learned counsel appearing in Writ Petition No.23669 of 2019 pointed out that that besides the directions issued by the Hon'ble Supreme Court, there are other issues to consider, in the matter of implementing the provisions of Juvenile Justice Act.
6. He further submitted that no counter affidavit has been filed in W.P(C).No.23669 of 2019.
7. The prayers sought for in W.P(C).No.23669 of 2019 are as under:
"Issue a writ/order in the nature of mandamus or any other writ directing the Respondents to implement the directions passed by the Hon'ble Supreme Court in Paragraph No. 95 of its Judgment dated 9.02.2018 in Sampurna Behura v. Union of India & Ors. W.P.(C) No. 473 of 2005 and the following most specifically stated in Part-B of this instant petition:
a. To formulate state child protection policy;
b. To formulate rules so that all instances where any person/body/authority entrusted with a duty/function under the Act fails to perform it, or performs it in a negligent manner, they will be personally liable against departmental proceedings for dereliction of duty;
c. To formulate rules to ensure that all CWC and Children's Courts dealing with cases of children in need of care and protection dispose off the cases within a period of six months;
d To cull out a cadre of child welfare police officers that are only transferred within the cadre;
e. To create an online monitoring system pertaining the rehabilitation of CICL and CINCP, wherein it is mandatory to W.P(C). 7380/2018 & 23669/2019 41 upload SIR and ICP and decisions taken thereafter qua the CICL/CINCP"
8. Mr. V. Manu, learned Senior Government Pleader submitted that though the Government of Kerala, represented by Chief Secretary and Social Justice Department, Government of Kerala, represented by it Secretary/respondents 1 and 2 respectively, have filed a counter affidavit in the year 2019, the present position as regards implementation of the directions contained in Sampurna Behura's case (supra), have to be ascertained and then a consolidated statement has to be filed in both the writ petitions. He further submitted that a counter affidavit in W.P(C).No.23669 of 2019 has to be filed along with supporting documents. He requested two weeks time for the same.
9. Learned Government is directed to file a counter affidavit in W.P(C).No.23669 of 2019 within two weeks. A consolidated statement in suo motu W.P(C).No.7380 of 2018 also to be filed.
10. Legal Services Authority is stated to be giving training to all the stakeholders through the State Judicial Academy and also has taken steps for proper implementation of the provisions of Juvenile Justice Act and Rules made thereunder.
11. Kerala Legal Services Authority, Ernakulam represented by the Member Secretary/6th respondent is directed to file a supplementary counter affidavit or statement of facts, with all documents as to the current W.P(C). 7380/2018 & 23669/2019 42 stage of implementation of the statutory provisions and the judgment of Hon'ble Supreme Court in Sampurna Behura v. Union of India and Others (supra).
Let a detailed report be filed.
Post on 7.12.2021.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge sou.
17-11-2021 /True Copy/ Assistant Registrar