Kerala High Court
The Secretary vs Union Of India
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939
W.P(C).No.14858 of 2016 (F)
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PETITIONER(S):-
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1. THE SECRETARY, CALICUT ORPHANAGE,
P.O.KOLATHARA, CALICUT-673 655,
KERALA THROUGH ITS PRESENT SECRETARY C.ALIKOYA.
2. THE GENERAL SECRETARY,
ASSOCIATION OF ORPHANAGES AND CHARITABLE INSTITUTIONS, KERALA
(REGISTERED UNDER SOCIETIES REGISTARION ACT 21 OF 1860 -REG.
NO.217/97), ORIENT HOUSE, V/1301, EAST NADAKKAVU,
KOZHIKODE-673 006.
THROUGH ITS PRESENT GENERAL SECRETARY T.K.PAREEKUTTY HAJI.
BY ADVS.SRI.K.JAYAKUMAR (SENIOR ADVOCATE)
SRI.LITTO PALATHINGAL
SRI.K.M.FIROZ
SMT.M.SHAJNA
SRI.S.KANNAN
RESPONDENT(S):-
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1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF LAW AND JUSTICE, NEW DELHI-110 001.
2. STATE OF KERALA,
REPRESENTED BY SECRETARY, SOCIAL JUSTICE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3. DIRECTOR OF SOCIAL JUSTICE,
OFFICE OF THE DIRECTOR OF SOCIAL JUSTICE,
THIRUVANANTHAPURAM-695 001.
ADDITIONAL RESPONDENTS 4 AND 5 IMPLEADED:
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Addl. 4. SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT, UNION OF INDIA,
NEW DELHI-1.
ADDITIONAL 4TH RESPONDENT IS IMPLEADED AS PER ORDER
DATED 06.02.2017 IN I.A.NO.1586 OF 2017.
W.P(C).No.14858 of 2016 (F) - 2 -
Addl. 5. THE NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS,
REPRESENTED BY ITS ASSISTANT DIRECTOR,
5TH FLOOR, CHANDERLOK BUILDING, 36, JANPATH,
NEW DELHI-110001.
R1, R4 & R5 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
R1, R4 & R5 BY CENTRAL GOVERNMENT COUNSEL SRI.K.A.BALAN.
R2 & R3 BY SENIOR GOVERNMENT PLEADER SRI.B.VINOD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-11-2017, ALONG WITH WP(C).13869/2016-G & WP(C).11599/2017-Y,
THE COURT ON 20-12-2017 DELIVERED THE FOLLOWING:
W.P(C).No.14858 of 2016 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXT.P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 1ST
PETITIONER ISSUED BY THE BOARD OF CONTROL OF ORPHANAGES AND
OTHER CHARITABLE HOMES.
EXT.P2 TRUE EXTRACT OF SECTION 41 AND 53 OF THE JUVENILE JUSTICE
(CARE AND PROTECTION OF CHILDREN) ACT, 2015.
EXT.P3 A TRUE COPY OF THE LIST OF 1195 MEMBERS OF THE 2ND
PETITIONER ASSOCIATION OF ORPHANAGES AND CHARITABLE
INSTITUTIONS, KERALA (REGISTERED NO.217/97).
EXT.P4 A TRUE COPY OF TEH NOTICE DATED 9.3.2016 ISSUED BY THE
DISTRICT CHILD PROTECTION OFFICER, KOZHIKODE TO MANAGER,
AL-ISLAH ORPHANGAE COMPLEX, KOZHIKODE.
EXT.P5 A TRUE COPY OF THE INTERIM ORDER DATED 7.4.2016 IN WP[C]
NO.13860 OF 2016 PASSED BY THE HON'BLE HIGH COURT OF KERALA
SUBMITTED BY 15 PERSONS MANAGING CHARITABLE HOMES.
EXT.P6 A TRUE COPY OF THE CERTIFICATE DATED 4.9.2008 ISSUED BY
THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL
INSTITUTIONS TO THE FIRST PETITIONER.
EXT.P7 A TRUE COPY OF THE COMMUNICATION DATED 12.01.2017 OBTAINED
UNDER RIGHT TO INFORMATION ACT BY SRI.K.K.MOIDEEN KOYA.
EXT.P8. A TRUE COPY OF THE LIST OF INSTITUTIONS WHOSE REGISTRATION
HAS BEEN CANCELLED BY THE BOARD OF CONTROL FOR ORPHANAGES
AND OTHER CHARITABLE HOMES, KERALA AFTER THE COMING INTO
FORCE OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015.
EXT.P9 TRUE COPY OF THE MEETING MINUTES OF THE 34TH MEETING OF
BOARD OF CONTROL FOR ORPHANAGES AND OTHER CHARITABLE HOMES,
KERALA HELD ON 11.7.2017.
RESPONDENT(S)' EXHIBITS:-
------------------------- NIL.
jjj. [ true copy ]
K. VINOD CHANDRAN, J
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W.P(C) Nos. 14858 of 2016-G,13869 of 2016-G
&11599 of 2017-Y
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Dated this the 20th day of December, 2017
J U D G M E N T
Orphanages, though a sad reflection on our society, all the same functions unselfishly to look after orphans and other destitute children; who, otherwise, would be thrown to the streets and turn into vagabonds, harmfully exposed to the vagaries of a cruel life. The petitioners herein are such institutions registered under the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960 (for brevity "Orphanages Act"). These institutions have been carried on with the hard earned money of well intentioned promoters, philanthropists and funds borrowed and begged. With the advent of the Juvenile Justice Care and W.P(C) Nos.14858 of 2016-G, : 2 : 13869 of 2016-G &11599 of 2017-Y Protection of Children Act, 2015 ('JJ Act of 2015' for short); under which, the authorities claim all these institutions are covered, such charitable activities for orphaned and destitute children stands extinguished, is the compelling argument raised by the petitioners. The writ petitions seek a declaration to absolve the petitioner-institutions from such coverage. The petitioners would be unable to satisfy the norms and standards as prescribed in the Juvenile Justice Care and Protection of Children Model Rules, 2016 (for short 'Model Rules'). If the JJ Act of 2015 and the Model Rules are upheld by this Court and the petitioner institutions are found to be brought within its ambit; then, the petitioners have no option but to close down their institutions. The children that the institutions have taken into their fold, who have been cared for all these years; again, would be thrown to calamitous adversities, goes the argument. W.P(C) Nos.14858 of 2016-G, : 3 : 13869 of 2016-G &11599 of 2017-Y
2. I have heard learned Senior Counsel K.Jayakumar, instructed by Advocate Firoz. K, Advocates Litto Palathingal and Sam Isaac Pothiyil for the petitioners, Sri.N Nagaresh, learned Assistant Solicitor General (ASG) representing Union of India along with Sri.K.A.Balan, Central Government Counsel and Sri.N.Manoj Kumar, Special Government Pleader representing the State.
3. The petitioners contend that the juvenile justice system originated with the intention of dealing with juvenile delinquency. A minor child, not conversant with the affairs of human society, are unable to perceive the rights and wrongs of the society and when involved in a delinquency, has to be dealt with carefully, with kid gloves so to speak, ensuring reformation and reintegration into society. The laws penalizing such offences against society as also the punishments prescribed, should not be W.P(C) Nos.14858 of 2016-G, : 4 : 13869 of 2016-G &11599 of 2017-Y imposed with the same rigour.
4. The learned Senior Counsel briefly puts in perspective the history of juvenile justice in the country and the international practices. In India, it is pointed out, the problem posed by juvenile delinquency was first addressed by the Apprentices Act, 1850 and the Reformatory Schools Act, 1897. The report of the Indian Jail Committee (1919-1920) emphasized the need for proper treatment of young offenders, which led to the Children Act of 1920 in Madras, followed by the Bengal and Bombay Acts of 1922 and 1924. The Children Act, 1960 catered to the Union Territories. The Juvenile Justice (Care and Protection of Children) Act, 2000 ('JJ Act of 2000' for short) was enacted to comply with India's obligations under international law by virtue of being a signatory to the U.N. Convention on the Rights of the Child (U.N.-CRC). The legislation itself was intended at W.P(C) Nos.14858 of 2016-G, : 5 : 13869 of 2016-G &11599 of 2017-Y incorporating into domestic laws, the U.N. Standard Minimum Rules for Administration of Juvenile Justice (known as the Beijing Rules) and the U.N. Rules for the protection of juveniles deprived of their liberty; which is now superseded by the JJ Act of 2015.
5. The JJ Act of 2000, which preceded JJ Act of 2015 and the provisions there under, provided for a special approach towards the prevention and treatment of juvenile delinquency. The object was to protect, treat and rehabilitate children involved in delinquency and to expedite the process of their reintegration into society. The JJ Act of 2000 was confined to children who are found in conflict with law. The petitioners are not dealing with any such children and they are only concerned with the care and protection of orphans and destitute children, who have no history of delinquency and who have never been in conflict with law. The petitioners were not W.P(C) Nos.14858 of 2016-G, : 6 : 13869 of 2016-G &11599 of 2017-Y covered under the JJ Act of 2000 and would not be covered under the JJ Act of 2015; which superseded the earlier enactment. It is by the inclusion of children in need of care and protection under the JJ Act of 2015 that the petitioners have been directed to take registration. The challenge raised is two fold; against the provisions, and then alternatively; being private institutions, not engaged in activity of adoption, the petitioners cannot come under the umbrella of the JJ Act of 2015 and the Model Rules and, hence, would not be required to take out registration.
6. The reliefs as found from the lead case, W.P. (C) No. 14858 of 2016, are: to declare Sections 41, 42 and 53 to be unconstitutional and in the alternative that the petitioners do not come under the said provisions; Rules 21, 26 and 29 to 39 are also challenged as unconstitutional; to declare Section W.P(C) Nos.14858 of 2016-G, : 7 : 13869 of 2016-G &11599 of 2017-Y 110, which confers power to make rules, as arbitrary and unreasonable; to declare the State Government as being competent to make Rules prescribing lesser stipulations and conditions than that prescribed in the Model Rules; and, a declaration that the children with supportive parents would not come under the JJ Act and the Rules framed there under.
7. Section 41 mandates registration and Section 42, the penalties on failure to register. Section 53 deals with re-integration services and the managements in the registered institutions. The Rules are challenged to the extent it results in taking over the management of all the institutions registered under the JJ Act of 2015, making it excessive delegation and being in conflict with another enactment; the Orphanages Act. The stipulation of minimum standards is impractical and impossible of compliance by a charitable institution, which has no W.P(C) Nos.14858 of 2016-G, : 8 : 13869 of 2016-G &11599 of 2017-Y assured source of funds and is one established out of sheer force of innate feelings of generosity and compassion, generally to humanity and particularly to children.
8. Section 41 (1) of the JJ Act of 2015 requires all institutions, whether run by a State Government or by voluntary or Non-Governmental Organization, meant wholly or partially for housing children in need of care and protection or children in conflict with law, to be registered. Sub Section (2) directs the State Government to look into the nature of the activities of the institutions and determine whether it is a children's home, open shelter, specialised adoption agency, observation home, special home or place of safety and record the capacity and purpose of the institution. If it is not under any of the above categories then under sub- section (3) the State Government can grant W.P(C) Nos.14858 of 2016-G, : 9 : 13869 of 2016-G &11599 of 2017-Y registration, of an existing or new institution housing children in need of care and protection or children in conflict with law.
9. On registration being effected, Section 53 comes into play with full force. Section 53 speaks of rehabilitation and reintegration services in the institutions registered; which shall be in such manner as prescribed. The aspects on which such prescription can be made are enumerated under clauses (i) to (xiii) under sub-section (1). Sub-section (2) of Section 53 mandates that every institution shall have a management committee to be set up in a manner as may be prescribed, to manage the institutions and monitor the progress of every child. Hence constitution of the management committee is left to the executive government to prescribe. The rule making power, as available in Section 110, confers power on both the Central Government and W.P(C) Nos.14858 of 2016-G, : 10 : 13869 of 2016-G &11599 of 2017-Y State Government, to so frame the rules. The Central Government has the authority to frame Model Rules and the State Government is required to make Rules in conformity to the Model Rules. Till such Rules are made by the State Government, the Model Rules, as brought out by the Central Government, shall apply.
10. The Model Rules have been brought out by the Central Government. Rule 39 specifically speaks of management committees, which are to comprise of (i) the District Child Protection Officer, as the Chair Person, (ii) the Person-in-charge, as the Member Secretary and as Members: (iii) a Probation Officer or Child Welfare Officer or Case Worker, (iv) a Medical Officer, (v) a Psychologist or Counsellor, (vi) a Workshop Supervisor or Vocational Instructor, (vii) a Teacher, (viii) a Social Worker Member of the Board or the Committee, (ix) two child representatives from each of the Children's Committee, and (x) any other W.P(C) Nos.14858 of 2016-G, : 11 : 13869 of 2016-G &11599 of 2017-Y special invitee with the consent of the Chair Person. The management of every child care institution registered under the JJ Act of 2015, can be virtually taken over by the State. The only participation of the existing management would be insofar as the person-in-charge being made the Member Secretary.
11. It is submitted by the learned Senior Counsel that when Section 53(2) merely confers power on the executive government to prescribe the constitution of management committees, for the registered institutions, without providing any guidelines as to the actual constitution; the Parliament has abdicated its essential legislative function. The government, by the Model Rules, according to the petitioners, have gone overboard in prescribing a management committee with a constitution, virtually taking over the management from the private institutions run by W.P(C) Nos.14858 of 2016-G, : 12 : 13869 of 2016-G &11599 of 2017-Y Non-Governmental Organizations, associations and well meaning individuals. The institutions are run in property owned by the managements or leased out by them and when such management committees take over the institutions, it infringes the valuable rights available under Article 300A of the Constitution of India.
12. A Constitution Bench decision of the Hon'ble Supreme Court in 1951 KHC 261 (In re Art. 143, Constitution of India and Delhi Laws Act, 1912) is referred to. The observation of the then Hon'ble Chief Justice who led the Bench, with respect to abdication or effacement of essential legislative function, as seen from Paragraph 37, is referred to; which is as follows: "The true test in respect of 'abdication' or 'effacement' appears to be whether in conferring the power to the delegare, the legislature, in the words used to confer the power, retained its W.P(C) Nos.14858 of 2016-G, : 13 : 13869 of 2016-G &11599 of 2017-Y control." (sic-paragraph 37). The Parliament has, in the instant case, conferred power on the Executive Government to prescribe the constitution of the committee for management of the registered institutions; delegating the essential legislative power without any control. There is no guidelines as to the constitution and the subordinate legislation, the Model Rules indicate a virtual takeover of the institutions. This could have been done only by the Parliament, who enacted the law and the power to prescribe for a management committee is unguided, uncontrolled and unbridled. The manner in which the prescription is made in the Model Rules usurps the essential legislative function, asserts the petitioners.
13. It is also submitted that the petitioner institutions are registered under the Orphanages Act. Chapter IV of the Orphanages Act, speaks of management of recognized bodies and Section 20 W.P(C) Nos.14858 of 2016-G, : 14 : 13869 of 2016-G &11599 of 2017-Y stipulates a managing committee. The constitution, powers and functions of the management committee is left to be decided by the very constitution pertaining to such homes. Effective control and regulation was the purpose of the Orphanages Act and the constitution of the management committee, was to fix the responsibility for any defalcations. The affairs of the petitioner-institutions, registered under the Orphanages Act, are now carried out by the management committee constituted as per the bye-laws of the respective institutions. Reliance is placed on Supreme Court Employees Welfare Association v. Union of India [(1989) 4 SCC 187], Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327] and Bhavani Amma v. State [1994 KHC 142] to contend that the prescription of the management committee in the Model Rules, to the extent it runs contrary to another W.P(C) Nos.14858 of 2016-G, : 15 : 13869 of 2016-G &11599 of 2017-Y statute; the Orphanages Act has to be struck down.
14. The petitioners challenge the Model Rules as unreasonable, impractical and unworkable. Rule 29 with respect to physical infrastructure stipulates 8495 sq.ft. for housing 50 children, which facility may not be available even to children under parental care or admitted to boarding schools. The provision for clothing, bedding, toiletries and other articles, as prescribed under Rule 13, does not take into account the various climatic conditions existing in the different parts of the country. The requirement to change such articles provided to the children, within stipulated periods, is impossible of compliance, since it transcends the requirement for a decent living and even the concept of luxury; bordering on extravagance. The State rules should also conform with the Model Rules which would bring out the impracticality of the provision for various articles. For W.P(C) Nos.14858 of 2016-G, : 16 : 13869 of 2016-G &11599 of 2017-Y example every State would be forced to provide woollen clothing, which would not be required in this part of the country. The Model Rules, hence, is an Utopian prescription which cannot even be said to be an ideal one. It is submitted that the prescriptions are unworkable and no private institution will be able to provide the same. It is pointed out that if directed to be registered under the JJ Act of 2015; by reason only of the various stipulations in the Model Rules, all the petitioner institutions would have to close down.
15. It is contended that the petitioner-institutions house not only orphans, but destitute children from broken homes and whose parents are unable to look after them for one or other reason; mainly of poverty. These children are provided with minimum requirements of a decent life, upholding their individual dignity and enabling basic education to make them independent and stand on W.P(C) Nos.14858 of 2016-G, : 17 : 13869 of 2016-G &11599 of 2017-Y their own feet. On closure of these institutions, those children would have to be send back to their already penurious and broken homes. The orphans, who have no other abode, then would be thrown back to the streets.
16. In this context, the learned Senior Counsel also raises yet another argument insofar as the petitioner institutions not coming within the purview of Section 41 of the JJ Act of 2015. Section 41(1) speaks of registration and sub-section (2) of institutions, whether run by the State Government or by voluntary or Non-Governmental Organizations. Sub-section (2) categorizes the institutions capable/liable of being registered under six heads; viz: children's home, open shelter, specialised adoption agency, observation home, special home or place of safety. The provisions have to be read strictly and it has to be declared that only those W.P(C) Nos.14858 of 2016-G, : 18 : 13869 of 2016-G &11599 of 2017-Y categories, specifically coming under Section 41(2), would be covered under the JJ Act of 2015. For this, definition of each of such categories including that of a 'child care institution' is specifically emphasized. The petitioner-institutions not being funded by the Government either at the time of establishment or for maintenance would not be covered, is the plea.
17. The Preamble of the JJ Act of 2015 speaks of consolidation and amendment of law relating to "children alleged and found to be in conflict with law and children in need of care and protection". This would indicate that only those category of children who are in 'conflict with law and who are also in need of care and protection' and the homes housing them alone, would come under the coverage of the JJ Act of 2015. The petitioners are not housing any children alleged or found to be in conflict with law. Children in need of care and protection has W.P(C) Nos.14858 of 2016-G, : 19 : 13869 of 2016-G &11599 of 2017-Y to be read in conjunction with those in conflict with law. The children who are in the orphanages like that of the petitioners, registered under the Orphanages Act, are neither in conflict with law and since they are being protected and taken care of, nor do they require care and protection. The definition of 'child in need of care and protection' in Section 2(14) includes those who are found without any home or settled place of abode and without any means of subsistence. It also includes children found working in contravention of labour laws, begging or living on the street. It takes in any child residing with a person, who has injured, exploited, abused or neglected the child or raised a threat so to do or has committed such offence in the case of another child. The children, as are remaining with the petitioners, have a settled place of abode and means of subsistence, which are provided by the petitioners. They are not W.P(C) Nos.14858 of 2016-G, : 20 : 13869 of 2016-G &11599 of 2017-Y in conflict with law and has not suffered any injury, exploitation, abuse or neglect and are being looked after and cared for by the petitioner-institutions, is the submission.
18. The definitions are to be significantly taken note of, in so far as the child care institutions speaks of seven categories. Children's home, open shelter and observation home are defined as those established and maintained by the State Government, either by itself or through a voluntary or Non-Governmental Organisation. A special home and specialised adoption agency, in distinction, are institutions established by the State Government or by a voluntary or Non-Governmental Organisation. Place of safety is again a place where the person-in- charge is willing to receive and take care of children, allegedly or found to be in conflict with law, by an order or the Board or the Children's Court. A fit W.P(C) Nos.14858 of 2016-G, : 21 : 13869 of 2016-G &11599 of 2017-Y facility is a facility recognised as fit under Section 51 (1); in which temporary responsibility of a particular child for a specific purpose is permitted.
19. Undisputed is the fact that the petitioner-institutions do not qualify to be a place of safety or a fit facility. They also do not come under the definition of a special home or a specialised adoption agency. A special home provides rehabilitative service to children in conflict with law and special adoption agency is one recognised by the State Government under Section 65, as provided in the adoption regulations framed by the authority to house orphans and abandoned or surrendered children, for the purpose of adoption. The petitioners do not discharge any such functions nor offer any of the children for adoption or non-institutional care.
20. The distinction is also insofar as certain categories are those established and maintained by a W.P(C) Nos.14858 of 2016-G, : 22 : 13869 of 2016-G &11599 of 2017-Y State Government or by a voluntary or Non-Governmental Organisation while others are those, which are established and maintained by the State Government by itself or through voluntary or Non-Governmental Organisation. Hence, what is required is a participation of the State in the establishment and management of such institutions for the same to be covered under the JJ Act of 2015. The petitioners are independent private entities who have established the homes by themselves and are maintaining it by funds generated by themselves. They are not funded by the Government nor are they receiving financial assistance from any Governmental organisation.
21. The Government has no role either in the establishment or maintenance of the orphanages and homes run by the petitioners, which are registered as "homes" under the Orphanages Act. W.P(C) Nos.14858 of 2016-G, : 23 : 13869 of 2016-G &11599 of 2017-Y Though the petitioners could be categorised as children's home, in normal connotation; they do not come within that definition as available in the JJ Act of 2015, since, they are not established and maintained by the Government, by itself or through voluntary or Non-Governmental Organisations. The petitioners pray that they be excluded from the coverage under the Act and absolved from the liability to register under the JJ Act of 2015.
22. Sub-section (1) of Section 41 though speaking of registration of all institutions, it has to be read together with sub-section (2) and the various definition clauses. The registration of all institutions, whether run by the Government or independently by voluntary or Non-Governmental Organisations, as available in sub-section (1), is only to take in the various categories as available in sub-section (2). The institutions which do not come under either of the W.P(C) Nos.14858 of 2016-G, : 24 : 13869 of 2016-G &11599 of 2017-Y categories as enumerated in the definition of a child care institution, cannot be forced to take a registration under the Act, concludes learned Senior Counsel for the petitioners.
23. The learned ASG, at the outset, submits that the writ petitions are filed on a total misconception and the issues raised on behalf of the petitioners are no longer res integra insofar as the Hon'ble Supreme Court having specifically directed the Central Government and the State Governments to register the Institutions under the JJ Act of 2015 and Model Rules framed by 31.12.2016. The decision of the Hon'ble Supreme Court reported in 2017 (5) SCALE 787 [In re Exploitation of Children in Orphanages in the State of Tamilnadu v. Union of India], settles the issue once and for all. It is pointed out that the Hon'ble Supreme Court has categorically observed that a child care institution, W.P(C) Nos.14858 of 2016-G, : 25 : 13869 of 2016-G &11599 of 2017-Y whether managed by the State Government or voluntary or Non-Governmental Organisation, need to follow certain minimum standards of care and protection. Dilating upon who falls under the definition of a 'child in care and protection', it was held that it requires a broad interpretation, keeping in mind the fact that the JJ Act of 2015 is intended for the benefit of children. Noticing the various decisions on interpretation necessitated to effectuate the object and purpose of the legislation, especially in the context of a welfare legislation, it was held that a child in need of care and protection should be given a wider meaning and in addition to children in conflict with law, it should include victims of sexual abuse, assault or harassment under the Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) and victims of child trafficking. The Hon'ble Supreme Court has issued directions as W.P(C) Nos.14858 of 2016-G, : 26 : 13869 of 2016-G &11599 of 2017-Y available in paragraph 62, which necessarily have to be complied with. There is also no threat of closure as apprehended by the petitioners since the government is committed to the cause of children and their protection. No child would be thrown to the streets asserts the ASG.
24. The decision of the Division Bench of this Court in Rajendraprasad and others v. Union of India - 2015 (3) KHC 905 is also relied upon to contend that the definition of children in need of care and protection under the JJ Act of 2000 was given a wider and similar interpretation by this Court. It is the forceful submission of the learned ASG that going by the Hon'ble Supreme Court's judgment, the children housed in the petitioners' institutions are children in need of care and protection, despite the fact that they are not in conflict with law. The orphanages, as carried on by the petitioners also are W.P(C) Nos.14858 of 2016-G, : 27 : 13869 of 2016-G &11599 of 2017-Y liable to be registered, since Section 41 of the JJ Act of 2015 is a non obstante clause. The registration under the Orphanages Act is of no consequence and the petitioners will have to take registration under the JJ Act of 2015.
25. The learned ASG also points out that the apprehension of the petitioners that the Government would take over the Institutions are misplaced. If the institutions provide for the facilities as prescribed under the Model Rules, they will be able to carry on by themselves. The management committees constituted under the Rules are only for general supervision and not to interfere with the day to day functioning. If at all, any of the Institutions are not able to provide the facilities, then, the Government is committed to expend funds to provide such facilities and there would be no question of children being thrown out into the streets. Section W.P(C) Nos.14858 of 2016-G, : 28 : 13869 of 2016-G &11599 of 2017-Y 53 confers power on the Central Government to frame the Model Rules and it is only an indication of what should be the broad parameters and infrastructure made available for the children in need of care and protection. The different situations existing in various parts of the country has to be taken into account by the respective State Government's when they frame their Rules. It is not as if woollen clothing should be provided in a place having tropical climate and the State could modify the Model Rules suitably and provide appropriate clothing as applicable to each area.
26. The learned Special Government Pleader appearing for the State expressed concern insofar as the interim order of stay of registration being continued; especially in the context of the Hon'ble Supreme Court having directed the registration of all institutions under the JJ Act of 2015 W.P(C) Nos.14858 of 2016-G, : 29 : 13869 of 2016-G &11599 of 2017-Y before 31.12.2017. It is also pointed out that there is an overriding effect provided in Section 1(4) insofar as all matters concerning children in need of care and protection and children in conflict with law.
27. The learned Senior Counsel, in reply, submits that again Section 1(4), speaks of 'children in need of care and protection and children in conflict with law', together as a class and not different categories. It is submitted that the Hon'ble Supreme Court has directed the registration under the JJ Act of 2015 and has not considered the issue as to the institutions coming under the definition of various categories, as seen from the JJ Act, 2015. It is also argued that the expansive definition given to the child in need of care and protection is only to include victims of sexual abuse or sexual assault or sexual harassment under the POCSO Act as also victims of child trafficking, other than the children in conflict W.P(C) Nos.14858 of 2016-G, : 30 : 13869 of 2016-G &11599 of 2017-Y with law. The constitutionality of the enactment and the individual grievances of institutions which are not covered under the JJ Act of 2015, could be raised in a petition under Article 226, argues the learned Senior Counsel.
28. This Court has anxiously considered the rather elaborate contentions raised by the parties to the litigation.
29. The Hon'ble Supreme Court had in 2017 (5) SCALE 787 (supra) considered the issue of registration of institutions under the JJ Act of 2015 in juxtaposition with the Directive Principles of State Policy and the provisions in the Conventions of the Rights of the Child (CRC) dated 07.12.1992, in which India was a signatory. It was found that the JJ Act of 2015 is a medium for the State to honour the Directive Principles of State Policy, particularly under Article 39(f) of the Constitution of India by giving W.P(C) Nos.14858 of 2016-G, : 31 : 13869 of 2016-G &11599 of 2017-Y opportunities to children to develop in a healthy manner and in conditions of freedom and dignity. The Directive Principles of State Policy, though fundamental to the governance, would not be enforceable unless there is a law; as held in Bandhua Mukthi Morcha v.Union of India - (1984) 3 SCC
161.
30. The projection as made by the Amicus before Court was of three principle issues with respect to children in need of care and protection, trafficked children and street children. The Supreme Court however emphasized the need to focus on the children in need of care and protection alone as found in the JJ Act of 2015. All the same, expanding the definition of 'child in need of care and protection'; keeping in mind the provisions of the POCSO Act, it was held; the victims of sexual abuse, sexual assault or sexual harassment would also be a 'child in need of care and W.P(C) Nos.14858 of 2016-G, : 32 : 13869 of 2016-G &11599 of 2017-Y protection' along with a child found in conflict with law. The need for the child care institutions; whether managed by the State Government or by non-governmental organisations or by other voluntary organisations, to follow certain minimum standards of care and the priority to rehabilitate such children was pointedly noticed.
31. In paragraph 22 it was held that the definition of 'child in need of care and protection' in the JJ Act of 2015 has to be given a broad and purposeful interpretation. The definition cannot be treated as exhaustive and is illustrative,to further the requirements of social justice. This was stated to be in consonance with Article 40 of the CRC, which stipulates that the State shall recognise the rights of every child accused of an offence and the treatment of the child shall be in a manner consistent with promotion of the child's dignity and worth. W.P(C) Nos.14858 of 2016-G, : 33 : 13869 of 2016-G &11599 of 2017-Y
32. Section 41 of the JJ Act of 2015 requiring registration of all institutions, whether run by the State Government or by voluntary or Non-Governmental Organisations was noticed and the delay in completing the process of registration was deprecated. It was also found that apart from registration, the statute requires a few salutary actions to be taken by the institutions and the Model Rules were specifically taken note of. Again, referring to Article 3 of the CRC, the State's obligation to ensure that institutions responsible for care and protection of children should conform to standards laid down, was emphasized. The refusal to proceed with registration frustrate Chapter VI of the Model Rules, particularly the Rules starting from Rule 26 onward, observed the Apex Court. The rules highlighted, takes care of the physical infrastructure, staffing pattern, clothing, bedding etc which are W.P(C) Nos.14858 of 2016-G, : 34 : 13869 of 2016-G &11599 of 2017-Y required for the rehabilitation and re-integration of such children in the Society. Referring to Jacob Mathew v. State of Punjab - (2005) 6 SCC 1, it was held that if the minimum standards of care is not ensured to the children, who are kept in the child care institutions, the officials of the State would be culpable for negligence. Section 53 dealing with rehabilitation and social re-integration services in child care institutions, requires the "State to take care of the basic requirements of the children in such institutions including children with special needs, legal aid where required and more importantly assistance in obtaining proof of identity", was the finding. Article 20 of the CRC obligates the State to provide special protection and assistance to children temporarily and permanently deprived of family environment. Article 44 of the CRC pertaining to children accused of violating law, speaks of the W.P(C) Nos.14858 of 2016-G, : 35 : 13869 of 2016-G &11599 of 2017-Y State's obligation to ensure care, guidance, supervision and so on and so forth.
33. The directions at paragraph 62 are to be extracted:
"Directions
62. In view of the above discussion, the following directions are issued:
1. The definition of the expression "child in need of care and protection" under Section 2 (14) of the JJ Act should not be interpreted as an exhaustive definition. The definition is illustrative and the benefits envisaged for children in need of care and protection should be extended to all such children in fact requiring State care and protection.
2. The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31st December, 2017 with the entire data being confirmed and validated. The information should be available with all the concerned officials. The registration process should also include a data base of all children in need of care and protection W.P(C) Nos.14858 of 2016-G, : 36 : 13869 of 2016-G &11599 of 2017-Y which should be updated every month. While maintaining the database, issues of confidentiality and privacy must be kept in mind by the concerned authorities.
3. The Union Government and the governments of the States and Union Territories are directed to enforce the minimum standards of care as required by and in terms of the JJ Act and the Model Rules positively on or before 31st December, 2017.
4. The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme. Returning the grants as unspent or casual utilization of the grants will not ensure anybody's benefit and is effectively wasteful expenditure.
5. It is imperative that the Union Government and the governments of the States and Union Territories must concentrate on rehabilitation and social re-integration of children in need of care and protection.
There are several schemes of the
Government of India including skill
development, vocational training etc which must be taken advantage of keeping in mind W.P(C) Nos.14858 of 2016-G, : 37 : 13869 of 2016-G &11599 of 2017-Y the need to rehabilitate such children.
6. The governments of the States and Union Territories are directed to set up Inspection Committees as required by the JJ Act and the Model Rules to conduct regular inspections of child care institutions and to prepare reports of such inspections so that the living conditions of children in these institutions undergo positive changes. These Inspection Committees should be constituted on or before 31st July, 2017 and they should conduct the first inspection of the child care institutions in their jurisdiction and submit a report to the concerned government of the States and Union Territories on or before 31st December, 2017.
7. The preparation of individual child care plans is extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution. While this process may appear to be long drawn and cumbersome, its necessity cannot be underestimated in any circumstances. The process of preparing individual child care plans is a continuing process and must be initiated immediately and an individual child care plan must be W.P(C) Nos.14858 of 2016-G, : 38 : 13869 of 2016-G &11599 of 2017-Y prepared for each child in each child care institutions on or before 31st December, 2017.
8. Wherever the State Commission for Protection of Child Rights has not been established or though established is not fully functional in the absence of a Chairperson or any one or more Members, the governments of the States and Union Territories must ensure that all vacancies are filled up with dedicated persons on or before 31st December, 2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection.
9. The training of personnel as required by the JJ Act and the Model Rules is essential. There are an adequate number of academies that can take up this task including police academies and judicial academies in the States. There are also national level bodies that can assist in this process of training including bodies like the Bureau.
10. It is time that the governments of the States and Union Territories consider de-
institutionalization as a viable alternative. It W.P(C) Nos.14858 of 2016-G, : 39 : 13869 of 2016-G &11599 of 2017-Y is not necessary that every child in need of care and protection must be placed in a child care institutions. Alternatives such as adoption and foster care need to be seriously considered by the concerned authorities.
11. The importance of social audits cannot be over-emphasized. The necessity of having a social audit has been felt in some statutes which have been mentioned above and also by the Comptroller and Auditor General of India. That being the position, it is imperative that the process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights. This is perhaps the best possible method by which transparency and accountability in the management and functioning of child care institutions and oother bodies under the JJ Act and Model Rules can be monitored and supervised.
12. While the Juvenile Justice Committee in each High Court is performing its role in ensuring the implementation of the JJ Act and Model Rules, there is no doubt that each Committee will require a small Secretariat by way of assistance. We request each Juvenile Justice W.P(C) Nos.14858 of 2016-G, : 40 : 13869 of 2016-G &11599 of 2017-Y Committee to seriously consider establishing a Secretariat for its assistance and we direct each State Government and Union Territory to render assistance to the Juvenile Justice Committee of each High Court and to cooperate and collaborate with the Juvenile Justice Committee in this regard.
13. We acknowledge the contribution made by Ms. Aparna Bhat in taking keen interest in the issues raised in this PIL and for rendering effective assistance to this Court at all times. The Supreme Court Legal Services Committee will give an honorarium of Rs.2 lakhs to Ms. Aparna Bhat out of the funds available for juvenile justice issues.
14. While there may be some other issues specifically concerning children in need of care and protection we leave these issues open for consideration and grant liberty to the learned Amicus to move an appropriate application in this regard including any application for modification or clarification of the directions given above.
15. The Union of India is directed to communicate our directions to the concerned Ministry or Department of each State and Union Territory for implementation and to collate necessary information regarding the W.P(C) Nos.14858 of 2016-G, : 41 : 13869 of 2016-G &11599 of 2017-Y implementation of these directions with the assistance of the National Commission for the Protection of Child Rights and the State Commission for the Protection of Child Rights. A status report in this regard should be filed in this Court on or before 15thJanuary, 2018. The Registry will list this case immediately thereafter".
34. It is pertinent that the Supreme Court while giving a more expansive and wider definition to the children covered under the Act, included not only children in conflict with law but also those who are victims of crimes and atrocities. This would not include the children in the care of the petitioner- institutions since they are neither in conflict with law nor are they victims. But their vulnerability in institutional care cannot be ignored and hence it cannot be said that the regulatory measures and the rehabilitative exercise contemplated by the JJ Act, 2015 will not be applicable to them. The JJ Act of 2015, as has been held by the Hon'ble Supreme W.P(C) Nos.14858 of 2016-G, : 42 : 13869 of 2016-G &11599 of 2017-Y Court, seeks to de-institutionalize care of children as discernible from Article 20 (4) of the CRC. The article, while obligates protection and assistance to children deprived of family environment, temporarily or permanently; illustrates alternate measures by way of foster placement, adoption etc. and as a last resort institutionalization.
35. The definition of 'child in need of care and protection' in the JJ Act of 2015 is almost similar to the definition found in the JJ Act of 2000. The JJ Act of 2015, in its preamble, and in Section 14 speaks of children in conflict with law and children in need of care and protection, in conjunction. This confers overriding effect, on the JJ Act of 2015, in matters pertaining to those children who are both in conflict with law and in need of care and protection. It also includes children who are victims of crime and atrocities. However it would not take within its ambit W.P(C) Nos.14858 of 2016-G, : 43 : 13869 of 2016-G &11599 of 2017-Y the institutions run by the petitioners which though house children in need of care and protection, are not children in conflict with law nor are they victims of crimes or any other atrocities.
36. This does not detract from the fact that the registration under Section 41 has to be of "all institutions, whether run by a State Government or by voluntary or Non-Governmental Organisations, which are meant, either wholly or partially, for housing children in need of care and protection or children in conflict in law". While the Preamble uses the word 'and', Section 41 employs the word 'or'. Though the children housed by the petitioners are now being taken care of by the petitioner institutions, it would not make them children who are not in need of care or protection. It is for reason of their status as orphans or destitute that they have been admitted to the said institutions. It cannot, hence, be said that the W.P(C) Nos.14858 of 2016-G, : 44 : 13869 of 2016-G &11599 of 2017-Y petitioner institutions need not take registration under the JJ Act 2015.
37. When applying for registration, the State Government is obliged to determine and record the capacity and purpose of the institutions; if such institutions are registered as children's home, open shelter, specialised adoption agency, observation home, special home or place of safety i.e., a child care institution as defined under JJ Act of 2015. The definitions of the various categories enumerated under sub section (2) of Section 41, makes it clear that the petitioner institutions do not fall under any of these categories. But even then, registration would have to be taken and the supervision of the authorities under the JJ Act of 2015 would be a necessary consequence, which is also in the best interest of the children so housed in the institutions. The State has a duty to ensure that the children W.P(C) Nos.14858 of 2016-G, : 45 : 13869 of 2016-G &11599 of 2017-Y deprived of parental care and, hence, in need of care and protection, when institutionalised are treated with dignity and provided the basic necessities including education to integrate them into the society as full fledged citizens.
38. A 'child care institution' as has been defined in the JJ Act of 2015 means only the seven categories as laid down in the definition. A children's home, open shelter and observation home is one established or maintained by the State Government, either by itself or through another. A place of safety is one attached to an observation home or a special home. The petitioners do not come under any of these categories since they are not established or maintained by the State Government nor are they functioning as a State Government agency. A specialised adoption agency is one recognised under Section 65. The petitioners are neither a specialised adoption agency nor a fit facility. A children's home, as defined under Section 2 (19), also W.P(C) Nos.14858 of 2016-G, : 46 : 13869 of 2016-G &11599 of 2017-Y is one established and maintained by the State Government, either by itself or through a voluntary or Non-Governmental Organisation. However, as far as the registration is concerned, every institution, meant wholly or partially for housing children in need of care and protection or children in conflict with law, whether it be run by a State Government or a voluntary or a Non-Governmental Organisation, has to be registered.
39. In this context, the registration obtained by the petitioners under the Orphanages Act assumes significance, which is also law enacted by the Parliament. Looking at Section 41(2), it has already been found that the petitioners' institutions cannot be categorised by the State Government as a child care institution as defined under the JJ Act of 2015. Sub section (2) of Section 53 speaks of a management committee to be set up in the manner as W.P(C) Nos.14858 of 2016-G, : 47 : 13869 of 2016-G &11599 of 2017-Y may be prescribed to manage the institution and monitor the progress of every child. Though sub section (2) speaks of every institution, it is to be noticed that the petitioners' institutions are registered under the Orphanages Act and are functioning with a management committee as provided therein.
40. The JJ Act of 2015 does not provide for any specific constitution of the management committee for institutions, but leaves it to be prescribed by the executive government. The executive government has prescribed a managing committee as per the Model Rules, which, as noticed herein above, virtually takes over the management of the institutions. The petitioner institutions, it has to be reiterated at the risk of repetition, are not sponsored by the State Government. They are run in properties owned by the institutions, individuals or in W.P(C) Nos.14858 of 2016-G, : 48 : 13869 of 2016-G &11599 of 2017-Y leased out premises. The State Government cannot take over such properties, unless in accordance with law. The constitution of managing committees as prescribed in the Model Rules, runs contrary to the provisions of the Orphanages Act.
41. Supreme Court Employees Welfare Association, Kerala Samsthana Chethu Thozhilali Union and Bhavani Amma (all supra) squarely apply. Bhavani Amma was a case in which a Division Bench of this Court was considering the legality of a provision in the Abkari Rules which restricts the auction purchaser from withdrawing from an offer; a successful bid in an auction for grant of license to vend liquor. Though the ultimate decision was not on the aspect, the rule was considered with reference to the general principles of contract as discernible from the Contract Act. It was held:
W.P(C) Nos.14858 of 2016-G, : 49 :
13869 of 2016-G &11599 of 2017-Y "The subordinate legislation is always liable to be questioned on all the grounds on which a plenary legislation could be questioned. In addition certainly the delegated legislation can be challenged on the ground that it does not conform to the statute under which it is made. It may further be faulted on the ground that it is contrary to some other statute. It is a cardinal principle that subordinate legislation must yield to plenary legislation. We may also say that subordinate legislation may also be questioned on the ground that it is unreasonable in the sense that it is manifestly arbitrary". (para 32)
42. The Division Bench followed Supreme Court Employees Welfare Association; specifically paragraph 98:
"98. Rules made under Article 146 being subordinate legislation do not partake of the character of ordinances which are legislation in the true sense for the limited period of their operation: K. Nagaraj v. State of A.P., A.K. Roy v. Union of India (SCC at p. 291) and R.K. Garg v. Union of India. While ordinances cannot perhaps be questioned on any ground which is not relevant to the W.P(C) Nos.14858 of 2016-G, : 50 : 13869 of 2016-G &11599 of 2017-Y validity of legislation, it is not so in the case of rules made by virtue of power granted under the Constitution which are, as stated above, liable to be declared void for any of the reasons for which instruments made by virtue of delegation by Acts of Parliament can be declared void. Rules, whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated. They must also be in harmony with the provisions of the Constitution and other laws. If they do not tend in some degree to the accomplishment of the objects for which power has been delegated to the authority, courts will declare them to be unreasonable and, therefore, void.
[emphasis supplied]
43. Samsthana Chethu Thozhilali Union considered a challenge against a Rule introduced in the Abkari Shops Disposal Rules, 2002, framed under the Abkari Act. The Rule attempted rehabilitation of those workers of arrack shops, who lost their jobs on arrack being banned in the State. The dictum and W.P(C) Nos.14858 of 2016-G, : 51 : 13869 of 2016-G &11599 of 2017-Y the finding is available in two short paragraphs as hereunder extracted:
"18. The State by enacting Section 8 of the Act prohibited sale of arrack. Once such a right to bring about prohibition, having regard to the principles contained in Article 47 of the Constitution is exercised, no trade being in existence, the question of exercise of any control there over would not arise. Such a power in view of Section 8 of the Act must be held to be confined only to carrying out the provisions thereof meaning thereby, no person can be allowed to deal in arrack and in the event, any person is found to be dealing therewith, to take appropriate penal action in respect thereof as provided.
xxx xxx xxx
42. If a policy decision is taken, the
consequences therefor must ensue.
Rehabilitation of the workers, being not a part of the legislative policy for which the Act was enacted, we are of the opinion that by reason thereof, the power has not been exercised in a reasonable manner. Rehabilitation of the workers is not one of W.P(C) Nos.14858 of 2016-G, : 52 : 13869 of 2016-G &11599 of 2017-Y the objectives of the Act".
44. The subordinate legislation, the Model Rules, runs contrary to the Orphanages Act. Though overriding effect is provided to the provisions of the JJ Act, 2015 it is only in "matters concerning children in need of care and protection and children in conflict with law" [sic- S.1(4)] However, this Court would desist from setting aside a provision either in the Statute or in the Rules, if it can be otherwise harmonised and upheld. Apposite would be reference again to Bhavani Amma, wherein though the rule was found to be inconsistent with the Contract Act, the rule was not struck down, since the Court found the liability to penalty, of the bidder in auction, to be absent in view of the breach of contract by the State and the unexplained delay in conducting re-auction. The Court observed : "We also feel that it is always better to decide the case without faulting the W.P(C) Nos.14858 of 2016-G, : 53 : 13869 of 2016-G &11599 of 2017-Y legislation" (sic-paragraph 34). The Courts always strive to uphold the legislation and respect the mandate of the people and strike down a law only when, despite employing the various measures is still unable to uphold it.
45. The JJ Act of 2015, as was noticed, specifically deals with children who are in need of care and protection and also in conflict with law. It has already been held that the petitioner institutions are not child care institutions as defined under the Act nor do they fall under any of the categories enumerated in the said definition. Viewed in the above perspective, Section 53(2) and the prescription made for constitution of the managing committee, as available in the Model Rules, can be read down to make it applicable to only the child care institutions, as defined under the JJ Act of 2015. The petitioner institutions do not fall under the said definition though it has to get a registration under the W.P(C) Nos.14858 of 2016-G, : 54 : 13869 of 2016-G &11599 of 2017-Y Act, being an institution coming under Section 41(1) of the JJ Act, 2015.
46. The further grievance of the petitioners is the prescription for taking over the management as provided under sub section (7) of Section 41. Sub section (7) of Section 41 empowers the State Government to cancel or withhold registration of such institutions which fail to provide rehabilitation or re- integration services specified in Section 53 and to manage the institution till the registration of an institution is renewed or granted. Section 53(1) again speaks of the services to be provided by institutions in the process of rehabilitation and re-integration of children. Considering the fact that the Hon'ble Supreme Court has given a wider connotation to the children in need of care and protection and those in conflict with law, to include the children who are victims of crimes and atrocities; W.P(C) Nos.14858 of 2016-G, : 55 : 13869 of 2016-G &11599 of 2017-Y it cannot be said that the services to be provided to children in need of care and protection should be something lesser than than that provided to those children who are in conflict with law or are victims and need care and protection.
47. To so discriminate would be against the CRC to which India is a signatory and also the avowed objective of the Central Government in charting out a Model Rules, to provide better care for the children. The Parliament also intended it, since the registration is of every institution looking after children in need of care and protection and the prescription under Section 53(1) also take in such institutions as a whole. Section 53(1) speaks only of institutions and not the 'child care institutions'. It is of significant import that the Hon'ble Supreme Court has laid emphasis on the duty of the State to comply with the CRC and the law made in the form of JJ Act W.P(C) Nos.14858 of 2016-G, : 56 : 13869 of 2016-G &11599 of 2017-Y of 2015, in discharge of such obligations and in furtherance of the Directive Principles of State Policy as enshrined in the Constitution.
48. It cannot be said that the charitable institutions, without any Government sponsorship, should provide the same facilities for housing orphans and destitute children who need care and protection. It would be disastrous to take a view that if the charity does not extend to such standards as prescribed by the Central Government in the Model Rules, then, such institutions would have to be closed down and the children thrown to the streets. When it is the State's obligation to provide care and protection to the children and to rehabilitate and re- integrate them into the Society, it is for the State to provide institutions with such standards. The take over of management of such units, as provided in sub section (7) cannot be to provoke, coerce or motivate W.P(C) Nos.14858 of 2016-G, : 57 : 13869 of 2016-G &11599 of 2017-Y the charitable institutions into providing the standards as spoken of in the Model Rules.
49. Charity has to come from within and it cannot be precipitated nor can it be begged or enforced. It can only be within the capacity and bounds of the charitable person or institution. There can be no enforcement of a law, demanding charity to a certain extent or not at all. The take over of management of the institutions, as spoken of in the Act and Rules, hence, has to be found to be the take over of the children by the State; providing such services as spoken of in the JJ Act of 2015 and the Model Rules. Sub section (7) of Section 41 is also read down to that extent.
50. The petitioners, hence, would be obliged to take registration under the JJ Act of 2015, but, however, the registration is only to ensure the due supervision of the institutions by the authorities W.P(C) Nos.14858 of 2016-G, : 58 : 13869 of 2016-G &11599 of 2017-Y constituted under the Act. They are not to be treated as a 'child care institution' as defined under the JJ Act of 2015 or a category of home, coming under the categories of that definition or under sub section (2) of Section 41. The management committees of the petitioner-institutions, registered under the Orphanages Act cannot be superseded by management committees as provided in the Model Rules. Registration, hence, cannot be declined for reason of lack of facilities. If the facilities are found inadequate, then, it is for the Central or State Government to set up, within a time frame, child care institutions of the standards prescribed under the Model Rules and to shift the children into such homes. There cannot be any immediate closure of the institutions or the children send out of the institutions on a closure. The State or Central Government would be entitled, nay obliged, if registration is declined, to W.P(C) Nos.14858 of 2016-G, : 59 : 13869 of 2016-G &11599 of 2017-Y take over the children and house them in appropriate institutions. The provision of facilities as prescribed in the Model Rules cannot be the obligation of the institutions like the petitioners, set up merely on charity. The Union or the State Governments would be obliged to provide institutions of the standards, as prescribed in the Model Rules and transfer the children to such institutions. The petitioners though have rights over their property, cannot claim any right over the children housed in the institutions, who ultimately, for reason of being deprived of parental care, are the responsibility of the State. The JJ Act 2015, essentially is an enactment were the legislature reaffirms the traditional role of State, parens patriae, the guardian of persons under legal disability; here, minor children requiring care and protection. This includes children in conflict with law, victims of crime and atrocities as also orphans and destitute children. W.P(C) Nos.14858 of 2016-G, : 60 : 13869 of 2016-G &11599 of 2017-Y
51. In the result the writ petitions are disposed of on the following terms:
(i) The charitable institutions like the petitioners, who are not established or maintained by the Government by itself or through another, would have to apply for registration under the JJ Act of 2015; but, they cannot be categorised as a 'child care institution' under the Act or classified under sub-section (2) of section 41.
(ii) It is declared that the petitioners or institutions of like minded individuals or organisation, set up purely on charitable considerations, without any Government aid, cannot be directed to provide for the facilities as available in the Model Rules and the obligation to so provide facilities to the 'children in need of care and protection' is on the State; the Union and the State Governments.
(iii) Sub- section (7) of Section 41 and the stipulation for take over of management of the institution is read down as facilitating the takeover only of the children, by the State Government, to be housed in such places with provision of the facilities as prescribed in the W.P(C) Nos.14858 of 2016-G, : 61 : 13869 of 2016-G &11599 of 2017-Y Model Rules or that brought out by the respective State Government. The time provided in sub-section (3) of Section 41, in that context would only be for shifting of the children, after which alone the private institution can be closed down.
(iv) Sub-section(2) of Section 53 is read down to provide for management committees only for State run or sponsored child care institutions and not to the institutions registered under the Orphanages Act, who do not enjoy any sponsorship or patronage of the State.
Ordered accordingly. No Costs.
Sd/-
K. VINOD CHANDRAN, JUDGE jma/sp/jjj