IN THE SUPREME COURT OF INDIA
Union of India
Date of Judgement
9th February, 2018
Hon’ble Justice Madan B. Lokur; Deepak Gupta, JJ.
Article 39 of the Indian Constitution sets out the policy principles to be followed by the State. It establishes that “the state, in particular, will direct its policy towards ensuring … (f) that children have opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that children and youth are protected against exploitation and against moral and material abandonment “.[i] Article 39A of the Constitution emphasizes” Equality of justice and free legal assistance “. It establishes that “the State will guarantee that the operation of the legal system promotes justice, on the basis of equal opportunities and, in particular, will provide free legal assistance, through adequate legislation or plans or in any other way, to guarantee those opportunities to ensure justice is not denied to any citizen for economic reasons or other disabilities.” [ii]Articles 14 and 22 (1) also oblige the State to guarantee equality before the law and a legal system that promotes justice on the basis of equal opportunities for all.[iii] The Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989.[iv] The Convention, to which India is a signatory, emphasizes, among other things, ensuring the best interests of the child, social reintegration of child victims. etc.[v]
Legal aid strives to ensure that the constitutional promise is fulfilled in its letter and spirit and that fair justice is provided to the poor, oppressed and weakest sections of society. The Present case analysis of Sampurna Behrua v. Union of India[vi] deals with a seminal issue.
In a prescient understanding of child rights, the Chief Justices’ Conference held in 2006 (presided by the Chief Justice of India with participation by the Chief Justice of every High Court) the resolution was passed. The resolution was passed almost six years after the Act of 2000 came into force – meaning thereby that even about six years after Parliament enacted a law for the benefit of children, the State Governments had not taken steps to fulfill one basic requirement of the law, that is, to set up Juvenile Justice Boards.[vii]
In 2009 the Chief Justices’ Conference discussed the progress made in setting-up of Juvenile Justice Boards and the resolution passed in the Conference in 2006 was reiterated indicating that little or no progress had still been made by the State Governments in setting up Juvenile Justice Boards. So, almost a decade had gone by without compliance by the State Governments of a basic statutory obligation laid down by Parliament.[viii]
In 2013 the issue of strengthening the juvenile justice system was again discussed at the Chief Justices’ Conference and the resolutions passed in 2006 and 2009 were reiterated. In addition, the mandate of setting up Child Welfare Committees in all districts was also emphasized to meet the requirements of children in need of care and protection and to give full effect to the provisions of the Act of 2000. [ix]
Finally, in 2016, at the Conference of Chief Judges, a resolution was passed. The Conference has pointed out the need to guarantee institutional support for children in conflict with laws and children who need care and protection.[x]
At this stage, it may be mentioned that pursuant to the resolutions passed in the Chief Justices’ Conferences, every High Court has constituted a Juvenile Justice Committee headed by a judge of the High Court to take stock of and look into issues concerning children. We may note that every High Court has responded more than positively and each Juvenile Justice Committee has brought about some improvements in the living conditions in Homes and in the well-being and lives of many children.[xi]
Appreciating that the judiciary has a constitutional obligation to ensure that everybody acts in the best interests of the child, the Chief Justice of India set up a Committee in the Supreme Court to address the issues of effective implementation of the Act of 2000 -such is the importance given by the judiciary to the rights of children.[xii]
Despite the judicial push, judicial ‘activism’ and criticism, for the past decade or so, state governments and Union territories have not fully complied with the provisions of a law solemnly enacted by Parliament for the benefit of children. In many cases, cosmetic changes have only been made at ground level with the result that voiceless children continue to be subjects of official apathy. However, it must be recognized that the Union of India through the Ministry of Development of Women and Children (in short MWCD) has taken some bold steps to recognize children’s rights and give them some importance. However, the overall picture related to the recognition of children’s rights and their realization is far from satisfactory and remains grim as we continue to walk the long and winding road.
Constitutional and Statutory Provisions Discussed:
- Juvenile Justice (Care and Protection of Children) Act, 2015- Section 4, 7, 106, and 107.
- Commissions for Protection of Child Rights Act, 2005 – Section 13 and 17.
- Article 21 and 32 of the Constitution of India.
This PIL submitted a request for attention to various articles of the Indian Constitution that impose the primary responsibility of the State to ensure that the needs of children are met and their basic human rights are protected.
The writ petition was first taken up for consideration on 26th September, 2005 when notices were issued to all the Respondents (Union of India and States). After service of notice (which itself took about one year!), the matter was taken up on 3rd January, 2007 and it was observed that the prayer in the writ petition was for forthwith implementation of the Act of 2000 in its true letter and spirit and that the petition highlighted some provisions of the said Act which had not been implemented despite a number of years have elapsed. It was noted that the writ petition highlights the horrible conditions in some Homes for children and that this was a violation of Article 21 of the Constitution. Under these circumstances, the Court required detailed affidavits to be filed by the Respondent States through the Chief Secretary of each State.[xiii]
After a few subsequent hearings and completion of pleadings, the Court impleaded the National Commission for Protection of Child Rights (the NCPCR) by an order dated 14th February, 2011 and the National Legal Services Authority (for short ‘NALSA) by an order dated 11th July, 2011. In the hearing on 19th August, 2011 quite a few suggestions were made by NALSA in respect of child rights. We will consider these submissions at the appropriate stage.[xiv]
When the case was again taken up on 12th October, 2011 the Court reiterated the importance of the directions passed on 19th August, 2011 and also added focus to setting up Special Juvenile Police Units under Section 63 of the Act of 2000. Directions were given in this regard to the Home Department and the Director-General of Police of all the States and Union Territories to ensure that there is at least one police officer in every Police Station who has the necessary aptitude and is given appropriate training and orientation to function as a Juvenile or Child Welfare Officer. The State Legal Services Authorities and NALSA were requested to provide necessary training and orientation in phases to such officers.[xv]
When the case was taken up for consideration on 11th September, 2015 by the Social Justice Bench of this Court, it was noticed that the Union of India had filed affidavits on 31st July, 2015 and 9th September, 2015. From a reading of these affidavits, it appeared that a large number of Homes were not registered under the provisions of the Act of 2000. Since this was a matter of concern (with a possibility of trafficking of children), the learned Additional Solicitor General appearing for the Union of India was requested to look into the matter and he submitted that the Union of India had initiated steps to ensure that the Homes run by NGOs get registered under the Act of 2000 in a few months time.[xvi]
Soon thereafter, the JJ Act was passed by Parliament and brought into force on 15th January, 2016. The JJ Act brought in several changes in the juvenile justice regime but the substratum of the petition filed by Sampurna Behura remained unaffected.
Her PIL was taken up on 15th February, 2016 in the above background. Thereafter, the matter was taken up on 9th May, 2016 when the learned Additional Solicitor General stated that the process of collecting and updating the information online was underway in MWCD and was proceeding at a fast pace and that he expected it to be completed very soon. In the hearing on 22nd August, 2016 the Union of India was required to consider the feasibility of urgently providing computers and internet connectivity to the Juvenile Justice Boards and Child Welfare Committees. The matter was again taken up on 17th February, 2017 by which time considerable progress had been made by MWCD in the online collection of information to the extent that a Central Level Monitoring Format had been prepared which could easily be filled up by the States and Union Territories for providing full information which could be collated.
With all this information available on record in some form or the other, the court heard the submissions of learned Counsel for the parties on 20th November, 2017 and reserved judgment.
The court went into detail with regard to some of the more important proceedings that have taken place in the matter from the time when the Public Interest Litigation was instituted only to highlight various dimensions to the problems faced by children and the casual approach that most State Governments and Union Territories have towards the rights of children. [xvii]
- The main burden of the writ petition is the failure of State Governments to implement various provisions of the Act of 2000 including, inter alia, the establishment of Child Welfare Committees, Juvenile Justice Boards, Special Juvenile Police Units, the establishment of appropriate Homes for children in need of care and protection, improving the living conditions of juveniles in conflict with the law, medical facilities for children in the custody of the State and several other human rights issues.
Submissions made by the Petitioner:
- It was submitted that the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November, 1989. The Convention, to which India is a signatory, emphasizes inter alia, securing the best interests of the child, social reintegration of child victims, etc.
- It was also indicated in the petition that the 2000 Law was approved by Parliament taking into account various norms prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Children Deprived of Liberty, 1990 and other relevant international instruments.
- The Petitioner submitted a large number of steps that need to be taken to improve the lives of children in Child Care Institutions and enable them to live with dignity. Suggestions were also given by the Petitioner on 10th and 25th September, 2013 and 10th May, 2016 on several aspects of child rights and juvenile justice. Most of these suggestions complement the suggestions given by NALSA.
- Children have the right to live with dignity under Article 21 of the Constitution and other statutory rights under the JJ Act.
- The court, in this case, noted that the National Policy for the Welfare of Children contained the Preamble which stated “The nation’s children are a supremely important asset. Their nurture and solicitude is our responsibility”.[vi] It is quite evident that with the type of observation homes that the children are kept in, they’re not given a proper opportunity of being nurtured, which ultimately goes against the aim of the JJ Act.
- In its lengthy judgment, the court hoped that the MWCD in the central and state governments would ensure that the National Commission for Protection of Child Rights (NCPCR) and the State Commission for Protection of Child Rights (SCPCR) performed optimally. It also said that the constitution of the State Child Protection Society and District Child Protection Units needed to include the police and members of civil societies.
- The court was of the view that it is “high time that every district in every state must have a Juvenile Justice Board” that is well-staffed with properly trained personnel and has a child-friendly ambiance. If there are a large number of inquiries pending, the court added, ‘it is the obligation of the JJB to sit on a daily basis so that the inquiry is concluded within the time limit prescribed by the JJ Act’.
- The court also hoped that the state governments and concerned authorities would provide adequate sensitization and training to both legal aid lawyers and Probation Officers to assist juveniles in conflict with the law and that well-trained Child Welfare Police Officer (CWPO) and Special Juvenile Police Unit (SJPU) were appointed in each district.
- Further, taking note of the importance of technology in the administrative functioning of JJBs and Child Welfare Committees (CWCs), it asked the central and state governments to provide all necessary hardware and software to them, and also directed states to regularly update their information on the online Central Level Monitoring System once every quarter.
- Addressing the lack of safe shelters for children in conflict with the law, the court urged every state to evaluate the condition of their Child Care Institutions as well as to provide education, healthcare, and proper nutrition to its residents. The court reiterated that government registration in accordance with the provisions of the JJ Act was compulsory for child care institutions run by individuals or NGOs to avoid incidents of trafficking or child sexual abuse.
- Finally, the court hoped that audits would be carried out every six months to supervise the implementation of the JJ Act across the country. It directed NALSA to prepare a report on the JJ Act before April 30, 2018, to ‘assist all policy making and decision making authorities to plan out their affairs’.
The present Court issued various instructions, such as the Ministry of Development of Women and Children in the Government of India and state governments should ensure that all positions in the National Commission for the Protection of Children’s Rights (NCPCR) and The State Commission for the Protection of Children’s Rights (SCPCR) are filled on time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of children. The NCPCR and SCPCR must take their duties, functions, and responsibilities very seriously taking into account the faith placed in them by Parliament.[xviii]
A position in these statutory institutions is not a guarantee. These agencies have a very important and proactive role to play in improving the lives of children across the country. State governments must ensure that all seats in the JJB and CWC are filled expeditiously and in accordance with the Model Rules or the Rules outlined by the State Government. Any delay in filling positions could negatively affect children and this should be avoided. The Juvenile Justice Boards (JJB) and the Child Welfare Committees (CWC) must appreciate that it is necessary to have regular sessions so that there are a minimum number of pending consultations at any given time and justice is given to all minors in conflict with the law and social justice for children who need care and protection. This is a constitutional obligation.[xix]
The NCPCR and SCPCR must conduct time-bound studies on various topics, as deemed appropriate, in accordance with the Juvenile Justice Act of 2015. Based on these studies, state governments and Union Territories must take corrective measures.
Judge Lokur identified the problems that would make the JJ Law effective and therefore ordered the establishment and training of Juvenile Justice Boards and Child Welfare Committees in each district, appointment and training of Probation Officers and legal aid attorneys, registration of child care institutions and creation of a juvenile justice fund.
Senior Supreme Court advocate Colin Gonsalves, who represented Sampurna Behrua in court, said, “We are very happy that Sampurna Behrua has come to an end. I, personally, am quite relieved because we have conducted this case for the last 12 years. It has been an uphill task to get the government to implement the provisions of the Juvenile Justice Act. When we started, even though JJ Boards and CWCs – which are the alternatives to jail for a juvenile – were supposed to exist in every district, there was hardly any present. Therefore, it was not uncommon to find children lodged in jails with hardened criminals.[xx]
This case is of immense value in taking a step forward in realizing the rights of minors who may not be able to speak for themselves. For this, Sampurna Behrua should be applauded for her efforts to make the State aware of its responsibility. The State needs to ensure that the JJ Law is properly implemented. Juvenile delinquency can be stopped only if minors are adequately cared for and children are provided with an environment in which they can develop a healthy thinking process. Justice Lokur has aptly quoted Nelson Mandela at his trial: “Our children are our greatest treasure. They are our future. Those who abuse them tear the fabric of our society and weaken our nation. “
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] Dr. (Mrs.) Saroj Bohra, Social Justice and Indian Constitution, International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212 Volume 2 Issue 1, http://ijlljs.in/wp-content/uploads/2015/01/D04.pdf.
[iii] Press Information Bureau, Government of India, Right to Legal Aid; A Constitutional Commitment, https://pib.gov.in/newsite/mbErel.aspx?relid=118011 (last visited Jan 26, 2020, 3:40 P.M).
[iv] United Nations Human Rights Office of the High Commissioner, Convention on the Rights of the Child, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx, (last accessed 10th March, 2020, 9:00 P.M).
[vi] Sampurna Behrua v. Union of India, (2018) 4 SCC 433.
[xx] Vaishali Rathore, An Insight Into Indian Juvenile Justice System, Notion Press, 2019.