Supreme Court of India
SAMPURNA BEHURAversusUNION OF INDIA & ORS.
- Citation
- 2018 INSC 125
- Decided
- 9 February 2018
- Disposal
- Disposed off
- Bench
- MADAN B LOKUR
Holding
A continuing mandamus can be issued directing the Union and State governments to implement the Juvenile Justice (Care and Protection of Children) Acts, 2000 and 2015, and to take the specific measures enumerated by the Court.
Summary
Sampurna Behura filed a public‑interest writ petition under Article 32 seeking the implementation of the Juvenile Justice (Care and Protection of Children) Acts of 2000 and 2015, alleging that many states had failed to establish or properly staff Child Welfare Committees, Juvenile Justice Boards, Special Juvenile Police Units, child‑care institutions and the Juvenile Justice Fund. The Supreme Court examined the constitutional duty to protect child rights, the repeated failures of State governments despite earlier Chief Justice Conferences, and the need for a continuing mandamus to enforce statutory provisions. It emphasized the roles of the National and State Commissions for Protection of Child Rights, State Child Protection Societies, District Child Protection Units, Probation Officers, and the use of technology for monitoring. The Court issued comprehensive directions to the Union, the Ministry of Women and Child Development, State governments, High Courts and other agencies to fill vacancies, ensure regular functioning of statutory bodies, improve child‑care facilities, and establish child‑friendly courts. The petition was subsequently disposed of.
Issues considered
- The Court's jurisdiction to issue a continuing mandamus under Article 32 for the implementation of the Juvenile Justice Acts.
- Whether State governments must be directed to fill vacancies and ensure functional staffing of NCPCR, SCPCR, Juvenile Justice Boards, Child Welfare Committees, and related bodies.
- The necessity for the establishment of child‑friendly courts and vulnerable‑witness courts in every district.
- The obligation of the Union and States to utilize technology and maintain a central monitoring system for child‑care data.
- The requirement for the creation and adequate funding of the Juvenile Justice Fund.
Legislation cited
- Commissions for Protection of Child Rights Act, 2005s. 13, s. 3
- Constitution of Indias. Article 32
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 106, s. 107, s. 4, s. 7
- Juvenile Justice (Care and Protection of Children) Act, 2015s. 106, s. 107, s. 4, s. 7
- Juvenile Justice (Care and Protection of Children) Model Rules, 2016s. 64, s. 84, s. 85, s. 87, s. 88, s. 89
- Prohibition of Child Marriage Act, 2006
- Protection of Children from Sexual Offences Act, 2012
Subjects
juvenile justicechild rightspublic interest litigationcontinuing mandamusimplementation of statutesChild Welfare CommitteeJuvenile Justice BoardSpecial Juvenile Police Unitchild care institutionsprobation officertechnology in child welfareNCPCRSCPCR
Judgment
940 [2018]REPORTS
SUPREME COURT 2 S.C.R. 940 [2018] 2 S.C.R.
A SAMPURNA BEHURA
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 473 of 2005)
B FEBRUARY 09, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Public Interest Litigation: Non-implementation or tardy
implementation of laws beneficial to children-Juvenile Justice Act
of 2000 and 2015 – Failure of State Governments to implement
C
various provisions of the Act of 2000 including, inter alia, the
establishment of Child Welfare Committees, Juvenile Justice Boards,
Special Juvenile Police Units, establishment of Homes for children
in need of care and protection, improving the living conditions of
juveniles in conflict with law – Writ petition u/Art. 32 seeking
D directions to the Chief Secretaries and the Directors General of
Police and Superintendents of Police of all the States to forthwith
implement the Act of 2000 and directions to States to provide basic
amenities – Held: Keeping in view the need to strengthen the juvenile
justice system in the country, issuance of certain directions to States
for proper implementation of the Juvenile Justice Act – Chief Justice
E
of each High Court to establish child friendly courts and vulnerable
witness courts in each district – Juvenile Justice (Care and
Protection of Children) Act, 2000 – Juvenile Justice (Care and
Protection of Children) Act, 2015 – Constitution of India – Art. 32.
Disposing of the writ petition, the Court
F
HELD: 1. Suggestions and recommendations:
(i) National and State Commissions for Protection of Child Rights
(a) The Commissions for Protection of Child Rights Act, 2005
provides for the Central Government constituting a body to be
G known as the NCPCR (National Commissions for Protection of
Child Rights) at the national level and the State Governments
constituting a body to be known as the SCPCR (State
Commissions for Protection of Child Rights) at the State level.
[Para 56] [968-C]
H
940
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 941
(b) At the national level, the NCPCR is an institution consisting A
of eminent persons and experts in their respective fields. As such,
they are expected to look at issues concerning the welfare of
children in the national perspective taking into consideration the
views of every SCPCR and other stakeholders. At the State level,
the SCPCR is an equally significant body consisting of eminent
B
persons and experts. They are expected to take policy decisions
for the benefit of the children in their State, regardless of which
State the children originally belong to, for there might be children
of one State who are in need of care and protection but in a Child
Care Institution of another State. The functions of the NCPCR
and the SCPCR are more or less the same except that one C
performs these functions at the national level, while the other
performs these functions at the State level. [Paras 57, 58] [969-
B-D]
(c) Both the NCPCR and the SCPCR have a range and variety of
functions to perform and each one of them entails a great deal of D
responsibility. It is given to understand that both the Government
of India and the State Governments have not been giving these
bodies the freedom to decide on broad policy matters and indeed
in some instances, particularly relating to the SCPCR, vacancies
have not been filled up for several months. Unfortunately, at one
point of time, even the position of the Chairperson of the NCPCR E
was lying unfilled for several months, until, on the directions of
this Court, the position was eventually filled up. Unless the
NCPCR and the SCPCRs are given due importance by the
Government of India and the State Governments and vacancies
are filled up in time, the enforcement of the rights of children will F
remain on the back burner and any number of welfare schemes
formulated by the Government of India or by the State
Governments will remain unimplemented or their implementation
will remain sketchy and symbolic. [Para 59] [971-B-E]
(d) There is hope and trust that those in authority and power in G
the Government of India and in the State Governments appreciate
the importance of adhering to the provisions of the laws enacted
by Parliament and ensure that the NCPCR at the National level
and the SCPCR at the State level actually function and perform
their duties and recognize their responsibilities. [Para 60] [971-
E-F] H
942 SUPREME COURT REPORTS [2018] 2 S.C.R.
A (ii) State Child Protection Society and the District Child Protection
Unit
(a) The constitution of the State Child Protection Society and the
District Child Protection Unit need serious consideration so that
all stake-holders, including the police and NGOs are actively
B involved in the performance of the functions, duties and
responsibilities of these two bodies. The functions of the State
Child Protection Society and the District Child Protection Unit
are detailed in Rule 84 and Rule 85 of the Juvenile Justice (Care
and Protection of Children) Model Rules, 2016 framed by the
Government of India. The functions are varied, extensive and
C geared to improve the living conditions of children through
different strategies and with the involvement of all stake-holders.
[Para 61, 62] [972-A-C]
(b) Section 106 of the JJ Act provides for the constitution of a
State-level Child Protection Society and a District-level Child
D Protection Unit. Section 106 JJ Act broadly indicates that the
primary function of the State Child Protection Society and the
District Child Protection Unit is to ensure implementation of the
JJ Act. In addition, these bodies are obliged to ensure that the
institutions under the JJ Act are established and maintained,
E competent authorities in relation to children and their
rehabilitation are in place and these two bodies are also required
to coordinate with Government officials as well as NGOs to
discharge their wide-ranging functions. The involvement of civil
society through NGOs is a progressive step and these two bodies
are expected to take their assistance from time to time. If these
F two bodies actually perform their duties, responsibilities and
functions in the manner expected of them, the implementation of
the JJ Act would no longer be an issue. Unfortunately, these
bodies are not functioning in many places or in the manner in
which they are expected to and in several districts the District
G Child Protection Unit has not even been constituted. There is
expectation that remedial steps to be taken by all concerned.
[Paras 63-65] [972-D, G-H; 973-A-B]
(iii) Juvenile Justice Boards and Child Welfare Committees
(a) The appointment of some social workers as members of the
H JJB is not necessarily in accordance with the provisions of Section
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 943
4 of the JJ Act. The selection of social workers as members of A
the JJB is required to be carried out in accordance with the
provisions of Rule 88 read with Rule 87 of the Model Rules. The
appointment of social workers is serious business, inasmuch as
they bring their experience - practical and professional - while
conducting an enquiry under the JJ Act. This becomes all the
B
more important when it is appreciated that the social workers
can also conduct an enquiry independent of the Principal
Magistrate as provided for in Section 7 of the JJ Act. However,
the final disposition of the enquiry cannot be without the Principal
Magistrate as mandated in the proviso to sub-section (3) of
Section 7. Thus, there is a heavy responsibility on the social C
workers to make a meaningful contribution during the course of
an enquiry and also at the time of its disposition. [Paras 67, 68]
[973-E; 974-C-E]
(b) The training of the Principal Magistrate as well as the social
workers is extremely important and this is provided for in Rule D
89 of the Model Rules. Unfortunately, the duration of training
and the curriculum and course have not yet formulated, and the
nature of training given to the Principal Magistrate and the social
workers is somewhat ad hoc and unstructured. The lack of
meaningful and effective training (and refresher courses) can have
a vital impact on the ultimate disposition of an enquiry as also on E
the rehabilitation and reintegration of a juvenile in conflict with
law who is before the JJB. Serious thought is required to be
given to this not only from the point of view of awareness of the
law and child rights but also from the point of view of sensitization
of the JJBs, case management and creation of a child friendly F
ambience and environment within the JJB for a juvenile in conflict
with law. [Para 69] [974-F-H]
(c) If there are a large number of inquiries pending, it is the
obligation of the JJB to sit on a daily basis so that the enquiry is
concluded within the time limit prescribed by the JJ Act. Where G
a large number of inquiries are pending, it would be worthwhile
for the State Government and the High Court to consider having
more than one JJB. [Para 71] [975-E-F]
(d) JJB is virtually in the nature of a court, although it does not
conduct a trial, but only conducts an enquiry. Nevertheless, it H
944 SUPREME COURT REPORTS [2018] 2 S.C.R.
A does need adequate staff to perform its functions in an efficient
manner. The JJB also has several administrative functions and
they need due attention so that there is effective coordination
between the JJB, the officials of the Observation Home, the
police, the juvenile in conflict with law and the parents of that
juvenile and lawyers representing the police as well as the
B
juvenile in conflict with law. These administrative duties need
attention if the JJB is to function effectively and a casual statement
that the JJB has adequate staff, though possibly correct, is neither
here nor there considering the requirements of the stake-holders
who attend the enquiry before the JJB. [Para 72] [973-A-C]
C (e) There is a dire need to have quality legal aid lawyers who can
assist juveniles in conflict with law. This is an issue that must be
taken up with all earnestness by the State Legal Services
Authority. Unless a child is given adequate legal representation,
it may impact his or her future, more so if the child in conflict
D with law is found guilty and placed in a Special Home. On its part,
NALSA has brought out a manual for training of legal aid lawyers
and it is believed that it will be extremely useful not only for legal
aid lawyers who are representing juveniles in conflict with law,
but also for legal aid lawyers generally. Similarly, prosecutors also
need to be sensitized and the State Governments would take
E necessary steps to educate and train them keeping in mind the
primary objective of the JJ Act, which is to reintegrate a juvenile
in conflict with law in society and to rehabilitate that juvenile.
[Para 73] [976-D-F]
(f) It is clear from Rule 64 of the Modal Rules that a Probation
F Officer has a very important role to play in ensuring that a juvenile
in conflict with law is given adequate representation and a fair
hearing before the JJB and the enquiry is conducted in a manner
that is conducive to the rehabilitation of the juvenile in conflict
with law. In this regard, the preparation of an individual care plan
G and post release plan gain immense significance and Probation
Officer has an important role to play. [Para 75] [978-F-G]
(g) It is of great importance that a Probation Officer should be
given adequate training, sensitization and awareness of his or
her duties and responsibilities. NALSA has made a significant
H contribution in this regard by preparing a training module for
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 945
Probation Officers. It is expected all the State Governments as A
well as MWCD to ensure that training is given to Probation
Officers on the lines suggested by NALSA with improvements
being made in adult learning techniques, training methodology,
the curriculum and the course content in due course of time. The
said conclusions are equally applicable to the CWCs. [Para 76]
B
[978-G-H; 979-A]
(iv) Use of technology
(a) The use of technology, both by the JJBs as well as by the
CWCs is extremely important and it is disheartening to note from
the affidavits and submissions made by MWCD that there is an C
acute shortage of computers and peripherals with the JJBs and
CWCs. Technology is important not only for the effective
functioning of the JJBs and CWCs, but also to deal with issues
that would arise from time to time concerning the tracing and
tracking of missing children, the rescue of children working in
hazardous industries, trafficked children, children who leave the D
Child Care Institutions, victims of child sexual abuse and follow-
up action, among several other requirements. It is well-known
that our country is a technological power-house and if advantage
is not taken of the resources available and fully utilize the benefits
of technology through computers and the internet for the benefit E
of children, our status as a technological power-house would be
in jeopardy and would remain only on paper. Data, particularly of
the magnitude of the kind, can be easily collected through the
use of computers and internet. This would be of great assistance
in planning and management of resources and MWCD and others
concerned with child rights must take full advantage. [Para 79] F
[979-E-H; 980-A]
(b) The use of computers and peripherals would make an immense
contribution to the administrative functioning of the JJBs and
CWCs. Both the Government of India and the State Governments
need to look into this and provide necessary software and G
hardware to the JJBs and the CWCs for obvious reasons. The
Police authorities in Telangana and AP in consultation with the
Juvenile Justice Committee of the High Court have made
considerable use of information and communication technology
and innovative steps must be encouraged. Similarly, the use of H
946 SUPREME COURT REPORTS [2018] 2 S.C.R.
A video conferencing could also be considered in appropriate cases
where some inconvenience to the juvenile in conflict with law
necessitates the use of video conferencing facilities. [Para 80]
[980-B-C]
(c) MWCD must be complimented for bringing out an online
B Central Level Monitoring System. This online system is working
rather effectively although it would need upgrading from time to
time as the months go by. The unfortunate part is that there does
not seem to be much active cooperation extended by the State
Governments in updating the information on the Central Level
Monitoring System. Needless to say, updating information is
C extremely important so that there can be efficient planning which
will ultimately lead to better management of issues concerning
children. The State Governments are required to fill up the
information on the Central Level Monitoring System once a
quarter and surely that cannot be a difficult task. [Para 81] [980-
D D-E, F]
(v) Role of Police
(a) An extremely important stake-holder in the effective
implementation of the JJ Act is the local police. Section 107
mandates the appointment of a Child Welfare Police Officer and
E a Special Juvenile Police Unit in each district. The SJPU must
also include two social workers having experience of work in the
field of child welfare, one of them being a woman. The
responsibility for appointment lies on the State Government. Many
States have actually appointed CWPOs and set up SJPUs.
F Unfortunately, their duties and responsibilities have not been
clearly identified but are generally stated in Rule 86 of the Model
Rules. Also no system of effective training for CWPOs and SJPUs
has evolved and many of them exist only symbolically and only
because the law requires them to exist. Since the duties and
responsibilities of the CWPOs and SJPUs have not been specified
G or identified, it is high time that the Bureau of Police Research
& Development and the National Police Academy in consultation
with the State Police Academies identify the functions, duties and
responsibilities of the CWPOs and SJPUs. In this regard, NALSA
has prepared Guidelines for Training Juvenile/Child Welfare
H Officers attached to every police station and members of the
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 947
Special Juvenile Police Unit. Perhaps this could be a starting A
point for their training through the Bureau of Police Research &
Development and the Police Academies. [Paras 82, 83] [980-G-
H; 981-E-H]
(b) With regard to the Police generally, it was submitted that due
to the policy of rotation, it often happens that soon after a police B
officer completes his or her training that officer is transferred
out to another department. This is a waste of effort and one of
the ways of resolving problems arising out of transfers is for every
State Police Academy to conduct regular training programmes
under the guidance of senior police officials of the State and for
the State Government to optimally utilize the services of its C
officers. Similarly, the Government of India is required to involve
Railway Police for dealing with children. No information or data
is forthcoming in this regard. The Government of India through
the Railways is expected to look into the matter with some degree
of urgency. A large number of runaway children and children on D
drugs are found in railway stations (and other places) working as
rag-pickers or performing other menial activities. It was submitted
that even otherwise, there is rampant drug abuse among such
children. Efforts must be made to establish de-addiction centres
especially for such children and also generally for juveniles in
conflict with law and children in need of care and protection. [Para E
86] [982-E-G]
(vi) Child Care Institutions
(a) Many of the Child Care Institutions are housed in run-down
buildings and are hardly conducive to comfortable living even to F
a minimum degree. State Governments must appreciate that they
are not doing any charity by putting up children in Child Care
Institutions - they are merely performing their statutory and
constitutional obligations. There is, therefore, an urgent need to
make an evaluation and assessment of all the Child Care
Institutions in every State to ascertain their condition, the G
infrastructure requirements and staffing requirements. Children
live in these Institutions, not because they want to but because
they have no other option, since most of them are children in
need of care and protection. The obligation of society is to provide
solace and comfort to these children and adherence to the H
948 SUPREME COURT REPORTS [2018] 2 S.C.R.
A minimum standards of care. Model Rules contain details for
improved Child Care Institutions and their requirements. [Para
87] [982-G-H; 983-A-C]
(b) There are additional duties and responsibilities obligated by
the Constitution on the State Governments such as providing
B education, health-care (both physical and psychological) and
adequate nutrition. These are huge areas that need to be looked
into with all sincerity by the bodies and institutions established
under the Commissions for Protection of Child Rights Act, 2005
and the JJ Act. But, in such exceptional circumstances, the courts
are constitutionally obliged to issue a continuing mandamus in
C public interest for implementation of the laws enacted by
Parliament, which is essentially the primary responsibility of the
Executive. If the Executive ignores the mandate of Parliament
with continuing callousness, it would only be to the detriment of
the children of the country. [Para 88] [984-B-D]
D (c) MWCD has made considerable efforts in ensuring that Child
Care Institutions run and managed by individuals and NGOs are
registered in accordance with the provisions of the JJ Act. There
has been some resistance to registration from some institutions,
thus, it is made clear that the law has to be obeyed as long as it
E exists on the statute books. It might be uncomfortable for those
who manage some of these Child Care Institutions, but
registration is compulsory and in public interest to ensure that
minimum standards of care are maintained and the children in
those Institutions are well looked after. Occasionally there are
allegations originating from Child Care Institutions of trafficking
F and child sexual abuse, some of which may be unverified, but to
avoid any such shameful allegations it is necessary that their
registration, their management and functioning are strictly
monitored by the State Governments and by MWCD. [Para 89]
[983-G-H; 984-A-B]
G (d) It was suggested by the counsel that in all Child Care
Institutions, there should be a segregation of children in terms
of age and wherever applicable segregation based on the nature
of the offence allegedly committed so that the possibility of sexual
abuse or any other kind of violence is eliminated. Additionally,
H all such institutions should be advised to provide vocational or
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 949
continuing education with a view to re-settling children in conflict A
with law and children in need of care and protection by
reintegrating and mainstreaming them in society. It was
emphasized that there should be adequate staff available in all
Child Care Institutions so that they are able to perform their
duties efficiently. It was also suggested that the location of the
B
JJBs and CWCs should be in close proximity of the Child Care
Institutions to avoid children having to travel long distances for
their appearance before these statutory bodies. All these
suggestions and recommendations made by the counsel are issues
of concern and must be dutifully addressed by the State
Governments and the SCPCRs. [Paras 90, 91] [984-F-H; 985-A] C
(e) The submissions made with regard to Child Care Institutions
was that District Legal Services Authorities may make
unscheduled visits to them to ascertain whether they are in fact
functioning as they should, is definitely worth implementing and
NALSA is expected to go ahead with the suggestion. In fact, the D
Chief Justices Conference in 2006 had specifically adverted to
the appointment of Visitors to Child Care Institutions and in the
Chief Justices Conference in 2013 and 2015 improving the living
conditions in Child Care Institutions was also adverted to.
NALSA and District Legal Services Authorities to respect the
views expressed in the Chief Justices Conferences. [Para 92] E
[985-B-C]
(vii) Juvenile Justice Fund
(a) The JJ Act provides for the constitution of a Juvenile Justice
Fund. It is quite distressing to note that some of the State F
Governments have not even set up the Juvenile Justice Fund
while one or two State Governments have set up the Fund with
an embarrassing amount of only a few thousand rupees. It is
wondered how the welfare of children can be looked after by these
State Governments with such a pittance in the kitty. Obviously,
these State Governments are not seriously concerned about the G
welfare of children, which is a pity. This is official apathy to the
rights of children and a cause for worry. [Para 93] [985-D-F]
(viii) Evaluation and assessment
(a) It would be appropriate if some sort of an evaluation or social
H
950 SUPREME COURT REPORTS [2018] 2 S.C.R.
A audit is carried out every six months for the next couple of years
to monitor and supervise the implementation of the JJ Act. More
than sufficient time has already elapsed since the Act of 2000
was enacted by Parliament and certainly the children of the country
deserve much better and cannot wait for another 15 or 16 years
for the effective implementation of the JJ Act. Most of the
B
children who were born when the Act of 2000 was enacted are
nearing adulthood and many of them have not had the benefit of
the provisions of the Act of 2000. This mistake, a serious one,
cannot be repeated in the implementation of the JJ Act. [Para
94] [985-G-H; 986-A]
C 2. Conclusions and directions:
Keeping in mind the concerns expressed by the counsels and
the need to invigorate the juvenile justice system in the country,
the following directions are given:
D (i) 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.
E
(ii) 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.
These bodies have a very significant and proactive role to
play in improving the lives of children across the country.
F
(iii) 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
G 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.
(iv) The State Governments must ensure that all positions
H in the JJBs and CWCs are filled up expeditiously and in
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 951
accordance with the Model Rules or the Rules framed by A
the State Government. Any delay in filling up the positions
might adversely impact on children and this should be
avoided.
(v) The JJBs and CWCs must appreciate that it is
necessary to have sittings on a regular basis so that a B
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.
(vi) The NCPCR and the SCPCRs must carry out time- C
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.
(vii) The NCPCR and the SCPCRs must carry out a study D
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 E
in conflict with law and due importance must be given to
their duties as postulated in the Model Rules and Rules,
if any.
(viii) MWCD must continue to make creative use of
information and communication technology not only for the F
purpose of collecting data and information but also for
other issues connected with the Act such as having a
database of missing children, trafficked children and for
follow up of adoption cases etc.
(ix) There is a need to set up Special Juvenile Police Units G
and appoint Child Welfare Police Officers in terms of the
JJ Act at the earliest and not only on paper. It is necessary
to clearly identify the duties and responsibilities of such
Units and Officers and wherever necessary, guidance from
the available expertise, either National Police Academy
H
952 SUPREME COURT REPORTS [2018] 2 S.C.R.
A or Bureau of Police Research and Development or NGOs
must be taken for the benefit of children.
(x) 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
B or sporadic event.
(xi) 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
C dignified life and issues of missing children and trafficking
are also addressed.
(xii) 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
D in all the districts. This will ensure that the management
and maintenance of these Institutions are addressed.
(xiii) 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
E resources are not made available for the welfare of the
children we shudder to think what could be better
utilization of the funds.
(xiv) NALSA has done a remarkable job in collecting data
and information relating to the JJ Act, as evidenced by
F the three part Report prepared by it. NALSA is requested
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.
(xv) All authorities such as JJBs and CWCs, Probation
G
Officers, members of the Child Protection Societies and
District Child Protection Units, Special Juvenile Police
Units, Child Welfare Police Officers and managerial staff
of Child Care Institutions must be sensitized and given
adequate training relating to their position. A very positive
H step has been taken in this regard by NALSA and it is
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 953
expected that the NCPCR with the assistance of the A
SCPCRs to carry forward this initiative so that there is
meaningful implementation of the JJ Act.
(xvi) Each High Court and the Juvenile Justice Committee
of each High Court to continue its proactive role in the
welfare of children in their State. To make the involvement B
and process more meaningful, Chief Justice of every High
Court is requested to register proceedings on its own
motion for the effective implementation of the 2015 Act
so that road-blocks if any, encountered by statutory
authorities and the Juvenile Justice Committee are
meaningfully addressed after hearing the concerned C
governmental authorities. [Para 95] [986-B-H; 987-A-H;
988-A-H; 989-A-F]
3. The Chief Justice of each High Court is requested to
seriously consider establishing child friendly courts and
vulnerable witness courts in each district. Inquiries under the JJ D
Act and trials under other statutes such as the Protection of
Children from Sexual Offences Act, 2012, the Prohibition of Child
Marriage Act, 2006, trials for sexual offences under the Penal
Code and other similar laws require to be conducted with a high
degree of sensitivity, care and empathy for the victim. [Para 96] E
[989-F-G]
Sheela Barse II v. Union of India (1986) 3 SCC 632;
Sheela Barse v. Union of India (1988) 4 SCC 226 : [1988]
2 Suppl. SCR 643; Court on its own motion v. State of
Punjab and The National Commission for the Protection
F
of Child Rights (NCPCR) v. The State of Haryana and
Others Decided on 9 th April, 2013, MANU/PH/0599/
2013; Naisul Khatun v. State of Assam and Ors. 2011 Cri
LJ 326 : 2010 SCC Onluine Gau 225; The Matter of
Letter of Sanat Kumar Sinha (Chief Co-ordinator), Bal
Sakha v. The State of Bihar through the Chief Secretary, G
Govt. of Bihar and Ors. MANU/BH/0384/2008 – referred to.
Case Law Reference
(1986) 3 SCC 632 referred to Para 22
[1988] 2 Suppl. SCR 643 referred to Para 24
2011 Cri LJ 326:2010 SCC referred to Para 70
H
954 SUPREME COURT REPORTS [2018] 2 S.C.R.
A CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
473 of 2005
Under Article 32 of The Constitution of India.
Colin Gonsalves, Sr. Adv., Ms. Sneha Mukherjee, Ms. Jyoti
Mendiratta, Advs. for the Petitioner.
B
S. Wasim A. Qadri, R. K. Rathore, Ms. Sunita Sharma, Ms.
Gunwant Dara, A. A. Raj, B. V. Balram Das, G. S. Makker, Raj Bahadur,
Shailender Saini, Saeed Qadri, Vikas Bansal, Gagan Gupta, Saurabh
Gupta, Advs. for the Respondents.
C The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. What can a citizen do if the State
pays no attention to his or her fundamental or human or statutory right,
nor takes serious interest in fulfilling its constitutional or statutory
obligations? What if that citizen is a voiceless child or someone whose
D voice cannot be heard over the din of governance – for example,
physically or mentally challenged persons, senior citizens, and other
disadvantaged sections of society such as scheduled castes, tribals and
several others? The aggrieved would perhaps approach the judiciary (if
he or she could and as a last resort) for the enforcement of a human
right. Should the judiciary take corrective steps and be accused of ‘judicial
E activism’ or overreach – or should the cynics and skeptics have their
day resulting in the grievance of the voiceless and the disadvantaged
remaining unheard and the fundamental and human rights lying
unaddressed?
2. These questions arise in the context of the virtual non-
F implementation or tardy implementation of laws beneficial to voiceless
(and sometimes silenced) children, particularly, the Juvenile Justice (Care
and Protection of Children) Act, 2000 (the Act of 2000) and the Juvenile
Justice (Care and Protection of Children) Act, 2015 (the JJ Act). We
record and acknowledge our appreciation for the efforts of Sampurna
Behura in highlighting some of these issues by way of a Public Interest
G
Litigation and to learned counsel for the appearing parties in rendering
assistance enabling us to address some of these issues by not making
these proceedings adversarial, but a constructive effort for the benefit
of the children of our country. No one has any doubt that it is time for the
State to strongly and proactively acknowledge that even children in our
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 955
[MADAN B. LOKUR, J.]
country have fundamental rights and human rights and they need to be A
enforced equally strongly.
3. If Nelson Mandela is to be believed, “Our children are our
greatest treasure. They are our future. Those who abuse them tear at
the fabric of our society and weaken our nation.”1 Our policy and decision
makers need to heed this advice and warning and appreciate that they B
are not doing any favour to the children of our country by caring for
them – it is their constitutional obligation and the social justice laws
enacted by Parliament need to be effectively and meaningfully enforced.
Background and Chief Justices Conferences
4. In a prescient understanding of child rights, the Chief Justices’ C
Conference held in 2006 (presided by the Chief Justice of India with
participation by the Chief Justice of every High Court) the following
resolution was passed:
“a) That High Courts will impress upon the State Governments
to set up Juvenile Justice Boards, wherever not set-up. The Chief D
Justices may nominate a High Court Judge to oversee the condition
and functioning of the remand/observation homes established
under the Juvenile Justice (Care and Protection of Children) Act,
2000.
b) The Chief Justices of the High Courts will expedite the matter E
with the respective State Governments for setting up of Juvenile
Justice Boards, wherever they have not yet been set up.
c) The Chief Justices of the High Courts will nominate a Judge
to make periodical visits to Juvenile Homes, wherever set up,
and the learned Judge may suggest remedial measures for the F
betterment of the conditions of the juvenile homes and inmates.”
5. The above 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 G
law, that is, to set up Juvenile Justice Boards.
6. In 2009 the Chief Justices’ Conference discussed the progress
made in setting-up of Juvenile Justice Boards and the resolution passed
1
Address by President Nelson Mandela at National Men’s March, Pretoria on 22
November 1997 H
956 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 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.
B 7. 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. It was the further
C resolved:
“It was further resolved that Juvenile Justice Committees, as
had been set up in the Delhi High Court, under the guidance of
the Chief Justice and senior judges and others concerned with
the welfare of juveniles and the working of the Juvenile Justice
D (Care and Protection of Children) Act, 2000, be set up in all the
High Courts to monitor the implementation of the provisions of
the Act in their true spirit.
It was noticed that the State Governments had not taken serious
steps to establish and set-up the various Homes, referred to in
E the Juvenile Justice (Care and Protection of Children) Act, 2000,
as amended in 2006 and the Juvenile Justice (Care and Protection
of Children) Rules, 2007. It was noticed that the conditions in
the Remand/ Observation Homes and Shelter Homes are not up
to the standard and a lot of improvement was required to make
F these facilities meaningful, as envisaged under the above Act
and Rules. It was also noticed that After-care Homes for
adolescents passing into adulthood and, in particular girls, have
not been taken up seriously by the concerned Authorities. The
Chief Justices shall take up the matter with the State Governments
for improving the conditions of the various Homes, referred to in
G the above Act and the Rules, and to provide for permanent staff
to run the said establishments, as it was reported by some of the
Chief Justices that many of the employees of the Homes had
been working on an ad-hoc basis, even for as many as fifteen
years. The Chief Justices were requested to take up the matter
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 957
[MADAN B. LOKUR, J.]
with the State Authorities to ensure that services of such persons, A
who have been working on ad-hoc basis, are regularised, if
necessary, by creation of posts.
Particular notice was taken of the fact that the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000,
had not yet been implemented in the State of Jammu and B
Kashmir.”
8. In 2015 the issue of strengthening the juvenile justice system
was once again discussed at the Chief Justices’ Conference and the
following resolution passed:
“Resolved that the High Courts shall continue to take all steps C
necessary, including evolving ways to ensure greater sensitivity,
to effectively deal with cases in the field of Juvenile Justice in
their respective States. The High Courts should ensure that
constitution of Juvenile Justice Boards and Child Welfare
Committees are in place, that visits are regularly made to the D
Juvenile Homes, Special Homes, Observation Homes, Shelter
Homes and Rescue Centres etc. and that such homes are set up
wherever they have not already been set up. It shall also be
ensured that the requisite facilities are provided as per the
Standards, Rules, Policies and Guidelines in all such Homes/
Centres. The assistance of State Legal Services Authorities and E
District Legal Services Authorities shall also be taken in this
regard.”
9. Finally, in 2016 at the Chief Justices’ Conference the following
resolution was passed:
F
“The Conference has noted the necessity for ensuring institutional
support for juveniles in conflict of law and children in need of
care and protection.
Resolved that:
(i) cases pending for a period in excess of one year be disposed G
of on priority by the JJBs;
(ii) Juvenile Justice Committees of the High Courts shall monitor
the pendency and disposal of adoption cases and applications
for declaring children free for adoption on a priority basis;
H
958 SUPREME COURT REPORTS [2018] 2 S.C.R.
A (iii) steps be taken to ensure that every district is equipped with
a Child Protection Unit, Special Juvenile Police Unit, Observation
Homes and Children Homes;
(iv) pending cases of orphaned, abandoned and surrendered
children be monitored by the Juvenile Justice Committees of High
B Courts;
(v) training and refresher training be imparted to judicial officers;
(vi) vacancies in juvenile justice institutions be filled up on a
mission mode basis in three months; and
(vii) State Legal Services Authorities should actively discharge
C their role.”
10. 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
D 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.
11. Appreciating that the judiciary has a constitutional obligation
to ensure that everybody acts in the best interests of the child, the Chief
E
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.
12. Notwithstanding nudging by the judiciary, judicial ‘activism’
and criticism of it, over the last decade or so, State Governments and
F
Union Territories have not fully complied with the provisions of a law
solemnly enacted by Parliament for the benefit of children. In many
instances, only cosmetic changes have been introduced at the ground
level with the result that voiceless children continue to be subjects of
official apathy. However, it must be acknowledged that the Union of
G India through the Ministry of Women and Child Development (for short
MWCD) has taken some bold steps in recognizing the rights of the
children and giving them some importance. Nevertheless, the overall
picture relating to the recognition of the rights of children and their
realization is far from satisfactory and remains gloomy as we continue
to trudge along the long and winding road.
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 959
[MADAN B. LOKUR, J.]
Writ petition in Public Interest A
13. Sampurna Behura, the petitioner before us, has done her
Masters in Sociology and was pursuing her Doctoral Thesis in the same
subject at the relevant time. She has been involved in handling cases of
child sexual abuse, street children and working children and has also
undertaken various studies on child rights. B
14. Concerned with the plight of children in the country, Sampurna
Behura filed a writ petition under Article 32 of the Constitution drawing
attention to several Articles of the Constitution which impose primary
responsibility on the State to ensure that the needs of children are met
and their basic human rights are protected. The Articles in the Constitution C
referred to by her include those in the Chapter on Directive Principles of
State Policy. She has also drawn attention to 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. D
15. She has also stated in the writ petition that the Act of 2000
was passed by Parliament bearing in mind various standards 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 Juveniles E
Deprived of their Liberty, 1990 and other relevant international
instruments.
16. 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 F
Justice Boards, Special Juvenile Police Units, establishment of appropriate
Homes for children in need of care and protection, improving the living
conditions of juveniles in conflict with law, medical facilities for children
in the custody of the State and several other human rights issues. It is on these
broad facts and averments that relief was prayed for in public interest. G
17. The writ petition also drew attention to surveys and researches
conducted in 2004-2005 in various States but it is not necessary to refer
to them in any great detail, notwithstanding their significance and
importance, since they might have lost immediate relevance with the
passage of time.
H
960 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 18. The prayer in the Public Interest Litigation is to the effect that
the Chief Secretaries and the Directors General of Police and
Superintendents of Police of all the States should forthwith implement
the Act of 2000 in its true spirit.
19. There is also a prayer that all respondent States be directed to
B provide basic amenities like nutritious food, proper and hygienic
accommodation, educational facilities, recreational facilities and
rehabilitation centres for juveniles in various Homes and to direct the
Collectors of each district to involve reputed NGOs in implementing the
orders of this Court.
C 20. The Act of 2000 has since been repealed and what is now in
force is the JJ Act. The repeal of the Act of 2000 does not at all change
the sum and substance of the reliefs claimed in the Public Interest
Litigation. As such this petition though filed way back in 2005 is not
infructuous, the issues raised being very much topical and alive even
today.
D
Proceedings in this Court
21. The writ petition was first taken up for consideration on 26 th
September, 2005 when notices were issued to all the respondents (Union
of India and States). After service of notice (which itself took about one
E 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 having elapsed. It was noted that the writ petition
highlights the horrible conditions in some Homes for children and that
F 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.
22. Reference was made in the order dated 3rd January, 2007 to
Sheela Barse II v. Union of India2 which also dealt with abandoned or
G destitute children lodged in various jails across the country for “safe
custody”. It was noted in that decision that the National Policy for the
Welfare of Children contained the following preamble:
“The nation’s children are a supremely important asset. Their
nurture and solicitude are our responsibility. Children’s
H 2
(1986) 3 SCC 632
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 961
[MADAN B. LOKUR, J.]
programmes should find a prominent part in our national plans A
for the development of human resources, so that our children
grow up to become robust citizens, physically fit, mentally alert
and morally healthy, endowed with the skill and motivations needed
by society. Equal opportunities for development of all children
during the period of growth should be our aim, for this would
B
serve our large purpose of reducing inequality and ensuring social
justice”.
23. The Court noted in that decision that if a child is a national
asset (as per the National Policy), it is the duty of the State to look after
the child with a view to ensuring full development of the personality and
that is why statutes dealing with children provide that a child shall not be C
kept in jail. It was directed that on no occasion should children be kept
in jail and if a State Government does not have sufficient accommodation
in its remand homes or observation homes for children, they should be
released on bail instead of being subjected to incarceration in jail.
24. It was also emphasized that Juvenile Courts should be set up D
in each district and there must be a special cadre of Magistrates who
are suitably trained for dealing with cases against children. Some other
directions were also issued but they arise out of the Childrens’ Act and
are presently not relevant. Reference was also made in the order to
Sheela Barse v. Union of India3 wherein this Court reiterated its E
decision referred to above.
25. It was noted that Juvenile Justice Boards (for short ‘JJBs’)
and Child Welfare Committees (for short ‘CWCs’) under the Act of
2000 have been constituted in very few districts. It was also noted that
some observation homes are like prisons with uniformed or armed police. F
26. 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 G
suggestions were made by NALSA in respect of child rights. We will
consider these submissions at the appropriate stage.
27. During the course of hearing, the Court lamented the confusion
and uncertainty about the availability of statistics relating to the number
3
(1988) 4 SCC 226 H
962 SUPREME COURT REPORTS [2018] 2 S.C.R.
A of juveniles in conflict with law in each district and details of such children.
This made it difficult to make an effective plan for providing legal aid or
providing appropriate Homes. The State Legal Services Authorities were
therefore required to collect data and NALSA was required to make
data available to the Court for issuing further directions. The Court also
observed that CWCs and JJBs are not functional or not constituted in
B
every district. Accordingly the State Legal Services Authorities were
requested to coordinate with the appropriate Department in the State
Government to ensure that CWCs and JJBs are established as per the
Act of 2000.
28. Pursuant to the order dated 19th August, 2011 a detailed and
C excellent Report was prepared by NALSA in three parts on the existing
facilities for implementation of the Act of 2000, with the month and year
of reporting being August 2011.
29. When the case was again taken up on 12th October, 2011 the
Court reiterated the importance of the directions passed on 19th August,
D 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
E 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.
30. The Home Department and the Directors General of Police
F were also directed to ensure that Special Juvenile Police Units are set
up in every district and city to coordinate and upgrade the treatment of
juveniles in conflict with law and children in need of care and protection
as required by sub-section (3) of Section 63 of the Act of 2000.
31. When the case was taken up for consideration on 11 th
G 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
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 963
[MADAN B. LOKUR, J.]
for the Union of India was requested to look into the matter and he A
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.
32. Soon thereafter, the JJ Act was passed by Parliament and
brought into force on 15th January, 2016. The JJ Act brought in several B
changes in the juvenile justice regime but the substratum of the petition
filed by Sampurna Behura remained unaffected.
33. Her PIL was taken up on 15th February, 2016 in the above
background and after hearing learned counsel for the parties and going
through various orders passed by this Court from time to time, the C
following issues were identified as needing serious consideration and
deliberation:
1. Constitution of State Child Protection Society.
2. Constitution of State Commissions for the Protection of Child
Rights. D
3. Establishment of Juvenile Justice Boards (JJBs) in every district
(if necessary more than one in some districts) and their training.
4. Establishment of Child Welfare Committees (CWCs) and their
training.
E
5. Appointment of Probation Officers and their training.
6. Establishment of Special Juvenile Police Units in every Police
Station, their training and updating the Police Training Manual.
7. Provision for legal aid lawyers and their training.
F
8. Proper selection of members of JJBs and CWCs.
9. Assessment of manpower requirements of JJBs and CWCs and
filling up the vacancies.
10. Furnishing of on-line quarterly reports by the State Governments.
G
11. Significance of Social Investigation Report.
12. Principal Magistrates should exclusively deal with Juvenile Justice
inquiries.
13. Registration of child care institutions.
H
964 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 14. Improvement of living conditions in government run child care
institutions.
15. Establishment of Juvenile Justice Fund.
34. Thereafter, the matter was taken up on 9th May, 2016 when
the learned Additional Solicitor General stated that the process of
B collecting and updating information online was underway in MWCD
and was proceeding at a fast pace and that he expected it to be completed
very soon. He also stated that the names of persons in various positions,
such as members of JJBs and CWCs would be placed on the website of
MWCD so that it would be easy to contact them whenever necessary.
C Learned Additional Solicitor General stated that the assistance of the
State Governments and the Union Territories was required for completing
the project. Accordingly this Court directed the State Governments and
the Union Territories to render necessary assistance to the Union of
India for updating the information and keeping it updated from time to
time.
D
35. As far as NALSA is concerned, it submitted on record a copy
of the Training Module for Legal Services Lawyers and Probation
Officers but it was suggested by the learned Senior Counsel appearing
for NALSA that since the Modules were prepared on the basis of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 NALSA
E would conduct some pilot training programmes to ascertain their efficacy
and subsequently bring them in line with the new Rules to be framed
under the JJ Act.
36. In the hearing on 22nd August, 2016 the Union of India was
required to consider the feasibility of urgently providing computers and
F internet connectivity to the Juvenile Justice Boards and Child Welfare
Committees.
37. 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
G 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.
38. We also required, in addition to the collated information, that
the State Commission for Protection of Child Rights (SCPCR) should
H be in place in every State and Union Territory. It may be mentioned that
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 965
[MADAN B. LOKUR, J.]
the SCPCR is a body constituted under the provisions of the Commissions A
for Protection of Child Rights Act, 2005 with a variety of functions as
detailed in Section 13 of the said Act.
39. On 5th April, 2017 and on 11th July, 2017 we noted the
information made available on the composition and constitution of the
SCPCRs and on an overall view of the matter it was found that a large B
number of vacancies existed and that little or nothing was being done by
some of the State Governments to fill them up or to show any urgency in
respect of protection of the rights of children.
40. Subsequently, on 15th November, 2017 we required MWCD
to inform us of the amounts lying in the Juvenile Justice Fund in each C
State and Union Territory.
41. With all this information available on record in some form or
the other, we heard the submissions of learned counsel for the parties on
20th November, 2017 and reserved judgment.
42. We have gone into detail with regard to some of the more D
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. It is easy to forget that children also deserve dignified E
treatment and merely because they have no voice in the affairs of State,
it does not mean that they are inconsequential members of society who
can be compelled to live in conditions that are uncomfortable (to say the
least) and who have little or no access to justice.
Affidavits filed by MWCD F
43. During the progress of the case, MWCD filed a few status
reports and affidavits.
44. In an affidavit filed on 31st July, 2015 the status of an online
Central Level Monitoring System being implemented by MWCD was
indicated. Briefly, each State and Union Territory is given a login ID and G
password to access the formats, feed data and submit Reports to MWCD.
Very broadly, the areas covered by the Reports are Homes and Children,
Open Shelters, Specialized Adoption Agencies, Non-Institutional Care,
Child Welfare Committees, Juvenile Justice Boards and Service Delivery
Structures. This is a very forward-looking step and a major attempt to
H
966 SUPREME COURT REPORTS [2018] 2 S.C.R.
A collect information so that the JJ Act could be effectively implemented
and the planning process more structured rather than ad hoc.
45. MWCD filed another affidavit on 8th September, 2015 which
indicated requests made to States and Union Territories to adhere to the
requirements of entering information in the software as required by the
B Central Level Monitoring System. An indication was given in the affidavit
regarding the extent of compliance. For the period 2014-15 it was stated
that while most States and Union Territories had provided the necessary
information, as many as 7 States were not fully compliant. For the period
2015-16 most States did not provide the necessary information. Those
who did were Assam, Union Territory of Chandigarh, Chhattisgarh,
C Himachal Pradesh, Madhya Pradesh, Meghalaya, Mizoram, Nagaland,
Punjab, Tamil Nadu and Tripura.
46. MWCD filed a status report on 4th December, 2015 giving the
details of Child Care Institutions and their registration as well as the
availability of Probation Officers in the States and Union Territories.
D Unfortunately, as per the affidavit the status was quite unsatisfactory in
the sense that not many Child Care Institutions had been registered and
there was a serious shortage of Probation Officers. In a further affidavit
of 12th February, 2016 MWCD stated that steps were being taken for
the registration of Child Care Institutions and it also indicated the role of
E a Probation Officer in the scheme of things.
47. In yet another affidavit filed by MWCD on 29th March, 2016
a factual response was given with regard to the 15 issues identified by
this Court on 15th February, 2015.
48. MWCD filed its final status report on 3rd May, 2016 in which it
F was stated that some formats for information given in the Central Level
Monitoring System were added in view of the 15 issues identified by this
Court.
49. In the affidavit dated 11th January, 2017 it was disclosed by
MWCD that the availability and use of computers and peripherals for
G juvenile justice issues was in quite a poor state. In fact, complete
information in this regard was not made available to MWCD by the
States and Union Territories.
50. In the final affidavit filed by MWCD it was disclosed that a
National Consultation was held on 26th September, 2017 and it appears
H from a reading of the affidavit that there is considerable improvement in
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 967
[MADAN B. LOKUR, J.]
the understanding of child rights and juvenile justice issues by the A
participants, but there is still a lot to be done. Unfortunately, the minutes
of the National Consultation have not been placed on record.
Information and data provided by NALSA
51. As far as NALSA is concerned, it had carried out a remarkable
study and placed on record a three part Report on issues pertaining to B
Juvenile Justice Boards, Child Welfare Committees and Homes under
the Act of 2000. Even though the reports prepared by NALSA are
extremely useful, since they are now quite dated (with data upto August
2011) they are not being referred to in any detail.
52. NALSA gave another Report on 20th July, 2015 in which it C
was pointed out that a large number of inquiries are pending before the
JJBs. It was pointed out that in Uttar Pradesh alone there are 34,569
inquiries pending and in district Durg in Chhattisgarh, there are 1883
inquiries pending before the JJBs. It was pointed out in the report that
many of the JJBs did not sit on a regular basis with some sitting maybe D
once or twice a week. It was also pointed out that in some places the
distance between the Observation Home and the JJB was considerable.
It was submitted that there was a need for Probation Officers who
would deal exclusively with juvenile justice issues.
53. At this stage, it may be mentioned that in May 2016 a Training E
Module for Probation Officers was brought out by NALSA. This Training
Module has since been utilized by NALSA and we have been given to
understand that it has been found to be extremely useful and beneficial
as a training guide.
Submissions made by the petitioner F
54. On its part, 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
G
these suggestions complement the suggestions given by NALSA.
Discussion, suggestions and recommendations
(i) National and State Commissions for Protection of Child Rights
55. Child related laws enacted by Parliament provide for two
extremely important policy and decision-making institutions in respect of H
968 SUPREME COURT REPORTS [2018] 2 S.C.R.
A children and child rights, namely the NCPCR and the SCPCRs. Similarly,
two extremely important bodies have been provided for at the ground or
grass-roots level for implementation of the JJ Act, namely the State
Child Protection Society and the District Child Protection Unit. In our
opinion, if these institutions and bodies perform their duties as required
by the laws made by Parliament, under the supervision and guidance of
B
the concerned State Government and the Government of India, recognition
and enforcement of child rights could actually become a reality in our
country.
56. The Commissions for Protection of Child Rights Act, 2005
provides for the Central Government constituting a body to be known as
C the NCPCR at the national level and the State Governments constituting
a body to be known as the SCPCR at the State level. The composition
of the NCPCR is provided for in Section 3 of the statute while a similar
composition of the SCPCR is provided for in Section 17 of the statute.
Section 3 of the Commissions for Protection of Child Rights Act reads
D as follows:
“3. Constitution of National Commission for Protection of
Child Rights.—(1) The Central Government shall, by
notification, constitute a body to be known as the National
Commission for Protection of Child Rights to exercise the powers
E conferred on, and to perform the functions assigned to it under
this Act.
(2) The Commission shall consist of the following Members,
namely:—
(a) a Chairperson who, is a person of eminence and has done
F outstanding work for promoting the welfare of children; and
(b) six Members, out of which at least two shall be women, from
the following fields, to be appointed by the Central Government
from amongst persons of eminence, ability, integrity, standing
and experience in,—
G
(i) education;
(ii) child health, care, welfare or child development;
(iii) juvenile justice or care of neglected or marginalized children
or children with disabilities;
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 969
[MADAN B. LOKUR, J.]
(iv) elimination of child labour or children in distress; A
(v) child psychology or sociology; and
(vi) laws relating to children.
(3) The office of the Commission shall be at Delhi.”
57. It is quite apparent that at the national level, the NCPCR is an B
institution consisting of eminent persons and experts in their respective
fields. As such, they are expected to look at issues concerning the welfare
of children in the national perspective taking into consideration the views
of every SCPCR and other stakeholders. At the State level, the SCPCR
is an equally significant body consisting of eminent persons and experts. C
They are expected to take policy decisions for the benefit of the children
in their State, regardless of which State the children originally belong to,
for there might be children of one State who are in need of care and
protection but in a Child Care Institution of another State.
58. The functions of the NCPCR and the SCPCR are more or D
less the same except that one performs these functions at the national
level, while the other performs these functions at the State level. Section
13 of the Commissions for Protection of Child Rights Act, 2005 details
the functions of the NCPCR and this reads as follows:
“13. Functions of Commission.—(1) The Commission shall
E
perform all or any of the following functions, namely:—
(a) examine and review the safeguards provided by or under
any law for the time being in force for the protection of child
rights and recommend measures for their effective
implementation;
F
(b) present to the Central Government, annually and at such
other intervals, as the Commission may deem fit, reports upon
the working of those safeguards;
(c) inquire into violation of child rights and recommend initiation
of proceedings in such cases; G
(d) examine all factors that inhibit the enjoyment of rights of
children affected by terrorism, communal violence, riots, natural
disaster, domestic violence, HIV/AIDS, trafficking, maltreatment,
torture and exploitation, pornography and prostitution and
recommend appropriate remedial measures; H
970 SUPREME COURT REPORTS [2018] 2 S.C.R.
A (e) look into the matters relating to children in need of special
care and protection including children in distress, marginalized
and disadvantaged children, children in conflict with law, juveniles,
children without family and children of prisoners and recommend
appropriate remedial measures;
B (f) study treaties and other international instruments and undertake
periodical review of existing policies, programmes and other
activities on child rights and make recommendations for their
effective implementation in the best interest of children;
(g) undertake and promote research in the field of child rights;
C (h) spread child rights literacy among various sections of the
society and promote awareness of the safeguards available for
protection of these rights through publications, the media, seminars
and other available means;
(i) inspect or cause to be inspected any juvenile custodial home,
D or any other place of residence or institution meant for children,
under the control of the Central Government or any State
Government or any other authority, including any institution run
by a social organisation; where children are detained or lodged
for the purpose of treatment, reformation or protection and take
E up with these authorities for remedial action, if found necessary;
(j) inquire into complaints and take suo motu notice of matters
relating to,—
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection and
F
development of children;
(iii) non-compliance of policy decisions, guidelines or instructions
aimed at mitigating hardships to and ensuring welfare of the
children and to provide relief to such children,
G or take up the issues arising out of such matters with appropriate
authorities; and
(k) such other functions as it may consider necessary for the
promotion of child rights and any other matter incidental to the
above functions.
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 971
[MADAN B. LOKUR, J.]
(2) The Commission shall not inquire into any matter which is A
pending before a State Commission or any other Commission
duly constituted under any law for the time being in force.”
59. It will be seen from the above that both the NCPCR and the
SCPCR have a range and variety of functions to perform and each one
of them entails a great deal of responsibility. We have been given to B
understand that both the Government of India and the State Governments
have not been giving these bodies the freedom to decide on broad policy
matters and indeed in some instances, particularly relating to the SCPCR,
vacancies have not been filled up for several months. In fact, the NCPCR
was compelled to file a writ petition in the Punjab and Haryana High
Court for a mandamus to the State Governments of Punjab and Haryana C
and the Union Territory of Chandigarh to fill up the vacancies of members
of the SCPCR.4 Unfortunately, at one point of time, even the position of
the Chairperson of the NCPCR was lying unfilled for several months,
until, on the directions of this Court, the position was eventually filled up.
We need hardly say that unless the NCPCR and the SCPCRs are given D
due importance by the Government of India and the State Governments
and vacancies are filled up in time, the enforcement of the rights of
children will remain on the back burner and any number of welfare
schemes formulated by the Government of India or by the State
Governments will remain unimplemented or their implementation will
remain sketchy and symbolic. E
60. We hope and trust that those in authority and power in the
Government of India and in the State Governments appreciate the
importance of adhering to the provisions of the laws enacted by Parliament
and ensure that the NCPCR at the National level and the SCPCR at the
State level actually function and perform their duties and recognize their F
responsibilities.
(ii) State Child Protection Society and the District Child Protection
Unit
61. In the absence of any clear-cut guidelines on who should be G
appointed to these two bodies, the State Governments have found an
easy way out by appointing Government officials only and leaving out
4
Court on its own motion v. State of Punjab and The National Commission for the
Protection of Child Rights (NCPCR) v. The State of Haryana and Others, Decided on
9th April, 2013 and reported as MANU/PH/0599/2013
H
972 SUPREME COURT REPORTS [2018] 2 S.C.R.
A members of civil society. In our opinion, the constitution of the State
Child Protection Society and the District Child Protection Unit need serious
consideration so that all stake-holders, including the police and NGOs
are actively involved in the performance of the functions, duties and
responsibilities of these two bodies.
B 62. The functions of the State Child Protection Society and the
District Child Protection Unit are detailed in Rule 84 and Rule 85 of the
Juvenile Justice (Care and Protection of Children) Model Rules, 2016
framed by the Government of India. [It may be noted that some States
have framed their independent Rules, but we are not referring to them].
The functions are varied, extensive and geared to improve the living
C conditions of children through different strategies and with the involvement
of all stake-holders.
63. For the effective implementation of the JJ Act and the policies
laid down by the NCPCR and the SCPCRs, Section 106 of the JJ Act
provides for the constitution of a State-level Child Protection Society
D and a District-level Child Protection Unit. Section 106 of the JJ Act
reads as follows:
“106. State Child Protection Society and District Child
Protection Unit.---—Every State Government shall constitute
a Child Protection Society for the State and Child Protection
E Unit for every District, consisting of such officers and other
employees as may be appointed by that Government, to take up
matters relating to children with a view to ensure the
implementation of this Act, including the establishment and
maintenance of institutions under this Act, notification of
F competent authorities in relation to the children and their
rehabilitation and co-ordination with various official and non-
official agencies concerned and to discharge such other functions
as may be prescribed.”
64. A perusal of the above provision broadly indicates that the
G primary function of the State Child Protection Society and the District
Child Protection Unit is to ensure implementation of the JJ Act. In
addition, these bodies are obliged to ensure that the institutions under the
JJ Act are established and maintained, competent authorities in relation
to children and their rehabilitation are in place and these two bodies are
also required to coordinate with Government officials as well as NGOs
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 973
[MADAN B. LOKUR, J.]
to discharge their wide-ranging functions. The involvement of civil society A
through NGOs is a progressive step and these two bodies are expected
to take their assistance from time to time.
65. If these two bodies actually perform their duties, responsibilities
and functions in the manner expected of them, the implementation of the
JJ Act would no longer be an issue. Unfortunately, we have been informed B
that these bodies are not functioning in many places or in the manner in
which they are expected to and in several districts the District Child
Protection Unit has not even been constituted. We expect remedial steps
to be taken by all concerned.
(iii) Juvenile Justice Boards and Child Welfare Committees C
66. With regard to the establishment of JJBs, we were given to
understand that most districts now have a JJB, but it is high time that
every district in every State must have a JJB. An exception could perhaps
be made, such as in some districts of Arunachal Pradesh where there is
perhaps no juvenile crime or, there could be some districts where the D
number of inquiries are very few in which event the JJB may appropriately
schedule its sittings. Similarly, a ‘circuit JJB’ could be considered if there
are some adjacent districts where the number of pending inquires is
quite few.
67. We have also been given to understand that the appointment E
of some social workers as members of the JJB is not necessarily in
accordance with the provisions of Section 4 of the JJ Act. The relevant
provision in this regard reads as follows:
“4. Juvenile Justice Board :– 1. xxx xxx xxx
2. A Board shall consist of a Metropolitan Magistrate or a Judicial F
Magistrate of First Class not being Chief Metropolitan Magistrate
or Chief Judicial Magistrate (hereinafter referred to as Principal
Magistrate) with at least three years experience and two social
workers selected in such manner as may be prescribed, of whom
at least one shall be a woman, forming a Bench and every such
G
Bench shall have the powers conferred by the Code of Criminal
Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as
the case may be, a Judicial Magistrate of First Class.
3. No social worker shall be appointed as a member of the Board
unless such person has been actively involved in health, education,
H
974 SUPREME COURT REPORTS [2018] 2 S.C.R.
A or welfare activities pertaining to children for atleast seven years
or a practicing professional with a degree in child psychology,
psychiatry, sociology or law.
4. xxx xxx xxx
5. The State Government shall ensure that induction training and
B sensitization of all members including Principal Magistrate of
the Board on care, protection, rehabilitation, legal provisions and
justice for children, as may be prescribed, is provided within a
period of sixty days from the date of appointment.
6. and 7. Xxx xxx xxx.”
C 68. The selection of social workers as members of the JJB is
required to be carried out in accordance with the provisions of Rule 88
read with Rule 87 of the Model Rules. It must be appreciated that the
appointment of social workers is serious business, inasmuch as they
bring their experience - practical and professional - while conducting an
enquiry under the JJ Act. This becomes all the more important when it is
D
appreciated that the social workers can also conduct an enquiry
independent of the Principal Magistrate as provided for in Section 7 of
the JJ Act. However, the final disposition of the enquiry cannot be without
the Principal Magistrate as mandated in the proviso to sub-section (3) of
Section 7 of the JJ Act. There is therefore a heavy responsibility on the
E social workers to make a meaningful contribution during the course of
an enquiry and also at the time of its disposition.
69. In this context, it is important to note that the training of the
Principal Magistrate as well as the social workers is extremely important
and this is provided for in Rule 89 of the Model Rules. Unfortunately, the
F duration of training and the curriculum and course have not yet formulated,
and the nature of training given to the Principal Magistrate and the social
workers is somewhat ad hoc and unstructured. The lack of meaningful
and effective training (and refresher courses) can have a vital impact on
the ultimate disposition of an enquiry as also on the rehabilitation and
reintegration of a juvenile in conflict with law who is before the JJB.
G Serious thought is required to be given to this not only from the point of
view of awareness of the law and child rights but also from the point of
view of sensitization of the JJBs, case management and creation of a
child friendly ambience and environment within the JJB for a juvenile in
conflict with law. It appears to us that not much thought has been given
H to these aspects of the functioning of the JJBs and that is perhaps the
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 975
[MADAN B. LOKUR, J.]
reason why a very large number of inquiries are pending as mentioned A
above, with the State of Uttar Pradesh topping the list.
70. On the functioning of the JJBs, it is worth referring to the
following passage from a decision of the Gauhati High Court in Naisul
Khatun v. State of Assam and Ors.5
“The second disturbing aspect of the case is that it appears the B
Juvenile Justice Board constituted under section 4 of the Act did
not actually sit or assemble to deal with the case of the juvenile.
We say so because from the original case records we find that
all the order sheets passed in the matter, including those refusing
bail, to juvenile have all been signed only by the Principal C
Magistrate of the Juvenile Justice Board. There is nothing to
suggest that the two social worker members of the Board ever
met to consider the request of the juvenile’s father to grant him
bail. This is rather unfortunate because the application of mind
has to be by the Juvenile Justice Board and not only by the
Principal Magistrate.” D
71. The submissions made before us by learned counsel for the
petitioner as well as by learned counsel appearing for NALSA suggest
that the JJBs do not have daily sittings. Of course, this would depend
upon the number of inquiries pending before each JJB, but clearly if
there are a large number of inquiries pending, it is the obligation of the E
JJB to sit on a daily basis so that the enquiry is concluded within the time
limit prescribed by the JJ Act. It does not serve any purpose at all if an
enquiry remains pending for a considerable period of time - no one
benefits by the delay in the disposition of an enquiry. In this context, we
may also add that where a large number of inquiries are pending, it F
would be worthwhile for the State Government and the High Court to
consider having more than one JJB. In Delhi, for instance, there are as
many as three JJBs functioning at any given point of time and that is
because of the large number of pending enquiries. Similar steps can be
taken by some of the other State Governments as well as by the High
Courts after evaluating and making an assessment of the need for more G
than one JJB being established in a district.
72. During the course of hearing, we had emphasized the need
for a study to be conducted by the State Governments on whether there
5
2011 Cri LJ 326 = 2010 SCC Online Gau 225 H
976 SUPREME COURT REPORTS [2018] 2 S.C.R.
A is adequate staff available with the JJBs. Unfortunately, the response
was rather poor and we were only told that there is adequate staff
available. It must be appreciated that a JJB is virtually in the nature of a
court, although it does not conduct a trial, but only conducts an enquiry.
Nevertheless, it does need adequate staff to perform its functions in an
efficient manner. The JJB also has several administrative functions and
B
they need due attention so that there is effective coordination between
the JJB, the officials of the Observation Home, the police, the juvenile in
conflict with law and the parents of that juvenile and lawyers representing
the police as well as the juvenile in conflict with law. These administrative
duties need attention if the JJB is to function effectively and a casual
C statement that the JJB has adequate staff, though possibly correct, is
neither here nor there considering the requirements of the stake-holders
who attend the enquiry before the JJB.
73. In this context, it must also be mentioned that there is a dire
need to have quality legal aid lawyers who can assist juveniles in conflict
D with law. This is an issue that must be taken up with all earnestness by
the State Legal Services Authority. Unless a child is given adequate
legal representation, it may impact his or her future, more so if the child
in conflict with law is found guilty and placed in a Special Home. On its
part, NALSA has brought out a manual for training of legal aid lawyers
and we believe that it will be extremely useful not only for legal aid
E lawyers who are representing juveniles in conflict with law, but also for
legal aid lawyers generally. Similarly, prosecutors also need to be
sensitized and we hope that the State Governments will take necessary
steps to educate and train them keeping in mind the primary objective of
the JJ Act, which is to reintegrate a juvenile in conflict with law in society
F and to rehabilitate that juvenile.
74. In the context of conducting an effective enquiry, the role of a
Probation Officer cannot be underestimated nor can we underestimate
the significance of an accurate Social Investigation Report prepared by
a Probation Officer. The duties of a Probation Officer have been detailed
G in Rule 64 of the Model Rules and this reads as follows:
“64. Duties of a Probation Officer. — (1) On receipt of
information from the Police or Child Welfare Police Officer under
clause (ii) of sub-section (1) of section 13 of the Act, without
waiting for any formal order from the Board, the Probation Officer
H shall inquire into the circumstances of the child as may have
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 977
[MADAN B. LOKUR, J.]
bearing on the inquiry by the Board and submit a social A
investigation report in Form 6 to the Board.
(2) The social investigation report should provide for risk
assessment, including aggravating and mitigating factors
highlighting the circumstances which induced vulnerability such
as traffickers or abusers being in the neighbourhood, adult gangs, B
drug users, accessibility to weapons and drugs, exposure to age
inappropriate behaviours, information and material.
(3) The Probation Officer shall carry out the directions given
by the Board and shall have the following duties, functions and
responsibilities: C
(i) To conduct social investigation of the child in Form 6;
(ii) To attend the proceedings of the Board and the Children’s
Court and to submit reports as and when required;
(iii) To clarify the problems of the child and deal with their D
difficulties in institutional life;
(iv) To participate in the orientation, monitoring, education,
vocational and rehabilitation programmes;
(v) To establish co-operation and understanding between the child
and the Person- in-charge; E
(vi) To assist the child to develop contacts with family and also
provide assistance to family members;
(vii) To participate in the pre-release programme and help the
child to establish contacts which could provide emotional and
social support to the child after release; F
(viii) To establish linkages with Probation Officers in other
Districts and States for obtaining social investigation report,
supervision and follow-up;
(ix) To establish linkages with voluntary workers and G
organisations to facilitate rehabilitation and social reintegration
of children and to ensure the necessary follow-up;
(x) Regular post release follow-up of the child extending help
and guidance, enabling and facilitating their return to social
mainstreaming;
H
978 SUPREME COURT REPORTS [2018] 2 S.C.R.
A (xi) To prepare the individual care plan and post release plan for
the child;
(xii) To supervise children placed on probation as per the individual
care plan;
(xiii) To make regular visits to the residence of the child under
B his supervision and places of employment or school attended by
such child and submit periodic reports as per Form 10;
(xiv) To accompany children where ever possible, from the office
of the Board to the observation home, special home, place of
safety or fit facility as the case may be;
C (xv) To evaluate the progress of the children in place of safety
periodically and prepare the report including psycho-social and
forward the same to the Children’s Court;
(xvi) To discharge the functions of a monitoring authority where
so appointed by the Children’s Court;
D (xvii) To maintain a diary or register to record his day to day
activities such as visits made by him, social investigation reports
prepared by him, follow up done by him and supervision reports
prepared by him;
(xviii) To identify alternatives of community services and to
E establish linkages with voluntary sector for facilitating
rehabilitation and social reintegration of children; and
(xix) Any other task as may be assigned.”
75. It is clear from a reading of the above provision that a Probation
Officer has a very important role to play in ensuring that a juvenile in
F conflict with law is given adequate representation and a fair hearing
before the JJB and the enquiry is conducted in a manner that is conducive
to the rehabilitation of the juvenile in conflict with law. In this regard, the
preparation of an individual care plan and post release plan gain immense
significance and a Probation Officer has an important role to play in this.
G 76. Once again, it is of great importance that a Probation Officer
should be given adequate training, sensitization and awareness of his or
her duties and responsibilities. NALSA has made a significant contribution
in this regard by preparing a training module for Probation Officers. We
expect all the State Governments as well as MWCD to ensure that
training is given to Probation Officers on the lines suggested by NALSA
H
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 979
[MADAN B. LOKUR, J.]
with improvements being made in adult learning techniques, training A
methodology, the curriculum and the course content in due course of
time.
77. The submissions made by learned counsel for all the parties
and our views and conclusions pertaining to the JJBs are equally
applicable to the CWCs and it is not necessary to repeat them. However, B
it might be noted that it is not always necessary for the State Legal
Services Authority to appoint legal aid lawyers to assist the CWC - this
would depend on a case to case basis and only as an Amicus Curiae for
the purpose of advising the CWC on a question of law, should the need
arise.
C
78. We were informed, somewhat unfortunately, that Child
Welfare Committees are sometimes treated as ‘second class bodies’
and that payment of honorarium is not made to them on a regular basis.
In addition, they are compelled to hold their sittings in buildings with very
poor infrastructure facilities. This is a sad commentary on the working
of the JJ Act for which the full responsibility rests on the shoulders of D
the concerned State Governments who must remedy the situation.
(iv) Use of technology
79. The use of technology, both by the JJBs as well as by the
CWCs is extremely important and we are disheartened to note from the E
affidavits and submissions made by MWCD that there is an acute
shortage of computers and peripherals with the JJBs and CWCs.
Technology is important not only for the effective functioning of the
JJBs and CWCs, but also to deal with issues that would arise from time
to time concerning the tracing and tracking of missing children, the rescue
of children working in hazardous industries, trafficked children, children F
who leave the Child Care Institutions, victims of child sexual abuse and
follow-up action, among several other requirements. It is well-known
that our country is a technological power-house and if we are unable to
take advantage of the resources available with us and fully utilize the
benefits of technology through computers and the internet for the benefit G
of children, our status as a technological power-house would be in
jeopardy and would remain only on paper. Data, particularly of the
magnitude of the kind that we are concerned with, can be easily collected
through the use of computers and the internet. This would be of great
assistance in planning and management of resources and MWCD and
others concerned with child rights must take full advantage of this. H
980 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 80. That apart, there can be no doubt that the use of computers
and peripherals would make an immense contribution to the administrative
functioning of the JJBs and CWCs. Both the Government of India and
the State Governments need to look into this and provide necessary
software and hardware to the JJBs and the CWCs for obvious reasons.
We were informed by learned counsel that the Police authorities in
B
Telangana and Andhra Pradesh in consultation with the Juvenile Justice
Committee of the High Court have made considerable use of information
and communication technology and we are of the view that innovative
steps must be encouraged. Similarly, the use of video conferencing could
also be considered in appropriate cases where some inconvenience to
C the juvenile in conflict with law necessitates the use of video conferencing
facilities.
81. In the context of the use of technology, MWCD must be
complimented for bringing out an online Central Level Monitoring System.
We have been told by the learned Additional Solicitor General that this
D online system is working rather effectively although it would need
upgrading from time to time as the months go by. The unfortunate part is
that there does not seem to be much active cooperation extended by the
State Governments in updating the information on the Central Level
Monitoring System. In one of the affidavits filed by MWCD and adverted
to above, it was stated that while almost every State Government has
E filled up the relevant information for the year 2014-15, but the response
was rather lukewarm with regard to the period 2015-16. Needless to
say, updating information is extremely important so that there can be
efficient planning which will ultimately lead to better management of
issues concerning children. We may mention that the State Governments
F are required to fill up the information on the Central Level Monitoring
System once a quarter and surely that cannot be a difficult task.
(v) Role of Police
82. An extremely important stake-holder in the effective
implementation of the JJ Act is the local police. Section 107 of the JJ Act
G mandates the appointment of a Child Welfare Police Officer (for short
‘CWPO’) and a Special Juvenile Police Unit (for short ‘SJPU’) in each
district. The SJPU must also include two social workers having experience
of work in the field of child welfare, one of them being a woman. The
responsibility for appointment lies on the State Government. Section 107
H of the JJ Act reads as follows:
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 981
[MADAN B. LOKUR, J.]
“107. Child Welfare Police Officer and Special Juvenile A
Police Unit. — 1. In every police station, at least one officer,
not below the rank of assistant sub-inspector, with aptitude,
appropriate training and orientation may be designated as the
child welfare police officer to exclusively deal with children either
as victims or perpetrators, in co-ordination with the police,
B
voluntary and non-governmental organisations.
2. To co-ordinate all functions of police related to children, the
State Government shall constitute Special Juvenile Police Units
in each district and city, headed by a police officer not below the
rank of a Deputy Superintendent of Police or above and consisting
of all police officers designated under sub-section (1) and two C
social workers having experience of working in the field of child
welfare, of whom one shall be a woman.
3. All police officers of the Special Juvenile Police Units shall
be provided special training, especially at induction as child
welfare police officer, to enable them to perform their functions D
more effectively.
4. Special Juvenile Police Unit also includes Railway police
dealing with children.”
83. We have been given to understand by learned counsel for the
parties that many States have actually appointed CWPOs and set up E
SJPUs. Unfortunately, their duties and responsibilities have not been
clearly identified but are generally stated in Rule 86 of the Model Rules.
We have also been given to understand that no system of effective
training for CWPOs and SJPUs has evolved and many of them exist
only symbolically and only because the law requires them to exist. Since
the duties and responsibilities of the CWPOs and SJPUs have not been F
specified or identified, it is high time in our opinion, that the Bureau of
Police Research & Development and the National Police Academy in
consultation with the State Police Academies identify the functions, duties
and responsibilities of the CWPOs and SJPUs. In this regard, we may
note that NALSA has prepared Guidelines for Training Juvenile/Child G
Welfare Officers attached to every police station and members of the
Special Juvenile Police Unit. Perhaps this could be a starting point for
their training through the Bureau of Police Research & Development
and the Police Academies.
H
982 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 84. The importance of training can be appreciated from the
allegations made before the Patna High Court in The Matter of Letter
of Sanat Kumar Sinha (Chief Co-ordinator), Bal Sakha v. The State
of Bihar through the Chief Secretary, Govt. of Bihar and Ors.6 It
was alleged in that case that a child was handcuffed by policemen in
uniform during his transit from the Police Station to the Civil Court for
B
his appearance before the Chief Judicial Magistrate. Additionally, it was
alleged that contrary to the provisions of the Act of 2000 the identity of
the child was disclosed. Of course, the Patna High Court took up the
issue with due seriousness but such a situation ought not to have occurred
at all and could have been avoided through proper training and
C sensitization.
85. With regard to the Police generally, it was submitted that due
to the policy of rotation, it often happens that soon after a police officer
completes his or her training that officer is transferred out to another
department. This is a waste of effort and one of the ways of resolving
D problems arising out of transfers is for every State Police Academy to
conduct regular training programmes under the guidance of senior police
officials of the State and for the State Government to optimally utilize
the services of its officers.
86. Similarly, the Government of India is required to involve
E Railway Police for dealing with children. No information or data is
forthcoming in this regard and learned counsel for the parties were unable
to assist us insofar as this aspect is concerned. We expect the Government
of India through the Railways to look into the matter with some degree
of urgency. We were told by learned counsel that a large number of
runaway children and children on drugs are found in railway stations
F (and other places) working as rag-pickers or performing other menial
activities. It was submitted before us that even otherwise, there is rampant
drug abuse among such children. Efforts must be made to establish de-
addiction centres especially for such children and also generally for
juveniles in conflict with law and children in need of care and protection.
G (vi) Child Care Institutions
87. There is a lot to be said with regard to Child Care Institutions.
Many of them are housed in run-down buildings and are hardly conducive
to comfortable living even to a minimum degree. State Governments
H 6
MANU/BH/0384/2008
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 983
[MADAN B. LOKUR, J.]
must appreciate that they are not doing any charity by putting up children A
in Child Care Institutions - they are merely performing their statutory
and constitutional obligations. There is, therefore, an urgent need to make
an evaluation and assessment of all the Child Care Institutions in every
State to ascertain their condition, the infrastructure requirements and
staffing requirements. Children live in these Institutions, not because
B
they want to but because they have no other option, since most of them
are children in need of care and protection. The obligation of society is
to provide solace and comfort to these children and adherence to the
minimum standards of care. Model Rules contain details for improved
Child Care Institutions and their requirements. The State Governments
have merely to adhere to these minimum requirements. The condition of C
some State managed Child Care Institutions is best illustrated by the
observations made by the Punjab and Haryana High Court in Court on
its own motion v. State of Punjab (supra) to the following effect:
“….The sordid state of the said Observation Home depicted
that Observation Home at Sonepat had two barracks and a front D
side courtyard with high walls. The entry gate was similar to jail
gate. The Home was having no source of recreation facilities or
playground for the juveniles housed therein. The courtyard was
filled with stagnated water due to blockage of drainage system
and there was hardly any place for going out of barrack for
using courtyard. Enquiry revealed that there was no arrangement E
for potable water. The bathrooms and kitchen were also in
deplorable condition. The Observation Home was managed by
a single teacher who, besides performing job of a teacher, was
also looking after the overall administration of the Home. In this
manner, no meaningful education was being imparted to the F
children. The Observation Home was found to be worse than a
prison. Observation Home at Hoshiarpur (Punjab) was found to
be no better with almost similar dilapidated conditions…..”
88. There are, of course, additional duties and responsibilities
obligated by the Constitution on the State Governments such as providing G
education, health-care (both physical and psychological) and adequate
nutrition. These are huge areas that need to be looked into with all sincerity
by the bodies and institutions established under the Commissions for
Protection of Child Rights Act, 2005 and the JJ Act. Concerned citizens
like Sampurna Behura can only highlight the systemic implementation
H
984 SUPREME COURT REPORTS [2018] 2 S.C.R.
A lapses and flaws and hope that the State Governments and the various
bodies constituted under statutes enacted by Parliament perform their
duties and functions. But, in such exceptional circumstances, the courts
are constitutionally obliged to issue a continuing mandamus in public
interest for implementation of the laws enacted by Parliament, which is
essentially the primary responsibility of the Executive. If the Executive
B
ignores the mandate of Parliament with continuing callousness, it will
only be to the detriment of the children of our country.
89. In this context, we may add that MWCD has made
considerable efforts in ensuring that Child Care Institutions run and
managed by individuals and NGOs are registered in accordance with
C the provisions of the JJ Act. We are quite surprised that there has been
some resistance to registration from some institutions, as informed by
the learned Additional Solicitor General, and therefore we must make it
clear that the law has to be obeyed as long as it exists on the statute
books. It might be uncomfortable for those who manage some of these
D Child Care Institutions, but registration is compulsory and in public interest
to ensure that minimum standards of care are maintained and the children
in those Institutions are well looked after. We may note that occasionally
there are allegations originating from Child Care Institutions of trafficking
and child sexual abuse, some of which may be unverified, but to avoid
any such shameful allegations it is necessary that their registration, their
E management and functioning are strictly monitored by the State
Governments and by MWCD.
90. It was suggested by learned counsel that in all Child Care
Institutions, there should be a segregation of children in terms of age and
wherever applicable segregation based on the nature of the offence
F allegedly committed so that the possibility of sexual abuse or any other
kind of violence is eliminated. Additionally, all such institutions should be
advised to provide vocational or continuing education with a view to re-
settling children in conflict with law and children in need of care and
protection by reintegrating and mainstreaming them in society. All these
G are issues of serious concern and need to be addressed by the State
Governments and SCPCRs.
91. It was emphasized that there should be adequate staff available
in all Child Care Institutions so that they are able to perform their duties
efficiently. It was also suggested that the location of the JJBs and CWCs
H should be in close proximity of the Child Care Institutions to avoid children
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 985
[MADAN B. LOKUR, J.]
having to travel long distances for their appearance before these statutory A
bodies. All these suggestions and recommendations made by learned
counsel are issues of concern and must be dutifully addressed by the
State Governments and the SCPCRs.
92. One of the submissions made with regard to Child Care
Institutions was that District Legal Services Authorities may make B
unscheduled visits to them to ascertain whether they are in fact
functioning as they should. We are of opinion that this ‘Visitor’ system is
definitely worth implementing and we expect NALSA to go ahead with
the suggestion given. In fact, the Chief Justices Conference in 2006 had
specifically adverted to the appointment of Visitors to Child Care
Institutions and in the Chief Justices Conference in 2013 and 2015 C
improving the living conditions in Child Care Institutions was also adverted
to. NALSA and the District Legal Services Authorities must respect the
views expressed in the Chief Justices Conferences.
(vii) Juvenile Justice Fund
D
93. The JJ Act provides for the constitution of a Juvenile Justice
Fund. The learned Additional Solicitor General placed before us figures
relating to the contribution of the State Governments in the Juvenile
Justice Fund. We are quite distressed to note that some of the State
Governments have not even set up the Juvenile Justice Fund while one
or two State Governments have set up the Fund with an embarrassing E
amount of only a few thousand rupees. We wonder how the welfare of
children can be looked after by these State Governments with such a
pittance in the kitty. Obviously, these State Governments are not seriously
concerned about the welfare of children, which is a pity. This is yet
another example of official apathy to the rights of children and a cause F
for worry.
(viii) Evaluation and assessment
94. Finally, it would be appropriate if some sort of an evaluation or
social audit is carried out every six months for the next couple of years
to monitor and supervise the implementation of the JJ Act. More than G
sufficient time has already elapsed since the Act of 2000 was enacted
by Parliament and certainly the children of our country deserve much
better and cannot wait for another 15 or 16 years for the effective
implementation of the JJ Act. Most of the children who were born when
the Act of 2000 was enacted are nearing adulthood and many of them
H
986 SUPREME COURT REPORTS [2018] 2 S.C.R.
A have not had the benefit of the provisions of the Act of 2000. This mistake,
a serious one at that, cannot be repeated in the implementation of the JJ
Act. It is said that children are the future of the country and if they are
not looked after, it is the future of the country that is at stake.
Conclusions and Directions
B 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
C 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.
D 2. The NCPCR and the SCPCRs should take their duties,
functions and responsibilities with great earnestness keeping
in mind the faith reposed in them by Parliament. A position
in these statutory institutions is not a sinecure. These bodies
have a very significant and proactive role to play in improving
E 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
F 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.
G
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
H avoided.
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 987
[MADAN B. LOKUR, J.]
5. The JJBs and CWCs must appreciate that it is necessary A
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.
B
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 C
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 D
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 E
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, administrative efficiency will improve F
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 G
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
H
988 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H is vital for understanding and appreciating child rights and
SAMPURNA BEHURA v. UNION OF INDIA & ORS. 989
[MADAN B. LOKUR, J.]
for the effective implementation of the JJ Act. All authorities A
such as JJBs and CWCs, Probation Officers, members of
the Child Protection Societies and District Child Protection
Units, Special Juvenile Police Units, Child Welfare Police
Officers and managerial staff of Child Care Institutions must
be sensitized and given adequate training relating to their
B
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 C
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 D
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 E
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. F
96. Finally, we request and urge the Chief Justice of each High
Court to seriously consider establishing child friendly courts and vulnerable
witness courts in each district. Inquiries under the JJ Act and trials under
other statutes such as the Protection of Children from Sexual Offences
Act, 2012, the Prohibition of Child Marriage Act, 2006, trials for sexual G
offences under the Indian Penal Code and other similar laws require to
be conducted with a high degree of sensitivity, care and empathy for the
victim. It is often said that the experience in our courts of a juvenile
accused of an offence or the victim of a sexual offence is traumatic. We
need to have some compassion towards them – even juveniles in conflict
H
990 SUPREME COURT REPORTS [2018] 2 S.C.R.
A with law, since they are entitled to the presumption of innocence - and
establishing child friendly courts and vulnerable witness courts is perhaps
one manner in which the justice delivery system can respond to ease
their pain and suffering. Another advantage of such child friendly courts
and vulnerable witness courts is that they can be used for trials in which
adult women are victims of sexual offences since they too are often
B
traumatized by the not so friendly setting and environment in our courts.
97. We record our appreciation for Sampurna Behura for
highlighting the issues raised in this Public Interest Litigation and to learned
counsel for the appearing parties in not making this an adversarial
proceeding, but a constructive effort for the benefit of the children of
C our country.
98. The petition stands disposed of.
99. The Registry should list the matter on 13th March, 2018 for
directions after obtaining a response from the Registrar General of each
D High Court.
Nidhi Jain Petition disposed of.
E
F
G
H
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