Re. Exploitation Of Children In Orphanages In The State Of Tamil Nadu Versus Union Of India & ORS.

[2013) 17 S.C.R. 1087 RE. EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE STATE OF TAMIL NADU v.

UNION OF !NOIA & ORS.

(Writ Petition (Crl.) No.102 of 2007) DECEMBER 16, 2013 [SURINDER SINGH NIJJAR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.]

Child Welfare - Directions passed by the Supreme Court c - To all the States and Union Territories - To implement protective provisions contained in Protection of Rights of Children from Sexual Offences Act, 2012 - Rights of Children to Free and Compulsory Education Act, 2009 and the Commission for Protection of Child Rights Act - The Court had also directed the States and Union Territories to establish protection institutions/implementation institutions, with necessary Rules and Regulations, and to file an affidavit indicating the time frame within which State Commission for the protection of children would be established - Writ petition indicating non-compliance of the directions - Held: It is the bounden duty of the States u!Arts.

1not appointing Chairman or Members - Hence further directions B(e issued to ensure that exploitation of children in all spheres of life is brought to an end with utmost expedition - Chief Secretaries ' of all the States are directed to file affidavits disclosing full details with regard to the implementation of the obligations specified under the above-mentioned three Acts - Protection of Child from Sexual Offences Act, 2012 - Right of Children to Free and Compulsory Education Act, 2009 - Commission

SUPREME COURT REPORTS [2013] 17 S.C.R.

A fOr Protection of Child Rights Act, 2005 - Constitution of India, 1950 - Arts. 21, 21A, 23, 24, 45 and 51A(k) CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) No.102 of 2007.

Under Article 32 of the Constitution of India. A. Mariarputham, AG, Paras Kuhad, Indira Jaising, ASGs, C.S. Rajan, lrshad Ahmad, Dr, Manish Singhvi, Krishna Sarma, Ajay Bansal, Manjit Singh, AAGs, Aparna Bhatt (AC), P. Ramesh Kumar, D. Bharathi Reddy, Abhijit Sengupta, Gopal C Singh, Manish Kumar, Rituraj Biswas, Sanjay R. Hegde, Naresh K. Sharma, Dharmendra Kumar Sinha, Pragyan P. Sharma, Heshu Kayina, P.V. Yogeswaran, Sunita Sharma, P.L. Nigam, Swati Vijaywargiya, B.K. Prasad, B.V. Bairam Das, D.L. Chidananda, A. Deb Kumar, Sushma Suri, Sonakshi Malhan, Ashok K. Srivastava, Asha G. Nair, Shadman Ali, Gunwant D Dara, S. Wasim A. Qadri, Zaid Ali, D.S. Mahra, Anil Katiyar, S.N.

Terdal, Sapam Biswajit Meitei, Khwairakpam Nobin Singh, Ameet Singh, Mukul Singh, Pragati Neekhra, Samar Vijay Singh, Amit Lubhaya, Suryanarayana Singh, Hemantika Wahi, Anuvrat Sharma, Riku Sarma, Navnit Kumar (for Mis Corporate Law Group), S. Thananjayan, Anil Shrivastav, V.G. E Pragasam, S.J. Aristotle, Prabu Ramasubramanian, Jayesh Gaurav, Gopal Prasad, Balaji Srinivasan, Ranjan Mukherjee, S.C Ghosh, S. Bhowmick, R.P. Yadav, Kuldip Singh, Devendra Singh, Jasleen Chahal, Pardaman Singh, Rajeev Kumar, Gaurav Yadav, Bina Madhavan, Jatinder Kumar Bhatia, Mukesh F Verma, C.D. Singh, Sunny Choudhary, Dr. Abhishek Atrey, Ashutosh Kr. Sharma, Ashok Panigrahi, Santosh Kumar, Aruna Mathur, Yusuf (for Arputham Aruna & Co.), A. Subhashini, M. Yogesh Kanna, A.

Santha Kumaran Vanita Chandrakant Giri, Vivekta Singh, Anil Antil, Tarjit Singh {for Kamal Mohan Gupta), K. Enatoli Serna, Amit Kumar Singh, D. Mahesh Babu, Aditya G Jain, Balasubramaniam, K.V. Jagdishvaran, G. Indira, Abhishek Kumar, Pandey, Aniruddha P. Mayee, Charudatta Mahindarkar, Lagnesh Mishra, V.N. Raghupathy, Anip Sachthey, Mohit Paul for the appearing parties.

RE. EXPLOITATION OF CHILDREN'iN ORPHANAGES IN THE 1 ~9 STATE OF TAMIL NADU v. UNION OF INDIA .A

ORDER

1. We have heard very lengthy submissions from the Amicus Curie Ms. Aparna Bhat, Ms. Indira Jaising, ASG, Mr. Parc:is Kuhad, ASG.

2. It has been brought to our notice that inspite of the emphatic directions that have been issued by this court on 3rd January, 2013 directing all the States and the l.Jnion Territories to implement the protective provisions contained in the Protection of Rights of Children from Sexual Offences Act, 2012, the Right of Children to Free and Compulsory Education Act, 2009 and the Commission for Protection of Child Rights Act, 2005, many States and Union Territories have not complied with the same. By order dated 3rd January, 2013, we had also directed the States to file an affidavit indicating the time frame within which the State Commission for the protection of children would be established.

By a subsequent order dated 7th February, 2013, further directions were issued to all the States and the Union Territories to comply with the obligations under the aforesaid three Acts, with regard to the establishment of protection institutions/implementation institutions, together with necessary Rules and Regulations. The aforesaid order was to be complied with within a period of three months from the date of receipt of the certified copy of tbe order. Sadly, we have to notice that inspite of the concern shown not only by this Court but also by the learned counsel appearing for the parties, little or no progress has been made in this regard. Although the affidavits have been filed indicating that the State Commissions have been established yet we find that such establishment is only on paper.

In many States, Chairman of the Commission has not been appointed and in some other States even Members have not been appointed. Th is\ apart, necessary rules and regulations have also not been framed. This, in our opinion, would be sufficient justification for this Court to take a serious view and initiate appropriate proceedings for contempt of court against the defaulting States and the Union Territories.

3. "Given the. l!ckadaisical rnC!.nner in which the States and the Union Territories have responded to the concern shown by '

SUPREME COURT REPORTS (2013] 17 S.C.R.

A this Court in relation to the wholly unacceptable situation prevailing and to stamp out any further exploitation of children, it has become necessary to re-emphasize that it is the bounden duty of the States under Articles 21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy environment tn which children who are the future of this .country can bloom and subsequently become m_ature and responsible citizen of this country. We have been pained to notice the utterly callous attitude adopted by the States as well as the Union Territories. We, therefore, have no option at this stage but to issue some further mandatory directions to ensure that the exploitation of c the children in all spheres of life is brought to an end with utmoi:t expedition.

4. We may notice af this stage that pursuant to our earlier directions Tripura, Dadar and Nagar Haveli, Lakshwadeep, Chandigarh, Andaman and Nicobar, Pondicherry and Daman D and Diu have .still not constituted State Commissions under Section 17 of the Commission for Protection of Child Rights Act, 2005. Some of the States which have established the State Commissions for the protection of children but have not completely constituted the same by either not appointing a Chairperson or Members are as under:

. Andhra Pradesh : The Commission exists only on paper as no Chairman/Member has been appointed.

Chattisgarh is partially constituted as only Chairman has been appointed and the members have not been appointed. Gujarat : Although Chairman has been appointed yet no member or Secretary of the Commission has been appointed. Haryana : The situation is exactly the same as Gujarat, i.e. neither any Member nor Secretary has been appointed G although the Chairman has been selected and appointed. Himachal Pradesh: Only a Member Secretary has been appointed. No Chairperson or Member has been appointed. Kerala - Again only a Secretary has been appointed but there is no Chairperson or Member appointed.

RE. EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 1091 STATE OF TAMIL NADU v. UNION OF INDIA Tamil Nadu has appointed a Chairperson but no Member has been appointed.

Nagaland - Nothini;t has been done, i.e. no Chairperson or Member has been appointed.

Similarly in U.P., nothing has been done as neither the Chairperson nor any Member has been appointed.

5. This inaction of the States is in the teeth of the directions issued by this Court on 3rd January, 2013 and 7th February,. 2013. We make it clear that this Court had taken notice of the exploitation of children and the deplorable conditions of children in various orphanages on the basis of the letter received, way back in the year 2007. Surely, the States and the Union Territories must realize that they have to operate under the Constitution and have to be duty bound to act in accordance with the provisions of the Constitution. Furthermore, each and every field which concerns the welfare and the protection of the children is covered by relevant legislation. The three prominent Acts have already been listed herelnabove.

6. Keeping in view the aforesaid attitude of the States and the Union Territories, we direct that the Chief Secretaries of all the States to wbich notices have been issued in this matter shall file an affidavit within a period of eight weeks from the date of this order disclosing full details with regard to the implementation of the obligations specified under the three Acts. The affidavit shall contain all the relevant information with regard to the following :

a.

Whether the State Commissions have been set up under Section 17 of the Commissions for Protection of Child Rights Act, 2005?

b.

Whether the appointment of the Chairperson and six Members has been made indicating the names of such Chairpersons and members?

c.

Whether Rules have been framed by the State Governments under the said Act?· d.

Whether the said Commissions are functional and if not what are the constraints. The appointment and

SUPREME COURT REPORTS [2013] 17 S.C.R.

the remuneration structure of the Chairperson, Members and supports staff including Member Secretary of the State Commissions?

i · The Chief Secretaries of the States in their affidavits to also indicate whether Special Courts have been designated under Section 28 of the Protection of Children from Sexual Offences Act, 2012?

e.

.B f.

Whether Special Public Prosecutors have been appointed under Section 32 of the said Act?

g.

Whether Rules have been framed under the Right to Education Act, 2009?

c h.

Whether all Institutions run by the State Governments or by Voluntary Organisations for Children in need care and protection have been - registered under the provisions of Section 34 of the Juvenile Justice (Care and Protection of Children) Act, 2000, read with Rule 71 of the said Act? Whether any unregistered institutions for children in need of care and protection are being run and if so have they been shut down or taken over by the State Governments?

· '

7. It is further directed that in the unlikely event of there being a non-compliance of any part of the directions issued by this Court, an officer'of the rank of Principal Secretary of State Government shall remain present in person in the Court to clarify F the issues with respect to the failure to implement the directions of the Court. If for any reason, the affidavit, as directed for, is not filed by the Chief Secretary before the next date of hearing, th1;m also, the officer of the rank referred above shall remain present in person to explain the reasons for the State's failure G to submit the affidavit.

· ·

8. The concerned State Governments shall also submit the required information in the format annexed hereto as part of the affidavit to be filed by them.

H Kalpana K. Tripathy Directions issued.

ANNEXURE THE PROTECTJON OF CHILDREN FROM- SEXUAL OFFENCES ACT, 2012 ~ .

rs.No Obligation of the States Curre t Detailed reasons for/failti.re ~eluding Received . date.· by Status'

of which the Implcrilentat implementation woulil ion (Canied stand carried out out/not !

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witp details i as to the carried out) '

I - ---~ date of order (a) (b) (c) (d) I Steps taken Circumstances Person who Dates On which Towards which rendered was respon- the matter was I Implementaimplementation swk·f6r ..

monitored by I ti on impossible implemen- Chief Secretfily tation "/towards ;

I en~uring im_plej '

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.. me,r:i.tato_n.

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~- 1.

Constitution of Sp~cial Court (section'28) r-----1---AppointmenlOfSpecial - 2.

- -1 .

I Public Prosecutor i (section 32) '

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I 3_ Framing of Guidelines _ _j for L1se of NGOs, experts etc.

to be associated

THE RIGHT OF CHIL~N TO FREE & COMPULSORY EDUCATION ACT, 2009 ......

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. s_-No-IObligatiO-n I States Detailed reasons for failure ~Cluding ReceiW(.f-da!e by which the implementation would stand carried out of the j-(~tu:Te~t I . Status of Implementat I I l ion (Carried out/not earned out) th details · en c "lJ Al m s:::

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tr any, I details l lscc~on 12)_ ~ __ _ Creatio11 of I ___ __L __ ';;:) Fund for the I I \vclfare of L :

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f--.- order .

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2.

Appointment of Chairperson and other members .

~ 0 co - 'section 181 3.

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Annual & Special Reports ... submitted by ·state· ---- . --·- - - ----- !

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-5.

Constitution 9f Children's Court (~ection .

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6.

Appointment of Special Public Prosecutor 7:· ·- 1_J~e~tion 26} Grants by the State Government to the State Cowmission.

If any, details I section 2af ii .

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Rules made to carry out the provisions of the Act 'Section 3611 l.