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Definition of child in need of protection under Juvenile Justice Act is not exhaustive: Supreme Court

Team SoOLEGAL 6 May 2017 3:05pm

Definition of child in need of protection under Juvenile Justice Act is not exhaustive: Supreme Court

With a view to protect and augment child rights and welfare, the Supreme Court today issued some significant directions in a 10-year old letter petition relating to rights of children.

The Court in its judgment held that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice Act should not be interpreted as an exhaustive definition. Instead, the benefits envisaged for children in need of care and protection should be extended to all such children requiring State care and protection.

The judgment was passed by Justices Madan B Lokur and Deepak Gupta in the case titled Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India.

The writ petition was taken up on the basis of an article published in the Hindi newspaper ‘Hindustan’ (Lucknow Edition) on July 4, 2007. The translated caption of the article was “Orphanage or Places for Child Abuse”. The article was forwarded to the Court by one AS Choudhury, along with a letter and that was the genesis of this petition which was registered as a Public Interest Litigation by the Supreme Court on September 10, 2007.

Advocate Aparna Bhat was appointed as Amicus Curiae to assist the Court.

Various issues were brought to the attention of the court including sexual abuse and trafficking of children.

Over the years, the Court passed several orders and also mentioned that certain other issues such as trafficking of children, schools being occupied by Central Para Military Forces and the right to education guaranteed to children require consideration. Thus, the Court sought to expand the scope of the PIL to include the rights of children in general.

One of the issues heard at length by the Court pertained to the implementation of the provisions contained in statutes relating to children such as The Commissions for Protection of Child Rights Act, 2005, The Right of Children to Free and Compulsory Education Act, 2009, The Protection of Children from Sexual Offences Act, 2012 and The Juvenile Justice (Care and Protection of Children) Act, 2000. The Court noted that the implementation of statutory provisions was ineffective.

“Since it appeared that there was a lack of seriousness and more tragically a lack of empathy towards the well being and welfare of children amongst some of the States and Union Territories and complete apathy with respect to the disturbingly increasing instances of child sexual abuse, often by someone in a position of authority and ineffective implementation of the laws passed by Parliament virtually making parliamentary legislation irrelevant, we heard detailed submissions of all the parties with the intention of passing appropriate directions so as to ensure the meaningful implementation of the statutes already enacted by Parliament.”

The court then narrowed down the discussion to one important aspect – the scope of “child in need of care and protection” under Section 2(14) of the Juvenile Justice Act.

It proceeded to hold that the statute is intended for the benefit of the children and hence a broad and expansive interpretation should be given to the provisions of the Act.

“… no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection. Smilarly in a given case, a child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection. Even though a child in need of care and protection is defined in Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the JJ Act) the definition does not specifically include some categories of children. Consequently, we are of the view that since the JJ Act is intended for the benefit of children and is intended to protect and foster their rights, the definition of a child in need of care and protection must be given a broad interpretation. It would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition. Beneficial legislations of the kind that we are dealing with demand an expansive view to be taken by the Courts and all concerned.”

The Court also dealt with other issues like registration and inspection of child care institutions, utilisation of grants for Integrated Child Protection Scheme, enforcing minimum standards of care as envisaged in the Juvenile Justice Act and Model Rules.

It, therefore, issued, inter alia, the following directions:

  1. The definition of the expression “child in need of care and protection” under Section 2(14) of the JJ Act should not be interpreted as an exhaustive definition. The definition is illustrative and the benefits envisaged for children in need of care and protection should be extended to all such children in fact requiring State care and protection.
  2. The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31st December, 2017 with the entire data being confirmed and validated. The information should be available with all the concerned officials. The registration process should also include a data base of all children in need of care and protection which should be updated every month. While maintaining the database, issues of confidentiality and privacy must be kept in mind by the concerned authorities.
  3. The Union Government and the governments of the States and Union Territories are directed to enforce the minimum standards of care as required by and in terms of the JJ Act and the Model Rules positively on or before 31st December, 2017.
  4. The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme. Returning the grants as unspent or casual utilization of the grants will not ensure anybody’s benefit and is effectively wasteful expenditure.
  5. It is imperative that the Union Government and the governments of the States and Union Territories must concentrate on rehabilitation and social re-integration of children in need of care and protection. There are several schemes of the Government of India including skill development, vocational training etc which must be taken advantage of keeping in mind the need to rehabilitate such children.
  6. The governments of the States and Union Territories are directed to set up Inspection Committees as required by the JJ Act and the Model Rules to conduct regular inspections of child care institutions and to prepare reports of such inspections so that the living conditions of children in these institutions undergo positive changes. These Inspection Committees should be constituted on or before 31st July, 2017 and they should conduct the first inspection of the child care institutions in their jurisdiction and submit a report to the concerned government of the States and Union Territories on or before 31st December, 2017…..
  7. Wherever the State Commission for Protection of Child Rights has not been established or though established is not fully functional in the absence of a Chairperson or any one or more Members, the governments of the States and Union Territories must ensure that all vacancies are filled up with dedicated persons on or before 31st December, 2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection………

…….

  1. The importance of social audits cannot be over-emphasized. The necessity of having a social audit has been felt in some statutes which have been mentioned above and also by the Comptroller and Auditor General of India. That being the position, it is imperative that the process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights….”

    By B&B

Tagged: Juvenile Justice Act   Supreme Court  
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