Forum For Fairness In Education An ... vs Union Of India And 2 Ors
2016 Latest Caselaw 2076 Bom

     ssp                                        1                          ospil-84.13



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                   ORDINARY ORIGINAL CIVIL JURISDICTION

                PUBLIC INTEREST LITIGATION NO. 84 OF 2013




                                                
     Forum for Fairness in Education An NGO,




                                               
     through its Authorized Person 
     Shri Raghu S. Chari.                ..                       Petitioner 

              Vs




                                       
     Union of India and Others.                  ..    Respondents
           -                 

Mr. Siddharth Murarka a/w. Mr. Vinay Kanodia i/b. M/s. Law Chambers of Siddharth Murarka, Advocate for the Petitioner.

Mr. Dhanesh R. Shah, Advocate for Respondent No.1 - UOI.

Mr. B. B. Sharma, AGP for Respondent Nos.2 and 3 - State.

CORAM : A.S. OKA & P.D. NAIK, JJ DATED :APRIL 28 & 29 & MAY 2, 2016

ORAL JUDGMENT : (PER A.S.OKA,J.)

1 The submissions were heard on the last

date. We will have to make a brief reference to

the controversy in this Public Interest Litigation.

Essentially, this PIL has been filed by the

Petitioner inviting attention of the Court to the

fact that the provisions of the Commissions for

Protection of Child Rights Act, 2005 (for short "the

ssp 2 ospil-84.13

said Act") are not being implemented in its true

letter and spirit in the State of Maharashtra. The

first contention is about failure of the State

Government to constitute a State Commission for

Protection of Child Rights (for short "State

Commission") in accordance with Section 17 of the

said Act. The second contention is that there is a

non-compliance with the provisions of the Sub-

section (1) of Section 4 of the Right to Information

Act, 2005 ( for short "the said Act of 2005") by the

State Commission as well as the National Commission

established under the said Act. The third point

which is canvassed by the learned counsel appearing

for the Petitioner is regarding remuneration/salary

payable to the Chairperson and members of the State

Commission. It is also pointed out the manner in

which the present Secretary of the State Commission

is passing orders. The fourth contention is

regarding creation of helpline for children and the

last contention urged is about the appointment of

Public Prosecutors having special knowledge in the

subject. We have also heard learned counsel

appearing for the Government of India as well as the

learned AGP for the State. We have perused the

ssp 3 ospil-84.13

affidavit filed on record by Shri Jamsing Bijesing

Girase, the District Woman and Child Development

Officer on behalf of the State Government.

2 Before we deal with the submissions, it

will be necessary to make a reference to the

relevant provisions of the said Act and the scheme

of the said Act. The Act has been enacted to

provide for the constitution of a National

Commission and the State Commissions for Protection

of Child Rights and establishment of the Children's

Courts for providing speedy trial of offences

against children or of violation of child rights.

The provisions of the said Act are based on the

Convention on the Rights of the Child (CRC) dated

11th December 1992. As per the CRC, it was incumbent

upon the signatory States to take all necessary

actions to protect the children's rights which are

set out in the said Convention. The Central

Government adopted a National Charter for Children

in the year 2003. The Statement of Objects and

Reasons of the said Act notes very important fact

that the India has the largest child population in

the world.

      ssp                                       4                          ospil-84.13



     3                 The   definition   of   the   "child   rights" 




                                                                       

incorporated in Clause (b) of Section (2) of the

said Act is very wide. Clause (b) reads thus:

"2(b) "child rights" includes the children's rights adopted in the United Nations convention on the Rights of the Child on the 20th November 1989 and

ratified by the Government of India on the 11th December, 1992".

Chapter II in the said Act deals with the

National Commission for protection of child rights,

constitution of the National Commission and other

ancillary provisions. It also provides for procedure

for transaction of business by the National

Commission. Chapter III deals with functions and

powers of the Commission. Section 3 provides for

constitution of the National Commission. Section 17

of Chapter IV provides for constitution of State

Commission. Various provisions are made regarding

appointment of Chairperson and other members as well

as salary and allowances payable to them. Chapter V

deals with establishment of Children's Courts and

Section 26 thereof provides for appointment of the

Special Public Prosecutor for the purposes of

ssp 5 ospil-84.13

conducting cases before the Children's Courts.

5 Before we deal with the constitution of a

State Commission, it will be necessary to make a

reference to the functions and powers of the State

Commission. Section 24 provides that the provisions

of Sub-section (1) of Sections 13 and Sections 14

and 15 which are applicable to the National

Commission are also applicable to a State

Commission. Sub-section (1) of Section 13 of the

said Act reads thus:

"13(1) The Commission shall 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; .

(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;

(d) examine all factors that inhibit the enjoyment of rights of children

ssp 6 ospil-84.13

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; .

(e) look into the matters relating to children in need of special care

and protection including children in distress, marginalised and disadvantaged children in conflict with law, juveniles, children

without family and children of prisoners and recommend appropriate remedial measures;

(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;

(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, 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

ssp 7 ospil-84.13

detained or lodged for the purpose of treatment, reformation or protection and take up with these

authorities for remedial action, if found necessary;

(j) inquire into complaints and suo motu notice of matters relating to,-

(i) deprivation and violation of child rights;

(ii) non-implementation of

laws providing for protection and 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;

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."

6 Thus, very important functions have been

assigned to the State Commission. The State

Commission also exercises important power of

inquiring into the complaints and taking suo motu

notice of matters regarding deprivation and

violation of child rights, non-implementation of

ssp 8 ospil-84.13

laws providing for protection and development of

children and non-compliance of policy decisions,

guidelines or instructions aimed at mitigating

hardships to and ensuring welfare of the children.

Sub-section (2) of Section 13 provides that the

National Commission shall not inquire into any

matter which is pending before a State Commission.

Sub-section (2) also shows that an important role is

expected to be played by the State Commission as the

National Commission is powerless to deal with any

matter in respect of inquiry which is pending before

the State Commission.

7 As far as the powers of the State

Commission are concerned, in the affidavit of Shri

Jamsing Bijesing Girase filed on behalf of the State

Government, it is contended that the said Commission

is conducting various activities under sections 13

and 14 of the said Act as well as sections 31 and 32

of the Right to Education Act,2009. Now, it will be

necessary to consider the first issue regarding

constitution of the State Commission. In the said

affidavit in reply, it is contended that the term of

the Chairman and the Members of the State Commission

ssp 9 ospil-84.13

of Maharashtra expired on 2 nd December 2011 and that

the State Government initiated process to appoint

the Chairman and members of the Commission.

Unfortunately, till today, the said process has not

been completed. The stand taken in the affidavit in

reply is that the Principal Secretary of the Women

and Child Development Department has been appointed

as In-charge Chairman to carry on day to day

business of the Commission with the help of the

Secretary till the appointment of the regular

Chairman and Members is made.

8 Sub-section (2) of section 17 defines the

constitution of the State Commission. Sub-section

(2) of section 17 reads thus:

"(2) The State Commission shall consist of

the following Members, namely:-

(a) A Chairperson who is a person of

eminence and has done 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 State Government from

ssp 10 ospil-84.13

amongst persons of eminence, ability,

integrity, standing and experience in, -

(i) education;

(ii) child health, care, welfare or child

development;

(iii) juvenile justice or care of

neglected or marginalized children or

children with disabilities;

(iv) elimination of child labour or children

in distress;child psychology or sociology;and

(v) laws relating to children."

9 It provides that the Chairperson has to be

a person of eminence who has done outstanding work

for the welfare of children. The Commission

consists of six other Members who are to be

appointed from the persons of eminence, ability,

integrity, standing and experience in education,

child health, juvenile justice and child psychology

or sociology and the laws relating to the children.

It is unfortunate that from 2 nd December 2011 till

today, the State Government could not constitute the

State Commission which exercises important powers

not only under the said Act but under other Acts

ssp 11 ospil-84.13

including section 44 of the Protection of Children

from Sexual Offences Act,2012. There is one more

aspect of the matter. The learned counsel for the

petitioner pointed out that the Secretary is passing

orders on behalf of the State Commission. By way of

illustration, he has placed on record the orders

passed by the Secretary in Case 24/2011-2012. There

are other orders placed on record. The Secretary is

purporting to exercise of the powers of the State

Commission. The Secretary is appointed under sub-

section (1) of section 21 and the responsibility of

the Secretary has been specified in sub-section (2).

Rule 5 of the Rules framed under the said Act

prescribe powers and the duties of the Secretary.

On plain reading of the Rule 5 of the said Rules of

2010, it is obvious that the Secretary cannot

exercise powers of the State Commission. The said

fact will have to be brought to the notice of the

Secretary of the State Commission.

10 As far as the process of constitution of

the State Commission is concerned, a compilation

documents tendered by the learned AGP shows that the

process commenced in October 2015. However, as this

ssp 12 ospil-84.13

Court found that the notices inviting applications

were published in the newspapers having no

circulation, the State Commission has revoked the

said process and has taken a decision to start a

fresh process. The learned AGP stated that the

State Government proposes to publish advertisements

inviting applications for nomination to the post of

the Chairman and the Members by publishing notices

in daily Loksatta, Times of India and Sakal. In

addition, notice will have to be published in daily

Lokmat. We make it clear that the advertisements

inviting applications will have to be published in

all local editions in the State of the said

newspapers and not only in local editions published

from Mumbai.

11 Considering the fact that for a period of

more than 5 years, a regularly constituted State

Commission does not exist, the whole process

appointment will have to be expedited by the State

Government by taking steps for the appointment of

the Selection Committee. The State will have to

ensure that the Selection Committee in terms of

section 18 of the said Act will be constituted

ssp 13 ospil-84.13

within a period of 15 days from the date on which

public notice inviting applications is published in

the aforesaid newspapers. We propose to grant time

of six months from today to the State Government to

constitute the State Commission in terms of section

17 of the said Act.

12 We have already made a reference to the

qualifications of the Chairperson and the Members of

the State Commission. The requirement is that they

must be persons of eminence. Their functions and

that their duties are important which we have

already set out in earlier part. The learned

counsel for the petitioner pointed out that as far

as the National Commission is concerned, there are

Rules framed under the title of the National

Commission for Protection of Child Rights

Rules,2006. Our attention is invited to sub-rule 1

of Rule 7 which provides that the salary of the

Chairperson shall be equivalent to the salary of the

cabinet Secretary to the Government of India and

every other member shall be paid salary equivalent

to the salary of a Secretary of the Government of

India. The learned counsel for the petitioner also

ssp 14 ospil-84.13

pointed out the amendment made to the said Rules

2006 in the year 2014. In this context, it will be

necessary to make a reference to the Maharashtra

State Commission for Protection of Child Rights

Rules,2010 framed by the State. Rule 4 provides for

payment of monthly honorarium of Rs.5,000/- to the

Chairperson and Rs.3,000/- to the Members of the

State Commission. Thus, there is a vast difference

between the honorarium payable to the Chairman and

Members of the National Commission and their

counterparts in the State Commission. The National

Commission and the State Commission exercise

virtually the same power and discharge same duties.

Considering the fact that the State Commission

exercises powers not only under the said Act but

also various other statutes, It is obvious that the

work of the Chairman and Members of the State

Commission will be virtually a full time work. If

the State Government expects the persons of eminence

in various fields to work in the State Commission,

it is obvious that very few persons of eminence as

contemplated by sub-section (2) of Section 17 will

come forward to apply. Considering the fact that

the powers and the duties of the National Commission

ssp 15 ospil-84.13

and the State Commission are the same, the State

Government will have to immediately consider of

increasing the remuneration payable to the Chairman

and the members of the State Commission. It is

obvious that their remuneration will have to be only

marginally less than the remuneration payable to the

Chairperson and the members of the National

Commission. Unless this is done, in all probability,

the State Government may not be able to nominate

very deserving persons. The State Government will

have to take appropriate decision on this aspect

within a period of one month from today. It will be

ideal if the State Government takes the decision

before the notice inviting the applications is

published so that the candidates can be made aware

of the revised remuneration payable to the said

posts.

13 The next issue canvassed by the learned counsel

appearing for the petitioner is of the compliance

with Section 4 of the said Act of 2005 as regards

the obligation of all the public authorities. He

pointed out that as far as the said compliance is

concerned, after perusing the website maintained by

ssp 16 ospil-84.13

the State Commission, he has noticed that most of

the material data and details have not been placed

on the said website in compliance with Section 4 of

the said Act of 2005. In the written submission

tendered by the learned counsel on record on the

last date which are taken on record and marked "X2"

for identification, he has set out in detailed the

disclosures which are required to be made by the

State Commission. He has pointed out that under 15

different heads, the compliances are required to

be made on the website of the State Commission. He

pointed out that certain undated orders signed by

the Secretary of the State Commission have been

uploaded on the website. He pointed out that on the

website of the State Commission, there are as many

as 7 pages containing details only of the Secretary

of the State Commission.

14 We have perused Section 4 of the said Act

of 2005. Public authority has been defined under

Clause 8 of Section 2 of the said Act of 2005.In

view of the said definitions, both the State and

National Commissions are public authorities within

the meaning of the said Act of 2005. The

ssp 17 ospil-84.13

obligations of all public authorities have been set

out in Section 4 and in particular Sub-section (1)

thereof the said Act of 2005. The State Commission

will have to look in to the deficiencies pointed out

by the petitioner in the brief note marked as "X2"

and in fact, even the National Commission will have

to also substantially comply with the requirements

of Sub-section (1) of Section 4.

Now coming back to the provisions of the

said Act, Section 25 provides for the establishment

of Children's Court. The object of Section 25

appears to be to ensure that there is a speedy trial

of offences against the children as well as of

violation of child rights. Section 26 provides for

appointments of special public prosecutors for the

purpose of conducting cases before the Children's

Court. We must note here that appointing special

public prosecutors under Section 26 is not an empty

formality. The State Government has appointed

existing public prosecutors as special public

prosecutors. The object of Section 26 appears to be

to ensure that only those members of the bar who are

conversant with the laws regarding rights of the

ssp 18 ospil-84.13

children and who will be able to discharge their

duties taking into consideration the objects of the

said Act should be appointed as the special public

prosecutors under section 26.

16 The State Government will have to consider

the question whether women members of the bar should

be given priority when it comes to the appointment

of the special public prosecutors under section 26.

Our attention is invited in the affidavit of the

State Government and in particular Exhibit-D to the

said affidavit which is the notification dated 30th

July, 2009 specifying that all the public

prosecutors/additional public prosecutors appointed

under Section 24(3) of the Code of Criminal

Procedure, 1973 shall be the Special Public

Prosecutors for conducting cases before the

Children's Court. Appointment of special public

prosecutor under section 26 requires application of

mind. Appropriate authority of the State Government

before nominating any public prosecutor or any

member of the Bar as a special public prosecutor

under section 26 will have to ascertain whether the

person sought to be appointed as a special public

ssp 19 ospil-84.13

prosecutor will be capable of discharging duties as

a special public prosecutor considering the objects

of the said Act. The State Government has to ensure

that the members of the Bar who are capable of

discharging the duties as a special public

prosecutor are appointed under Section 26.

Therefore, the State Government will have to

reconsider the notification dated 30th July, 2009 in

the light of the observations made by us and the

State Government will have to take proper steps for

appointment of proper Special public prosecutors

considering the scheme of the said Act and

especially Section 26 of the said Act. The State

Government will have to also ensure that regular

training is imparted to those persons who are

appointed as the special public prosecutors under

Section 26 of the said Act.

17 The other issue is regarding creation of

awareness and creating helpline to assist the

children. The learned counsel appearing for the

petitioner has relied upon United Nations Convention

on the Rights to Child 1989 and in particular

Article 42 thereof. Apart from creating awareness

ssp 20 ospil-84.13

as contemplated by the said convention, it will be

appropriate if the State Government as well as

Central Government provide for giving adequate

publicity not only to the provisions of the said

Act, but also to the provisions of various

enactments dealing with violation of the rights of

children. Both the Governments will have to give

adequate publicity to the rights of the children

which are spelt out from various provisions

including the provisions of the said Act as well as

remedies available in case of violation rights of

children and machinery created by the State

Government as well as the Central Government under

the said Act as well as other enactments.

18 Apart from giving wide publicity as stated

above, a grievance redressal mechanism will have to

be set up by the State Government for entertaining

grievances regarding the violation of rights of the

children. The children who are the victims of the

violation may not be in a position to make any

complaint. Therefore, as far as the State Government

is concerned, it will have to create grievance

redressal mechanism for receiving grievances

ssp 21 ospil-84.13

regarding violation of rights of children. The

mechanism will provide for receiving the complaints

in traditional form i.e. in form of writing as well

as receiving complaints on dedicated toll free

number as well as on dedicated websites. Provision

shall be also made for receiving complaints by using

media like Whats app application. The grievance

redressal mechanism must also provide for

entertaining anonymous complaints as regards major

or gross violation of rights of the children so

that the informant many not become the victim

himself. The learned counsel appearing for the

petitioner relied upon order passed by this Court in

the said PIL No.125 of 2010. While giving publicity

as directed above, the State Government will have to

consider the directions issued by this Court in the

said PIL. A wide publicity will have to be also

given to the availability of the grievance redressal

mechanism.

19 As stated earlier, till the State

Commission is properly constituted, the State

Government will have to ensure that the Secretary

remains within bounds especially in the light of the

ssp 22 ospil-84.13

fact that the Secretary cannot perform duties and

functions of the State Commission and his duties are

confined to what is provided under Section 21 as

well as the relevant Rules. So long as the State

Commission is not constituted in terms of the

directions issued by this Court, only the

Chairperson will have to exercise the powers vested

in the State Commission and to perform duties vested

to the State Commission.

20 Lastly, our attention is invited to Sub-

section (1) of Section 19 of the said Act which

provides that the term of office of the Chairperson

and other members is for a period of three years

from the date of assumption of the office. As

pointed out in the earlier part of the judgment, for

the last more than five years, a validly constituted

State Commission is not in existence. The process

of constitution of State Commission by its very

nature involves a lengthy procedure. Therefore,

process of selection of new Chairperson and members

of the State Commission will have to be commenced at

least nine months before the date of expiry of their

respective tenures so that there is no time gap

ssp 23 ospil-84.13

between the expiry of the term of the Chairperson

and the Members of the State Commission and the

constitution of new State Commission.

21 Though we propose to dispose of this PIL by

issuing directions as indicated above, we propose to

direct that the PIL shall be listed from time to

time for reporting compliance by the respondents

with the directions issued by this Court.

22 Hence, we dispose of the petition by

passing the following order:

:: O R D E R ::

(i) We direct the State Government to

immediately reconsider the issue of the

remuneration payable to the Chairperson

and Members of the State Commission

under the Commissions for Protection of

Child Rights Act, 2005. The State

Government shall consider of

substantially enhancing the remuneration

which is provided in Rule 4 of the

ssp 24 ospil-84.13

Maharashtra State Commission for

Protection of Child Rights Rules, 2010.

Endeavour shall be made to fix the

remuneration of the Chairperson and

Members consistent with the remuneration

payable under the Central Rules to the

Chairperson and Members of the National

Commission. The State Government shall

take appropriate decision on this aspect

within a period of one month from the

date on which an authenticated copy of

this judgment and order or operative

part thereof is produced in the office

of the concerned department of the State

Government;

(ii) The State Government shall commence the

process of constitution of the State

Commission on expiry of a period of one

month from the date on which an

authenticated copy of this judgment and

order is produced in the appropriate

Department of State Government. The

State Government shall publish a notice

ssp 25 ospil-84.13

inviting applications in four daily

newspapers namely Times of India,

Loksatta, Lokmat and Sakal in all its

local additions published in the

different parts of the State. The

entire process of the constitution of

the said State Commission shall be

completed by the State Government within

a period of six months from the date of

publication of the notice;

(iii) Though the time provided under Sub-

section (1) of Section 4 of the Right to

Information Act of 2005 to make

compliance has already expired, we

direct both the State Commission as well

as the National Commission under the

said Act to substantially comply with

the requirements of Sub-section (1) of

Section 4 of the said Act of 2005 within

a period of two months from the date on

which an authenticated copy of this

judgment and order is produced by the

petitioner in the offices of the

ssp 26 ospil-84.13

Secretaries of the said Commissions.

While making substantial compliance, the

State Commission as well as the National

Commission shall take into consideration

what is set out in pages 4 and 5 of the

written note submitted by the learned

counsel appearing for the petitioner

which is marked "X2" for identification;

(iv) Within a period of two weeks from the

date on which an authenticated copy of

this judgment and order is produced in

the office of the Secretary of the Women

and Child Development Department of the

State Government, necessary direction be

issued to the Secretary of the State

Commission inviting his attention to the

role played by him under the said Act of

2005 as well as the Rules framed

thereunder. Needless to add that till

the State Commission is constituted in

terms of the directions issued by this

Court, the functions and duties of the

State Commission shall be exercised by

the officer holding the charge of the

ssp 27 ospil-84.13

post of the Chairperson;

(v) The State Government shall take proper

steps for appointment of the Special

Public Prosecutors in terms of Section

26 of the said Act in the light of the

observations made by this Court as

expeditiously as possible and in any

event within a period of three months on

the date on which an authenticated copy

of this judgment and order is produced

by the petitioner with the Law and

Judiciary Department of the State. We

direct the State Government to ensure

that proper facilities for giving

regular training to the Special Public

Prosecutors appointed under Section 26

of the said Act are made available. If

necessary, the State Government may

consider of approaching the Maharashtra

Judicial Academy with a request to

provide regular training to the Special

Public Prosecutors;

(vi) We direct the Central/State Governments

to take steps for creation of awareness

ssp 28 ospil-84.13

about the provisions of the said Act as

well as all other enactments relating to

rights of the children and about the

remedies available under the said

enactments and the machinery which is

available under the said enactments.

Adequate publicity shall be given not

only on media both electric and printed,

but also by use of radio channels such

as FM channels, by preparation of

documentary films etc. The State

Government shall come out with a scheme

as regards giving publicity in terms of

the United Nations Convention on the

Right of the Child, 1989 as well as in

terms of what we have discussed above.

The State Government shall immediately

take steps for giving necessary

publicity and for creating grievance

redressal mechanism. The details of the

steps taken shall be placed on record

within a period of two month from today;

           (vii)             For creating helpline and grievance 



      ssp                                           29                         ospil-84.13

redressal mechanism, we grant two months

time to the State Government from today

to take appropriate steps;

(viii) Wherever we have granted time of two

months to make compliance, we direct the

respondents to file compliance

affidavits on or before 4th July, 2016;

(ix) Though the petition is disposed of with

the above directions, for reporting

compliance with the directions, the

petition shall be listed on 8th July,

2016 under the caption of "Directions".

Thereafter, the petition will be kept

for directions from time to time till

all the directions issued under the

judgment and order are effectively

complied with;

(x) All concerned to act upon an

authenticated copy of the operative part

of this judgment and order.

      (P.D. NAIK, J)                               ( A.S. OKA, J )