Bombay High Court
Article In Mumbai ... vs The State Of Maharashtra on 7 April, 2017
Bench: A.S. Oka
sng 1 pil-182.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.182 OF 2010
Article in Mumbai Mirror 24.08.2010
Rescue Sham. .. Petitioner
Vs
The State of Maharashtra. .. Respondent
-
Prof. Dr. Asha Bajpai along with Ms. Savita Shankaran, Amicus Curiae.
Shri P.G.Sawant, AGP for the Respondent No.1.
Shri D.P.Singh for the Respondent No.5.
--
CORAM : A.S. OKA & A.A. SAYED, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 19TH SEPTEMBER 2016
DATE ON WHICH JUDGMENT IS PRONOUNCED : 7TH APRIL 2017
JUDGMENT ( PER A.S. OKA, J )
1. This Suo Motu Public Interest Litigation was initiated on
the basis of a report in Daily Mumbai Mirror on 24 th August 2010 about
the inhuman condition of the Children's Home by the name Satkarm
Balgriha at Shahpur, District - Thane. All the children living in the said
Children's Home are mentally challenged. It was reported that recently
five children died due to starvation and malnutrition. By an order dated
3rd September 2010, the First Court while initiating a Suo Motu PIL on
the basis of the said report, appointed Dr.Asha Bajpai, the then
sng 2 pil-182.10
Chairperson of the Centre for Socio-Legal Studies and Human Rights,
Tata Institute of Social Sciences (TISS) to assist the Court as Amicus
Curiae. The Government Pleader was also ordered to assist the Court.
Broadly speaking, the issue concerns the Children's Homes in the State
established under Section 34 of the Juvenile Justice (Care and
Protection of Children) Act,2000 ( for short "the said Act of 2000) and
in particular the Homes for Mentally Deficient Children ( for short
"MDC Homes"). There are various orders passed from time to time in
this PIL by the First Court and other Benches.
2. The order dated 11th March 2011 notes a factually
important aspect that there are 27 such MDC Homes in the State. As on
that date, the sanctioned capacity of these Homes was 1685 and as on
that date, there were 1094 inmates. It is recorded in the said order that
all 27 MDC Homes are being run by NGOs and that by way of grant, the
Government gives Rs.1,140/- per month per mentally challenged child,
out of which Rs.825/- per month is to be used per child whereas
remaining amount of Rs.315/- per month is to be used for the
administrative expenses. It is recorded that out of 27 Homes, 6 are
exclusively for girls, 14 are exclusively for boys and 7 are for the
Children of both the sexes. It is noted in one of the earlier orders that
for the other category of children in Children's Homes, grant of
Rs.950/- per child per month is being paid by the Government.
sng 3 pil-182.10
3. The issues involved in this Petition will have to be
considered in light of the said Act of 2000, the Rules framed thereunder.
The said Act of 2005 was repealed by the Juvenile Justice (Care and
Protection of Children) Act, 2015 ( for short "the said Act of 2015").
The said Act of 2015 came into force with effect from 15 th January
2015. We are also dealing with the provisions of the said Act of 2015.
4. Before we go to the issues which survive for consideration,
a brief reference to the orders passed by this Court from time to time
will have to be made. The order dated 16 th September 2010 deals with
the specific issue of the children in Satkarm Balgriha at Shahpur. There
is a reference to the various Rules in the Juvenile Justice (Care and
Protection of Children) Rules, 2007 ( for short "the Central Rules")
framed by the Central Government. The said order deals with the well-
being and welfare of 18 children who have been housed either in the
Government MDC at Ulhasnagar or at Premdan Sanstha, Airoli. There
was a direction issued concerning the said 18 children. The material
directions are in Paragraph Nos.10 to 13 of the said order dated 16 th
September 2010 which read thus:
"10. From the material which has placed by the
State Government on record, it appears that
the process of granting recognition to such
childrens' homes is flawed. Even a prima facie
sng 4 pil-182.10
reading of the application submitted for the
recognition of the home in question, shows that
it had virtually no credentials or expertise in
conducting a children's home for mentally
challenged children. A leave and license
agreement was produced in support of the
application which records that certain premises
which were intended as spaces for shops were to
be utilised for conducting a children's home.
How such an application could have been
granted in the first place defies explanation. The
affidavit filed by the State states that the
procedures under the Act for grant of
recognition to childrens' homes in the State are
being reconsidered and revamped. We direct
that this exercise shall be completed within four
weeks' from today and a streamlined procedure
for scrutinising and processing applications for
the conduct of Children's Homes shall be
formulated within that period. The procedure
shall take due care to ensure that all applications
are carefully scrutinised in order to verify the
expertise of the persons involved in submitting
the proposal. Norms shall be framed in regard
to infrastructural facilities which must be made
available, the finances that must be available to
run the home, the nature of personnel who
would be employed to conduct and manage the
home, the availability of medical and psychiatric
facilities, the nutritional requirements of the
inmates and the provision of vocational training.
The state government shall prescribe uniform
parameters which must be observed by all such
homes.
11. Rule 55 of the Juvenile Justice (Care and
Protection of Children) Act 2000 provides for
the constitution of a management committee
for every institution. The District Protection
Officer is to be the chairperson of the
management committee. Detailed provisions
have been made in Sub-Rule 3 of Rule 55 for
the constitution of management committees.
The State Government shall within a period of
four weeks from today ensure that Rule 55 is
complied with by the constitution of
sng 5 pil-182.10
management committees in every children's
home in the state of Maharashtra.
12. We also direct that within a period of four
weeks from today, the State Government shall
take necessary steps for the constitution of
advisory boards under Section 62, Child
Protection Units under Section 62-A,
inspection committees under Rule 63 and
District Protection Units under Rule 81. This
Court is constrained to issue peremptory
directions for compliance within a time
schedule in view of the negligence on the part
of the State to comply with its mandatory
obligations under the Act and rules. Where
there is a failure by the State to discharge its
mandatory obligations under the law,
particularly in a case such as the present where
the human rights of those unable to seek access
to justice is in issue, the Court has to issue a
directions that ensure the implementation of the
provisions of the Act in the public interest. We
clarify that the pendency of these proceedings
shall not restrain the State Government from
taking action in pursuance of he show cause
notices that have been already issued to the
institutions and the child welfare committee.
The enquiry shall be completed and reports shall
be placed on record by the next date of hearing.
13. The reports in regard to the condition of the
children and the steps taken shall be considered
by the Court two weeks from today. The
proceedings shall stand over for monitoring
compliance to 30 September 2010. The
Secretary, Women and Child Development
Department is directed to ensure that all
necessary co-operation including the facility of
transport is made available to the Amicus Curiae
to visit the institutions and to carry out
inspection".
(emphasis added)
sng 6 pil-182.10
5. In Clause 5 of the order dated 30 th September 2010,
following directions were issued:-
"5. Section 68 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 Amended in 2006,
provides that the Central Government may frame
model rules in respect of all or any of the matters with
respect to which the State Government may make
rules under this section, and where any such model
rules have been framed, they shall apply to the State
until the rules in respect of that matter are made by
the State Government. It is necessary that the State
of Maharashtra frames rules in compliance with
the obligations cast by the Juvenile Justice (Care
and Protection of Children) Act 2000. The State
Government is directed to set the procedure for
doing so in motion and in the meantime, in
compliance of section 68 of the Act, until the State
Rules are framed, the model rules of the Central
Government shall apply to the State of
Maharashtra".
(emphasis added)
6. Paragraphs 6 and 7 of the order dated 16th October 2010
read thus:
"6. Our attention is also invited to the fact that Rule
46(6) requires every institution to have the
services of trained counsellors or collaboration
with external agencies such as child guidance
centres, psychology and psychiatric departments
for specialized and regular individual therapy for
juvenile or child in the institution for ensuring
proper mental health care. Rule 46(9) also
requires that all mental health care plans for
children in the institutions shall be produced
before the Management Committee set up under
Rule 55 every month and before the Child
Welfare Committee every quarter.
sng 7 pil-182.10
7. Unfortunately, in reality no such health care,
much less mental health care services are
provided to the children in such institutions. It,
therefore, appears to us that the concerned
agency is required to make every institution
provide such services of a trained counsellor and
a psychiatrist on regular basis. It would,
therefore, be necessary for the State Government
to issue appropriate instructions to all
institutions."
Under the said order, the First Court appointed a Co-
ordination Committee to make appropriate recommendations to the
State Government and to coordinate the activities of various
Government Agencies and the institutions recognised or to be
recognised under the Rules. The Paragraph 13 of the said order gives a
direction for constitution of a Co-ordination Committee, which reads
thus:
"13. Accordingly, we appoint Dr.Asha Bajpai,
Professor, Tata Institute of Social Sciences, as the
Chairperson of the Co-ordination Committee. The
other members of the Co-ordination Committee will
be appointed at the next hearing. The Co-ordination
Committee shall also suggest the names of sub-
committees for each division of the 7 divisions in the
State of Maharashtra, in consultation with Ms.Vandana
Krishna, Secretary, Women and Child Development
Department."
(emphasis added)
7. Under the order dated 26th October 2010, the Committee
was reconstituted in terms of the Paragraph 1 which reads thus:
sng 8 pil-182.10
"1. Having heard Prof. Ms. Asha Bajpai, Amicus
Curiae, Ms. Jyoti Pawar, learned Additional
Government Pleader and Mr. Nitin Pradhan, learned
counsel for Child Welfare Committee, Thane, we
appoint the following as Chairpersons and Members
of the Maharashtra State Coordination Committee
for child protection:
1. Prof. Asha Bajpai
(Professor of Law) - Chairperson
2. Mr. S.B. Rathod,
Deputy Commissioner,
(Child Development) DWCD, Pune. -- Member
3. Dr. Harish Shetty
(Mental Health Expert) - Member
4. Ms. Anjali Gokaran (Social Worker) - Member
5. Ms. Chitrakala Acharya (Childline) -- Member
6. Ms. Sarita Shankaran (NGO) -- Member
Save the Children,
Bal Raksha Bharat."
(emphasis added)
The Paragraph 3 lays down the functions which the Committee was
required to perform.
8. The order dated 4th December 2010 deals with the specific
issue of the Government Home for Handicapped at Ulhasnagar, District
Thane.
sng 9 pil-182.10
9. We have already referred to the order dated 11 th March
2011. Certain interim directions were issued under the said order
which are in Paragraph 8 thereof, which reads thus:
"8. In view of the above, we issue the following
directions:
(i) The State Government shall review the
procedure for granting licences for running
Homes for Mentally Deficient Children and as a
part of such exercise, the State Government
shall also place on public domain the status
reports for applications for licences for running
Homes for Mentally Deficient Children.
(ii) The State Government shall review all the
licences for running Homes for Mentally
Deficient Children after ascertaining whether
they are complying with all the terms and
conditions of the licence. It is clarified that
where necessary, remedial steps be taken
including the change of management of the
concerned home, if required in interest of the
inmates of the concerned home.
(iii) In order to ensure that the objects underlying
provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, including the
provisions dealing with Homes for Mentally
Deficient Children and rules framed thereunder
as well as the Government schemes for
providing assistance to such homes are fulfilled,
the State Legal Services Authority as well as
the District Legal Services Committees and
Taluka Legal Services Committees shall
extend necessary cooperation and assistance
in each of the districts where such Homes for
Mentally Deficient Children are being run.
The Principal District Judge shall nominate a
judicial officer of the rank of District Judge
when the home is in District Headquarters or
Civil Judge, Junior Division/J.M.F.C. Where
sng 10 pil-182.10
the home is in Taluka headquarters or a
remote place, (preferably a lady judicial
officer in either case) to submit reports about
the manner in which the concerned Homes
for Mentally Deficient Children are run in
their respective jurisdictions.
(iv) The State Government shall issue instructions
to the District Child Welfare Officer in each
district, where the Homes for Mentally
Deficient Children are run, to ensure that
each child is medically examined. All
concerned including the Public Health
Department of the State Government and the
Women and Child Development Department
shall ensure that each inmate of the Homes
for Mentally Deficient Children undergoes
medical examination by a team of experts
including Physician, Mental Health Expert,
Psychologist/Psychiatrist and in case of a
female inmate, a gynecologist. Copies of
reports of medical examination as aforesaid
shall be furnished to the Chairperson of the
State Coordination Committee and the
Chairperson of the concerned Divisional
Coordination Committee.
(v) Since the term of the present Advisory Board
under section 62 of the Juvenile Justice (Care
and Protection of Children) Act, 2000 is going to
expire in the month of April, 2011, while
reconstituting the said Advisory Board, the State
Government shall ensure that the members are
appointed not only in consonance with the said
statutory provisions but also that the members
who have had the necessary experience and
requisite sensitivity for discharging their duties
under the provisions of the Act and the Rules are
appointed."
10. Paragraph 3 of the order dated 7th April 2011 issues a
direction regarding releasing additional amount of Rs.5,000/- by way of
grant to the MDC Homes which are run by the State Government or
sng 11 pil-182.10
NGOs. The said amount was ordered to be released which will be kept
as a petty cash/contingency medical fund for the purposes of medical
expenses on children. Under the order dated 29 th July 2011, directions
were issued to the State Government to ensure that appropriate steps
are taken in future for preventing occurrence of cases of sexual abuse or
assault or offences against the mentally deficient children. As regards
the number of MDC Homes working in the State, the Paragraph 4 of the
order dated 29th March 2012 notes the status as of that date. It notes
that there were 22 MDC Homes in the State out of which 5 are unaided.
Two Homes at Pune and Solapur have been shut down. This order
refers to the project "Chunauti" which commenced its activities on 7 th
March 2012. The Co-ordination Committee was reconstituted under
the said order and even a Rehabilitation Committee was constituted.
The Paragraphs 6 to 8 of the said order dated 29 th March 2012 read
thus:-
"6. The Coordination Committee appointed in
pursuance of the directions issued in the PIL has
carried out commendable work since August 2010. The
DWCD as well as the Social Justice Department
through the Commissioner of Disabilities must continue
to be associated with the work of the Coordination
Committee as well as of the Rehabilitation Committee.
Special Counsel has stated before the Court that there
is no reservation on the part of the State Government
in doing so, save and except that the actual treatment
plans and the monitoring of the rehabilitation plans
should be carried out by the experts in the relevant
areas. We consider the suggestion to be fair and proper.
Accordingly it has been agreed that the
Coordination Committee shall consist of the
following persons:
sng 12 pil-182.10
1. Prof. Asha Bajpai - Chairperson
2. Dr.Harish Shetty, Social Psychiatrist
3. Ms.Sarita Shankaran, Indian Association for
Promotion of Adoption (IAPA)
4. Ms.Chitrakala Acharya, Child Line India
5. Mr.Pramod Nigudkar, Committed
Communities Development Trust (CCDT)
6. Ms.Naina Athale, Social Worker and
Counselor
7. Deputy Commissioner, DWCD (Convener)
8. Assistant Commissioner, Office of the
Commissioner for Persons with Disabilities
The functions of the Coordination Committee would
be to:
(i) Follow up on the directions given by this
Court;
(ii) Conduct revisits, inspection and surprise
visits to MDC homes in the State assisted by
divisional representatives whenever required;
(iii) Attending to compliances regarding MDC
homes; and
(iv) Monitoring the project Chunauti.
These are only broad guidelines indicative of the
functions of the Coordination Committee and we
clarify that the Committee will not be restrained by
these guidelines in carrying out all other incidental
and ancillary activities necessary to effectuate the
proper rehabilitation of the children in the homes
for mentally deficient children. The DWCD shall
coordinate with all other Departments of the State
Government such as Police, Health Department,
sng 13 pil-182.10
Disabilities Department, Social Justice and CAS as
may be required by the Coordination Committee.
Special Counsel has stated before the Court that DWCD
has taken up the process of sanctioning the requisite
budget for the State Coordination Committee. The
Committee, the Court is informed, has already
submitted a one year budget to the Commissioner at
DWCD and a supplementary estimate for the second
year would be submitted towards the end of the first
year. The Court has been assured that this issue would
be processed at the earliest on an expeditious basis and
the Coordination Committee will be provided with
requisite resources to carry out its task. DWCD had
funded the work of the Committee during the course of
the last year and the Court is informed that audited
accounts have been submitted for that year. Since the
functioning of the Committee would be severely
restricted if resources are not forthcoming at the
earliest on priority basis, the Court has been assured
that immediate steps would be taken to provide
sufficient resources to the Committee as budgeted.
7. The Rehabilitation Committee shall consist of
the following persons:
1. Prof. Asha Bajpai - Chairperson
2. Ms.Sarita Shankaran
3. Dr.Harish Shetty
4. Ms.Chitrakala Acharya
5. Ms.Naina Athale
6. Mr.Pramod Nigudkar
7. Mr.Ravi Patil, Deputy Commissioner, DWCD
8. Asst. Commissioner Disability, PWD
9. Representative from Health Services
10. CEO Children's Aid Society
sng 14 pil-182.10
8. Since the children under project Chunauti
have been identified and brought together for
rehabilitation due to the extreme trauma which
they faced under the care and protection of homes
funded and supervised by the Department of
Women and Child Development, that Department
would continue to be represented in the
Committees. The Research Society for the Care,
Treatment and Training of Children in Need of
Special Care, Mumbai which is an NGO that serves
mentally challenged children since 1944, will be
requested to provide expert assistance to the
Rehabilitation Committee. The functions of the
Rehabilitation Committee will be to :
1. Coordinate the communication and
services of other Government
Departments such as Social Justice,
Health and Disability, Police, CAS as also
with the monitoring committee;
2. Monitor the implementation of project
Chunauti."
(emphasis added)
We may note that the Department of Women and Child
Development is referred as "DWCD".
11. The order dated 5th July 2012 records the issues which
were canvassed by the learned Amicus Curiae which are noted in the
Clauses (i) to (vii) which read thus:
"(i) A Government Resolution had been issued by
the State Government on 30 May 2012, under which
the children in the MDC Homes are to be transferred
from the DWCD to the Social Justice Department.
There are legitimate concerns in regard to the manner
sng 15 pil-182.10
in which the process of transfer would be carried out.
In, particular, there is a need for a transition plan.
There is also a necessity of providing adequate
services and facilities to the children. The issues on
which a clarification is necessary in particular are as
follows and have been identified in the Report :
"(i) There is a need to clarify whether the
MDC homes will now be registered under
both the Persons with disabilities (Equal
Opportunities, Protection of Rights and
Full Participation) Act 1995 (PWD Act)
and the Juvenile Justice (Care and
Protection of Children) Act 2000 (JJ
Act). Will both the Departments jointly
deal with the issue? What will be the role
of DWCD? They have experience in
looking after children in need of care and
protection. Will these children continue
to be under the purview of the CWCs?
(ii) What about the NGO-run MDC
institutions that are given only grants.
Will the staff there be increased as per
the PWD Act? What about the existing
staff?
(iii) Institutions under the Social Justice
Department used to run for 10 months
for children who had parents. These are
orphans who will need institutional care
for 12 months and 24 hours a day. What
is the preparedness of the Social Justice
Department to look after MDC children?
Will they extend that scheme to 12
months?
(iv) As per the Persons with disabilities
(Equal Opportunities, Protection of
Rights and Full Participation) Act 1995
(PWD Act).
a. Every child with disability has
access to free education (Sec 26a)
sng 16 pil-182.10
b. Setting up of special schools (Sec
26c)
c. Vocational training facilities (Sec
26d)
d. Part time classes
e. Government to provide aids and
appliances to persons with
disabilities) Sec 42.
f. To undertake rehabilitation Sec.66
g. Disability certificate to be issued to
all children. (Rule 4)
(v) As per the National Trust for Welfare of
Persons with Autism, cerebral Palsy,
Mental Retardation and Multiple
Disability Act 1999, there is a National
Trust for welfare of persons with mental
retardation (Sec 3). All mentally
challenged children in institutions should
benefit from this trust. One of the
Objectives of the trust is to deal with
problems of persons with disability
without family support Sec 10(d) and to
facilitate the realization of equal
opportunities, protection of rights and
full participation of persons with
disability."
ii) A time bound plan of action and a transition
plan must be chalked out for all the services and
facilities to be provided to the mentally challenged
children in the MDC homes. We direct that this shall
be completed within a period of four weeks from
today. The issues noted in (i) above shall be addressed
in the plan;
iii) Thirty mentally challenged girls above the age
of 18 were transferred from the MDC home at
Mankhurd to the Home at Mundhwa. This was carried
out in order to facilitate the housing of the Thane and
Panvel children, numbering in all 35 in the MDC home
sng 17 pil-182.10
at Mankhurd. If the thirty mentally challenged girls
who are above the age of 18 are brought at
Mankhurd, that would seriously affect the availability
of space and facilities of the existing children in the
home at Mankhurd. Consequently, we are of the view
that until this issue is resolved and until the next date
of hearing, the proposed shifting of the thirty inmates
from Pune to Mankhurd should be deferred. This
would not preclude the authorities from housing the
girls from Pune in any other home which is considered
to be in their best interest and welfare;
iv) The committee has opined that the funds which
have been made available for the second phase of the
work of the committee may presently be maintained
with the DWCD so that as and when it is necessary to
draw upon the funds, the DWCD may take the
initiative in consultation with the committee. The
committee may be called upon as and when required
to render assistance;
v) The health check ups of the children in the
homes for the mentally challenged shall be carried out
periodically. A serious grievance has been expressed
about the fact that the manner in which the medical
examination of the mentally challenged children had
been conducted in the past was insensitive and the
girls were subjected to repeated gynecological
examination. The learned amicus curiae points out
that this is a source of harassment to the girls and that
a gynecological examination should not be carried out
as a routine measure. We are in agreement of the
suggestion and expect that the authorities would deal
with the issue with sensitivity. The medical
examination should be carried out having regard to
the mental status of the children and in a manner that
would not cause harassment to the children. Routine
and repeated gynecological examinations affect the
dignity of the mentally challenged girls. Such
examinations should be carried out under due
safeguards only where medical reasons and advice
require them. Moreover, this should be done by and
with supervision of a woman medical officer. For this
purpose, it would be necessary for the State to hold a
video conference meeting with the Civil Surgeons of
all the concerned hospitals to lay down parameters
sng 18 pil-182.10
and sensitise them. This should be carried out
expeditiously before the next date of hearing;
vi) The learned AGP states that the salaries of the
employees of the Children's Aid society have been paid
until May 2012 and arrears if any, will be paid
expeditiously, within a period of one week from today;
vii) It is reported that there is a delay of between six
months to one year in payment of the maintenance
grants in respect of the mentally challenged children.
This is completely without any justification
whatsoever. We direct that the State Government shall
put into place all necessary administrative
arrangements to ensure that the grants are paid on
time. All the arrears, should, in any event be cleared
within a period of one month. The grants should be
paid at least at quarterly intervals, if not earlier."
12. Under the order dated 15th January 2013, following
directions were issued:-
"(i) We take on record the in principle decision taken
by the Principal Secretary in the Woman and
Child Development Department and by the
Secretary in the Social Justice Department that
control of the 19 MDC homes in the State of
Maharashtra shall be handed over by WCD to the
Social Justice Department and that all the
pending formalities shall be completed by the
end of March 2013. We also note the decision
that until this process is complete, both the
departments shall be jointly responsible for, in
particular, the education and health needs of the
mentally deficient children lodged in the homes.
We direct that the Social Justice Department
shall be primarily responsible for attending to
the educational and health needs of the
mentally deficient children and shall inter alia
provide educators and assist in the
preparation and implementation of
rehabilitation plans. The Social Justice
sng 19 pil-182.10
Department shall ensure that special teachers
from the special schools shall periodically and
at least once a week visit the homes for
carrying out an assessment of all the children
lodged in the homes. This assessment shall be
completed within a period of three weeks
from today. A suitable rehabilitation plan shall
be drawn up by the Social Justice Department
within a period of four weeks thereafter. A
copy of the rehabilitation plan shall be made
available to the Amicus Curiae who would be
at liberty to furnish her suggestions in regard
thereto. By the next date of hearing the Court
shall be apprised of the status of implementation
of the rehabilitation plan. Implementation of the
rehabilitation plan shall commence forthwith
after the plan is drawn up. The Commissioner of
Disabilities shall be associated with the entire
process and we direct that he shall extend all co-
operation including by making available
necessary infrastructure and human resource
inputs where required;
(ii) The WCD shall within a period of two weeks
from today attend to the request made by the
Public Works Department for the sanctioning of
funds for carrying out the construction of repair
and raising the compound wall of the MDC home
at Mankhurd. The Public Works Department shall
thereupon take steps for carrying out the work of
repair and upgradation of the compound wall so
as to increase the height to an appropriate level
as required. This exercise shall be completed well
in time before the next date of hearing;
(iii) The Senior Inspector of Police, Trombay Police
Station shall continue with his investigation and
make all necessary efforts to trace out the two
missing children referred to in the earlier order
of this Court. Necessary security arrangements at
the MDC home at Mankhurd shall continue to be
made."
(emphasis added )
sng 20 pil-182.10
13. The order dated 12th February 2013 refers to the repairing
work done in MDC Home at Mankhurd. Further directions were issued
on 24th June 2013 by a Division Bench of this Court in terms of Clauses
(i) to (ix) of Paragraph 1. The order dated 24 th September 2013 refers
to the recommendations of the Committee for the Child Protection
appointed by this Court. In Paragraph 9, the Division Bench issued the
following directions:-
"9. In summary, we recapitulate our directions thus:
(i) The State Government has informed the Court
that budgetary provisions have been made for
2013-14 and have been approved in the previous
session of the Legislative Assembly. The Court
has been assured that grants will be provided by
the Social Justice Department to the registered
MDC homes in Maharashtra. We direct that until
this takes place, interim provision shall be made
for education and health facilities for all
mentally challenged children in MDC homes in
Maharashtra;
(ii) The Department of Social Justice and
Empowerment is directed to provide the
Committee with the required funds for revisits to
the MDC homes;
(iii) By the next date of hearing, the Court shall be
apprised in regard to the provision of
compensation to the sexually abused children of
the Thane and Panvel Homes by the DWCD,
Government of Maharashtra;
(iv) The admission of the children from the Chunauti
Project to Jai Vakeel School for special education
is approved; and
sng 21 pil-182.10
(v) An exit plan shall be prepared by the next date of
hearing by the DWCD in cases where homes for
mentally challenged children have to be shut
down. The status of homes that are shut down
and who have received new licences shall be
placed by DWCD on its website."
14. Then comes a detailed order passed by another Division
Bench of this Court on 18th September 2014. The Paragraphs 6 to 10 of
the said order read thus:-
"6. In our view, it will be necessary to have a
coordination between CWC and Social Justice
Department since the aim and object of both
these departments is the same namely to look
after orphan children and therefore it is not
material whether the Homes and the Social
Justice Department are covered under the
Juvenile Justice Act or not. We therefore, direct
the State Government to ensure that the orphan
children who are kept in Homes which are under
Social Justice Department should either be
continued with the same Home or may be
transferred to other Homes under the CWC, so
that adequate care and protection is provided to
them and similarly the educational and
vocational training also be given to them. We
direct the Principal Secretary, CWC Department
to find out ways and means to ensure that the
Homes which are covered under these
Departments give the same facilities and
privilege as the other Homes, which are covered
under the Juvenile Justice Act. A direction given
by this Court, be complied hereinafter. Once
these children are kept at the Homes under
Social Justice Department, they shall be
monitored as long as they are kept there.
sng 22 pil-182.10
7. Other grievance made by the Amicus Curiae,
that since last two years directions have been
given by this Court from time to time to CWC
and State Government, but there is no material
to indicate whether these directions have been
actually complied with or not. Secondly, it is
submitted that this Court has directed the State
Government to award a compensation to the
children who are abused at the Homes at Thane
and Panvel. It is submitted that a Committee has
to be formed to know whether the said
compensation has been paid to these children or
not. Lastly, it is submitted that direction was
given to take inspection of the Homes at Thane
and Dhule. It is further submitted that the Home
at Aurangabad is closed down and the children
are transferred to the Homes at Dhule and
Pathardi. It is submitted that report may be
called so as to know us what had happened to
these children.
8. In our view, it would be proper if a direction is
given to CWC and concerned authorities to
submit a report about the action taken on
various orders of this Court passed from time to
time. A Committee appointed by this Court may
tender orders to the Principal Secretary CWC
and the State Government of Maharashtra.
Thereafter, State Government shall submit a
report on the action taken by them on the
various orders passed by this Court. Secondly, a
report be submitted about the status of the
children who were transferred from Aurangabad
to Pathardi and Dhule and the action taken after
inspection was made. This Court be informed by
filing a report stating therein the amount of
compensation which was paid to the abused
children who are kept in Thane, Panvel shelter
Homes and were transferred later on to
Mankhurd Home.
"9. We direct the office to add the National Trust for
the Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and multiple
Disabilities as a party-respondent. Notice be
issued to the said Trust. The Trust is directed to
sng 23 pil-182.10
inform this Court whether they would be in a
position to make any contribution to the persons
with autism, cerebral palsy, mental retardation
and multiple disabilities and other similar
ailments and for the purpose of giving
vocational training to them and their
restoration.
10. We also expect the Social Justice Department to
formulate a scheme for adult, mentally retarded
persons who are abused. We are informed that
several orders were passed by this Court but
directions have not been complied with. We
therefore, direct the Principal Secretary, CWC to
look into the matter and form a scheme and
report this Court. A reply may be given within
four weeks."
15. In Clauses 2 to 4 of the order dated 30 th October 2014, the
following directions were issued:-
"2. We are, therefore, directed the Child Welfare
Committee, Mentally Deficit Home at Mankhurd
and the Social Justice Department, to make
assessment of all those children, who are kept in
home where the mentally challenged children
are kept and if it is found that some of the
children are in fact, not mentally challenged,
they should be sent to homes for normal
children and they should then be sent to normal
schools. A report to that effect may be
submitted to this Court within a period of four
weeks from today.
3. The State Government shall, therefore, should
carry out this exercise in all mentally deficient
children's (M.D.C.) homes in the State of
Maharashtra and if possible, complete this
exercise within a period of four weeks.
4. We are informed that there are several adults
mentally challenged, who are above the age of
sng 24 pil-182.10
18 years, who have not been given vocational
training, the State Government to make a list of
such children who are kept along with mentally
deficient children in the same home and
prepare a scheme for their rehabilitation. The
State Government shall also look into all other
deficiencies which are presently facing in the
mentally deficit homes. Mrs.Asha Vajpayee to
prepare a list of all these deficiencies and hand
over a copy of the same to the concerned officer
of Social Justice Department."
16. The order dated 20th March 2015 deals with
implementation of "Manodhairya Scheme". Clauses 2 and 3 of the said
order read thus:-
"2. We are of the view that it is not necessary to
give any cut off date for the implementation
of these schemes since they are for the
benefit of the abused children who are
orphans and who are mentally challenged
children living in children homes. In our
view, it is the duty and statutory obligation
on the part of the State to provide
compensation to these abused children.
3. We direct the Principal Secretary, Women &
Child Development Department to determine
the said compensation which is payable to
these children. If it is not done, this Court
will be constrained to consider the said issue
and determine the compensation which is
payable to these children on the basis of the
scheme which is framed. Secondly, in our view,
nutrition, education training and health needs
to be taken care of by the State till these
children are rehabilitated and all other
Departments of both Central and the State
Government should be jointly involved and are
made responsible for the education, health and
rehabilitation of the children in all MDC Homes
sng 25 pil-182.10
in Maharashtra alongwith Social Justice and
DWCD."
(emphasis added)
Clauses 8 to 10 of the said order incorporate important
directions which read thus:-
"8. It is further submitted that advanced OT
equipments are required for intensive therapy. It
is submitted that there are some children who
are bedridden and wheel chair bound and it is
possible to observe lifelong changes in their
physical condition if they are provided with
intensive therapy at this stage of their lives. The
list of equipments along with appropriate price
is mentioned in the said report. The total price is
Rs 27,800/-. In our view, this suggestion can be
implemented and these equipments should be
made available to MDC Home at Mankhurd
within four weeks. The grievance also has been
made that the grants are not received by the
Homes as per PWD Act. It is also submitted that
there is no proper school in MDC Home and
persons above 18 need to be taken care of by
another special assistance scheme for them. It is
also submitted in the report that the experts
appointed by Social Justice Department may be
held accountable to the High Court appointed
Committee and lastly it is submitted that
Chunauti rehabilitation model may be replicated
in MDC Homes in Maharashtra by the Social
Justice Department.
9. We are of the view that there is some substance
in the suggestion which has been given by the
High Court appointed Committee and we feel
that Chunauti rehabilitation model which has
succeeded in the MDC Home at Mankhurd
should be replicated in all the MDC Homes in
Maharashtra.
sng 26 pil-182.10
10. We direct the Principal Secretary, Women &
Child Welfare Department and Social Justice
Department to ensure that the Chunauti
rehabilitation model is replicated in all the
MDC Homes in Maharashtra and compliance
report to that effect is submitted to this Court
by the State Government and steps be taken
by the State Government pursuant to the
directions given by this Court today within
four weeks from today."
(emphasis added )
17. The order dated 31st August 2015 again deals with the
"Manodhairya Scheme". Paragraph 5 of the said order reads thus:-
"5. It is submitted that 'Manodhairya Scheme' is
applicable to the victims of assault of acid attack
and sexual assault. It is submitted that there are
several cases where the boys are also victims of
sexual assault. It is submitted that if the
Manodhairya Scheme is not made applicable to the
boys, separate schemes should be formulated to
the benefit of the boys or children who are victims
of sexual assault. We direct the Government to
consider this suggestion also and inform us whether
any steps are taken or any committee is formed for the
purpose of considering this suggestion. Since there
are number of cases where sexual assault on the boys
have increased and several cases are pending before
the competent courts constituted under the POCSO
Act, the learned government pleader shall also inform
us about the steps taken by the Government in this
regard on the next date."
(emphasis added )
sng 27 pil-182.10
18. The Paragraph 2 of the order dated 16 th October 2015 deals
with Nirbhaya Scheme. The Paragraphs 2 and 3 of the said order read
thus:-
"2. We would like to know whether Nirbhaya scheme
has become operational in the State of
Maharashtra. Under the said scheme the children
who are mentally challenged are taken under the
cover of insurance and the premium which is to
be paid is nominal. The State-Government to
inform us whether they propose to pay the said
premiums out of the funds, allocated for the
scheme. We are informed that the National Trust
has written letters to the Secretary, Government
of Maharashtra. Department of Social Welfare
and the Disability Commissioner, Government of
Maharashtra. However, no response has been
given by these authorities. We would like to
know what further steps have been taken by
these authorities, in response to the letter written
to them by the National Trust, which comes
under the Ministry of Social Justice and
Empowerment, Government of India. In the
compliance report it is stated that the State Co-
ordination Committee has held its first meeting
on 8.9.2015 and it was unanimously decided to
float the Niramaya scheme to all the mentally
challenged and disabled children who are
admitted in all MDC Homes.
3. The Respondent-State to file their response
within 4 weeks. The State-Government is also
directed to clarify whether Niramaya
Manodhairya scheme is made applicable to the
boys, who are victims of sexual assault and acid
attack; and whether there is utilisation body
which monitor disbursement of funds. S. O. to
19.11.2015 at 3.00 p. m."
sng 28 pil-182.10
19. The order dated 23rd June 2016 notes that compensation
has been granted in relation to 24 girls in the sum of Rs.3,00,000/-
each. However, no decision was taken as regards 11 victims. A
direction was given to the State Government to take a decision as
regards payment of compensation to 11 victims. The order dated 2 nd
August 2016 notes that the learned Amicus Curiae tendered a document
recording financial requirements of the children. Her suggestion
regarding expansion of the Committee appointed by this Court is also
noted. The Paragraph 2 of the said order takes a note of the fact that
there are 300 girls and boys in MDC Home at Mankhurd. A direction
was issued to immediately start work of repair of the said MDC Home at
Mankhurd. It also notes that the Hon'ble Chief Minister is the
Chairperson of the said Committee which runs the said Home.
20. We have heard the submissions of the learned Amicus
Curiae who has ably assisted the Court. We have perused her
suggestions in writing We have heard the learned AGP. We have
perused various compliance reports which are placed on record. We
have also perused the compliance affidavits filed from to time.
21. The basic issue involved in this Petition is as regards the
condition of Homes for mentally challenged children who are covered
by the definition of the child in need of care and protection under
sng 29 pil-182.10
Section 2 of the said Act of 2000. Sub-clause (iii) of Clause (d) of
Section 2 of the said Act of 2000 reads thus:
"(d) "child in need of care and protection" means a
child -
(i)..........
(ii)...........
(iii) who is mentally or physically challenged or
ill children or children suffering from terminal
diseases or incurable diseases having no one to
support or look after."
(emphasis added)
22. The children of the said category are covered by Clause (iv)
of Sub-section (14) of Section 2 of the said Act of 2015, which reads
thus:
"2(14)"child in need of care and protection" means a
child -
(i)............
(ii)...........
(iii)..........
(iv) who is mentally ill or mentally or physically
challenged or suffering from terminal or incurable
disease, having no one to support or look after or
having parents or guardians unfit to take care, if
found so by the Board or the Committee."
(emphasis added)
sng 30 pil-182.10
The definition under the said Act of 2015 is a wider
definition. The definition includes not only destitute children but also
children having parents or guardians who are unfit to take their care.
23. The Clause (f) of Article 39 which is incorporated in Part IV
(Directive Principles of State Policy) of the Constitution of India is
relevant which reads thus:-
"39. Certain principles of policy to be followed by
the State: The State shall, in particular, direct its
policy towards securing
(a) .....
(b) .....
(c) .....
(d) .....
(e) .....
(f) that children are given opportunities and
facilitate to develop in a healthy manner and in
conditions of freedom and dignity and that childhood
and youth are protected against exploitation and
against moral and material abandonment."
24. Article 21A of the Constitution of India which is a
fundamental right conferred on the children is also relevant our our
consideration, which reads thus:
"21A. Right to education.-- The State shall provide
free and compulsory education to all children of the
age of six to fourteen years in such manner as the
State may, by law, determine."
sng 31 pil-182.10
25. Under Clause (f) of Article 39 of the Constitution of India,
it is the duty of the State to ensure that there is a policy for securing
that the children are given opportunities and facilities to develop in a
healthy manner. Clause (f) of Article 39 will certainly apply to the
mentally ill or mentally challenged children. Merely because they are
mentally ill or challenged, they cannot be deprived of their fundamental
right under Article 21A of the Constitution of India. Article 45 which is
also a part of the directive principles of the State Policy provides that
the State shall provide early childhood care and education for all
children until they complete the age of six years.
26. It is in light of the constitutional provisions that we must
advert to the provisions of the said Acts of 2000 and 2015. Sections 34,
35 and 36 of the said Act of 2000 deal with the Children's Home which
read thus:
"34. Children's homes.-(1) The State Government
may establish and maintain either by itself or in
association with voluntary organisations, Children's
Homes, in every district or group of districts, as the
case may be, for the reception of child in need of care
and protection during the pendency of any inquiry and
subsequently for their care, treatment, education,
training, development and rehabilitation.
(2) The State Government may, by rules made under
this Act, provide for the management of Children's
Homes including the standards and the nature of
sng 32 pil-182.10
services to be provided by them, and the circumstances
under which, and the manner in which, the
certification of a Children's Home or recognition to a
voluntary organisation may be granted or withdrawn.
(3) Without prejudice to anything contained in any
other law for the time being in force, all institutions,
whether State Government run or those run by
voluntary organisations for children in need of care and
protection shall, within a period of six months from the
date of commencement of the Juvenile Justice (Care
and Protection of Children) Amendment Act, 2006, be
registered under this Act in such manner as may be
prescribed.
35. Inspection.- (1) The State Government may
appoint inspection committees for the Children's
Homes (hereinafter referred to as the inspection
committees) for the State, a district and city, as the case
may be, for such period and for such purposes as may
be prescribed.
(2) The inspection committee of a State, district or of
a city shall consist of such number of representatives
from the State Government, Committee, voluntary
organisations and such other medical experts and social
workers as may be prescribed.
36. Social auditing.- The Central Government or
State Government may monitor and evaluate the
functioning of the Children's Homes at such period and
through such persons and institutions as may be
specified by that Government."
27. The Sub-section (1) of Section 34 uses the word "may".
The same will have to be interpreted in light of the Directive Principles
of State Policy contained in clause (f) of Article 39 and Article 21A of
the Constitution of India. Sub-section (1) of Section 34 will have to be
interpreted to mean that the State Government is under an obligation
sng 33 pil-182.10
to establish and maintain either by itself or in association with the
voluntary organisations, Children's Homes and especially the MDC
Homes, in every district or group of districts, as the case may be, for the
reception of child in need of care and protection during the pendency of
any inquiry under the said Act of 2000. Even after inquiry is over, the
State Government has to make arrangements for taking the care,
treatment, education, training, development and rehabilitation of the
children in need of care and protection in the Children's Home. Sub-
section (3) of Section 34 provides for registration of all the institutions
whether State Government run or those run by voluntary organizations
for children in need of care and protection. Section 34 will have to be
read with Rule 29 of the Central Rules. The Rule 29 reads thus:
"29. Children's Homes.― (1) The State
Government itself or in association with voluntary
organizations, shall set up separate homes for children
in need of care and protection, in the manner specified
below-
(a) all children's homes shall be registered as child
care institutions under sub-section (3) of
section 34 of the Act and rule 71 of these rules;
(b) all children's homes shall be certified as per the
procedure laid down in rule 70;
(c) all children's homes shall report to the
concerned Committee about every child in
need of care and protection received by them;
(d) children of both sexes below ten years may be
kept in the same home but separate facilities
shall be maintained for boys and girls in the
age group 5 to 10 years;
sng 34 pil-182.10
(e) every children's home shall include separate
facilities for children in the age group of 0-5
years with appropriate facilities for the infants;
(f) separate Children's Homes shall be set up for
boys and girls in the age group 10 to 18 years;
(g) children in the age group of 10 to 18 shall be
further segregated into two groups of 10 to 15
years and 15 to 18 years.
(2) Each children home shall be a comprehensive
child care center with the primary objective to
promote an integrated approach to child care by
involving the community and local Non-
Governmental Organisations through the
Management Committee set up under rule 55 of
these rules and the District Child Protection Unit or
State Child Protection Unit or the State Government
shall make an annual performance review of
functioning of the children's homes;
(3) The activities of such centre shall focus on:
(a) preparing and following individual care plans
for every child, with rights based approach,
specifically addressing the child's physical
and mental health, emotional needs,
education, skill development, protection and
special needs if any;
(b) family based non-institutional services, such
as, foster family care, adoption and
sponsorship;
(c) specialized services in situations of conflict or
disaster and for juvenile or children affected
by terminal or incurable disease to prevent
neglect by providing family counselling,
nutrition, health interventions, psycho-social
interventions and sponsorship;
(d) emergency outreach service through child
line ( Toll free Help Line No. 1098);
sng 35 pil-182.10
(e) linkages with Integrated Child Development
Services to cater to the needs of children
below six years;
(f) linkages with organizations and individuals
who can provide support services to children;
and
(g) opportunities to volunteers willing to provide
various services for children."
(emphasis added)
28. When it comes to the children in the Children's Home,
Section 43 of the said Act of 2000 is relevant, which reads thus:-
"43. Sponsorship.- (1) The sponsorship programme
may provide supplementary support to families, to
Children's Homes and to special homes to meet
medical, nutritional, educational and other needs of the
children with a view to improving their quality of life.
(2) The State Government may make rules for the
purposes of carrying out various schemes of
sponsorship of children, such as individual to
individual sponsorship, group sponsorship or
community sponsorship."
29. Section 43 which deals with the 'Sponsorship' will have to
be read with Rule 37 of the Central Rules. Rule 37 of the said Central
Rules reads thus:
"37. Sponsorship.― (1) The State Government shall
prepare sponsorship programme in consultation with
the Non Governmental Organisations, Child Welfare
Committees, other relevant government agencies and
the corporate sector.
sng 36 pil-182.10
(2) The State Government, with the help of District
or State Child Protection Units shall identify families
and children at risk and provide necessary support
services in the form of sponsorship for child's
education, health, nutrition and other developmental
needs.
(3) The Children's Homes and special homes shall
promote sponsorship programmes as laid down in
section 43 of the Act.
(4) The institutions receiving sponsorship, shall
maintain proper and separate accounts of all the
receipts and payments for the programme.
(5) The Board or the Committee shall make an order
in Form XVIII for support to a juvenile or child through
sponsorship and send a copy to the District or State
Child Protection Unit or the State Government for
appropriate action."
No such sponsorship programme prepared by the State
Government is placed before this Court. The State Government will
have to come out with a sponsorship scheme for giving effect to the
statutory provisions.
30. Rule 70 of the Central Rules deals with certification or
recognition and transfer of Management of Institutions and after care
organizations under Section 34 of the said Act of 2000. Rule 70 reads
thus:
"70. Certification or recognition and transfer of
Management of Institutions and after care
organizations.―
sng 37 pil-182.10
(1) Any organization desiring certification under the
Act shall make an application together with a
copy each of the rules, bye-laws articles of
association, list of members of the society or the
association running the organization, office
bearers and a statement showing the status and
past record of specialized childcare services
provided by the organization, to the State
Government, who shall after verifying the
provisions made in the organization for the
boarding and lodging, general health,
educational facilities, vocational training and
treatment services may grant certification or
recognition under sections 8, 9, 34, 37, 41 and
44 of the Act, as the case may be, on the
condition that the organization shall comply with
the standards or services as laid down under the
Act and the rules framed their under, from time
to time and to ensure an all round growth and
development of juvenile or child placed under its
charge.
(2) Any organization desiring recognition under the
Act shall make an application to the Competent
Authority, who shall after due inquiry,
recommend the State Government for such
recognition.
(3) The State Government may, transfer the
management of any State run institution under
the Act to a voluntary organization of repute,
who has the capacity to run such an institution;
and certify or recognize the said voluntary
organization as a fit institution to own the
requisite responsibilities under a Memorandum of
Understanding for a specified period of time.
(4) The State Government may, if dissatisfied with
the conditions, rules, management of the
organization certified or recognized under the
Act, at any time, by notice served on the manager
of the organization, declare that the certificate or
recognition of the organization, as the case may
be, shall stand withdrawn as from a date
sng 38 pil-182.10
specified in the notice and from the said date, the
organization shall cease to be an organization
certified or recognised under sections 8, 9, 34,
37,41 or 44 of the Act, as the case may be:
Provided that the concerned organization shall be
given an opportunity of making a representation
in writing, within a period of thirty days, against
the grounds of withdrawal of certificate or
recognition of that organization.
(5) The decision to withdraw or to restore the
certificate or recognition of the organization may
be taken, on the basis of a thorough investigation
by a specially constituted advisory board under
section 62 of the Act.
(6) On the report of the advisory board, the Officer-
in- charge of the institution shall be asked to
show cause so as to give an explanation within
thirty days.
(7) When an organization ceases to be an
organization, certified or recognised under
sections 8, 9, 34, 37,41 or 44 of the Act, the
juvenile or the child kept therein shall, be
transferred to some other institution of repute,
certified or recognized under sections 8, 9, 34,
37,41 or 44 of the Act or discharged, in
accordance with the provisions of the Act and the
rules relating to their discharge and transfer by
giving intimation of such discharge or transfer to
the Board or the Committee, as the case may be."
31. Even the Rules 71 and 72 are material which read thus:
"71. Registration under the Act. ―
(1) All institutions and organisations running
institutional or non-institutional care services for
children in need of care and protection, whether
run by the government or voluntary
organization, shall get themselves registered
under sub-section (3) of section 34 of the Act.
sng 39 pil-182.10
(2) All such institutions shall make an application
together with a copy each of rules, bye-laws,
memorandum of association, list of governing
body, office bearers, balance sheet of past three
years, statement of past record of social or
public service provided by the institution or
organization to the State Government, who shall
after verifying that provisions made in the
institution or organization for the care and
protection of children, health, education,
boarding and lodging facilities, if any, vocational
facilities and scope of rehabilitation, may issue a
registration certificate to such organization
under sub-section (3) of section 34 of the Act
and as per this rule.
72. Grant in aid to certified or recognized
organization.―
(1) An organization certified or recognized or
registered under sections 8, 9, 34, sub-
section (3) of section 34, 37 or 44 of the Act,
may during the period when certification or
recognition or registration is in force, may
apply for grants-in-aid by the State
Government, for the maintenance of juvenile
or child received by them under the
provisions of the Act; and for expenses
incurred on their education, treatment,
vocational training, development and
rehabilitation.
(2) The grants-in-aid may be admissible, at such
rates, which shall be sufficient to meet the
prescribed norms, in such manner and subject to
such conditions as may be mutually agreed to by
both the parties.
(3) In case of transfer of management of
government run homes under sections 8, 9, 34,
sub-section (3) of section 34, 37 and 44 of the
Act to a voluntary organization, the same
budget which the Government was spending on
that home, shall be given to the voluntary
organization as grant-in-aid under the
sng 40 pil-182.10
Memorandum of Understanding signed between
both the parties describing their role and
obligations."
(emphasis added)
32. Under the said Act of 2015, Section 50 is a pari materia
with Section 34 of the said Act of 2000, which reads thus:
"50. Children's Home.--
(1) The State Government may establish and
maintain, in every district or group of districts, either
by itself or through voluntary or non-governmental
organisations, Children's Homes, which shall be
registered as such, for the placement of children in
need of care and protection for their care, treatment,
education, training, development and rehabilitation.
(2) The State Government shall designate any
Children's Home as a home fit for children with special
needs delivering specialised services, depending on
requirement.
(3) The State Government may, by rules, provide for
the monitoring and management of Children's Homes
including the standards and the nature of services to
be provided by them, based on individual care plans
for each child."
33. Sections 54 and 55 of the said Act of 2015 are also
relevant, which read thus:
"54. Inspection of institutions registered under this
Act.--
(1) The State Government shall appoint
inspection committees for the State and
district, as the case may be, for all institutions
registered or recognised to be fit under this
sng 41 pil-182.10
Act for such period and for such purposes, as
may be prescribed.
(2) Such inspection committees shall mandatorily
conduct visits to all facilities housing children
in the area allocated, at least once in three
months in a team of not less than three
members, of whom at least one shall be a
woman and one shall be a medical officer, and
submit reports of the findings of such visits
within a week of their visit, to the District
Child Protection Units or State Government,
as the case may be, for further action.
(3) On the submission of the report by the inspection
committee within a week of the inspection,
appropriate action shall be taken within a month
by the District Child Protection Unit or the State
Government and a compliance report shall be
submitted to the State Government.
55. Evaluation of functioning of structures.--
(1) The Central Government or State Government
may independently evaluate the functioning of
the Board, Committee, special juvenile police
units, registered institutions, or recognised fit
facilities and persons, at such period and through
such persons or institutions as may be prescribed
by that Government.
(2) In case such independent evaluation is
conducted by both the Governments, the
evaluation made by the Central Government
shall prevail."
(emphasis added)
34. The Maharashtra Juvenile Justice (Care & Protection of
Children) Rules, 2002 (for short "the State Rules") are also relevant.
Rule 16 deals with the establishment of Children's Home. Rule 23 deals
with Certification of Institutions or Organisations and Recognition of
sng 42 pil-182.10
the Children's Home. Rules 80 to 83 of the State Rules which are
material read thus:
"80. Sponsorship--
(1) The State Government shall prepare sponsorship
programme in consultation with non-
governmental organisations, functionaries of the
juvenile justice system, other government
agencies and the corporate sector.
(2) The Commissioner with the help of District Child
Protection Unit and the Child Welfare Committee
shall identity families and children in need of
care and protection, and provide them with
necessary support services in the form of
sponsorship for child's education, health,
nutrition and other development needs. This list
of families and children shall be revised every
year.
(3) The Juvenile justice Board may in fit cases refer
to the Child welfare Committee, a juvenile or his
family for sponsorship support, and shall send a
copy of such referral to the State Government for
appropriate action.
(4) The Commissioner shall be designated with the
task of disbursing sponsorship support to
identified families and children, and ensuring
that the sponsorship support is utilized by the
parent or child for the purpose for which it was
sanctioned.
81. Social Auditing--
The State Government shall monitor and evaluate the
functioning of the Home annually with the help of
leading organisations working with the children,
besides Autonomous bodies like National Institute of
Public Cooperation and Child development, Indian
Social Institute, Child line India Foundation, National
Institute of Social Defence, Tata Institute of Social
Sciences, Nirmala Niketan, Shrimati Nathibai Damodar
sng 43 pil-182.10
Thakercey, Central and State level Social Welfare
Boards, Department of Criminology, Psychology,
Sociology, Law of recognised Universities etc.
82. Inspection--
(1) Deleted
(2) The team shall also make suggestions for the
improvement and development of the institution.
(3) Deleted
(4) Not less than three members shall carry out the
inspection visits.
(5) The Committee may visit the homes either by
giving a prior intimation or by surprise.
(6) The Committee shall interact with the children
during the visits to the institution, to determine their
well being and uninhibited feedback.
(7) All concerned authorities shall take the follow
up action on the findings and suggestion of the
children.
(8) The inspection team shall be given an identity
card.
83. Inspection of Institutions, monitoring and
evaluation--
(1) The Inspection Committee shall only enter the
premises of the homes for the purpose of inspection.
(2) During the institution rounds, the Inspection
Committee shall give every juvenile or child
committed or remanded to its care an opportunity to
make any complaint or application to him which such
juvenile or child may wish to make.
(3) Every such inspection visit shall at the
conclusion of his inspection, be noted in the inspection
book of the institution or home as a proof that he has
inspected it on a particular date.
sng 44 pil-182.10
(4) The Inspection Committee shall furnish the
report to the Commissioner and the State Advisory
Board.
(5) Any place of safety in which a juvenile or child is
kept shall be open to inspection.
(6) The occupier or manager of such place of safe
custody shall give every facility to the inspecting
committee and the others as stated above who visits
the juvenile or child for the purpose of making
inquiries into his case.
(7) Any registered medical practitioner empowered
in this behalf by Government may visit any institution
or home, a fit person or fit institution at any time with
or without notice in order to report to the
Superintendent and the competent Authority on the
health of the Juvenile/child and the sanitary condition
of the institution.
(8) Deleted
(9) Deleted
(10) The industrial, technical, agricultural or other
vocational training classes run by the institutions shall
be inspected by the Director of Employment and
Director of Training or by an officer authorized by him
in this behalf or by any officer of the Agricultural or
other Departments concerned, as the case may be, and
he shall forward the inspection report to the
Competent Authority."
35. Rule 84 of the State Rules 2002 is also material. The said
Rule reads thus:
"84. State children's fund--(1) The State Government
shall create a fund at the State level under
section 61 of the Act to be called the State
Children's Fund (here in after referred to as "the
sng 45 pil-182.10
fund") for the welfare and rehabilitation of the
juvenile or child dealt with under the provisions
of the Act.
(2) In addition to voluntary donation, the Central
Government shall also make contribution to State
Children's Fund.
(3) The fund shall be applied for the following
purposes-
(a) To implement programmes for the
welfare and rehabilitation of children
and which do not fall in any of the
Central Government or State
Government or any other scheme;
(b) To provide for medical aid or surgery for
major illnesses for juvenile or child;
(c) To provide for fees for higher or
vocational or technical education;
(d) Deleted
(e) To do all other things that are incidental
and conducive to the above purpose.
(4) For the management and administration of the
Fund, a Board of Management shall be set up
under the chairmanship of the Secretary, Women
and Child Development Department under sub-
section (3)of the section 61.
(5) For the management and administration of the
Fund, Government shall constitute a Board of
Management consisting of the following
members:-
* Secretary (Women & Child Development
Department) --Chairman
* Commissioner (Women & Child
Development Department)--Member
sng 46 pil-182.10
* Deputy Commissioner --Child development
* (Women & Child Development Department)
--Member Secretary-Treasurer.
(6) A non-official member shall, unless he resigns his
office or dies or otherwise vacated his office at an
earlier date, hold office for a period not
exceeding two years. A member nominated to fill
a casual vacancy shall hold office so long only as
the member in whose place he is nominated
would have held it if the vacancy had not
occurred.
(7)(i) A non-official member other than the chairman
may resign his office by writing under his hand
addressed to the Chairman.
(ii) The chairman may resign his office by writing
under his hand address to government.
(iii) The resignation shall take effect from date of its
acceptance or on the expiry of thirty days from
the date of its receipt by the Chairman or, as the
case may be, by Government, whichever is
earlier.
(8) A non-official member shall be deemed to have
vacated his office--
(a) If he becomes of unsound mind or is
declared insolvent;
(b) If he is convicted of any offence which in
the opinion of Government involves
moral turpitude;
(c) If in the opinion of the Government, it is
not desirable that he should continue to
be a member.
(9) The Board of Management shall meet at least
once a year at such places and on such dates and
at such times as may be appointed by the
chairman.
sng 47 pil-182.10
(10) The quorum for a meeting of the Board of
Management shall be four. If a meeting of the
Board of Management could not be held for want
of quorum, then the meeting shall automatically
stand adjourned till the same day in the next
week at the same time and place or if that day is
a public holiday. Till the next succeeding day
which is not a public holiday, at the same place
and time.
(11) The assets of the Fund shall include all such
grants and contributions, recurring or non-
recurring, from the Central Government and
State Government as well as the voluntary
donations from any individual or organisation.
(12) All withdrawals shall be made by cheque or
requisitions, as the case may be, signed by the
Secretary-cum-treasurer in the case of amounts
not exceeding rupees one thousand and signed
duly by the secretary-cum-treasurer and other
member of the board of management to be
nominated by the Board of Management.
(13) The regular accounts shall be kept of all money
and properties, and all incomes and expenditures
of the Fund and shall be audited by a notified
firm of chartered Accountants, or any other
recognized authorities as may be appointed by
the Board.
(14) The auditors shall also certify the expenditure
form the Fund made by the secretary-cum-
treasure.
(15) All contracts and other assurances shall be in
name of the Board of Management and signed on
their behalf by the secretary-cum-treasure and
one member of the Board of the Management
authorized by it for the purpose.
(16) The Board of Management shall invest the
proceeds of sale or other disposal of the property,
sng 48 pil-182.10
as well as any money or property not
immediately required to be used to serve the
objective of the Fund, in any one or more of the
mode of investment for the time being
authorized by the law for the investment of trust
money as the Board of Management may think
proper.
(17) The Board of Management may delegate to one
or more of the members such of its power, which
in its opinion are merely a procedural
arrangement."
It is not clear whether the said Rule has been implemented
by establishing State Children's Fund. Now under Section 105 of the
said Act of 2015, there is a provision for establishing Juvenile Justice
Fund. Section 105 reads thus:
"105. (1) The State Government may create a fund in
such name as it thinks fit for the welfare and
rehabilitation of the children dealt with under this Act.
(2) There shall be credited to the fund such voluntary
donations, contributions or subscriptions as may be
made by any individual or organisation.
(3) The fund created under sub-section (1) shall be
administered by the Department of the State
Government implementing this Act in such manner and
for such purposes as may be prescribed."
If the State Government has not established such a Fund ,
the State will have to establish the same. The fund will be very useful
for taking care of medical needs of the children in the Children's
Homes as the State Government is empowered to accept voluntary
donations.
sng 49 pil-182.10
36. The first issue to be dealt with is as regards setting up
monitoring and the functioning of MDC Homes in Maharashtra. We
have already quoted the relevant provisions of the said Act of 2000 and
the said Act of 2015. In view of the directive principles of the State
Policy read along with the provisions of Section 34 of the said Act of
2000 and Section 50 of the said Act of 2015, it is the obligation of the
State to establish and maintain adequate number of Children's Homes
in the State. If the State cannot do itself, it is enjoined to do so with the
help of voluntary organizations. The State Government will have to
undertake an exercise to determine as to how many Children's Homes
and especially MDC Homes are required to be set up in the State. It is
all the more necessary for the State Government to set up Homes for
the children covered by Clause (iv) of Section 2(14) of the said Act of
2005. In view of Sub-section (3) of Section 34 of the said Act of 2000,
from 22nd August 2006, it became mandatory for all the institutions,
whether the State Government run or those run by the voluntary
organizations for children in need of care and protection to get
registered under the said Act of 2000 in such manner as may be
prescribed by the Rules. The said Children's Homes are subject to
inspection under Section 35 of the said Act of 2000.
sng 50 pil-182.10
37. Under the said Act of 2015, there is a similar provision for
establishing Children's Home. Sub-section (1) of Section 50 of the said
Act of 2015 itself requires registration of such Children's Home. Sub-
section (3) thereof confers a rule making power on the State
Government to provide for monitoring and management of the
Children's Homes including the standards and the nature of services to
be provided by them, based on individual care plans for each child. The
State Government needs to exercise the said rule making power. Under
Sub-section (1) of Section 54 of the said Act of 2015, the State
Government is under an obligation to appoint Inspection Committees
for the State and Districts for inspection of all the institutions which are
registered under Section 50 of the said Act of 2015. Sub-section (2) of
Section 54 provides that such Inspection Committees shall mandatorily
conduct visits to all facilities for housing the children in the area
allocated, at least once in three months. The State Government is
required to take action within a period of one month from the date of
submission of such report. Under Clause (xiii) of Sub-section (2) of
Section 110 of the said Act of 2015, there is a Rule making power
conferred on the State Government providing for an appointment of
Inspection Committees as contemplated by Sub-section (1) of Section
54 of the said Act of 2015. Under the Maharashtra Rules of 2002, the
Rule 16 provides for details regarding the facilities to be provided in
sng 51 pil-182.10
Children's Home, such as, availability of a Medical Officer, availability of
Vocational Training, availability of trained Counsellor, etc. The
Inspection Committees are bound to note whether the Children's Homes
have the facilities in terms of Rule 16. The Rule 11 provides that the
State Government should constitute Advisory Boards at various levels.
Under Rule 23, it is provided that if the State Government is not
satisfied with the working of any organization or institution, it may
direct the Advisory Board to make an inquiry. On the basis of the
reports submitted by the Advisory Board, the State Government is
empowered to issue notice to the organizations or institutions for
rectification of defects. The State Government is empowered to
withdraw certification of the Children's Homes. In such case, the
children are required to be transferred to another
organization/institution. There is one more important provision under
Section 106 of the said Act of 2015 which will help the cause of the
Children's Home, if it is implemented. Section 106 reads thus:
"106. Every State Government shall constitute a Child
Protection Society for the State and Child Protection
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 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"
sng 52 pil-182.10
This provision is again mandatory in nature. The State will
have to implement the said provision in its true letter and spirit.
38. Now we deal with the issue of Government grants to the
Children's Home. As per the Government Resolution dated 13 th
September 2013, grant is admissible to Children's Homes run by Non-
Government Organizations. As per the said Government Resolution, for
MDC Homes, grant of Rs.990/- per head per month is paid which is to
be utilized for food, clothing and other needs of the inmates. For other
Children's Homes, the grant admissible is Rs.900/- per head per month
which is to be utilized for food, clothing and other needs of the inmates.
No part of these amounts can be spent on the salary of the employees or
on the administrative expenses. For that purpose, a sum of Rs.315/- per
head per month is released to the Children's Homes of both the
categories. No reasons are required to be recorded that the grant is
grossly insufficient and therefore, the decision to pay such inadequate
grant is arbitrary.
39. We have quoted Rule 16 of the State Rules of 2002 which
mandates that the Children's Homes should be provided adequate
infrastructure as set out therein. Rule 72 of the Central Rules empower
the State Government to provide grant to the Children's Homes.
Moreover, considering the obligation of the State Government of
sng 53 pil-182.10
establishing Children's Homes and of giving facilities therein and
considering the Clause (f) of Article 39 of the Constitution of India, no
debate is required to hold that the grant at the aforesaid rates is wholly
inadequate. In fact this grant at the present rates is not sufficient for the
survival of the children in the Children's Homes. The decision to pay
grant at such rates is arbitrary and is violative of Articles 14 and 21 of
the Constitution. It is an obligation of the State to establish Children's
Homes of its own or through voluntary Organizations. It is the
obligation of the State to ensure that the adequate grants are released
to such Homes so that the very object of setting up such Homes is
fulfilled. We propose to direct the State Government to take immediate
decision on the issue of increasing the grants. The State Co-ordination
Committee appointed under the order of this Court will be empowered
to make concrete recommendations to the State Government for
increasing grants. It will be impossible for the MDC Homes to maintain
the children in such meager amount.
40. We may note here that even the material placed on record
of this Petition shows that some MDC Homes as well as Children's
Homes run by Non-Government Organizations had to close down. One
of the main reasons must be grossly inadequate grant. By providing
such inadequate grant, the State Government has committed the breach
of its constitutional and statutory obligations. Unless the quantum of
sng 54 pil-182.10
grant to the Children's Homes and especially the MDC Homes is not
immediately increased, the Homes may not be able to sustain itself.
Therefore, by way of interim measure, till the Government takes a final
decision, we propose to direct the State Government to pay grant at the
rate of Rs.2,000/- per head per month to the MDC Homes and grant of
Rs.1,500/- per head per month to the other Children's Homes. We also
propose to direct the State Government to pay grant of Rs.500/- per
head per month towards administration expenses. This amount will be
payable with effect from 1st April 2017.
41. As per the directions of this Court issued on 16th October
2010, by the Government Resolution dated 29th November 2010, the
State Government has constituted the Maharashtra State Co-ordination
Committee for Child Protection (for short "State Co-ordination
Committee"). On 4th December 2010, a direction was issued for
formation of a Divisional Co-ordination Committee for each of the six
Divisions. Accordingly, the Divisional Co-ordination Committees have
been established. We propose to direct continuation of the Co-
ordination Committees and Divisional Co-ordination Committees.
However, as suggested by the learned Amicus Curiae, persons working
in the fields of finance and law should be added to the State Level Co-
ordination Committee within a period of two months from the date on
which a recommendation is made by the said Committee.
sng 55 pil-182.10
42. A direction was issued on 11 th March 2011 by this Court to
the learned Principal District Judges to nominate a Judicial Officer of
the rank of District Judge where the MDC Home is at the District Head-
quarters or a Civil Judge, Junior Division/Judicial Magistrate, First
Class where the MDC Home is at Taluka Head-quarters to regularly visit
MDC Homes and to submit a report especially in relation to the care
provided to the mentally challenged children. The said order must also
continue with a direction to the Judicial Officer to forward reports of
inspection to the State Level Co-ordination Committee.
43. The State Government will have to pay appropriate
allowances to the Members of all the Committees appointed under the
orders of this Court for attending the meetings and travelling allowance
to the members of Committees to enable them attend meetings and to
visit the MDC Homes.
44. The other issue is about the education of the children in
MDC Homes. This issue will have to be now considered in the context
of Article 21A of the Constitution of India. We have already quoted
Article 21A of the Constitution of India.
sng 56 pil-182.10
45. Under Article 21A of the Constitution of India, the State is
under an obligation to provide free and compulsory education to all the
children of the age of six to fourteen years in such manner as the State
may, by law, determine. In view of the mandate of law, considering the
object of establishment of MDC Homes, the State Government will have
to ensure that all the children in MDC Homes should get education up
to the age of fourteen years. In fact, till the time the children are in
MDC Homes, the State Government will have to ensure that they get
education. Needless to add that for mentally challenged or ill children,
necessary arrangements will have to be made for special education.
46. During the course of hearing, it was noted that in terms of
the order dated 30th October 2015, compensation has been sanctioned
to 35 children in the sum of Rs.3 lakhs each.
47. In the order dated 16th October 2015, a decision of the Co-
operation Committee taken in its meeting held on 8 th September 2015 is
noted. The said decision taken was in relation to apply Niramaya
Scheme to all the mentally challenged and disabled children who are
admitted in all the MDC Homes. Necessary steps in that behalf be taken
by the State Government and it be ensured that the scheme is made
applicable accordingly. The premium will be payable by the State
Government.
sng 57 pil-182.10
48. Under the order dated 20th March 2015, this Court referred
to "Chunauti Rehabilitation Model" which was exclusively implemented
in MDC Home at Mankhurd. A direction was issued under the said
order to the State Government to ensure that the Chunauti
Rehabilitation Model is replicated in all MDC Homes. The said order is
not yet implemented. A Note dated 6 th March 2016 submitted by
Prof.Dr.Asha Bajpai, Amicus Curiae, records that the said Chunauti
Rehabilitation Model has been replicated in the MDC Homes at Solapur.
49. Another issue is about an utilization of compensation
amount released to 35 children. A Utilization Committee will have to
be formed. The learned Amicus Curiae in her letter dated 10 th July
2016 has submitted a suggestion for constitution of Utilization
Committee for monitoring the utilization of the compensation amount.
We propose to accept the said suggestion. We propose to approve the
object of the Utilization Committee as suggested by the learned Amicus
Curiae in the said letter. The learned Amicus Curiae shall submit a copy
of the chart containing the requirements of the children to the said
Committee.
50. The other issue which will have to be addressed by the
State Government is about the mentally challenged and disabled
sng 58 pil-182.10
children in MDC Homes in the State after they attain majority. There
are large number of Non-Government Organizations having residential
and educational facilities for such persons with disabilities. The State
Co-ordination Committee will have to identify the said Institutions and
evolve a scheme in co-ordination with the said institutions for
accommodating the said children who attained the age of 18 years. We
propose to issue appropriate directions in this behalf.
51. As indicated earlier, the State-Coordination Committee for
Child Protection constituted under the orders of this Court as well as
Divisional Committees and Rehabilitation Committee will have to
continue. The State Government will be entitled to fill in the vacancies
caused by resignation, death etc in terms of the recommendations
which may be made by the State Co-ordination Committee. In the
event, any material change is required in the constitution of the
Committee, necessary Application will have to be made in this disposed
of Petition.
52. In some of the MDC Homes, the children who are inmates
may be the victims of the offence and, therefore, necessary security will
have to be provided to them. There are directions issued by this Court
in another PIL under which an elaborate scheme is in force for
protecting the witnesses. In terms of the said scheme, necessary
sng 59 pil-182.10
protection will have to be granted to the said children. Due to the
orders passed by this Court, some of the mentally challenged children
are in a position to attend formal schools. Even such child will have to
be protected by the State Government as they will have to leave their
respective MDC Homes for attending their respective schools. The
Children Protection Policy and Code of Conduct framed by the
Coordination Committee has been submitted to this Court. The
Committee will have to submit a copy thereof to the appropriate
department of the State Government and the State Government will
have to finalise the Child Protection Policy and Code of Conduct. If
necessary, after consulting the Coordination Committee, an appropriate
decision will have to be taken by the State Government within a period
of three months from the date of this Judgment.
53. On 16th September 2010 and 16th April 2014, a direction
was issued by this Court that the State Government shall issue
instructions to the District Child Welfare Officer in each District where
MDC Homes for mentally deficient children are located to ensure that
each child is medically examined by a team of medical experts such as
Physicians, Mentally Health Expert, a Psychiatrist or Psychologist and in
case of female, a Gynecologist . The District Child Welfare Officer shall
ensure that such medical examination is conducted within a period of
six months through Doctors of Civil and Public Hospitals.
sng 60 pil-182.10
54. By an order dated 20th March 2015, a direction was issued
to the Chairperson of the National Trust to ensure that a health
insurance is provided to the children in MDC Homes in Maharashtra.
There is a Government Resolution dated 26 th April 2016 which records
that a National Trust has extended Niramaya Health Scheme to 14
grant-in-aid to MDC Homes and 4 non-grant-in-aid in MDC Homes.
Necessary steps will have to extend to the said scheme to the children of
all the MDC Homes in the State.
55. There are various directions issued by this Court for
implementation of the said Act of 2000. Now, the State Government
will have to take all possible steps to implement the said Act of 2015 in
relation to the following aspects:-
(a) Establishment of Child Welfare Committees in each
State having complete infrastructure;
(b) Registration of Child Care Institutions as provided in
Section 41 and taking action for non-registration;
sng 61 pil-182.10
(c) Framing of Rules for the purposes of undertaking
various programmes of sponsorship as provided in
Sub-section (1) of Section 45 of the said Act of 2015;
(d) Establishment of Observation Homes in every District
in accordance with Sub-section (1) of Section 47 of
the said Act of 2015;
(e) Establishment of Special Homes under Section 48 of
the said Act of 2015;
(f) Establishment of Children's Homes under Sub-section
(1) of Section 50 of the said Act of 2015 in every
District of the State;
(g) Appointment of Inspection Committees as provided in
Sub-section (1) of Section 54 of the said Act of 2015
and inspection by the Inspection Committees of all
facilities, housing the children at least once in three
months;
(h) Implementation of Sections 105 and 106;
sng 62 pil-182.10
(i) Exercise of Rule making power under Sub-section
(1)and (2) of Section 110 of the said Act of 2015;
56. The directions given to review all licenses for running Homes
for mental deficient children will continue to operate. There is material
on record to show that the said direction issued on 11 th March 2011 has
been implemented in some cases. The direction issued on 29 th March
2012 for transfer of children in MDC Homes which are likely to be shut
down will continue to operate.
57. There was a direction issued on 15th November 2013
directing the Social Justice Department of the State Government to
ensure that special teachers from the special schools shall periodically
visit and, atleast once in a week, MDC Homes for carrying out
assessment of all the children lodged in the Homes. The said direction
will continue to operate.
58. Under the order dated 18 th September 2014, a direction was
issued to ensure that benefit of Sarva Shikshan Abhiyan granted to the
children with disabilities in MDC Homes should be permitted to
continue till they attain the age of 18 years. The said direction will
continue to operate.
sng 63 pil-182.10
59. There is already a direction issued under the order dated
20th March 2015 to ensure that "Chunouti Rehabilitation" is
implemented in all MDC Homes in the State of Maharashtra. This
direction will have to be implemented in relation to all MDC Homes. In
terms of the order dated 29 th July 2011, guidelines for the cases of
sexual abuse/assault/sexual offences against the mentally deficient
children have been framed which shall continue to operate. The State
Government will have to periodically review the said guidelines.
Another issue will be as regards the fencing/compound wall to be
erected for securing MDC Homes at Mankhurd. There is already a
direction issued by this Court to ensure that all the repairs are carried
out. Necessary action will have to be taken within a period of six
months from today;
60. Before we come to the directions and operative part of the
Judgment, we must record our appreciation for the assistance rendered
by Dr.Asha Bajpai, the Amicus Curiae, who is also the Chairperson of
the State Co-ordination Committee. Considering the valuable assistance
rendered by her, we propose to direct the State Government to pay her
a sum of Rs.1,25,000/- which may be utilized by her in several social
activities undertaken by herself or by Tata Institute of Social Sciences
(TISS). We leave it to her to decide for what purpose the said amount
sng 64 pil-182.10
is to be utilized. We also express our appreciation for the services
rendered by colleagues of Dr. Bajpai who assisted her and the members
of the Committees established by the Court. Their contribution is
invaluable. We must also record our appreciation for the Newspaper
which came out with the article which lead to initiation of these
proceedings.
61. The discussion made above shows that there are proper
Legislations in place, but there is a complete failure to implement the
same. All that this Court is doing is to ensure the implementation of the
existing Laws. We hope and trust that the State Government will not
treat this PIL as an adversarial litigation.
62. There are several findings recorded in this Judgment. We
make it clear that even if there are no directions specifically
incorporated in the operative part on the basis of the findings, the State
is bound to take appropriate steps on the basis of the findings.
63. Accordingly, we issue the following directions:
(a) All interim directions issued from time to time in this
Petition shall continue to operate as the final
directions subject to modifications specifically made
under the Judgment and Order;
sng 65 pil-182.10
(b) It is the legal and Constitutional obligation of the
State Government to set up adequate number of
MDC Homes in the State and provide them all the
infrastructure and facilities as required by the said
Act of 2015 and the Central Rules. The State
Government shall ascertain number of such Homes
required in the State with the help of experts
including the Maharashtra State Coordination
Committee for Child Protection. An appropriate
decision shall be taken by the State Government
within a period of four months from today.
Thereafter, the State Government shall take steps to
establish requisite number of MDC Homes in the
State as expeditiously as possible;
(c) The State Government shall within a period of one
month from today ensure that a Management
Committee under Rule 55 of the Central Rules is
constituted for every children's home in the state of
Maharashtra;
sng 66 pil-182.10
(d) The Maharashtra State Co-ordination Committee for
Child Protection constituted under the orders of this
Court as well as Divisional Coordination Committees
shall continue to exist and shall continue to discharge
its duties as provided in various orders of this Court
passed from time to time and in particular the order
dated 29th March 2012. The State Co-ordination
Committee shall also monitor compliance with all the
directions issued under this Judgment and order as
well as the interim directions/orders continued under
this Judgment and Order. Even the Rehabilitation
Committee constituted under the Orders of the Court
shall continue to function and continue to discharge
the duties specified in the order dated 29 th March
2012;
(e) The vacancies caused of the members of all the non-
statutory Committees constituted under the order of
this Court on account of death or resignation or
otherwise shall be immediately filled in by the State
Government as per the recommendations of the
State Co-ordination Committee. On the
sng 67 pil-182.10
recommendation of the State-Coordination
Committee, the State Government shall add or
remove the Members of the aforesaid Committees. As
observed in the Judgment, two members having
expertise in finance and law respectively shall be
added by the State Government to the State
Coordination Committee if a recommendation to that
effect is made by the said Committee ;
(f) If the State-Coordination Committee needs any
further directions on any aspect, it is free to submit a
report to the Registrar (Judicial-I) of this Court. On
the receipt of report, the Registrar (Judicial-I) shall
place the matter before the appropriate bench for
issuing necessary directions;
(g) The State Government shall pay adequate
remuneration to the members of all the Committees
constituted under the orders of the Court. They shall
be paid travelling allowance for attending the
meetings and for making visits to the Children's
Homes. We are sure that the allowances shall be
fixed considering the status of the members.
sng 68 pil-182.10
Necessary order/GR shall be issued by the State
Government within a period of two months from
today;
(h) The State Government shall immediately constitute a
Utilization Committee for monitoring the utilisation
of the compensation released to 35 children. While
constituting a Utilization Committee, the State
Government shall act in accordance with the
suggestions of the learned Amicus Curiae
incorporated in her letter dated 10 th August 2016.
The Committee shall be constituted comprising of the
persons who are mentioned in the said letter dated
10th August 2016 within a period of one month from
today. The Committee constituted shall ensure that
compensation sanctioned to 35 children is properly
utilized. The learned Amicus Curiae shall submit a
copy of the chart containing the requirements of the
Children submitted by her to this Court to the said
Committee;
(i) The concerned MDC Homes in which the said
children are kept shall be bound by the
recommendations of the Utilization Committee;
sng 69 pil-182.10
(j) The State Government shall endeavour to exercise the
Rule making power under Sub-Section (2) of Section
110 of the said Act of 2015 within a period of six
months from today with a view to give complete
effect to the said Act of 2015;
(k) The State Government shall endeavour to create
Juvenile Justice Fund in accordance with Section 105
of the said Act of 2015 within a period of nine
months from today;
(l) The State Government shall establish State Child
Protection Society and District Protection Units in
accordance with Section 106 of the said Act of 2015
within a period of nine months from today:
(m) At present, the State Government is releasing grant
the the Children's Homes in the sum of Rs.900/- per
normal child per month and Rs.990/- for per child
per month per mentally challenged child in addition
to the administration grant of Rs.315/- per head per
month. We hold that the payment of grant at the
sng 70 pil-182.10
aforesaid rates is arbitrary which is violative of
Articles 14 and 21 of the Constitution of India;
(n) By way of interim measure, till the Government takes
a final decision on the issue of substantial increase in
the grant, we direct the State Government to pay
grant at the rate of Rs.2,000/- per head per month to
the MDC Homes and the grant of Rs.1,500/- per
head per month to the other Children's Homes. We
also propose to direct the State Government to pay
grant of Rs.500/- per head per month towards
administration expenses. The grant shall be released
with effect from 1st April 2017.
(o) The grants shall be released in terms of the
Government Resolution dated 13th September 2014.
Thus, 80% of the grants shall be released in first
quarter of every Financial Year by way of advance;
(p) Appropriate decision on the substantially increasing
the grant with retrospective effect shall be taken by
the State Government within a period of three
months from today after considering the
sng 71 pil-182.10
recommendations of the State Coordination
Committee. The revised grant shall be payable from
1st April 2017 or such earlier date as may be decided
by the State Government ;
(q) Unless the reasonable amount is fixed by
substantially increasing the grant admissible as per
the Government Resolution dated 13th September
2013, the Non-Government Organizations will find it
impossible to run the Children's Homes and
especially the MDC Homes and, therefore, the State
Government is under an obligation to take a policy
decision of increasing the grant substantially.
(r) The direction issued on 9th December 2012 to
forthwith enhance the security cover provided for the
children in MDC Home at Mankhurd shall be
implemented within a period of two months from
today, if not already implemented;
(s) If the children housed in the other MDC Homes are
victims of the offence or witnesses, apart from
providing necessary security cover to every such
sng 72 pil-182.10
MDC Homes, the State Government shall ensure that
necessary protection is granted to the children who
are either victims of the offences or who are
witnesses in terms of the protection granted to the
victims and/or witnesses as per the prevailing policy;
(t) The children who are permitted to attend the
formal/regular schools shall be also given necessary
protection and security which will ensure that they
visit the schools and come back after the school
activities are over;
(u) The Child Protection Policy and Code of Conduct for
the staff of MDC Homes, for teachers and staff of
special schools for dealing with the children with
disabilities framed under the orders of this Court
shall continue to operate. It will be open for the
State Government to periodically review the same;
(v) The directions issued under the orders dated 16th
September 2010 and 16th April 2014 for medical
examination of the children in the MDC Homes
meant for mentally deficient children shall continue
to operate;
sng 73 pil-182.10
(w) The concerned District Child Welfare Officers shall
ensure that the children are medically examined by a
team of experts including a Physician, Mental Health
Expert, Psychologist/Psychiatrist (if any) and in case
of a female inmate, a Gynecologist. Medical
examination shall be conducted at least twice a year;
(x) The Niramaya Health Insurance Scheme shall be
extended to all the mentally challenged and disabled
children in all the MDC Homes in the State whether
aided or non-aided. The State Government shall take
necessary steps in this behalf by taking up the matter
with the Chairperson of the National Trust. This
direction shall be implemented within a period of
three months from today. Needless to add that the
premium shall be payable by the State Government;
(y) The State Government shall ensure that entire
machinery as indicated in Paragraph 55 above under
the Juvenile Justice (Care and Protection of
Children) Act, 2015 is set up and the provisions
thereof are implemented in its true letter and spirit in
the entire State;
sng 74 pil-182.10
(z) However, as directed earlier, the Rule making power
under sub-Sections (1) and (2) of Section 110 shall
be exercised within a period of six months from
today. The State Government shall file an affidavit
within a period of two months from today indicating
an outer limit within which the rules shall be framed;
(aa) In view of Sub-section (2) of Section 111 of the said
Act of 2015, the directions issued by this Court from
time to time for implementation of the said Act of
2000 will continue to operate till the entire
framework under the said Act of 2015 is established
by the State Government;
(bb) The directions issued under the order dated 5 th
February 2011 to ensure that the resource persons at
the vocational training centers run by the
Government of Maharashtra regularly visit the
Homes for mentally challenged children to provide
all necessary services like speech therapy and
vocational training to the inmates shall continue to
operate;
sng 75 pil-182.10
(cc) As directed earlier, the State Government shall
scrupulously implement the provisions of Section 41
of the said Act of 2015 read with Section 42 thereof;
(dd) The District Legal Services Committees and Taluka
Legal Services Committees shall extend necessary
cooperation and assistance to Children's Homes in
their respective Jurisdictions ;
(ee) A copy of this Judgment and Order shall be
forwarded to the Secretary of the Maharashtra State
Legal Services Authority who shall communicate the
aforesaid directions to all the District and Taluka
Legal Services Authority;
(ff) The directions issued under the order dated 11th
March 2011 to nominate Judicial Officers for visiting
MDC Homes will continue to operate. Inspection
shall be carried out by Judicial Officers so nominated
once in every six months. Reports shall be forwarded
to the State Level Co-ordination Committee to enable
it to take up the matter with appropriate authorities;
sng 76 pil-182.10
(gg) A contingency fund of Rs.5,000/- in cash shall be
placed at the disposal of each MDC Homes which can
be used for expenditure incurred in case of medical
emergency;
(hh) The State Government shall consider of revising the
said amount periodically and preferably after every
two years;
(ii) The Child Welfare Committees under Section 27 of
the said Act of 2015 shall be constituted in all
Districts. The State Government shall ensure that
vacancies to the posts of Chairperson and members
shall be filled in immediately. The State Government
shall start process of making appointments at least
six months before the term of the members of the
Committees is likely to expire. All the necessary
infrastructure such as a decent office, adequate staff,
furniture, computers, printers, etc. shall be provided
to all the Child Welfare Committees;
sng 77 pil-182.10
(jj) In case of mentally deficient children in MDC Homes
who complete the age of 18 years, necessary steps
shall be taken in terms this judgment and order so
that the said children can be accommodated in
proper homes run by the Non-Governmental
Organizations;
(kk) The "Chunauti Rehabilitation Model" shall be
replicated in all MDC Homes in the State. This
direction shall be complied with within a period of
three months from today;
(ll) As directed under the orders passed by this Court,
the benefit of Sarva Shikshan Abhiyan shall be
extended to the children in MDC Homes;
(mm) We direct the State Government to pay a sum of
Rs.1,25,000/- (Rupees One Lakh Twenty Five
Thousand) to Dr. Asha Bajpai, the learned Amicus
Curiae within a period of two months from today. It
will be open for her to use the said amount for the
social activities undertaken by herself or by Tata
Institute of Social Sciences;
sng 78 pil-182.10
(nn) The Petition is disposed of with the aforesaid
directions;
(oo) It will be appropriate if, for reporting compliance,
this Petition is placed before the same bench or at
least to a bench to which one of us is a party.
Necessary directions in this behalf shall be obtained
by the Registrar (Judicial-I) from the Hon'ble the
Chief Justice on the administrative side;
(pp) For reporting compliance, firstly the Petition shall be
listed on 30th June 2017 at 11.00 a.m. Compliance
affidavit shall be filed by the State Government on or
before 27th June 2017.
( A.A. SAYED, J) ( A.S. OKA, J )
