Amardeep Malik vs State Govt. Of Nct Of Delhi And Ors.
2012 Latest Caselaw 3691 Del

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*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P. (CRL) 694/2012

      AMARDEEP MALIK                                                   ..... Petitioner
               Through: Mr. Preet Pal Singh, Ms. Gurmeet Kaur Kapur & Ms. Priya
                        Mahta, Advocates

                                        versus

      STATE GOVT. OF NCT OF DELHI & ORS.                           ..... Respondents
                Through: Mr. Pawan Sharma, Standing Counsel (Crl.)
                         Ms. Asha Menon, Member Secretary DSLSA.
                         Mr.M.K Chaudhary, advocate for Apna Ghar.
                         Mr. Binod Kumar Sahu, Registrar, NCPCR.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE S.P.GARG

                           ORDER

% 01.06.2012

1. The present writ petition began as a claim for a writ of habeas corpus for the production of the writ petitioner's son, Tanush. He had been directed by the Chairman of the Dilshad Garden Child Welfare Committee, constituted under provisions of the Juvenile Justice (Care and Protection) Act, 2007, ("the Act") to be handed over to the "Apna Ghar" shelter home, recognized by the Govt of NCT of Delhi (hereafter GNCT) under the Act. The court directed immediate restoration of the child to the writ petitioner, and kept the matter for recording compliance. At that stage, the writ petitioner drew the attention of the court to the conditions in the said shelter home, which appeared to be less than satisfactory, in terms of physical infrastructure. Resultantly, the Court by its order dated 17th May, 2012, asked Ms. Richa Kapoor, a counsel practicing in this court, and also an Additional Public Prosecutor appearing on behalf of the GNCT, to act as Commissioner, visit the place, and submit a report.

2. The directions of the Court resulted in a report, and submission of photographs as well as a video footage, (all of which were considered on 25th May, 2012) which disclosed appalling conditions in "Apna Ghar". The Court, as a result, constituted a Committee comprising of the Secretary, Delhi Legal Service Authority, child psychologists, a doctor, and the Director of the GNCT, department of woman and child development, tasked to inspect the home, and submit a report. The report was submitted. Apparently, on the basis of this inspection, and the other materials on record, the GNCT issued a notice to the Apna Ghar, asking it to show cause why the permission granted to it, and renewed in 2010, should not be cancelled.

3. This Court heard the Standing Counsel for the GNCT of Delhi, the Commissioner Ms. Kapoor, the writ petitioner's counsel, Counsel for Apna Ghar, the Standing Counsel (Criminal) GNCT of Delhi and members of the in detail, on 30-05-2012.

4. To say that the picture shown about Apna Ghar is lamentable, would, in this Court's opinion, be putting it mildly. The materials on record, by way of the report of the Commissioner, the interim report, given by the Committee mandated by the Court, the photographs brought on record, and the documents which were accessed during the course of inspection of the facility, prima facie paint a sordid picture of neglect and apathy. The facility is being operated from public land (owned by the Railways, for which the operating agency, an NGO called "Children of Mother Earth" or COME does not appear to have any formal official approval) in premises that was formerly a yard or go-down, and which seems to be, by all accounts, decrepit and run down. The materials available on the record disclose serious infrastructural and human resource shortcomings, in the operation of the home, which prima facie may amount to large scale violation of the Rules framed by the GNCT, under the Act. The deficiencies which glaringly stand out, include woefully inadequate building infrastructure, such as dilapidated building, run down and uneven flooring, poor hygiene conditions, and grossly un-trained, or undertrained staff who are in charge of the day to day operations. The reports point to abysmal state of toilets, less than acceptable conditions in the dormitories, almost primitive conditions for play and no educational facilities. A worrisome feature which emerged during the two previous hearings was that there are no educational facilities, contrary to the clear mandate of the law, and the medical facilities which are to be attached to the facility are also non-existent. Furthermore, the area where the facility is housed, also appears to have been leased out partly to some others. There is no provision for appropriate security, and a serious lapse in the facility is utter chaotic documentation. These deficiencies prima facie appear to be violative of Rules 45, 47 and 49 of the Delhi Juvenile Justice (Care and Protection) Rules, 2009. The inspection by the overseeing committees mandated under law, do not appear to have been conducted. These are only a few salient features which the court discerns. This Court desists from making any further comments since the Govt. of NCT of Delhi, during the course of hearing on 30 th May, 2012, stated that a fresh detailed show cause notice would be issued, asking the explanation from the Apna Ghar management, and after considering its response, taking such necessary consequential action as is necessary by 14th June 2012. This Court also directs the Govt. of NCT of Delhi, in the course of its inquiry, look into the books of account maintained by Apna Ghar, and its parent organization, for the purpose of ascertaining the moneys received by way of donations, the utilization of such moneys and the co-relationship with the articles purchased, or the services and facilities provided, in terms of what is claimed to have been expended.

5. During the previous hearings, the Court had called for the relevant records of the Child Welfare Committee (CWC). The file pertaining to the boy Tanush, for whose production the present writ petition had been instituted, disclosed that the Chairman telephonically required the police constable, who reported the matter to him, over telephone, despite being aware that the child was then in the custody of a parent, i.e father, to be taken away and kept in the Apna Ghar shelter home. The file (of the CWC) pertaining to Apna Ghar showed that apparently an inspection had been conducted of the home, on 6-3-2012, which listed out certain deficiencies. However, there is no trace of this inspection report in the file of the CWC, maintained by the GNCT of Delhi. Several serious irregularities in the conduct of proceedings of the CWC were noticed, on the record, and a comparison of the record. The inspection report pertaining to Apna Ghar, which is on the record of the GNCT of Delhi, is of August, 2011. This shows, facially that either the CWC is fuding its records, or grossly neglecting its duties. In this context, the Court recollects Rule 24 of the Delhi Rules, which casts obligations on the CWC, and says, inter alia, that:

"The Committee shall visit each institution where children are sent for care and protection or adoption at least once in three months to review the condition of children in institutions, with support of the State Government and suggest necessary action; they should also monitor associations and agencies within their jurisdiction that deal with children in order to check on the exploitation and abuse of children.."

The serious nature of the deficiencies is apparent on the face of the record. This Court also had occasion to look into the records of the CWC, in respect of the institution, as well as the records maintained in respect of the children whose welfare and well-being it is obliged to oversee. There appears to be no semblance of regularity of its proceedings. It is designated as a Bench of Magistrates; yet, its members conceded that registers and diaries to keep track of children scheduled to be produced before them are not maintained. Another grave deficiency in the functioning of the CWC appeared to be the casual procedure adopted by it to "restore" children which had been placed under the care of Apna Ghar. The records shown to the court by that institution, and the CWC reveal that in many instances, when individuals claim to be guardians of children, who were admitted to the Apna Ghar, as being lost, no proper verification of identity, and cross checking of claims was resorted to; no follow up, in the manner prescribed by Rule 63, was conducted (as is mandated for two years, continuously). The overall impression which the Court gathered from the record is that the CWC is not discharging its functions properly.

6. In view of the above observations, the Court is of opinion that there should be a thorough inspection of all the children homes (similar to Apna Ghar) and facilities managed by NGOs and which have been recognized or granted permission by the Govt of NCT of Delhi. The Court is informed that there are 41 such institutions managed by NGOs, and 21, by the Govt. of NCT of Delhi. In all, about 2200 children are housed in these institutions. This Court hereby directs the National Commission for Protection of Child Rights (hereafter called NCPCR,) a national statutory body under the Protection of Child Rights Act, 2005 to inspect all such shelter or care homes - both private as well as government run institutions- in co-ordination with the Delhi Legal Services Authority, and prepare a comprehensive report as to the functioning of each such institution. The report shall point to such deficiencies and short comings as may exist in terms of physical, medical and manpower infrastructure of each institution, with specific reference to the existing rules and prevailing norms, in that regard. Since both are statutory bodies, tasked with performance of duties in the aid of law, the Govt of NCT shall render all assistance and co-operation, including manpower and financial support. The inspection of each institution shall be conducted by nominees of the NCPCR, the Delhi State Legal Services Authority, (who shall be a judicial officer). The NCPCR, and the DSLSA shall jointly evolve a convenient procedure in this regard. The report shall be prepared and filed in court at the earliest, and in any event within 10 weeks. This court notices that under the Rules, particularly Rules 63 and 64 provision for such overseeing or control mechanisms have been prescribed; yet if such measures had been effective, the plight of children in Apna Ghar would not have been what it is.

7. This Court further directs that the DSLSA shall inspect each Child Welfare Committee, and the files with the Government of NCT pertaining to each of them, and report to the court, as regard such deficiencies and deviations in their functioning, on all aspects, i.e. procedure for holding of inspection, the records available with them, the qualifications of its members, the frequency with which the committees perform their tasks, and report to the Government of NCT as required by the rules. These are only illustrative aspects; we emphasize that the inspection and reporting shall be full and comprehensive, and shall consist of all functioning aspects, as well as the requirements under the Act and rules. This task is important, because the CWCs exercise magisterial powers which implicate and affect the lives of the children whom they are expected to look after, and would fall within the supervisory jurisdiction of this Court. The State, we may notice, acts as parens patriae as far as the lives, welfare and well being of these children are concerned. It has to ensure that these children's right to life is not diminished in any manner. The Govt. of NCT of Delhi shall extend all necessary co-operation, including providing access to its files in relation to these CWCs and all matters connected with it. This report too shall be prepared within 10 weeks.

8. The reports mentioned in the previous two paragraphs shall each outline the summary of conclusions and recommendations, with specific reference to the provisions of the Act and Rules, for facility of easy reading and further follow up action. The Court also directs that the first committee tasked with inspecting the various institutions shall also co-opt, for the purpose of assessment of each child's well-being, a child psychologist or counselor, as prescribed by the rules; it shall also associate doctors who shall assess the health of each inmate, and also look into the medical records maintained in respect of such children by the institution. The honorarium payable to such doctors and psychologists shall borne by the Govt. of NCT of Delhi.

9. The Govt of NCT of Delhi is at liberty to proceed with its inquiry further to the show cause notice already issued, or to be issued, in respect of the Apna Ghar in accordance with law and take such further action as is warranted - under the Act, or any other provision of law. However, this enquiry be completed with utmost expedition; in any event within three weeks. In the meanwhile, the Govt of NCT of Delhi is directed to - in coordination with the first inspection committee - monitor the institution once a week through inspection. The inspection of Apna Ghar shall be conducted by a nominee of the Govt of NCT of Delhi, a nominee of NCPCR and one of DSLSA. The health, well- being and welfare of every child shall be closely monitored, and if any inmate is to be restored to his or he parents or guardians, the CWC shall carry out its tasks in accordance with law, after proper verification of all facts, subject to the supervision and direction of a judicial officer, nominated by the DSLSA. The restoration files (of Apna Ghar) are directed to be handed over to the DSLSA. Copies of such files shall be made available to the Apna Ghar through its counsel within the next three days.

Similarly, one file of the CWC furnished to the Court and fourteen files pertaining to the children of Apna Ghar institution shall be handed back after photo copies of the same are retained by the Court. The photocopies of these files (duly certified) shall be made available with the DSLSA within three days.

10. It is open to any of the parties to approach the Court for clarification or further directions in respect of implementation of this order.

11. List on 24.08.2012for consideration of the reports.

S. RAVINDRA BHAT, J

S.P.GARG, J June 01, 2012