Gujarat High Court

Suo Motu vs State Of Gujarat on 9 February, 2023

Bench: Ashutosh Shastri

      C/WPPIL/55/2018                           ORDER DATED: 09/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/WRIT PETITION (PIL) NO. 55 of 2018

=============================================
                             SUO MOTU
                               Versus
                    STATE OF GUJARAT & 2 other(s)
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Appearance:
MS TRUSHA K PATEL(2434) for the Applicant(s) No. 1
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 1,2,3
LAW OFFICER BRANCH(420) for the Opponent(s) No. 4
MR HEMANG M SHAH(5399) for the Opponent(s) No. 4
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     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                              and
           HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

Date : 09/02/2023

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This suo moto Public Interest Litigation has been

registered pursuant to the observations made by the Hon'ble

Apex Court in the judgment rendered on 09.02.2018 in the case

of Sampurna Behura v. Union of India & Ors., in Writ

Petition (Civil) No. 473 of 2005 and as such, notice came to be

issued. The registry has placed on record the directions which

has been issued in paragraph 95 by the Hon'ble Apex Court

which is to the following effect :-

"95. Keeping in mind the concerns expressed by all

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learned counsel and the need to invigorate the juvenile justice system in the country, we are of the view that the following directions ought to be given and we do so.

1. The Ministry of Women and Child Development in the Government of India and the State Governments should ensure that all positions in the NCPCR and the SCPRs are filled up well in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children.

2. The NCPCR and the SCPCRs should take their duties, functions and responsibilities with great earnestness keeping in mind the faith reposed in them by Parliament. A position in these statutory institutions is not a sinecure. These bodies have a very significant and proactive role to play in improving the lives of children across the country.

3. The State level Child Protection Societies and the District level Child Protection Units have an enormous responsibility in ensuring that the JJ Act is effectively implemented and Child Care Institutions are managed and maintained in a manner that is conducive to the well being of children in all respects including nutrition, education, medical benefits, skill development and general living conditions. These two bodies would be well advised to take the assistance of NGOs and civil society to ensure that the JJ Act serves the purpose for which it is enacted by Parliament.

4. The State Governments must ensure that all positions in the JJBs and CWCs are filled up expeditiously and in accordance with the Model Rules or the Rules framed by the State Government. Any delay in filling up the positions might adversely impact on children and this should be avoided.

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5. The JJBs and CWCs must appreciate that it is necessary to have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time and justice is given to all juveniles in conflict with law and social justice to children in need of care and protection. This is a constitutional obligation.

6. The NCPCR and the SCPCRs must carry out time-

bound studies on various issues, as deemed appropriate, under the JJ Act. Based on these studies, the State Governments and the Union Territories must take remedial steps.

7. In particular the NCPCR and the SCPCRs must carry out a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers. It must be emphasised that the role of a Probation Officer is critical for the rehabilitation and social reintegration of a juvenile in conflict with law and due importance must be given to their duties as postulated in the Model Rules and Rules, if any, framed by the State Governments and the Union Territories.

8. The MWCD must continue to make creative use of information and communication technology not only for the purpose of collecting data and information but also for other issues connected with the JJ Act such as having a database of missing children, trafficked children and for follow up of adoption cases etc. With the utilization of technology to the fullest extent, administrative efficiency will improve considerably, which in turn will have a positive impact on the lives of children.

9. It is important for the police to appreciate their role

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as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children. There is therefore a need to set up meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In this context, it is necessary to clearly identify the duties and responsibilities of such Units and Officers and wherever necessary, guidance from the available expertise, either the National Police Academy or the Bureau of Police Research and Development or NGOs must be taken for the benefit of children.

10. The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event.

11. The management of Child Care Institutions is extremely important and State Governments and Union Territories would be well advised to ensure that all such institutions are registered so that children can live a dignified life in these Institutions and issues of missing children and trafficking are also addressed.

12. State Governments and Union Territories would be well advised to appoint eminent persons from civil society as Visitors to monitor and supervise the Child Care Institutions in all the districts. This will ensure that the management and maintenance of these Institutions are addressed. We have no doubt that the State Legal Service Authorities and the District Legal Service Authorities will extend full assistance and cooperation to the government authorities in this venture as well as to the Visitors.

13. The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State

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Governments and the Union Territories. If financial resources are not made available for the welfare of the children we shudder to think what could be better utilization of the funds.

14. NALSA has done a remarkable job in collecting data and information relating to the JJ Act, as evidenced by the three part Report prepared by it. We request NALSA to carry forward the exercise and complete a similar Report preferably before 30th April, 2018 to assist all the policy making and decision taking authorities to plan out their affairs.

15. The importance of training cannot be over-

emphasized. It is vital for understanding and appreciating child rights and for the effective implementation of the JJ Act. All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position. A very positive step has been taken in this regard by NALSA and we expect the NCPCR with the assistance of the SCPCRs to carry forward this initiative so that there is meaningful implementation of the JJ Act.

2. On notice being issued, Registrar General has filed

affidavits and in the additional affidavit dated 24.11.2022, steps

taken pursuant to the directions issued by the Hon'ble Apex

Court in the above referred case has been enumerated at

paragraphs 1 to 12. In fact, the said affidavit would also disclose

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the directions issued in the case of State of Maharashtra v.

Nadu @ Daulat as enumerated in paragraphs 13 to 15 has also

been acted upon.

2.1. The State through Deputy Director, Social Defence,

Gandhinagar has also filed affidavit dated 08.12.2022, enclosing

therewith the action taken report at Annexure-R1. The Gujarat

State Commission for Protection of Child Rights, which has been

constituted for the said purpose is said to have taken the

following steps/actions.

Para Brief of the Directions as given in Action Taken by States/Uts Remarks No. the respective Judgment paras 2 SCPCR function Gujarat State Commission for Protection of Child Rights

Gujarat State Commission for Protection of Child Rights has been formed on 28-09-2012 by notification. Child Rights: Functions of the Commission:

To investigate and recommend the authorities for action in cases of breach or violation of child rights.

 To make investigation and review of all the matters relating to protection of safety of child rights protection by any law or under it and to take effective measures.

 To make investigation and recommend for taking proper remedial action in the matters having the factors, which are hindrance in enjoyment of child rights, such as terrorism, communal violence, riots, natural calamities, domestic violence, H.I.V/AIDS, Trafficking, ill-

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treatment, Torture and Exploitation, Pushing in Prostitution, etc.

 To make inspection of the child protection home where the child criminals are kept for treatment, reforms or protection and to undertake the matter with concerned authority for remedial measures.

 To monitor and make investigation work under Right to Free and Compulsory Education to Children Act- 2009 and Protection children from Sexual Harassment Act-2012

 To make investigation on receipt of complaints relating to breach of child rights and following action should be undertaken sue mot

(1) About depriving from child rights and breach of the same.

(2) Noncompliance of laws providing for protection and development of children.

(3) To take up with the proper authority the cases of noncompliance of policy decisions, directive suggestions and instructions with a view to troubleshooting the problems of the children and ensuring welfare of the children to provide relief to such children and issues arising out of such matters.

 To investigate the activities of the existing policies, programs and other activities relating to protection of child rights of the children and to recommend for its effective implementation in the interest of the children.

 To disseminate the child rights literacy and available arrangements of awareness for protection of these rights through publications, Promotional media, seminars and other available resources.

 To send annual / periodical reports to the State Government in respect of effectiveness of the activities relating to

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the protection of child rights.

To make and cause to make special studies in the field of child rights

3 The State Child Protection Society The State government is sensitive to (SCPS) and the District Child the fact that all children comes under JJ Protection F Unit (DCPU) have an Act must be protected. Following are enormous responsibility in some examples of initiatives taken by ensuring that the JJ Act is the Sate Government to ensure that the effectively implemented and Act is effectively implemented and maintained in a manner that is maintained conducive to the well being of children in all respects including 1. JJBS arc functional in 33 Districts, nutrition, education, medical remaining 4 districts' sittings are being benefits, skill development and held in their old districts general living conditions. These two bodies to take the assistance 2. DCPUs are functional in 33 of NGOs and Civil society to Districts ensure that, the JJ Act serves the purpose 3. Total 128 Child Care Institutions are registered under JJA 2015

4. Minimum standards of care have been ensured in all CCIS

5. Hostels, ashramshalas, KGBVs. Sarnras hostels etc. are being run across the state by the Social Justice and Empowerment, Tribal Affairs, Women and Child Development departments, that provide free of cost education, nutrition and accommodation to children from economically weak and socially vulnerable families.

6. One State level and 33 District level Inspection Committees have been constituted in the State, covering all Districts that have Child Care Institution.

7. District level-Sponsorship and Foster Care Approval Committee and Adoption Committee is constituted

8. The State Government has been running its own foster care scheme called "Palak Mata Pita" in which support of Rs 3000 Per month is provided for the education nutrition and medical care of children who have lost their parents(but are being cared for by the family), or have lost a parent and the surviving parent has re-married leading to discrimination or reflect in the family home.

9. DCPUs have provide support to children of

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vulnerable family's and handicapped children in getting Aadhar cards.

10. Training of all concerned stakeholders such as SCPS, DCPU, JJB, CWC, SJPU, CWPO has been given on timely basis

11. Various awareness programme such as poster exhibition, rally, street plays, wall hoardings, on child rights and protection has been carried out in all Districts and covered more than 5 Lakh people.

12. GSCPS establish convergence with cross sectoral government department and various NGOS, Civils Society Organizations working on child rights

13. Block Level Child Protection Committee (BCPC) are firmed up 158 block and village child protection committee (VCPCs) are formed in 11,000 Villages.

4 All Positions of JJBs and CWCs are  As per state model rules the state filled up in Accordance with government initiated process of modal rules requirement of new members for CWC and JJB, Advertisement was given in leading newspaper and Selection Committee is constituted for appointment of members,

 In JJBS only 4 post vacant and in CWCs, 2 post of the chairman and 16 post of the member are vacant.

5 JJBS and CWCs have necessary  JJB Sittings are per month 20, sittings on a regular base  CWC sittings are per month 12,

 Sitting of JJBS and CWCs are also being increased depending up on pendency of cases 6 SCPCRs to carry out time-bound  SCPCR is planning for carry out time-

studies on various issues and bound studies on various issues based on that the State Government must take remedial steps 7 SCPCR to carry out a study for  SCPCR is planning for carry out a study estimating the number of for estimating the number of Probation Probation Officers (PO) required Officers (PO) required for the effective for the effective implementation implementation of the JJ Act.

of the JJ Act and based on this study State Government to fill up necessary numbers of PO 8 Creative use of information and  Child Tracking, System under ICPS is

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communication technology for being implemented in the State. Staffs technology for collecting data and of all CCls and Police have been trained information on 'uploading data of missing and found children on regular basis 9 Establishment of Special Juvenile  JJ Act is being implementation by CID Police Units (SJPU) and Crime in the state. Special juvenile appointment of Child Welfare police unit (SJPU) and child welfare Police Officers (CWPO) as per JJ police officers (CWPO) have been ACT in all districts appointee as per JJ Act in all police districts. List of SJPU nodal officers and CWPO have been attached.

 Advisory of M.H.A, New Delhi has been forwarded to all SPs and CPs of Gujarat state 10 The National Police Academy and  For Implementation of JJ Act Advisory State Police Academies must of M.H.A. New delhi has been consider including child rights as forwarded to ADGP (Training) for a part of their curriculum on a Training to Police officers / Employees regular basis on issues of Missing children, Human trafficking and implementation of J.J.Act in all training centers of State police Academy. The letters are attached

 As per instruction of ADGP (training), Total-3378 trainees have been trained as above subject.

The letter is attached 11 Management of Child Care  All 128 Child Care Institutions are Institutions(CCI)- Registration of registered under JJA 2015 all CCls  Inspection committee is being formed and monitor the tool and check the standards of care Criteria as mentioned in JJA.

 Police verification and verification of no incident of any such case of sexual or any kind of abuse to child is happened by staff, that is also being asked from Ngos/Civil Society Organizations for registration as CCI

 As per direction of Supreme Court, Social audit of CCls in all Districts is being-carried out as guided by NCPCR 12 State Government to appoint  Individuals from NGOs, Medical eminent persons from civil society Professionals, Charity organizations, as visitors to monitor and Students of various colleges do visits supervise the Child Care CCIS and involve with children of CCls Institution to ensure the in various activities management and maintenance of CCIS  GSCPS initiated PPP Model- in

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partnership with Deepak foundation for 13 Ensure training of personnel as required by JJ Act. This includes  Training of JJBS, CWCs, DCPUs, SJPUS, preparation of adequate training and other relevant stake holders held modules. regularly in collaboration with child rights experts and UNICEF Gujarat.

 Standard training modules customized for each stakeholder are developed 14 NALSA has done a remarkable job  Not applicable in collecting data and information relating to the JJ Act 15 High court and Juvenile Justice  The Secretariat has been set up with Committee (JJC) to continue its technical support from Social Justice proactive roll into welfare of Empowerment Department and children in the State. Chief Justice UNICEF of every' High Court to register proceedings on its own motion for  IT Support the Juvenile Justice effective implementation of JJAct Committee in conducting bi-annual reviews of the implementation of the Juvenile Justice Act in the state, wherein senior official from all concerned departments and other relevant stakeholders take part.

2.2. The learned Assistant Government Pleader also submits

that the vacancies which have occurred at different levels,

which has not been filled in or has remained unfilled as on date,

the State would leave no stone un-turned to fill up the said posts

expeditiously and at any rate within an outer limit of three (3)

months from today. His submission and undertaking is placed

on record.

3. Thus, as could be seen from the steps taken by the High

Court, both on administrative and on judicial side, as well as

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State having taken steps on the administrative side, as

enumerated in the report. We are of the considered view