Kerala High Court
Saju S. Das vs Union Of India on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
WP(C).No.40550 OF 2016(S)
PETITIONER:
SAJU S. DAS, AGED 37 YEARS, S/O. S.SIVADASAN,
SS DAS NIVAS, THEVALLY P.O, KOLLAM DISTRICT
BY ADVS.
SRI.C.RAJENDRAN
SRI.C.P.ANIL RAJ
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFIARS,
JAI SINGH MARG, CONNAUGHT PLACE,
NEW DELHI -110 001.
2 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
3 THE LEGISLATIVE SECRETARY, (DELETED)
THE KERALA LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM-695 001.
[RESPONDENT NO.3 OCCURING IN THE CAUSE TITLE IS
DELETED AS PER ORDER DATED 20/12/2016 IN WPC.
4 POLICE CHIEF, POLICE QUARTERS, VAZHUTHACAUD,
SHASTHAMANGALAM POST, NEAR VELLAYAMBALAM,
THIRUVANANTHAPURAM-695 010.
R1 BY SMT.MAHESWARY.G., CGC
R2, R4 BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.01.2021, ALONG WITH WP(C).1972/2010(S), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
WP(C).No.1972 OF 2010
PETITIONER:
P.J.PETER @ SNEHALAYAM PETER,
AGED 59 YEARS, S/O.JOSEPH, PULIYEZHATH HOUSE,
ELAMKUNNAPPUZHA, OCHANTHURUTH P.O., ERNAKULAM.
BY ADVS.
SRI.B.S.SWATHI KUMAR
SMT.M.G.AISHWARYA
RESPONDENTS:
1 STATE OF KERALA
REP. BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM.
2 THE SECRETARY
DEPARTMENT OF SOCIAL WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM.
3 THE DIRECTOR GENERAL OF POLICE
KERALA STATE, POLICE HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM.
4 THE DISTRICT COLLECTOR, ERNAKULAM.
5 THE COMMISSIONER OF POLICE, KOCHI CITY.
6 CORPORATION OF KOCHI, REP. BY ITS SECRETARY.
R1-5 BY SRI.ARAVINDKUMAR BABU, SR.GOVT. PLEADER
BY ADV. SRI.K.JAYAKUMAR (SR.), AMICUS CURIAE
R6 BY ADV. SRI. P.K.SOYUZ, SC, COCHIN CORPORATION
BY ADV. SRI.S.CHANDRASENAN, SC, COCHIN CORPRN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2021, ALONG WITH WP(C).40550/2016(S), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.1972/2010 & 40550/2016
:: 3 ::
JUDGMENT
[ WP(C).1972/2010, WP(C).40550/2016 ]
Dated this the 7th day of January 2021
S.MANIKUMAR, C.J.
Since the issues involved in both these writ petitions are
common, they are being disposed of by this common judgment.
2. Both these writ petitions are filed highlighting the situation
of children below the age of 14 entangled in begging.
3. Writ Petition No.1972 of 2010 has been filed as a public
interest litigation seeking rescue and proper rehabilitation of
abandoned/neglected children and prohibition of soliciting alms.
Main prayers sought for in this writ petition are as follows:
A) issue a writ in the natrue of mandamus commanding the
respondents to take steps to prohibit begging/soliciting alms
in public, within the State of Kerala, and also take steps to
rehabilitate those found begging.
B) issue a writ in the nature of mandamus commanding the
respondents to take steps to ensure that all children
between the age of 6 to 14 are given elementary education,
C) issue a writ in the nature of mandamus commanding the
respondents to take steps to ensure that no child between
the age of 6 to 14 remains away from school, either on the
streets or at home and also ensure that all
parents/guardians send the children between the age of 6
to 14 to school,
WP(C)Nos.1972/2010 & 40550/2016
:: 4 ::
D) issue a writ in the nature of mandamus commanding the
respondents to take steps to ensure that no child under the
age of 14 years is employed by anyone, either in an
institution, workplace or residence and if it is found, to
rescue and rehabilitate them in proper institutions and also
initiate action against those found responsible, as
envisaged by the laws in force,
E) issue a writ in the nature of mandamus commanding the
first and second respondent to provide adequate facilities in
the shelter home Snehabhavan at Palluruthy, so as to
provide a decent and reasonable living atmosphere to the
inmates there, especially children, and also take steps to
ensure that children are not made to mingle with persons
with mental illness and contagious diseases, and are given
separate accommodation, free from the influence of
unwanted elements,
F) Issue a writ in the nature of mandamus commanding the
first respondent to strictly implement the prohibition
regarding begging within its jurisdiction, forthwith.
4. W.P.(C)No.40550/16 has been filed seeking for a direction to
make Ext.P1 Kerala Prevention of Begging Bill 2006 into an Act.
Main reliefs sought for in this writ petition are as follows:
i) to issue a writ in the nature of mandamus or any other
appropriate writ, order or direction compelling and
commanding the respondents 2, 3 and 4 to make Ext.P1
bill into a full fledged and self contained enactment by
incorporating more stringent and effective provisions to
WP(C)Nos.1972/2010 & 40550/2016
:: 5 ::
deal with the offenders and to frame Rules for the
effective implementation of the same.
ii) issue a writ in the nature of mandamus or any other
appropriate writ, order or direction compelling and
commanding the 4th respondent to take steps to see all the
cases of missing of children registered, constitute a team
of efficeint and expert police officials to investigate those
cases.
iii) to issue a writ in the nature of mandamus or any other
appropriate writ, order or direction compelling and
commanding the first respondent to legislative an
enactment for severely dealing with the kidnapping of
children, using them for begging, preventing the begging
completely and accommodating and maintaining persons
who have become neglected vagrant wandering and
begging.
iv) issue a writ in the nature of mandamus or any other
appropriate writ, order or direction compelling and
commanding the respondents 1 to 4 to implement Exhibits
P14, 15, 16 and P17 in the areas where those enactments
cover within the State of Kearla till Ext.P1 had been made
into a law.
5. It is contended by Sri.C.Rajendran, learned counsel for the
petitioner in W.P.(C)No.40550 of 2016 that there is a big mafia
working behind kidnapping of children, using them for begging and
when the children become adolescents they are being used for
trafficking drugs. Neither the police nor any other authorities
WP(C)Nos.1972/2010 & 40550/2016
:: 6 ::
constituted for protection and welfare of the children are not taking
any action as there is no sufficient law to prevent the begging and
other connected illegal activities.
6. Sri.B.S.Swathi Kumar, learned counsel for the petitioner in
W.P.(C)No.1972 of 2010 submitted that begging with children could
be effectively stopped only by rescuing and rehabilitating children
engaged in begging. These children have to be necessarily
rehabilitated and should also be educated. Therefore, appropriate
direction may be given to the police and corporation authorities to
prevent begging, particularly with children in Cochin Corporation
area where begging is prohibited.
7. A statement has been filed on behalf of the first and second
respondents wherein it is stated that Child Welfare Committees have
been constituted in all districts so that any child in need of care and
protection including those engaged in begging can be produced
before it by the Police Officer, Child Line or Social Worker. It is also
stated that the Social Welfare Department had organised district
level awareness campaign against the evil of child begging.
8. Sri.K.Jayakumar, learned amicus curiae appointed by a
Hon'ble Division Bench of this court has also submitted report before
this court.
WP(C)Nos.1972/2010 & 40550/2016
:: 7 ::
9. In the affidavit filed on behalf of the second respondent in
W.P.(C)No.1972 of 2010 (the Secretary, Department of Social
Welfare), it is stated that the State Government have taken all the
possible efforts to eliminate begging especially, child beggary
through its various poverty reduction and human development
programmes particularly, programmes for health, free and
compulsory education, social security schemes. The complexities of
the issue are such that the issue relating to migrant beggary needs
multi-pronged action including action by other States and Union
Government. Presently, the State Government provide care and
protection to them through institutional care facilities.
10. It is evident from the report submitted on behalf of the 5 th
respondent (the Commissioner of Police, Kochi city) that a special
squad under the supervision of the Assistant Commissioner of Police,
Thrikkakara has been constituted for the purpose of wiping out
begging of children from the district and to effect their
rehabilitation. Moreover, Assistant Commissioner of Police, Crime
Detachment has been nominated as the Nodal Officer to co-ordinate
the measures to prevent/eradicate the menace of child begging in
Kochi city. A report has also been filed on behalf of the third
respondent (the Director General of Police, Kerala State) wherein it is
WP(C)Nos.1972/2010 & 40550/2016
:: 8 ::
stated that earnest efforts have been taken to eradicate child
begging by taking action as per law in co-operation with all
authorities concerned.
11. We have heard learned counsel for the parties and perused
the materials available on record.
12. It is well settled that writ of mandamus cannot be issued to
the legislature to enact a particular legislation and the same rule
applies to the executive, when it exercises the power to make rules.
However, pursuant to the directions of this court, adequate steps
are being taken by the respondents to prohibit begging, particularly
begging with children. Steps are also being taken under the Juvenile
Justice Act, 2015 and rules framed thereunder to prevent begging.
13. The authorities under the Social Justice Department are also
taking steps to collect the details of the children, hailing from
various States stranded in Kerala, and on finding out their respective
parents, they are sent to their home safely and till such time, they
are protected as per the provisions of the Juvenile Justice Act and
the rules framed thereunder. The main objective of the Right of
Children to Free and Compulsory Education Act or Right to Education
Act (RTE) is to ensure that each child in India receives quality
elementary education irrespective of their economic or caste
WP(C)Nos.1972/2010 & 40550/2016
:: 9 ::
background; and this includes children, who are forced to drop out of
school.
14. In view of the above, we are no inclined to entertain these
writ petitions at this stage. Moreover, relief nos.(c) and (d) sought
for in W.P.(C)No.1972 of 2010 cannot be granted by this court as
Right of Children to Free and Compulsory Education Act, 2009 takes
care of those reliefs.
15. Registry is directed to forward a copy of the report
submitted by the learned amicus curiae to the Secretary,
Department of Social Welfare along with a copy of this judgment for
taking follow up actions.
In such a view of the matter, no further directions are required
to be passed by this court in these writ petitions. Accordingly, the
writ petitions are disposed of.
SD/-
S.MANIKUMAR
CHIEF JUSTICE
SD/-
SHAJI P. CHALY
JUDGE
jes
WP(C)Nos.1972/2010 & 40550/2016
:: 10 ::
APPENDIX OF WP(C) 40550/2016
PETITIONER'S EXHIBITS:
EXHIBIT P 1 A TRUE PHOTOCOPY OF THE 'THE KERALA PREVENTION OF BEGGING
BILL 2006
EXHIBIT P2 A TRUE PHOTOGRAPH OF THE TWO WOMEN POLICE CONSTABLES
QUESTIONING A LADDY BEGGAR WITH A CHILD DOWNLOADED FROM
THE INTERNET
EXHIBIT P3 A TRUE PHTOTOGRAPH SHOWING A LADY BEGGING WITH A CHLD IN
TRAFFIC BLOCK DOWN LOADED FROM THE INTERNET
EXHIBIT P4 A TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE SAID NEWS
PAPER UNDER THE CAPTION'BEGGARS DRUG KIDS TO ELE OUT A
LIVING DATED 29/09/2016
EXHIBIT P5 A TRUE PHOTOCOPY OF THE THE NEWS ARTICLE DOWNLOADED FROM
THE WEBSITE OF HINDU DAILY UNDER THE CAPTION"TRAFFIC
SIGNALS TURNED HAVEN FOR ALMS SEEKERS DATED 15-07-2007
EXHIBIT P6 A TRUE PHOTOCOPY OF THE NEWS ARTICLE PUBLISHED IN THE
ONLINE EDITION OF HINDU UNDER THE CAPTION'BEGGAR MENACE
ON THE RISE DATED 12-3-2005
EXHIBIT P7 A TRUE PHOTO OF SHOWING A BEGGAR GIRL USING A CHILD TO
RECEIVE AIMS
EXHIBIT P8 A TRUE PHOTOCOPY OF THE NEWS ARTICLE DOWN LOAD FROM THE
NEWS WEBSITE"THE NATIONAL" UNDER THE CAPTION THE BEGGING
MAFIA ON INDIA THRIVES ON LOST CHILDREN DATED 18/01/2009
EXHIBIT P9 A TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE NEWS
DOWNLOADED FROM ITS WEBSITE OF THE HINDU DAILY DATED
9/10/2016
EXHIBIT P10 A TRUE PHOTOCOPY OF THE NEWS ARTICLE PUBLISHED IN THE
ONLINE EDITION OF DECCAN CHRONICLE UNDER THE CAPTION
KERALA WHERE ARE ALL THE MISSING CHILDREN GONE DATED
19/09/2016
EXHIBIT P11 A TRUE PHOTOCOPY OF THE INTERVIEW OF ADV B.A ALOOR WITH
DOWNLOADED FROM THE ONLINE EDITION OF MATHRUBHUMI NEWS
DATED 2-10-2016
EXHIBIT P12 A TRUE PHOTOCOPY OF THE ARTICLE TITLED AS SOUMYA'S RAPIST
BEGGAR GOVINDACHAMY HAD AN EXPENSIVE LAWYER WHO CHARGED
LAKHS PUBLISHED IN THE NEWS MINUTE, ANEWS WEBSITE DATED
15-09-2016
WP(C)Nos.1972/2010 & 40550/2016
:: 11 ::
EXHIBIT P13 A TRUE PHOTOCOPY OF THE DISCUSSION BY THE MEMBERS IN THE
TRAVANCORE ASSEMBLY REGARDING TRAVANCORE PREVENTION OF
BEGGING BILL
EXHIBIT P14 A TRUE PHOTOCOPY OF THE PREVENTION OF BEGGING ACT 1120
ME(TRAVANCORE)
EXHIBIT P15 A TRUE PHOTOCOPY OF THE PREVENTION OF BEGGING RULES 1945
EXHIBIT P16 A TRUE PHOTOCOPY OF THE VAGRANCY ACT (COCHIN) 1120 ME
EXHIBIT P17 A TRUE PHOTOCOPY OF THE TAMILNADU PREVENTION OF BEGGING
ACT 1945
// TRUE COPY //
P.S. TO JUDGE
