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the Protection of Rights of Children from Sexual Offences Act, 2012, the Right of Children to Free and Compulsory Education Act, 2009 and the Commission for Protection of Child Rights Act, 2005, – Directions of Apex court not implemented by the state and central administrative bodies – Apex court gave further directions =Re. Exploitation of Children in Orphanages in the State of Tamil Nadu …Petitioner(s) Versus Union of India & Ors. …Respondent(s) = published in judis.nic.in/supremecourt/filename=41092

the  Protection  of  Rights  of Children from Sexual Offences Act, 2012, the Right of Children to Free and Compulsory Education Act, 2009 and the Commission  for  Protection of Child Rights Act, 2005, – Directions of Apex court not implemented by the state and central administrative bodies – Apex court gave further directions = 

 

this court on  3rd  January,  2013

      directing all the States and the Union Territories  to  implement  the

      protective  provisions  contained  in  the  Protection  of  Rights  of

      Children from Sexual Offences Act, 2012, the Right of Children to Free

      and Compulsory Education Act, 2009 and the Commission  for  Protection

      of Child Rights Act, 2005, many States and Union Territories have  not

      complied with the same =

Keeping in view the aforesaid attitude of  the  States  and  the

      Union Territories, we direct that the Chief  Secretaries  of  all  the

      States to which notices have been issued in this matter shall file  an

      affidavit within a period of eight weeks from the date of  this  order

      disclosing full details with  regard  to  the  implementation  of  the

      obligations specified  under  the  three  Acts.  The  affidavit  shall

      contain all the relevant information with regard to the following :

                 a. Whether the State Commissions have  been  set  up  under

                    Section 17 of the Commissions for  Protection  of  Child

                    Rights Act, 2005?

                 b. Whether the  appointment  of  the  Chairperson  and  six

                    Members has been  made  indicating  the  names  of  such

                    Chairpersons and members?

                 c. Whether Rules have been framed by the State  Governments

                    under the said Act?

                 d. Whether the said Commissions are functional and  if  not

                    what  are  the  constraints.  The  appointment  and  the

                    remuneration structure of the Chairperson,  Members  and

                    supports staff including Member Secretary of  the  State

                    Commissions?

                 e. The Chief Secretaries of the States in their  affidavits

                    to  also  indicate  whether  Special  Courts  have  been

                    designated  under  Section  28  of  the  Protection   of

                    Children from Sexual Offences Act, 2012?

                 f. Whether Special Public Prosecutors have  been  appointed

                    under Section 32 of the said Act?

                 g. Whether Rules  have  been  framed  under  the  Right  to

                    Education Act, 2009?

                 h. Whether all Institutions run by the State Governments or

                    by Voluntary Organisations for Children in need care and

                    protection have been registered under the provisions  of

                    Section 34 of the Juvenile Justice (Care and  Protection

                    of Children) Act, 2000, read with Rule 71  of  the  said

                    Act?

                 i. Whether any unregistered institutions  for  children  in

                    need of care and protection are being run and if so have

                    they  been  shut  down  or  taken  over  by  the   State

                    Governments?

 

 

      7.    It is further directed that in the unlikely event of there being

      a non-compliance of any part of the directions issued by  this  Court,

      an officer of the rank of  Principal  Secretary  of  State  Government

      shall remain present in person in the Court to clarify the issues with

      respect to the failure to implement the directions of  the  Court.  If

      for any reason, the affidavit, as directed for, is not  filed  by  the

      Chief Secretary before the  next  date  of  hearing,  then  also,  the

      officer of the rank referred above shall remain present in  person  to

      explain the reasons for the State’s failure to submit the affidavit.

 

 

      8.    The concerned State Governments shall also submit  the  required

      information in the format annexed hereto as part of the  affidavit  to

      be filed by them.

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

 
WRIT PETITION (CRL.) No.102 of 2007

 
Re. Exploitation of Children in
Orphanages in the State of Tamil Nadu …Petitioner(s)
Versus
Union of India & Ors. …Respondent(s)

 

 
O R D E R

1. We have heard very lengthy submissions from the Amicus Curie Ms.
Aparna Bhat, Ms. Indira Jaising, ASG, Mr. Paras Kuhad, ASG.
2. It has been brought to our notice that inspite of the emphatic
directions that have been issued by this court on 3rd January, 2013
directing all the States and the Union Territories to implement the
protective provisions contained in the Protection of Rights of
Children from Sexual Offences Act, 2012, the Right of Children to Free
and Compulsory Education Act, 2009 and the Commission for Protection
of Child Rights Act, 2005, many States and Union Territories have not
complied with the same. By order dated 3rd January, 2013, we had also
directed the States to file an affidavit indicating the time frame
within which the State Commission for the protection of children would
be established. By a subsequent order dated 7th February, 2013,
further directions were issued to all the States and the Union
Territories to comply with the obligations under the aforesaid three
Acts, with regard to the establishment of protection
institutions/implementation institutions, together with necessary
Rules and Regulations. The aforesaid order was to be complied with
within a period of three months from the date of receipt of the
certified copy of the order. Sadly, we have to notice that inspite of
the concern shown not only by this Court but also by the learned
counsel appearing for the parties, little or no progress has been made
in this regard. Although the affidavits have been filed indicating
that the State Commissions have been established yet we find that such
establishment is only on paper. In many States, Chairman of the
Commission has not been appointed and in some other States even
Members have not been appointed. This apart, necessary rules and
regulations have also not been framed. This, in our opinion, would be
sufficient justification for this Court to take a serious view and
initiate appropriate proceedings for contempt of court against the
defaulting States and the Union Territories.
3. Given the lackadaisical manner in which the States and the Union
Territories have responded to the concern shown by this Court in
relation to the wholly unacceptable situation prevailing and to stamp
out any further exploitation of children, it has become necessary to
re-emphasize that it is the bounden duty of the States under Articles
21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective
and healthy environment in which children who are the future of this
country can bloom and subsequently become mature and responsible
citizen of this country. We have been pained to notice the utterly
callous attitude adopted by the States as well as the Union
Territories. We, therefore, have no option at this stage but to issue
some further mandatory directions to ensure that the exploitation of
the children in all spheres of life is brought to an end with utmost
expedition.
4. We may notice at this stage that pursuant to our earlier
directions Tripura, Dadar and Nagar Haveli, Lakshwadeep, Chandigarh,
Andaman and Nicobar, Pondicherry and Daman and Diu have still not
constituted State Commissions under Section 17 of the Commission for
Protection of Child Rights Act, 2005. Some of the States which have
established the State Commissions for the protection of children but
have not completely constituted the same by either not appointing a
Chairperson or Members are as under:
Andhra Pradesh : The Commission exists only on paper as no
Chairman/Member has been appointed.
Chattisgarh is partially constituted as only Chairman has been
appointed and the members have not been appointed.
Gujarat : Although Chairman has been appointed yet no member or
Secretary of the Commission has been appointed.
Haryana : The situation is exactly the same as Gujarat, i.e.
neither any Member nor Secretary has been appointed although the
Chairman has been selected and appointed.
Himachal Pradesh: Only a Member Secretary has been appointed. No
Chairperson or Member has been appointed.
Kerala – Again only a Secretary has been appointed but there is
no Chairperson or Member appointed.
Tamil Nadu has appointed a Chairperson but no Member has been
appointed.
Nagaland – Nothing has been done, i.e. no Chairperson or Member
has been appointed.
Similarly in U.P., nothing has been done as neither the
Chairperson nor any Member has been appointed.
5. This inaction of the States is in the teeth of the directions
issued by this Court on 3rd January, 2013 and 7th February, 2013. We
make it clear that this Court had taken notice of the exploitation of
children and the deplorable conditions of children in various
orphanages on the basis of the letter received, way back in the year
2007. Surely, the States and the Union Territories must realize that
they have to operate under the Constitution and have to be duty bound
to act in accordance with the provisions of the Constitution.
Furthermore, each and every field which concerns the welfare and the
protection of the children is covered by relevant legislation. The
three prominent Acts have already been listed hereinabove.
6. Keeping in view the aforesaid attitude of the States and the
Union Territories, we direct that the Chief Secretaries of all the
States to which notices have been issued in this matter shall file an
affidavit within a period of eight weeks from the date of this order
disclosing full details with regard to the implementation of the
obligations specified under the three Acts. The affidavit shall
contain all the relevant information with regard to the following :
a. Whether the State Commissions have been set up under
Section 17 of the Commissions for Protection of Child
Rights Act, 2005?
b. Whether the appointment of the Chairperson and six
Members has been made indicating the names of such
Chairpersons and members?
c. Whether Rules have been framed by the State Governments
under the said Act?
d. Whether the said Commissions are functional and if not
what are the constraints. The appointment and the
remuneration structure of the Chairperson, Members and
supports staff including Member Secretary of the State
Commissions?
e. The Chief Secretaries of the States in their affidavits
to also indicate whether Special Courts have been
designated under Section 28 of the Protection of
Children from Sexual Offences Act, 2012?
f. Whether Special Public Prosecutors have been appointed
under Section 32 of the said Act?
g. Whether Rules have been framed under the Right to
Education Act, 2009?
h. Whether all Institutions run by the State Governments or
by Voluntary Organisations for Children in need care and
protection have been registered under the provisions of
Section 34 of the Juvenile Justice (Care and Protection
of Children) Act, 2000, read with Rule 71 of the said
Act?
i. Whether any unregistered institutions for children in
need of care and protection are being run and if so have
they been shut down or taken over by the State
Governments?
7. It is further directed that in the unlikely event of there being
a non-compliance of any part of the directions issued by this Court,
an officer of the rank of Principal Secretary of State Government
shall remain present in person in the Court to clarify the issues with
respect to the failure to implement the directions of the Court. If
for any reason, the affidavit, as directed for, is not filed by the
Chief Secretary before the next date of hearing, then also, the
officer of the rank referred above shall remain present in person to
explain the reasons for the State’s failure to submit the affidavit.
8. The concerned State Governments shall also submit the required
information in the format annexed hereto as part of the affidavit to
be filed by them.

 
………………………….J.
[Surinder Singh Nijjar]

 

 
……..……………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
December 16, 2013.

 

 

 
ANNEXURE
THE PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012
|S.No |Obligation of the |Current | Detailed reasons for failure including|Received date by |
| |States |Status of | |which the |
| | |Implementati| |implementation would|
| | |on (Carried | |stand carried out |
| | |out/not | | |
| | |carried out)| | |
| | |with details| | |
| | |as to the | | |
| | |date of | | |
| | |order | | |
| | | |(a) (b) (c) | |
| | | |(d) | |
| | | |Steps taken Circumstances Person who Dates | |
| | | |on which | |
| | | |Towards which rendered was respon- the | |
| | | |matter was | |
| | | |Implementa- implementation sible for | |
| | | |monitored by | |
| | | |tion impossible implemen- | |
| | | |Chief Secretary | |
| | | |tation towards | |
| | | |ensuring imple- | |
| | | |mentaton | |
|1. |Constitution of | | | |
| |Special Court (section| | | |
| |28) | | | |
|2. |Appointment of Special| | | |
| |Public Prosecutor | | | |
| |(section 32) | | | |
|3. |Framing of Guidelines | | | |
| |for use of NGOs, | | | |
| |experts etc. to be | | | |
| |associated with the | | | |
| |pre-trial & trial | | | |
| |stage to assist the | | | |
| |child (section 39) | | | |
|4. |Public Awareness about| | | |
| |the Act & any Periodic| | | |
| |Training imparted to | | | |
| |the officers of the | | | |
| |Govt. etc. (section | | | |
| |43) | | | |

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
THE RIGHT OF CHILDREN TO FREE & COMPULSORY
EDUCATION ACT, 2009
|S.No |Obligation of the|Current | Detailed reasons for failure including|Received date by which |
| |States |Status of | |the implementation would|
| | |Implementati| |stand carried out |
| | |on (Carried | | |
| | |out/not | | |
| | |carried out)| | |
| | |with details| | |
| | |as to the | | |
| | |date of | | |
| | |order | | |
| | | |(a) (b) (c) | |
| | | |(d) | |
| | | |Steps taken Circumstances Person who Dates | |
| | | |on which | |
| | | |Towards which rendered was respon- the | |
| | | |matter was | |
| | | |Implementa- implementation sible for | |
| | | |monitored by | |
| | | |tion impossible implemen- | |
| | | |Chief Secretary | |
| | | |tation towards | |
| | | |ensuring imple- | |
| | | |mentaton | |
|1. |Constitution of | | | |
| |State Commissions| | | |
| |for Protection of| | | |
| |Child Rights | | | |
| |(section 31 r/w | | | |
| |Rule 27) | | | |
|2. |Appointment of | | | |
| |State Advisory | | | |
| |Council (section| | | |
| |34) | | | |
|3. |Rules made for | | | |
| |carrying out the | | | |
| |provisions of the| | | |
| |Act (section 38)| | | |
| | | | | |

 

 

 

 

 

 

 

THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2000
|S.No |Obligation of|Current | Detailed reasons for failure including|Received date by which the |
| |the States |Status of| |implementation would stand |
| | |Implement| |carried out |
| | |ation | | |
| | |(Carried | | |
| | |out/not | | |
| | |carried | | |
| | |out) with| | |
| | |details | | |
| | |as to the| | |
| | |date of | | |
| | |order | | |
| | | |(a) (b) (c) | |
| | | |(d) | |
| | | |Steps taken Circumstances Person who Dates | |
| | | |on which | |
| | | |Towards which rendered was respon- the | |
| | | |matter was | |
| | | |Implementa- implementation sible for | |
| | | |monitored by | |
| | | |tion impossible implemen- | |
| | | |Chief Secretary | |
| | | |tation towards | |
| | | |ensuring imple- | |
| | | |mentaton | |
|1. |Constitution | | | |
| |of Juvenile | | | |
| |Justice Board| | | |
| |(section 4) | | | |
|2. |Establishment| | | |
| |of | | | |
| |Observation | | | |
| |Homes | | | |
| |(section 8) | | | |
|3. |Establishment| | | |
| |of Special | | | |
| |Homes – If | | | |
| |any, details.| | | |
| |(section 9) | | | |
|4. |Constitution | | | |
| |of child | | | |
| |Welfare | | | |
| |Committee | | | |
| |(section 29) | | | |
|5. |Establishment| | | |
| |of Children’s| | | |
| |Homes | | | |
| |(section 34) | | | |
|6. |Appiontment | | | |
| |of Inspection| | | |
| |Committee – | | | |
| |If any, | | | |
| |details | | | |
| |(section 35) | | | |
|7. |Recognition | | | |
| |of Shelter | | | |
| |Homes – If | | | |
| |any, details | | | |
| |(section 37) | | | |
|8. |Creation of | | | |
| |Fund for the | | | |
| |welfare of | | | |
| |juveniles | | | |
| |(section 61) | | | |

 

 

 

 

 
THE COMMISSION FOR PROTECTION OF CHILD RIGHTS
ACT, 2005
|S.No |Obligation of|Current | Detailed reasons for failure including|Received date by which |
| |the States |Status of | |the implementation would|
| | |Implementatio| |stand carried out |
| | |n (Carried | | |
| | |out/not | | |
| | |carried out) | | |
| | |with details | | |
| | |as to the | | |
| | |date of order| | |
| | | |(a) (b) (c) | |
| | | |(d) | |
| | | |Steps taken Circumstances Person who Dates | |
| | | |on which | |
| | | |Towards which rendered was respon- the | |
| | | |matter was | |
| | | |Implementa- implementation sible for | |
| | | |monitored by | |
| | | |tion impossible implemen- | |
| | | |Chief Secretary | |
| | | |tation towards | |
| | | |ensuring imple- | |
| | | |mentaton | |
|1. |Constitution | | | |
| |of State | | | |
| |Commission | | | |
| |for | | | |
| |Protection of| | | |
| |Child Rights | | | |
| |(section 17) | | | |
|2. |Appointment | | | |
| |of | | | |
| |Chairperson | | | |
| |and other | | | |
| |members | | | |
| |(section 18) | | | |
|3. |Appointment | | | |
| |of Secretary | | | |
| |& other | | | |
| |officers for | | | |
| |carrying out | | | |
| |the functions| | | |
| |of the State | | | |
| |Commission | | | |
| |(section | | | |
| |21(1) | | | |
|4. |Annual & | | | |
| |Special | | | |
| |Reports | | | |
| |submitted by | | | |
| |State | | | |
| |Commission to| | | |
| |the State. If| | | |
| |any, details | | | |
| |(section | | | |
| |23(1)) | | | |
|5. |Constitution | | | |
| |of Children’s| | | |
| |Court | | | |
| |(section 25) | | | |
|6. |Appointment | | | |
| |of Special | | | |
| |Public | | | |
| |Prosecutor | | | |
| |(section 26) | | | |
|7. |Grants by the| | | |
| |State | | | |
| |Government to| | | |
| |the State | | | |
| |Commission. | | | |
| |If any, | | | |
| |details | | | |
| |(section | | | |
| |28(1) | | | |
|8. |Rules made to| | | |
| |carry out the| | | |
| |provisions of| | | |
| |the Act | | | |
| |(Section | | | |
| |36(1). | | | |
———————–
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