# SAMPURNA BEHURA v. UNION OF INDIA & ORS

- **Citation:** [2018] 2 S.C.R. 940
- **Court:** Supreme Court of India
- **Decided:** 2018-02-09
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sampurna-behura-v-union-of-india-ors-32755
- **Pages:** 51

## Headnote

Public Interest Litigation: Non-implementation or tardy
implementation of laws beneficial to children-Juvenile Justice Act
of 2000 and 2015 - Failure of State Governments to implement
various provisions of the Act of 2000 including, inter alia, the
establishment of Child Welfare Committees, Juvenile Justice Boards,
Special Juvenile Police Units, establishment of Homes for children
in need of care and protection, improving the living conditions of
juveniles in conflict with law - Writ petition u/Art. 32 seeking
directions to the Chief Secretaries and the Directors General of
Police and Superintendents of Police of all the States to forthwith
implement the Act of 2000 and directions to States to provide basic
amenities - Held: Keeping in view the need to strengthen the juvenile
justice system in the country, issuance of certain directions to States
for proper implementation of the Juvenile Justice Act - Chief Justice
of each High Court to establish child friendly courts and vulnerable
witness courts in each district - Juvenile Justice (Care and
Protection of Children) Act, 2000 - Juvenile Justice (Care and
Protection of Children) Act, 2015 - Constitution of India - Art. 32.
Disposing of the writ petition, the Court
HELD: 1. Suggestions and recommendations:
(i) National and State Commissions for Protection of Child Rights
(a) The Commissions for Protection of Child Rights Act, 2005
provides for the Central Government constituting a body to be
known as the NCPCR (National Commissions for Protection of
Child Rights) at the national level and the State Governments
constituting a body to be known as the SCPCR (State
Commissions for Protection of Child Rights) at the State level.
[Para 56] [968-C]
[2018] 2 S.C.R. 940
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(b) At the national level, the NCPCR is an institution consisting
of eminent persons and experts in their respective fields. As such,
they are expected to look at issues concerning the welfare of
children in the national perspective taking into consideration the
views of every SCPCR and other stakeholders. At the State level,
the SCPCR is an equally significant body consisting of eminent
persons and experts. They are expected to take policy decisions
for the benefit of the children in their State, regardless of which
State the children originally belong to, for there might be children
of one State who are in need of care and protection but in a Child
Care Institution of another State. The functions of the NCPCR
and the SCPCR are more or less the same except that one
performs these functions at the national level, while the other
performs these functions at the State level. [Paras 57, 58] [969B-D]
(c) Both the NCPCR and the SCPCR have a range and variety of
functions to perform and each one of them entails a great deal of
responsibility. It is given to understand that both the Government
of India and the State Governments have not been giving these
bodies the freedom to decide on broad policy matters and indeed
in some instances, particularly relating to the SCPCR, vacancies
have not been filled up for several months. Unfortunately, at one
point of time, even the position of the Chairperson of the NCPCR
was lying unfilled for several months, until, on the directions of
this Court, the position was eventually filled up. Unless the
NCPCR and the SCPCRs are given due importance by the
Government of India and the State Governments and vacancies
are filled up in time, the enforcement of the rights of children will
remain on the back burner and any number of welfare schemes
formulated by the Government of India or by the State
Governments will remain unimplemented or their implementation
will remain sketchy and symbolic. [Para 59] [971-B-E]
(d) There is hope and trust that those in authority and power in
the Government of India and in the State Governments appreciate
the importance of adhering to the provisions of the laws enacted
by Parliament and ensure that the NCPCR at the National level
and the SC

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SAMPURNA BEHURA
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 473 of 2005)
FEBRUARY 09, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Public Interest Litigation: Non-implementation or tardy
implementation of laws beneficial to children-Juvenile Justice Act
of 2000 and 2015 - Failure of State Governments to implement
various provisions of the Act of 2000 including, inter alia, the
establishment of Child Welfare Committees, Juvenile Justice Boards,
Special Juvenile Police Units, establishment of Homes for children
in need of care and protection, improving the living conditions of
juveniles in conflict with law - Writ petition u/Art. 32 seeking
directions to the Chief Secretaries and the Directors General of
Police and Superintendents of Police of all the States to forthwith
implement the Act of 2000 and directions to States to provide basic
amenities - Held: Keeping in view the need to strengthen the juvenile
justice system in the country, issuance of certain directions to States
for proper implementation of the Juvenile Justice Act - Chief Justice
of each High Court to establish child friendly courts and vulnerable
witness courts in each district - Juvenile Justice (Care and
Protection of Children) Act, 2000 - Juvenile Justice (Care and
Protection of Children) Act, 2015 - Constitution of India - Art. 32.
Disposing of the writ petition, the Court
HELD: 1. Suggestions and recommendations:
(i) National and State Commissions for Protection of Child Rights
(a) The Commissions for Protection of Child Rights Act, 2005
provides for the Central Government constituting a body to be
known as the NCPCR (National Commissions for Protection of
Child Rights) at the national level and the State Governments
constituting a body to be known as the SCPCR (State
Commissions for Protection of Child Rights) at the State level.
[Para 56] [968-C]
[2018] 2 S.C.R. 940
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(b) At the national level, the NCPCR is an institution consisting
of eminent persons and experts in their respective fields. As such,
they are expected to look at issues concerning the welfare of
children in the national perspective taking into consideration the
views of every SCPCR and other stakeholders. At the State level,
the SCPCR is an equally significant body consisting of eminent
persons and experts. They are expected to take policy decisions
for the benefit of the children in their State, regardless of which
State the children originally belong to, for there might be children
of one State who are in need of care and protection but in a Child
Care Institution of another State. The functions of the NCPCR
and the SCPCR are more or less the same except that one
performs these functions at the national level, while the other
performs these functions at the State level. [Paras 57, 58] [969B-D]
(c) Both the NCPCR and the SCPCR have a range and variety of
functions to perform and each one of them entails a great deal of
responsibility. It is given to understand that both the Government
of India and the State Governments have not been giving these
bodies the freedom to decide on broad policy matters and indeed
in some instances, particularly relating to the SCPCR, vacancies
have not been filled up for several months. Unfortunately, at one
point of time, even the position of the Chairperson of the NCPCR
was lying unfilled for several months, until, on the directions of
this Court, the position was eventually filled up. Unless the
NCPCR and the SCPCRs are given due importance by the
Government of India and the State Governments and vacancies
are filled up in time, the enforcement of the rights of children will
remain on the back burner and any number of welfare schemes
formulated by the Government of India or by the State
Governments will remain unimplemented or their implementation
will remain sketchy and symbolic. [Para 59] [971-B-E]
(d) There is hope and trust that those in authority and power in
the Government of India and in the State Governments appreciate
the importance of adhering to the provisions of the laws enacted
by Parliament and ensure that the NCPCR at the National level
and the SCPCR at the State level actually function and perform
their duties and recognize their responsibilities. [Para 60] [971E-F]
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(ii) State Child Protection Society and the District Child Protection
Unit
(a) The constitution of the State Child Protection Society and the
District Child Protection Unit need serious consideration so that
all stake-holders, including the police and NGOs are actively
involved in the performance of the functions, duties and
responsibilities of these two bodies. The functions of the State
Child Protection Society and the District Child Protection Unit
are detailed in Rule 84 and Rule 85 of the Juvenile Justice (Care
and Protection of Children) Model Rules, 2016 framed by the
Government of India. The functions are varied, extensive and
geared to improve the living conditions of children through
different strategies and with the involvement of all stake-holders.
[Para 61, 62] [972-A-C]
(b) Section 106 of the JJ Act provides for the constitution of a
State-level Child Protection Society and a District-level Child
Protection Unit. Section 106 JJ Act broadly indicates that the
primary function of the State Child Protection Society and the
District Child Protection Unit is to ensure implementation of the
JJ Act. In addition, these bodies are obliged to ensure that the
institutions under the JJ Act are established and maintained,
competent authorities in relation to children and their
rehabilitation are in place and these two bodies are also required
to coordinate with Government officials as well as NGOs to
discharge their wide-ranging functions. The involvement of civil
society through NGOs is a progressive step and these two bodies
are expected to take their assistance from time to time. If these
two bodies actually perform their duties, responsibilities and
functions in the manner expected of them, the implementation of
the JJ Act would no longer be an issue. Unfortunately, these
bodies are not functioning in many places or in the manner in
which they are expected to and in several districts the District
Child Protection Unit has not even been constituted. There is
expectation that remedial steps to be taken by all concerned.
[Paras 63-65] [972-D, G-H; 973-A-B]
(iii) Juvenile Justice Boards and Child Welfare Committees
(a) The appointment of some social workers as members of the
JJB is not necessarily in accordance with the provisions of Section
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4 of the JJ Act. The selection of social workers as members of
the JJB is required to be carried out in accordance with the
provisions of Rule 88 read with Rule 87 of the Model Rules. The
appointment of social workers is serious business, inasmuch as
they bring their experience - practical and professional - while
conducting an enquiry under the JJ Act. This becomes all the
more important when it is appreciated that the social workers
can also conduct an enquiry independent of the Principal
Magistrate as provided for in Section 7 of the JJ Act. However,
the final disposition of the enquiry cannot be without the Principal
Magistrate as mandated in the proviso to sub-section (3) of
Section 7. Thus, there is a heavy responsibility on the social
workers to make a meaningful contribution during the course of
an enquiry and also at the time of its disposition. [Paras 67, 68]
[973-E; 974-C-E]
(b) The training of the Principal Magistrate as well as the social
workers is extremely important and this is provided for in Rule
89 of the Model Rules. Unfortunately, the duration of training
and the curriculum and course have not yet formulated, and the
nature of training given to the Principal Magistrate and the social
workers is somewhat ad hoc and unstructured. The lack of
meaningful and effective training (and refresher courses) can have
a vital impact on the ultimate disposition of an enquiry as also on
the rehabilitation and reintegration of a juvenile in conflict with
law who is before the JJB. Serious thought is required to be
given to this not only from the point of view of awareness of the
law and child rights but also from the point of view of sensitization
of the JJBs, case management and creation of a child friendly
ambience and environment within the JJB for a juvenile in conflict
with law. [Para 69] [974-F-H]
(c) If there are a large number of inquiries pending, it is the
obligation of the JJB to sit on a daily basis so that the enquiry is
concluded within the time limit prescribed by the JJ Act. Where
a large number of inquiries are pending, it would be worthwhile
for the State Government and the High Court to consider having
more than one JJB. [Para 71] [975-E-F]
(d) JJB is virtually in the nature of a court, although it does not
conduct a trial, but only conducts an enquiry. Nevertheless, it
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does need adequate staff to perform its functions in an efficient
manner. The JJB also has several administrative functions and
they need due attention so that there is effective coordination
between the JJB, the officials of the Observation Home, the
police, the juvenile in conflict with law and the parents of that
juvenile and lawyers representing the police as well as the
juvenile in conflict with law. These administrative duties need
attention if the JJB is to function effectively and a casual statement
that the JJB has adequate staff, though possibly correct, is neither
here nor there considering the requirements of the stake-holders
who attend the enquiry before the JJB. [Para 72] [973-A-C]
(e) There is a dire need to have quality legal aid lawyers who can
assist juveniles in conflict with law. This is an issue that must be
taken up with all earnestness by the State Legal Services
Authority. Unless a child is given adequate legal representation,
it may impact his or her future, more so if the child in conflict
with law is found guilty and placed in a Special Home. On its part,
NALSA has brought out a manual for training of legal aid lawyers
and it is believed that it will be extremely useful not only for legal
aid lawyers who are representing juveniles in conflict with law,
but also for legal aid lawyers generally. Similarly, prosecutors also
need to be sensitized and the State Governments would take
necessary steps to educate and train them keeping in mind the
primary objective of the JJ Act, which is to reintegrate a juvenile
in conflict with law in society and to rehabilitate that juvenile.
[Para 73] [976-D-F]
(f) It is clear from Rule 64 of the Modal Rules that a Probation
Officer has a very important role to play in ensuring that a juvenile
in conflict with law is given adequate representation and a fair
hearing before the JJB and the enquiry is conducted in a manner
that is conducive to the rehabilitation of the juvenile in conflict
with law. In this regard, the preparation of an individual care plan
and post release plan gain immense significance and Probation
Officer has an important role to play. [Para 75] [978-F-G]
(g) It is of great importance that a Probation Officer should be
given adequate training, sensitization and awareness of his or
her duties and responsibilities. NALSA has made a significant
contribution in this regard by preparing a training module for
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Probation Officers. It is expected all the State Governments as
well as MWCD to ensure that training is given to Probation
Officers on the lines suggested by NALSA with improvements
being made in adult learning techniques, training methodology,
the curriculum and the course content in due course of time. The
said conclusions are equally applicable to the CWCs. [Para 76]
[978-G-H; 979-A]
(iv) Use of technology
(a) The use of technology, both by the JJBs as well as by the
CWCs is extremely important and it is disheartening to note from
the affidavits and submissions made by MWCD that there is an
acute shortage of computers and peripherals with the JJBs and
CWCs. Technology is important not only for the effective
functioning of the JJBs and CWCs, but also to deal with issues
that would arise from time to time concerning the tracing and
tracking of missing children, the rescue of children working in
hazardous industries, trafficked children, children who leave the
Child Care Institutions, victims of child sexual abuse and followup action, among several other requirements. It is well-known
that our country is a technological power-house and if advantage
is not taken of the resources available and fully utilize the benefits
of technology through computers and the internet for the benefit
of children, our status as a technological power-house would be
in jeopardy and would remain only on paper. Data, particularly of
the magnitude of the kind, can be easily collected through the
use of computers and internet. This would be of great assistance
in planning and management of resources and MWCD and others
concerned with child rights must take full advantage. [Para 79]
[979-E-H; 980-A]
(b) The use of computers and peripherals would make an immense
contribution to the administrative functioning of the JJBs and
CWCs. Both the Government of India and the State Governments
need to look into this and provide necessary software and
hardware to the JJBs and the CWCs for obvious reasons. The
Police authorities in Telangana and AP in consultation with the
Juvenile Justice Committee of the High Court have made
considerable use of information and communication technology
and innovative steps must be encouraged. Similarly, the use of
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video conferencing could also be considered in appropriate cases
where some inconvenience to the juvenile in conflict with law
necessitates the use of video conferencing facilities. [Para 80]
[980-B-C]
(c) MWCD must be complimented for bringing out an online
Central Level Monitoring System. This online system is working
rather effectively although it would need upgrading from time to
time as the months go by. The unfortunate part is that there does
not seem to be much active cooperation extended by the State
Governments in updating the information on the Central Level
Monitoring System. Needless to say, updating information is
extremely important so that there can be efficient planning which
will ultimately lead to better management of issues concerning
children. The State Governments are required to fill up the
information on the Central Level Monitoring System once a
quarter and surely that cannot be a difficult task. [Para 81] [980D-E, F]
(v) Role of Police
(a) An extremely important stake-holder in the effective
implementation of the JJ Act is the local police. Section 107
mandates the appointment of a Child Welfare Police Officer and
a Special Juvenile Police Unit in each district. The SJPU must
also include two social workers having experience of work in the
field of child welfare, one of them being a woman. The
responsibility for appointment lies on the State Government. Many
States have actually appointed CWPOs and set up SJPUs.
Unfortunately, their duties and responsibilities have not been
clearly identified but are generally stated in Rule 86 of the Model
Rules. Also no system of effective training for CWPOs and SJPUs
has evolved and many of them exist only symbolically and only
because the law requires them to exist. Since the duties and
responsibilities of the CWPOs and SJPUs have not been specified
or identified, it is high time that the Bureau of Police Research
& Development and the National Police Academy in consultation
with the State Police Academies identify the functions, duties and
responsibilities of the CWPOs and SJPUs. In this regard, NALSA
has prepared Guidelines for Training Juvenile/Child Welfare
Officers attached to every police station and members of the
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Special Juvenile Police Unit. Perhaps this could be a starting
point for their training through the Bureau of Police Research &
Development and the Police Academies. [Paras 82, 83] [980-GH; 981-E-H]
(b) With regard to the Police generally, it was submitted that due
to the policy of rotation, it often happens that soon after a police
officer completes his or her training that officer is transferred
out to another department. This is a waste of effort and one of
the ways of resolving problems arising out of transfers is for every
State Police Academy to conduct regular training programmes
under the guidance of senior police officials of the State and for
the State Government to optimally utilize the services of its
officers. Similarly, the Government of India is required to involve
Railway Police for dealing with children. No information or data
is forthcoming in this regard. The Government of India through
the Railways is expected to look into the matter with some degree
of urgency. A large number of runaway children and children on
drugs are found in railway stations (and other places) working as
rag-pickers or performing other menial activities. It was submitted
that even otherwise, there is rampant drug abuse among such
children. Efforts must be made to establish de-addiction centres
especially for such children and also generally for juveniles in
conflict with law and children in need of care and protection. [Para
86] [982-E-G]
(vi) Child Care Institutions
(a) Many of the Child Care Institutions are housed in run-down
buildings and are hardly conducive to comfortable living even to
a minimum degree. State Governments must appreciate that they
are not doing any charity by putting up children in Child Care
Institutions - they are merely performing their statutory and
constitutional obligations. There is, therefore, an urgent need to
make an evaluation and assessment of all the Child Care
Institutions in every State to ascertain their condition, the
infrastructure requirements and staffing requirements. Children
live in these Institutions, not because they want to but because
they have no other option, since most of them are children in
need of care and protection. The obligation of society is to provide
solace and comfort to these children and adherence to the
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minimum standards of care. Model Rules contain details for
improved Child Care Institutions and their requirements. [Para
87] [982-G-H; 983-A-C]
(b) There are additional duties and responsibilities obligated by
the Constitution on the State Governments such as providing
education, health-care (both physical and psychological) and
adequate nutrition. These are huge areas that need to be looked
into with all sincerity by the bodies and institutions established
under the Commissions for Protection of Child Rights Act, 2005
and the JJ Act. But, in such exceptional circumstances, the courts
are constitutionally obliged to issue a continuing mandamus in
public interest for implementation of the laws enacted by
Parliament, which is essentially the primary responsibility of the
Executive. If the Executive ignores the mandate of Parliament
with continuing callousness, it would only be to the detriment of
the children of the country. [Para 88] [984-B-D]
(c) MWCD has made considerable efforts in ensuring that Child
Care Institutions run and managed by individuals and NGOs are
registered in accordance with the provisions of the JJ Act. There
has been some resistance to registration from some institutions,
thus, it is made clear that the law has to be obeyed as long as it
exists on the statute books. It might be uncomfortable for those
who manage some of these Child Care Institutions, but
registration is compulsory and in public interest to ensure that
minimum standards of care are maintained and the children in
those Institutions are well looked after. Occasionally there are
allegations originating from Child Care Institutions of trafficking
and child sexual abuse, some of which may be unverified, but to
avoid any such shameful allegations it is necessary that their
registration, their management and functioning are strictly
monitored by the State Governments and by MWCD. [Para 89]
[983-G-H; 984-A-B]
(d) It was suggested by the counsel that in all Child Care
Institutions, there should be a segregation of children in terms
of age and wherever applicable segregation based on the nature
of the offence allegedly committed so that the possibility of sexual
abuse or any other kind of violence is eliminated. Additionally,
all such institutions should be advised to provide vocational or
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continuing education with a view to re-settling children in conflict
with law and children in need of care and protection by
reintegrating and mainstreaming them in society. It was
emphasized that there should be adequate staff available in all
Child Care Institutions so that they are able to perform their
duties efficiently. It was also suggested that the location of the
JJBs and CWCs should be in close proximity of the Child Care
Institutions to avoid children having to travel long distances for
their appearance before these statutory bodies. All these
suggestions and recommendations made by the counsel are issues
of concern and must be dutifully addressed by the State
Governments and the SCPCRs. [Paras 90, 91] [984-F-H; 985-A]
(e) The submissions made with regard to Child Care Institutions
was that District Legal Services Authorities may make
unscheduled visits to them to ascertain whether they are in fact
functioning as they should, is definitely worth implementing and
NALSA is expected to go ahead with the suggestion. In fact, the
Chief Justices Conference in 2006 had specifically adverted to
the appointment of Visitors to Child Care Institutions and in the
Chief Justices Conference in 2013 and 2015 improving the living
conditions in Child Care Institutions was also adverted to.
NALSA and District Legal Services Authorities to respect the
views expressed in the Chief Justices Conferences. [Para 92]
[985-B-C]
(vii) Juvenile Justice Fund
(a) The JJ Act provides for the constitution of a Juvenile Justice
Fund. It is quite distressing to note that some of the State
Governments have not even set up the Juvenile Justice Fund
while one or two State Governments have set up the Fund with
an embarrassing amount of only a few thousand rupees. It is
wondered how the welfare of children can be looked after by these
State Governments with such a pittance in the kitty. Obviously,
these State Governments are not seriously concerned about the
welfare of children, which is a pity. This is official apathy to the
rights of children and a cause for worry. [Para 93] [985-D-F]
(viii) Evaluation and assessment
(a) It would be appropriate if some sort of an evaluation or social
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audit is carried out every six months for the next couple of years
to monitor and supervise the implementation of the JJ Act. More
than sufficient time has already elapsed since the Act of 2000
was enacted by Parliament and certainly the children of the country
deserve much better and cannot wait for another 15 or 16 years
for the effective implementation of the JJ Act. Most of the
children who were born when the Act of 2000 was enacted are
nearing adulthood and many of them have not had the benefit of
the provisions of the Act of 2000. This mistake, a serious one,
cannot be repeated in the implementation of the JJ Act. [Para
94] [985-G-H; 986-A]
2. Conclusions and directions:
Keeping in mind the concerns expressed by the counsels and
the need to invigorate the juvenile justice system in the country,
the following directions are given:
(i) 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.
(ii) 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.
These bodies have a very significant and proactive role to
play in improving the lives of children across the country.
(iii) 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.
(iv) The State Governments must ensure that all positions
in the JJBs and CWCs are filled up expeditiously and in
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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.
(v) 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.
(vi) The NCPCR and the SCPCRs must carry out timebound 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.
(vii) 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.
(viii) 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 Act such as having a
database of missing children, trafficked children and for
follow up of adoption cases etc.
(ix) There is a need to set up Special Juvenile Police Units
and appoint Child Welfare Police Officers in terms of the
JJ Act at the earliest and not only on paper. It is necessary
to clearly identify the duties and responsibilities of such
Units and Officers and wherever necessary, guidance from
the available expertise, either National Police Academy
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or Bureau of Police Research and Development or NGOs
must be taken for the benefit of children.
(x) 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.
(xi) 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 and issues of missing children and trafficking
are also addressed.
(xii) 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.
(xiii) The JJ Fund is a bit of an embarrassment with an
absence of an effective response from the State
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.
(xiv) 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. NALSA is requested
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.
(xv) 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 it is
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expected that the NCPCR with the assistance of the
SCPCRs to carry forward this initiative so that there is
meaningful implementation of the JJ Act.
(xvi) Each High Court and the Juvenile Justice Committee
of each High Court to continue its proactive role in the
welfare of children in their State. To make the involvement
and process more meaningful, Chief Justice of every High
Court is requested to register proceedings on its own
motion for the effective implementation of the 2015 Act
so that road-blocks if any, encountered by statutory
authorities and the Juvenile Justice Committee are
meaningfully addressed after hearing the concerned
governmental authorities. [Para 95] [986-B-H; 987-A-H;
988-A-H; 989-A-F]
3. The Chief Justice of each High Court is requested to
seriously consider establishing child friendly courts and
vulnerable witness courts in each district. Inquiries under the JJ
Act and trials under other statutes such as the Protection of
Children from Sexual Offences Act, 2012, the Prohibition of Child
Marriage Act, 2006, trials for sexual offences under the Penal
Code and other similar laws require to be conducted with a high
degree of sensitivity, care and empathy for the victim. [Para 96]
[989-F-G]
Sheela Barse II v. Union of India (1986) 3 SCC 632;
Sheela Barse v. Union of India (1988) 4 SCC 226 : [1988]
2 Suppl. SCR 643; Court on its own motion v. State of
Punjab and The National Commission for the Protection
of Child Rights (NCPCR) v. The State of Haryana and
Others Decided on 9th April, 2013, MANU/PH/0599/
2013; Naisul Khatun v. State of Assam and Ors. 2011 Cri
LJ 326 : 2010 SCC Onluine Gau 225; The Matter of
Letter of Sanat Kumar Sinha (Chief Co-ordinator), Bal
Sakha v. The State of Bihar through the Chief Secretary,
Govt. of Bihar and Ors. MANU/BH/0384/2008 - referred to.
Case Law Reference
(1986) 3 SCC 632
referred to
Para 22
[1988] 2 Suppl. SCR 643
referred to
Para 24
2011 Cri LJ 326:2010 SCC
referred to
Para 70
SAMPURNA BEHURA v. UNION OF INDIA & ORS.
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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
473 of 2005
Under Article 32 of The Constitution of India.
Colin Gonsalves, Sr. Adv., Ms. Sneha Mukherjee, Ms. Jyoti
Mendiratta, Advs. for the Petitioner.
S. Wasim A. Qadri, R. K. Rathore, Ms. Sunita Sharma, Ms.
Gunwant Dara, A. A. Raj, B. V. Balram Das, G. S. Makker, Raj Bahadur,
Shailender Saini, Saeed Qadri, Vikas Bansal, Gagan Gupta, Saurabh
Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. What can a citizen do if the State
pays no attention to his or her fundamental or human or statutory right,
nor takes serious interest in fulfilling its constitutional or statutory
obligations? What if that citizen is a voiceless child or someone whose
voice cannot be heard over the din of governance - for example,
physically or mentally challenged persons, senior citizens, and other
disadvantaged sections of society such as scheduled castes, tribals and
several others? The aggrieved would perhaps approach the judiciary (if
he or she could and as a last resort) for the enforcement of a human
right. Should the judiciary take corrective steps and be accused of 'judicial
activism' or overreach - or should the cynics and skeptics have their
day resulting in the grievance of the voiceless and the disadvantaged
remaining unheard and the fundamental and human rights lying
unaddressed?
2. These questions arise in the context of the virtual nonimplementation or tardy implementation of laws beneficial to voiceless
(and sometimes silenced) children, particularly, the Juvenile Justice (Care
and Protection of Children) Act, 2000 (the Act of 2000) and the Juvenile
Justice (Care and Protection of Children) Act, 2015 (the JJ Act). We
record and acknowledge our appreciation for the efforts of Sampurna
Behura in highlighting some of these issues by way of a Public Interest
Litigation and to learned counsel for the appearing parties in rendering
assistance enabling us to address some of these issues by not making
these proceedings adversarial, but a constructive effort for the benefit
of the children of our country. No one has any doubt that it is time for the
State to strongly and proactively acknowledge that even children in our
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country have fundamental rights and human rights and they need to be
enforced equally strongly.
3. If Nelson Mandela is to be believed, "Our children are our
greatest treasure. They are our future. Those who abuse them tear at
the fabric of our society and weaken our nation."1 Our policy and decision
makers need to heed this advice and warning and appreciate that they
are not doing any favour to the children of our country by caring for
them - it is their constitutional obligation and the social justice laws
enacted by Parliament need to be effectively and meaningfully enforced.
Background and Chief Justices Conferences
4. In a prescient understanding of child rights, the Chief Justices'
Conference held in 2006 (presided by the Chief Justice of India with
participation by the Chief Justice of every High Court) the following
resolution was passed:
"a) That High Courts will impress upon the State Governments
to set up Juvenile Justice Boards, wherever not set-up. The Chief
Justices may nominate a High Court Judge to oversee the condition
and functioning of the remand/observation homes established
under the Juvenile Justice (Care and Protection of Children) Act,
2000.
b) The Chief Justices of the High Courts will expedite the matter
with the respective State Governments for setting up of Juvenile
Justice Boards, wherever they have not yet been set up.
c) The Chief Justices of the High Courts will nominate a Judge
to make periodical visits to Juvenile Homes, wherever set up,
and the learned Judge may suggest remedial measures for the
betterment of the conditions of the juvenile homes and inmates."
5. The above resolution was passed almost six years after the Act
of 2000 came into force - meaning thereby that even about six years
after Parliament enacted a law for the benefit of children, the State
Governments had not taken steps to fulfill one basic requirement of the
law, that is, to set up Juvenile Justice Boards.
6. In 2009 the Chief Justices' Conference discussed the progress
made in setting-up of Juvenile Justice Boards and the resolution passed
1 Address by President Nelson Mandela at National Men's March, Pretoria on 22
November 1997
SAMPURNA BEHURA v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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in the Conference in 2006 was reiterated indicating that little or no
progress had still been made by the State Governments in setting up
Juvenile Justice Boards. So, almost a decade had gone by without
compliance by the State Governments of a basic statutory obligation laid
down by Parliament.
7. In 2013 the issue of strengthening the juvenile justice system
was again discussed at the Chief Justices' Conference and the resolutions
passed in 2006 and 2009 were reiterated. In addition, the mandate of
setting up Child Welfare Committees in all districts was also emphasized
to meet the requirements of children in need of care and protection and
to give full effect to the provisions of the Act of 2000. It was the further
resolved:
"It was further resolved that Juvenile Justice Committees, as
had been set up in the Delhi High Court, under the guidance of
the Chief Justice and senior judges and others concerned with
the welfare of juveniles and the working of the Juvenile Justice
(Care and Protection of Children) Act, 2000, be set up in all the
High Courts to monitor the implementation of the provisions of
the Act in their true spirit.
It was noticed that the State Governments had not taken serious
steps to establish and set-up the various Homes, referred to in
the Juvenile Justice (Care and Protection of Children) Act, 2000,
as amended in 2006 and the Juvenile Justice (Care and Protection
of Children) Rules, 2007. It was noticed that the conditions in
the Remand/ Observation Homes and Shelter Homes are not up
to the standard and a lot of improvement was required to make
these facilities meaningful, as envisaged under the above Act
and Rules. It was also noticed that After-care Homes for
adolescents passing into adulthood and, in particular girls, have
not been taken up seriously by the concerned Authorities. The
Chief Justices shall take up the matter with the State Governments
for improving the conditions of the various Homes, referred to in
the above Act and the Rules, and to provide for permanent staff
to run the said establishments, as it was reported by some of the
Chief Justices that many of the employees of the Homes had
been working on an ad-hoc basis, even for as many as fifteen
years. The Chief Justices were requested to take up the matter
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with the State Authorities to ensure that services of such persons,
who have been working on ad-hoc basis, are regularised, if
necessary, by creation of posts.
Particular notice was taken of the fact that the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000,
had not yet been implemented in the State of Jammu and
Kashmir."
8. In 2015 the issue of strengthening the juvenile justice system
was once again discussed at the Chief Justices' Conference and the
following resolution passed:
"Resolved that the High Courts shall continue to take all steps
necessary, including evolving ways to ensure greater sensitivity,
to effectively deal with cases in the field of Juvenile Justice in
their respective States. The High Courts should ensure that
constitution of Juvenile Justice Boards and Child Welfare
Committees are in place, that visits are regularly made to the
Juvenile Homes, Special Homes, Observation Homes, Shelter
Homes and Rescue Centres etc. and that such homes are set up
wherever they have not already been set up. It shall also be
ensured that the requisite facilities are provided as per the
Standards, Rules, Policies and Guidelines in all such Homes/
Centres. The assistance of State Legal Services Authorities and
District Legal Services Authorities shall also be taken in this
regard."
9.