# STATE OF TAMIL NADU v. UNION OF lNDIA & ORS

- **Citation:** [2017] 4 S.C.R. 625
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-tamil-nadu-v-union-of-lndia-ors-32062
- **Pages:** 33

## Headnote

Juvenile Justice (Care and Protection of Children) Act, 2015:
B
s.2(14) - Children in need of care and protection - Who is a
C
child in need of care and protection - The provisions of the Protection
of Children from Sexual Offences Act, 2012 (POCSO Act) do not
provide any definition of a child in need of care and protection - A
child victim of sexual abuse or sexual assault or sexual harassment
is a child in need of care and protection - Similarly, a cliild accused D
ofan offence and brought before the Juvenile Justice Board or any
other authority might also be a child in need of care and protection
-
Although a child in need of care and protection is defined in.
s.2(14) of the JJ Act, 2015, the definition does not specifically
include some categories of children - Consequently, since f/;e JJ
Act is intended for the benefit of children and is intended to protect
E
and foster their rights, the definition of a child in need of care and
protection has to be given a broad interpretation - It must also
include victims of sexual abuse or sexual assault or sexual
harassment under the POCSO Act as also victims of child trafficking
-
Such children must also be given protection under the provisions
F
of the JJ Act being victims of crime under the POCSO Act an(i the
Immoral Traffic (Prevention) Act, 1956 - Commissions for Protection
of Child Rights Act, 2005 - Right of Children to Free and Compulsory
Education Act, 2009 - Protection of Children from Sexual Offences
Act, 2012 - Immoral Traffic (Prevention) Act, 1956 - Child abuse -
Trafficking of children.
G
s.41 - Child care institμtions - Shelter Homes - Children in
need of care and protection are given shelter in homes thm are
managed by the State Government or by_NGOs or by voluntary
organizations - s.41 of the JJ Act which mandates, notwithstanding
625
H
626
SUPREME COURT REPORTS
''"'': 7] 4 S.C.R.
A anything contained in.any other law/or the time being in force,
that all institutions, whether run by a State Government or by
voluntary organizations or NGOs which are meant, either wholly
or partially, for housing children in need of care and protection
shall be registered under the JJ Act in such manner as •nay be
B prescribed within six months of the commencement of the said Act -
The JJ Act came into force on 15'h January, 2016 but the process of
registration is not yet complete - The Union Government and the
governments of the States and Union Territories are directed to
complete the process of registration of all child care institutions by
31-'' December, 2017 with the entire data being confirmed and
C validated - The registration process should also include a data base
of all children in need of care and protection which should be
updated every month - While maintaining the database, issues of
confidentiality and.privacy must be kept in mind by the concerned
authorities - Juvenile Justice (Care and Protection of Children)
D Model Rules, 2016 - r.21.
E
Minimum Standards of care and protection of children -
Art.3(3) of the CRC specifically obligates the State Parties te ensure
that institutions responsible for care and protection of children shall
conform to standards laid down by competent authorities,
particularly in areas of safety, health, staff and supervision -
However, the minimum standards of care prescribed for institutions
cannot be ensured if the child care institution is not identified and
regist'!red - The Model Rules deal with the staffing pattern of child
care institutions, physical infrastructure, clothing, bedding, toiletries
and other articles, sanitation and hygiene, daily routine, nutrition
F and diet scale, medical health, mental health, education, vocational
and recreational facilities and genuine efforts in the rehabilitation
and re-integration of such children into society - All these
requirements are rendered unenforceable in the absence of
registration of child care institutions - If the officers of the State do
not ensure that minimum standards of care a

## Text

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[2017] 4 S.C.R. 625
RE: EXPLOITATION OF CHILDREN lN ORPHANAGES lN THE
A
STATE OF TAMIL NADU
v.
UNION OF lNDIA & ORS.
(Writ Petition (Criminal) No.102 of2007)
MAY05,2017
(MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015:
B
s.2(14) - Children in need of care and protection - Who is a
C
child in need of care and protection - The provisions of the Protection
of Children from Sexual Offences Act, 2012 (POCSO Act) do not
provide any definition of a child in need of care and protection - A
child victim of sexual abuse or sexual assault or sexual harassment
is a child in need of care and protection - Similarly, a cliild accused D
ofan offence and brought before the Juvenile Justice Board or any
other authority might also be a child in need of care and protection
-
Although a child in need of care and protection is defined in.
s.2(14) of the JJ Act, 2015, the definition does not specifically
include some categories of children - Consequently, since f/;e JJ
Act is intended for the benefit of children and is intended to protect
E
and foster their rights, the definition of a child in need of care and
protection has to be given a broad interpretation - It must also
include victims of sexual abuse or sexual assault or sexual
harassment under the POCSO Act as also victims of child trafficking
-
Such children must also be given protection under the provisions
F
of the JJ Act being victims of crime under the POCSO Act an(i the
Immoral Traffic (Prevention) Act, 1956 - Commissions for Protection
of Child Rights Act, 2005 - Right of Children to Free and Compulsory
Education Act, 2009 - Protection of Children from Sexual Offences
Act, 2012 - Immoral Traffic (Prevention) Act, 1956 - Child abuse -
Trafficking of children.
G
s.41 - Child care institμtions - Shelter Homes - Children in
need of care and protection are given shelter in homes thm are
managed by the State Government or by_NGOs or by voluntary
organizations - s.41 of the JJ Act which mandates, notwithstanding
625
H
626
SUPREME COURT REPORTS
''"'': 7] 4 S.C.R.
A anything contained in.any other law/or the time being in force,
that all institutions, whether run by a State Government or by
voluntary organizations or NGOs which are meant, either wholly
or partially, for housing children in need of care and protection
shall be registered under the JJ Act in such manner as •nay be
B prescribed within six months of the commencement of the said Act -
The JJ Act came into force on 15'h January, 2016 but the process of
registration is not yet complete - The Union Government and the
governments of the States and Union Territories are directed to
complete the process of registration of all child care institutions by
31-'' December, 2017 with the entire data being confirmed and
C validated - The registration process should also include a data base
of all children in need of care and protection which should be
updated every month - While maintaining the database, issues of
confidentiality and.privacy must be kept in mind by the concerned
authorities - Juvenile Justice (Care and Protection of Children)
D Model Rules, 2016 - r.21.
E
Minimum Standards of care and protection of children -
Art.3(3) of the CRC specifically obligates the State Parties te ensure
that institutions responsible for care and protection of children shall
conform to standards laid down by competent authorities,
particularly in areas of safety, health, staff and supervision -
However, the minimum standards of care prescribed for institutions
cannot be ensured if the child care institution is not identified and
regist'!red - The Model Rules deal with the staffing pattern of child
care institutions, physical infrastructure, clothing, bedding, toiletries
and other articles, sanitation and hygiene, daily routine, nutrition
F and diet scale, medical health, mental health, education, vocational
and recreational facilities and genuine efforts in the rehabilitation
and re-integration of such children into society - All these
requirements are rendered unenforceable in the absence of
registration of child care institutions - If the officers of the State do
not ensure that minimum standards of care are followed in the child
G care institutions, they could well be guilty of negligence - The Union
Government and the governments of the States and Union Territories
are directed to enforce the minimum standards of care as required
by and in terms of the JJ Act and the Model Rules positively on or
before 31'' December, 2017 -
Juvenile Justice (Care and Protection
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 627
STATE OF T. N. v. UNION OF INDIA
of Children) Mode/Rules, 2016 - Convention on the Rights of the A
Child (CRC) - Art.3(3).
Jacob Mathew v. State of Punjab [2005] 2 Suppl.
SCR 307 : (2005) 6 SCC 1 - relied on.
Charlesworth & Percy on Negligence lO'h Edition
(2001) - referred to.
Utilization of grants - It is the constitutional obligation of
the State to ensure that for safeguarding and fostering the rights of
children, adequate funds are available particularly for children who
B
are in need of care and protection - Problem is the absence of a
will to gainfully utilize the available grants - The State cannot
C
conflate non-availability of funds to shirk their obligations with
inefficient utilization of grants -
The 'governments of the States
an<j Union Territories are directed to draw up plans for full and
proper utilization of grants (along with expenditure statemf!nts) given
by the Union Government under the Integrated C,hild Protection D
Scheme.
National and State Commissions - Establishment of - The
CPCR Act provides for the constitution of a National Commission
for Protection of Child Rights (NCPCR) and for the constitution of ·
State Commissions for Protection of Child Rights (SCPCR) - These
E
Commissions are intended to function under the provisions of the
CPCR Act - In the implementation of the POCSO Act, the NCPCR
and the SCPCR play vital role - s.44 of the POCSO Act places a
great burden on the shoulders of the NCPCR and the SCPCRs - It
is imperative that the NCPCR and the SCPCR be allowed to function
in terms of the CPCR Act and the POCSO Act and only for the
F
benefit of children - These Commissions are under an obligation to
take action wherever necessary including approaching the
Constitutional Courts wherever necessary -
These Commissions
are under an obligation to prepare annual reports and if necessary
special reports but it has been pointed out that this requirement has
G
hardly been implemented mainly because of a lack of interest that
these Commissions have shown in functioning under the statute and
also partly because of the large number of vacancies in these
Commissions - Wherever the State Commission for Protection of
Child Rights has not been established or though established is not
H
A fully functional in the absence of a Chairperson or any one or
more Members, the governments of the States and Union Tei ritories
must ensure that all vacancies are filled up with dedicated persons
on or before 31'' December, 2017 -
The SCPCRs so constituted
must publish an Annual Report so that everyone is aware of their
B
c
activities and can contribute individual(y or collectively for the
benefit of children in need of care and protection - Commissions
for Protection of Child Rights Act, 2005.
ss.53, 54 - Rehabilitation and social re-integration - With
regard to the ji1ture of children in need of care and protection, the
JJ Act contains obligatory provisions such as s.53 which deals with
rehabilitation and social re-integration services in child care
institutions - This provision requires the State to take care of the
basic requirements of children in such institutions including children
with special needs, legal aid where required and more importantly
·assistance in obtaining proof of identity - Proof of identify is crucial
D for the welfare of the child, otherwise he or she is reduced to a mere
,statistic - The provision for rehabilitation and re-integration services
has several facets and cannot be read in isolation but must be read,
inter alia, in conjunction with s.54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act -
E
F
G
H
Inspection Committees are required to be set up which shall
mandatorily visit all facilities housing children in the area allocated,
at least once in three months in a team of not less than three members,
of whom at least one shall be a woman and one shall be a medical
officer - It is imperative that the Union Government and the
;governments of the States and Union Territories must concentrate
on rehabilitation and social re-integration of children in need of
care and protection - There are several schemes of the Government
of India including skill development, vocational training etr: which
must be taken advantage of keeping in mind the need to rehabilitate
such children.
Individual child care plans - The preparation of individual
child care plans is extremely important and all governments of the
States and Union Territories must ensure that there is a child care
plan in place for every1 child in each child care institution -
While
this process may appear to be long drawn and cumbersGme, its
necessity cannot be underestimated in any circumstances - The
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 629
STATE OF T. N. v. UNION OF INDIA
process of preparing individual child care plans is a continuing A
process and must be initiated immediately and an individual child
care plan must be prepared for each child in each child care
institutions on or before 31" December. 2017.
Training of personnel - r.89 of the Model Rules concerns
itself with training of personnel dealing with children - This rule B
provides for a minimum period of 15 days training to various
categories of personnel under the JJ Act including the staff of
Children s Courts, Principal Magistrates and Members of Juvenile
Justice Boards, Chairpersons and Members of Child Welfare
Committies, Police Officers including persons in charge of child c
care institutions etc. -
r.89 of the Model Rules also postulates that
the Judicial Academy and the Police Academy in the States as well
as the State Legal Services Authorities prepare appropriate training
modules, training manuals and provide training to personnel -
Untrained or inadequately trained personnel can unwittingly play
havoc with the lives of victims of sexual abuse or sexual assault or D
sexual harassment - There are an adequate number of academies
that can take up this task including police academies and judicial
academies in the States - There are also national level bodies that
can assist in this process of training including bodies like the Bureau
of Police Research and Training, the National Judicial Academy
and others including established NGOs -
Wherever pos!:ible
training modules should be prepared at the earliest-Juvenile Justice
(Care and Protection of Children) Model Rules, 2016 - r.89.
E
F
ss. 44, 45 - De-institutionalization -
Art.20 of the CRC
obligates the State Parties to provide special protection and
assistance to children temporarily or permanently deprived of family
environment - Art.20 illustrates alternate care in the form of foster
placement, adoption "or if necessary placement In suitable
institution" - It is clear that the first option exercised by the
authorities should not be institutionalization of a child in need of
care and protection and the same is a measure of the last resqrt -
G
Art.40(4) of the CRC pertaining to children accused of violating
the law also states that the State Parties shall ensure "care, guidance,
supervision, counseling, probation, foster care. education and
vocational training and other alternatives to institutional care" -
Indeed, in keeping witli the spirit of the CRC, the JJ Act itself
H
630
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A encourages alternatives to institutionalization such as adoption
(Chapter VIIJ).foster care (s.44) and Sponsorship (s.45) - The Union
Government has since framed the Adoption Regulations, 2017 as
well as the Model Guidelines for Foster Care, 2016 - These need to
be implemented by all concerned including the Courts, particularly
B
those dealing with issues of adoption - However, training in the
understanding and appreciation of the JJ Act, the Model Rules,
Regulations and Guidelines is imperative and merely handing over
copies of these documents to the concerned personnel even if they
are judicial officers or police officers or government functionaries
is not enough - It is not necessary that every child in need of care
C
and protection must be placed in a child care institutions -
Alternatives such as adoption and foster care need to be seriously
considered by the concerned authorities - Convention on the Rights
of the Child (CRC) - Arts.20, 40.
Juvenile Justice Committee -High Courts have a constitutional
D obligation to ensure that the rights of all citizens, including children,
as guaranteed under the Constitution are preserved, protected and
respected - With this in mind, all the High Courts have since set up
a Juvenile Justice Committee consisting of Judges of the High Court
and these Committees ensure that the provisions of the .4ct are
E
implemented in letter and spirit - It is equally the obligation of the
concerned officials of the State, including the police, to render all
assistance to each Juvenile Justice Committee to ensure that the
goals envisaged by the JJ Act and the constitutional vision. are
successfully achieved in the shortest possible time - The governments
of the States and Union Territories are directed to set up Inspection
p
Committees as required by the JJ Act and the Model Rules to conduct
regular inspections of child care institutions and to prepare reports
of such inspections so that the living conditions of children fn these
institutions undergo positive changes -
These Inspection
Committees should be constituted on or before 31" July, 2017 and
they should conduct the first inspection of the child care institutions
G in their jurisdiction and submit a report to the concerned government
of the States and Union Territories on or before 31'' December,
2017 - While the Juvenile Justice Committee in each High Court is"
performing its role in ensuring the implementation of the JJ Act and
Model Rules, each Committee would require a small Secretariat by
H'
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 631
STATE OF T. N. v. UNION OF INDIA
way of assistance - Juvenile Justice· Committee to seriously consider A
establishing a Secretariat for its assistance - Each State Government
and Union Territory is directed to render assistance to the Juvenile
Justice Committee of each High Court and to cooperate-and
collaborate with the Juvenile Justice Committee in this regard.
Social audit -
Necessity of - Held: For the purpos'e of B
ensuring that the implementation of the JJ Act is proceeding in the
right direction, it is necessary that a social audit be conducted every
year - The requirement of a social audit is necessary not onl7 for
purposes of introspection but also transparency and accountability
in the effective implementation of the JJ Act -
There cannot be any
reason to avoid conducting social audits, more particularly since
C
they have been encouraged by the Mahatma Gandhi National Rural ·
Employment Guarantee Act, 20,05 as well as by the Integrated Child
Protection Scheme, by the Comptroller and Auditor General of India
a_nd the National Food Security Act, 2013 - It is imperative that the
process of conducting a social audit must be taken up in right D
earnestness by the National Commission for the Protection of Child
Rights as well as by each State Commission for the Protection of
Child Rights.
F
Technology and computers - Maintenance of records of child
care i-nstitutions - There is no data base of all the child care E
institu(ions in the country - State Governments have not even
validated the available data or undertaken the mapping of child
care ins:itutions in collaboration with the Union Government -
This is an essential first step since it is difficult to imagine how
children in .child care institutions can be cared for. if there is no
record of the number of institutions, number of children in such
institutions, relevant information regarding the children etc. -
Therefore, technology can be put to good use for collection, revision
and access of records of children in need of care and protection
and the child care institutions - lt is imperative for the Union
Government as well as the State Governments to make out a complete
G
list of all child care institutions along with their addresses and the
person in charge or the principal officer as well as full details of
the children residing in these child care institutions -
Availability
of all this information is possible only with the use of technology
and a massive computerization program - Similady, for the effective
H
632
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A functioning of the Juvenile Justice Boards as well as the Child
Welfare Committees, it is necessary that they should be equipped
with computers and printers along with uninterrupted power supply
units so that their day to day functioning can be taken care of
Interpretation of statutes - Beneficial legislation ::uch as
B Juvenile Justice (Care and Protection of Children) Act, 2015 -
Interpretation of - Held: Beneficial legislations demand an
expansive view to be taken by the Courts and all concerned - Jn
order to prevent injustice or to promote justice and to effectuate the
object and purpose of the welfare legislation, broad interpretation
C should be given, even if it requires a departure from literal
construction - The definition of a child in need of care and protection
given in s.2(14) of the JJ Act should be given a broad and purposeful
interpretation - It ought not to be treated as exhaustive but
illustrative and furthering the requirements of social justice -
Juve11ile Justice (Care and Protection of Children) Act, 2015 -
D s.2(14).
E
F
Workmen v. Management of American Express
International Banking Corporation (1985) 4 SCC 71;
Regional Director, ES! Corporation. v. Francis De Costa
[1992) 3 SCR 23 : 1993 Supp (4) sec 100; MSR
Leathers v. S. Palaniappan [2012) 9 SCR 165 : (2013)
1 SCC 177; Badshah v. Urmila Badshah Godse [2013)
10 SCR 259 : (2014) 1 SCC 188; Abhiram Singh v.
C.D. Commachen [2017) 1 SCR 158 : (2017) 2 SCC
629 - relied on.
Constitution of India - Art.39(j) - Though the D!rective
Principles of State Policy are fundamental to the governance of the
country, they are not enforceable - However, once a directive
principle is enforced through law, the State must be obligated to
enforce the statute to uphold its constitutional obligation - JJ Act is
G a medium for the State to honour the Directive Principles of State
Policy particularly under Art. 39(/) of the Constitution by giving
opportunities to children to develop in a healthy manner. and in
conditions of freedom and dignity - Juvenile Justice (Care and
Protection of Children) Act, 2015.
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 633
STATE OF T. N. v. UNION OF INDIA
Bandhua Mukti Morcha v. Union of India [1984) 2
A
SCR 67 : (1984) 3 SCC 161 - relied on.
Convention on the Rights of the Child: Art.19- lndia acceded
to the Convention on the Rights of the Child (CRC) on the 11th
December, 1992 -Art.19 of the CRC obligates the State Parties to
"take all appropriate legislative, administrative, social and B
educational measures to protect the child from all forms of physical
or mental violence, irijury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse - Trafficking
of children - Child abuse.
Case Law Reference
[1984] 2 SCR 67
relied on
Para 13
(1985) 4 sec 11
relied on
Para 19
[1992) 3 SCR 23
relied on
Para 20
[2012) 9 SCR 165
relied on
Para 21
[2013) 10 SCR 259
relied on
Para 21
[2017) 1 SCR 158
relied on
Para 21
[2005) 2 Suppl. SCR 307
relied on
Para 31
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 102 of2007.
Under Article 32 of the Constitution oflndia.
Maninder Singh, ASG, Ms. V. Mohana, Basant R, Sr. Advs,
Purushaindra Kaurav, AAG, Ms. Aparna Bhat (A. C.), Ms. Joshita Pai,
Mayank_Sapra, K. Parameshwar, Meenesh Kr. Dubey, Ms. Rashrni
Malhotra, B. K. Prasad, S. A. Haseeb, Ms. Swarupma Chaturvedi,
c
D
E
F
G. S. Makker, Ravindera Kumar Verma, Mukul Singh, Mukesh Kumar
Maroria, Ms. Munmun Goswami, Rohit Rao N, Mukund P. lJnny,
G
Mrs. Anil Katiyar, Ms. Sushma Suri, Ms. Anindita Pujari, Ashok K.
Srivastava, Ms. Bansuri Swaraj, Prateek Rusia, Ms. Shreya Bhatnagar,
C. D. Siiigh, Raghenth Basant, Ms. Aanchal Tikmani, Misha! Johari,
Advs. for the appearing parties.
H
634
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. I. Jhis writ petition was taken up on
the basis of an article published in the Hindi newspaper "Hindustan"
(Lucknow Edition) on 4'hJuly, 2007. The article was written by Ms.Anjali
Sinha and the translated caption of the article is "Orphanage or Places
B for Child Abuse". The article was forwarded to this Court by one A.S.
Choudhury along with a letter and that is the genesis of this petition
which was registered as a Public Interest Litigation (PIL) on lO'h
Septe:nber, 2007. Ms. Apama Bhat was appointed as Amicus Curiae to
assist this Court. At the outset we must and do acknowledge the unstinting
and excellent efforts put in by Ms. Apama Bhat over the last I 0 years in
C rendering assistance in this matter.
2. Broadly, the article written by Ms. Anjali Sinha mentions that
orpha:iages in Mahabalipuram in Tamil Nadu, run by NGOs as well as
government institutions were reportedly involved in systematic sexual
abuse of children. A sting operation indicated that sexual services of
D children were being provided to foreigners as well as Indian tourists and
that the rates of children whose sexual services were being taken were
fixed over telephone or in a meeting at the orphanage.
3. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National
E Commission for Women participated and it was acknowledged that
government schools have become unsafe for girl students due to sexual
abuse. The incident of an eight year old girl who was harassed by her
Principal was mentioned and it was noted that the Principal was only
transferred out by way of punishment. Another incident was mentioned
F where the school teacher misbehaved with students in the presence of
other atudents in a closed room.
4. The then Ministry of Family and Child Welfare along with
UNICEF brought out a report on the condition of children in which it
was reported that 53% of children suffered from sexual abuse. Children
G were reported to be the subject of institutional abuse as well as by
relatives.
5. On these broad facts Ms. Anjali Sinha suggested \hat the
problem of sexual abuse of children especially in government institutions
has become a.serious problem and requires immediate redressal. She
H made some suggestions including a Counseling Cell in each school where
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 635
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
children are taught how to recognize abuse and providing a complaint A
mechanism .accessible to children in case of any such incident.
Proceedings in this Court
6. Over the years, this Court passed several orders and also
mentioned that certain other issues such as trafficking of children, schools
being occupied by Central Para Military Forces and the right to education
B
guaranteed to children require consideration. Jn other words, this Court
sought to expand the scope of this PIL to include the rights of children in
general.
7. In an order passed on 7'h February, 2013 the learned Addit;onal
Solicitor General and the learnedAmicus submitted that the main reason
C
for this Court issuing various orders is to ensure that the provisions for
the rights of children as well as provisions for proper facilities to children
in education as also health are implemented. It was submitted that
obviously the rights of children can be adequately secured only if the
monitoring and controlling provisions contained in statutes relating to
D
children such as The Commissions for Protection of Child Rights Act,
2005, The Right of Children to Free and Compulsory Education Act,
2009, The Protection of Children from Sexual Offences Act, 2012 and
The Juvenile Justice (Care and Protection of Children) Act, 2000 are
fully implemented.
8. A detailed order was passed by this Court on ! 6'h December,
2013 lamenting that despite the directions issued, little or no progress
E
. was made by the States in protecting the rights of children. As far as the
Commissions for the Protection of Child Rights are concerned, they
exist only on paper since in some cases the Chairperson had not oeen
appointed or the Members had not been appointed or no rules and . F
regulations had been framed. This Court observed that the lackadaisical
manner in which the States and the Union Territories had responded to
the rights of children made it necessary to draw attention to the
constittitional rights guaranteed to children. It was observed tha~ the
inaction of the States was in the teeth of the directions given by this
G
Court and additionally the States and Union Territories ought to realize
that they have to operate in accordance with the provisions of the
Constitution of India.
9. Accordingly, specific information was sought from each State
and Union Territory regarding efforts made by the respective H
636
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A governments. Affidavits were filed by the States and Union Territories
from time to time as an attempt to respond to the questions raised by this
Court regarding action taken by the concerned governments in protecting
the rights of children as well as implementation of the statutes mentioned
above. The responses were disheartening then and the situation has not
B changed substantially even after almost a decade since this Court took
cognizance of the matter. Progress, if any, has been marginal.
Unfortunately, it appears that the governments of some of the States
and Union Territories have little remedial or pro-active con~ern for
children.
c
10. On 201hMarch, 2015 this Court raised the need for a social
audit in terms of Rule 64 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 and the utilization offunds given to the States and
Union Territories under the Integrated Child Protection Scheme.
11. On l 7'h April, 2015 this Court raised the issue of a concurrent
monitoring audit under the Integrated Child Protection Scheme as well
D as the establishment of Juvenile Justice Boards, Child Welfare
Committees, Special Juvenile Police Units, functioning of Child Care
Institutions and functioning of adoption agencies.
E
12. On 3l"July, 2015 at the instance of the learned Amicus, the
issue of formulating Child Care Plans was discussed in addition fo laying
down a policy for conducting social audits. On 28'h August, 2015, the
issue of vacancies in the National Commission for the Protection of
Child Rights was raised by this Court. On 30'hOctober, 2015 the format
for social audits was discussed, in the context of finalizing something
workable and pragmatic.
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13. Since it appeared that there was a lack of seriousness and
more tragically a lack of empathy towards the well being and welfare of
children amongst some of the States and Union Territories and c:implete
apathy with respect to the disturbingly increasing instances of child sexual
abuse, often by someone in a position of authority and ineffective
G implementation of the laws passed by Parliament virtually making
parliamentary legislation irrelevant, we heard detailed submissions of all
the parties with the intention of passing appropriate directions so as to
ensure the meaningful implementation·ofthe statutes already enacted
by Parliament. It must be appreciated that the Juvenile Justice '(Care
and Protection of Children) Act, 2015 is a medium for the State to honour
H
RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 637
STATE OF T. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
the Directive Principles of State Policy particularly under Article 39(£)
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of the Constitution by giving opportunities to children to develop in a
h1:althy manner and in conditions of freedom and dignity. Indeed, though
the Directive Principles of State Policy are fundamental to the governance
of the country, they are not enforceable However, as held in Bandhua
Mukti Morcha v. Union of India, once a directive principle is enforced B
through law the State must be obligated to enforce the statute to uphold
its constitutional obligation. 1
· 14. In this context, it is pertinent to note that India acceded to the .
Convention on the Rights of the Child (CRC) on the 11th December,
1992. Article 19 of the CRC obligates the State Parties to "take all
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appropriate legislative, administrative, social and educational measures
to protect the child from all forms of physical or mental violence, ir.jury
or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse .... "
15. Keeping all this in mind, the learnedAmicus focused on'three
principal issues namely ( 1) Children in need of care and protection; {2) D
Traffickrd children (3) Street children. We do not propose to con:;ider
the plight of trafficked or street children, since that would mean losing
focus on the issues raised by Ms. Anjali Sinha. We leave open the issues
of trafficked children and street children for consideration in an
appropriate case.
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16. On the rights of children in need of care and protection it was
submitted that issues relating to child care institutions whether managed
by the State Government or by NGOs or other voluntary organizations
need to follow certain minimum standards .of care and in addition,
rehabilitation of such children must be a priority.
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Children in need of care and protection
17. Who is a child in need of care and protection? The provisions
of the Protection of Children from Sexual Offences Act, 2012 (for short
the 'POCSO Act') do not provide any definition of a child in need of
care and protection. But no one can deny that a child victim of sexual G
abuse or sexual assault or sexual harassment is a child in need of care
and protection. Similarly in a given case,a child accused of an offence
and brought before the Juvenile Justice Board or any other authority
might also be a child in need of care and protection.
1 (1984) 3 sec 161
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[2017) 4 S.C.R.
18. Even though a child in need of care and protection is defined
in Section 2(14) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as the JJ Act) the definition does not
specifically include some categories of children. Consequently, we are
of the view that since the JJ Act is intended for the benefit of children
and is intended to protect and foster their rights, the definition of a child
in need of care and protection must be given a broad interpretation. It
would be unfortunate if certain categories of children are left out of the
definition, even though they need as much care and protection as
categories of children specifically enlisted in the definition, Beneficial
legislations of the kind that we are dealing with demand an expansive
C view to be taken by the Courts and all concerned.
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19. In Workmen v. Management of American Express
International Banking Corporation2 this Court held in paragraph 4 of
the Report that:
"The principles of statutory construction are well settled. Words
occurring in statutes of liberal import such as social welfare
legislation and human rights' legislation are not to be put in
Procrustean beds or shrunk to Liliputian dimensions. In construing'·
these legislations the imposture of literal construction :nust be
avoided and the prodigality ofits misapplication must be recognised
and reduced."
20. A similar view was expressed in Regional Director, ES!
Corporation. v. Francis De Costa3 when it was observed that "It is
, settled law that to prevent injustice or to promote justice and to effectuate
the object and purpose of the welfare legislation, broad interpretation
should be given, even ifit requires a.departure from literal construction."
21. The necessity of giving a purposeful interpretation to a provision
in a statute was recognized in MSR Leathers v. S. Palaniappan4 when
this Court observed that:
" ..... one of the salutary principles of interpretation of statutes is
to adopt an interpretation which promotes and advances the object
sought to be achieved by the legislation, in preference to an
interpretation which defeats such object. This Court has in a Jong
line of decisions recognised purposive interpretation as a sound
2 {1985)4SCC71
'1993 Supp (4) sec 100
H • (2013) 1 sec 177
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RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 639
STATE .OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
principle for the courts to adopt while interpreting statutory A
provisions."
A similar' view was expressed, though in a different context, in Badshah
v. Urmila Badshah Godse.5 A far more detailed discussion or. the
subject is to be found in the Constitution Bench decision of this Court in
Abhiram Singh v. C.D. Commachen.6
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22. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad
and purposeful interpretation - it ought not to be treated as exhaustive
but illustrative and furthering the requirements of social justice. This
understanding would also be in consonance with Article 40 of the CRC c
which stipulates that the "State Parties shall recognize rights of every
child accused of an offence and treatment of such a child shall be in a
manner consistent with promotion of the child's dignity and worth".
23. LeamedAmicus drew our attention to decisions rendered by
some High Courts which have taken a broad based approach to the D
meaning of a child in need of care and protection and some other High
Courts that have adopted a comparatively narrow interpretation. These
decisions were rendered in the context of the Juvenile Justice (Care and
Protection) Act, 2000 and would not really be applicable insofar as the
JJ Act is concerned. However, this does not detract from her submission
that a child in need of care and protection must be given a wider meaning
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and in addition to some children in conflict with law as discussed above,
it must also include victims of sexual abuse or sexual assault or sexual
harassment under the POCSO Act as also victims of child trafficking.
Such children must also be given protection under the provisions of the
JJ Act being victims of crime under the POCSO Act and the Immoral
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Traffic (Prevention) Act, 1956.
Child care institutions
24. Children in need of care and protection are given shelter in
homes that are managed by the State Government or by NGOs ur by
voluntary organizations. In this context, it is necessary to draw attention
G
to Section 41 of the JJ Act which mandates, notwithstanding anything
contained in any other law for the time being in force, that all institutions,
'(2014) 1sec188
• <2011) 2 sec 629
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A whether run by a State Government or by voluntary organizations or
NGOs which are meant, either wholly or partially, for housing children in
need of care and protection shall be registered under the JJ Act in such
manner as may be prescribed within six months of the commencement
of the said Act. The JJ Act came into force on l S1h January, 2016 but we
B were informed that the process of registration is underway and not yet
complete.
c
25. In this day and age when high quality technology is avaiiable
and thre is no shortage of manpower in the country we are uaable to
appreciate why the provisions of Section 41 of JJ Act have not yet been
fully implemented particularly as regards registration of child care
institutions. It is virtually impossible to find out what is going on within its
four walls. The article by Ms. Anjali Sinha is a prime example of what
can happen in child care institutions. It is not clear from the article .whether
all the institutions referred to were registered or not, but surely the
government run institutions must have been registered or licensed.
D Therefore, if activities of the nature mentioned by Ms. Anjali Sinha in
her article are carried out in government run institutions, one can only
imagine what possibly can go wrong in unregistered institutions, which
are managed beyond the law.
26. Apart from their registration, the statute requires quite a few
E salutary actions to be taken by such institutions including recording the
residential capacity and purpose of the child care institt1tion. Rule 21 of
the Juvenile Justice (Care and Protection of Children) Model Rules,
2016 (hereinafter referred to as the Model Rules) specifies the manner
of registration of child care institutions and provides, inter alia, the
availability of the bye-laws and memorandum of association, office
F bearers etc. of such institutions. The State Government is obligated to
consider an application for registration ofa child care institution (in Form
27) iP- light of aspects like whether provision exists for the care and
protection of children, their health, education, boarding and lodging
facilities, vocational studies and rehabilitation (among others things). It
G is only then that a certificate of registration can be issued. The State
Government is also obligated to conduct an inspection of an applicant
institution and it appears to us that if such an inspection is faithfully and
sincerely carried out, it will reveal the dark underbelly, if any, of a dubious
child care institution such as those referred to by Ms. Anjali Si11ha. The
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RE: EXPLOITATION OF CHILDREN IN ORPHANAGES IN THE 641
STATE OFT. N. v. UNION OF INDIA [MADAN B. LOKUR, J.]
strict implementation of the provisions of the JJ Act will go a long way in
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making the life of children in such child care institutions safer and far
more comfortable than it has been and also reduce the possibility of
crimes such as trafficking, sexual abuse or sexual assault or sexual
harassment of children. If the registration of child care institutions is not
complete, their management obviously cannot be supervised. Therefore,
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a misstep in the very first stage could have a chain reaction and perhaps
disastrous consequences in some cases as is evident from the incidents
of cliild abuse in institutions as brought out by Ms. Anjali Sinha.
Minimum Standards of care
27. Article 3 of the CRC mandates that all actions concerning c
children undertaken by public or private social welfare institutions, c0urts
oflaw, administrative authorities or legislative bodies shall have the best
interest of the children as a primary consideration. Article 3(3) of the
CRC specifically obligates the State Parties to ensure that institutions
responsible for care and protection of children shall conform to standards
laid down by competent authorities, particularly in areas of safety, health,
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staff and supervision. However, the minimum standards of care prescribed
for institutions cannot be ensured if the child care institution if not
identified and registered.
28. In this regard it is necessary to draw attention to the provisions
of Chapter VI of the Model Rules particularly the series of rules starting
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from Rule 26 onwards.