A child who is residing in a child care institution is commonly known as an
orphanage. About 50 percent of the children in child care institutions have come
from families that are unable to take care of them due to their financial
situation. For children living without the care of biological parents, the
situation is considered as the worst especially in developing countries. They
face more difficulties than non-orphan peers (like neglect, discrimination, and
From the outside, the Indian orphanage appears to be a safer
place for homeless children in India. instead, the orphanage is fled out of fear
and the children in orphanages were not aware of their rights like abuse,
exploitation, where to report when they violate their rights. Most of the abuse
is carried out by the personnel appointed at these institutions. Laws and
statutes are framed for the protection of children from sexual or psychological
abuse, sexual assault.
Re Exploitation Of Children In Orphanage In The State Of Tamil Nadu Vs. Union Of
Writ Petition (criminal) No: 103 of 2007
Decided on 5th May 2017 by an Division bench of Madan B.Lokur and Deepak Gupta.
Year after year, the scandals surrounding orphanages in India have exposed how
they run their institutions and how it operates. Orphanage directors in India
have even been prosecuted for the abuse taken place in their institution. In a
culture of violence, even older children also learn to abuse and attack young
Children are sexually abused, beaten and mentally abused. this culture is
widespread in institutions that are not controlled by regulatory authorities and
are outside their control.this shelter also lacks a standardized quality of care
attempts to resolve this issue were rejected as they refused to register a
private home under India's Juvenile Justice act 2000 itself. Recently the
juvenile aid police unit of Chennai city police and child welfare committee
workers were sealed an unlicensed juvenile orphanage home in vyasarpadi,Chennai
and all the 18 juveniles were shifted to other juvenile care homes.
case for example Re: Exploitation of children in state of Tamil Nadu v/s Union of
India and others, depends on a sting procedure on which an article was
distributed and it gave a lead to the court to see how the execution apparatus
and Government is missing at each level. This proviso is at last making the laws
defined a sheer disappointment. Be that as it may, in the wake of bringing the
matter into its perception the court gave every one of the needful headings to
the Government to conquer the provisos and make the laws a triumph.
Child Care Institution:
Means children home, open shelter, observation home,
special home, place of safety, specialized Adoption Agency and fit facility recognized
under juvenile justice act for providing care and protection to children, who are
in need of such services.
Child In Need Of Care And Protection: Means A Child:
- Who is found without place of residence or without a livelihood, a beggar, street
child or working child.
- A person living with someone the child's guardian or guardian and the person:
- threatens kill or injure a child and may be executed or
- has killed, tortured or
abandoned another child and is reasonably, a child who has been killed, abused or
- Is mentally or physically disabled, there are disabled, sick or terminally ill
children, or no one to support or care for them;
- There are parents or guardians have no control over the children; no one cares
about children; a parent who does not want to take care of the child or abandons
him has been cheated;
- Who has no parents and no one wants to take care of him, whose parents have
abandoned him or whose child has gone missing and ran away and whose parents
cannot be found again after a natural injury.
- Who is likely to be abused, tortured or exploited for the purpose of sexual
violence or illegal activities,
- Anyone known to be at risk of and possibly involved in drug abuse or
- Who is or can be persecuted for bad faith,
- Any person who is a victim of armed conflict, civil unrest or natural disaster.
Under Article 39(f) of our Indian Constitution states that the children are
given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
Factual Background Of The Case:
An article titled orphanage or places of sexual abuse' was published in
Hindustan newspaper which was written by Ms.Anjali Sinha. Based on gruesome
operation, the article mentions that government and non government orphanages in
Mahabalipuram, Tamil Nadu,are involved in systematic child sexual abuse.
operation also revealed how levels of child sexual abuse were recorded during
phone calls. The article identifies the government agency involved in the matter
and based on that article the public interest litigation was filed.A.S.Choudary
was one who forwarded that article to the court and then the court had expanded
the scope of public interest litigation to include the rights of children. It
can be adequately secured only if the monitoring and controlling provisions
contained in the statutes relating to children such as the Commission 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)act,2000 are fully implemented. On
December 16,2013, this court issued a detailed injunction criticizing the fact
that states had no progress in protecting children's rights despite the
instructions they have given. The commission for the protection of the Rights of
the child only exists on paper as in some cases the chairperson has not been
appointed or the members have not been appointed or the rules and regulations
have been formulated.
Therefore, specific information is collected from each
country and region of the union about the efforts of their respective
governments. states and territories of the union may from time to time make
written observations to answer questions raised by this court. At the time, the
response was disappointing and the situation had not changed much in the nearly
a decade since the court first learned of the matter. On march 20,2015, this
court filed for a social audit in accordance with rule 64 of juvenile justice (
care and protection of children) rules, 2007.
On April 17 2015 this court raised
issues about the simultaneous monitoring review of the Integrated Child
Protection Scheme as well as Juvenile Justice Board,Child Welfare Committees and
Special juvenile police units,the functions of child care facilities and the
functions of adoption agencies.On July 2015, in case of learned Amicus,
questioned the formulating a childcare plan and establishing a policy for
conducting a social audit was discussed.
On August 28 2015,the court raised
questions about vacancies at the National Commission for the Protection of the
Rights of the Child.On October 30,2015 the social audit format was discussed as
part of the finalization of pragmatic and practice.
The learned Amicus focused
on three principal issues namely:
- Child who need of care and protection;
- Trafficked children
- Children on the street.
The question arises,who are the children who need care and protection? The
provisions of POCSO Act,2012 does not have any definition for child in need of
care and protection. But Under 2(14) Juvenile Justice (Care and Protection)
Act,2015 defines child in need of care and protection, that definition does not
specifically cover certain categories of children,here child in need of care and
protection ought to be given a broader interpretation.
Arguments Put Forward By The Petitioner:
Petitioner states that in some states and territories of the Union there
appeared to be a lack of seriousness and, more tragically, empathy for the
welfare of children, and a brooding total apathy for child sexual abuse cases,
often through someone in a position of authority and ineffective implementation
of laws passed by parliament, which makes parliamentary legislation practically
irrelevant, we hear detailed input from all parties with the intention of
legislating, appropriate instructions for the meaningful implementation of laws
already promulgated by the Juvenile Justice (Child Care and Protection) Act of
2015 is a means for the state to respect the guideline principles of state
policy, in particular under Article 39(f) of the Constitution when issuing it.
Opportunities for the children to develop in a healthy way and in conditions of
freedom and dignity. Although the guiding principles of state policy are
fundamental to the governance of the country, they are in fact not applicable.
However, as in Bandhua Mukti Morcha v.Union of India
argues that once a guiding
principle is enforced, the state must be obliged to enforce the law in order to
fulfill its constitutional obligation. It should be noted that India adopted the
Convention on the Rights of the Child (CRC) on December 11, 1992. Article 19 of
the CRC states that States parties are exposed to any form of physical or
emotional violence, injury or abuse, neglect or neglect, abuse or exploitation
(including sexual abuse).
With regard to the rights of children in need of care
and protection, issues related to childcare facilities run by the state,
non-governmental organizations or other voluntary organizations must meet
certain minimum requirements and rehabilitation process.
In workmen v. The management of American Express International Banking Corporation
stated this court in paragraph 4 of the report: The principles of
legal interpretation are well established. Placed on Pro crust beds or shrunk to
Lilliput dimensions. In constructing these laws, the giddiness of literal
constructions must be avoided and the waste of their incorrect application
recognized and reduced.
ESI Corporation Regional Director Francis De Costa took a
similar view when he discovered that it was an existing law that had a broad
interpretation to prevent injustice or promote justice and achieve the aim and
purpose of welfare legislation, even if it requires a deviation from the literal
The need to intentionally interpret a provision in a law was
recognized in the MSR Leathers v Palaniappan case
when the Court found that: One
of the sound principles of law interpretation is to adopt an interpretation that
promotes the objective pursued by the law. Legislation, before this Court has
recognized intentional interpretation in a long list of rulings as a sound
principle that courts must apply when interpreting legislation.
opinion, albeit in a different context, was expressed in Badshah vs. Urmila
A much more detailed discussion on this subject can be found in
the decision of the Constitutional Court in Abhiram Singh v. Commachen
Arguments Put Forward By The Respondent:
In a ruling dated February7,2013,the Solicitor Attorney General argued that the
main reason the court issued various orders is to ensure that the provisions on
the rights of the child,as well as the provisions on adequate facilities for
children in Education and health. It has been argued that it appears the rights
of children can only be adequately guaranteed if the supervision and control
provisions contained in the law which is applicable to children.
that they Informed us that the Government of the Union has drawn up the 2017
Adoption Regulations and 2016 Model Foster Foster Guidelines, which are used by
all stakeholders, including the courts, especially those dealing with adoption
issues. However, as noted above, training in understanding and appreciating the
juvenile and Juvenile Justice laws, model rules, regulations and guidelines is
essential and simply give copies of these documents to the staff involved, even
if they are judicial officers or police or government officials is not enough.
Training is essential so that the aims of the various pieces of legislation that
have been put in place for the benefit of children and to promote their rights
when they are literally and meaningfully implemented.
At the hearing on April 17,2015, the additional prosecutor informed us that
although the standards have been published, a national social audit was
conducted in 2007. The mission of the Indian Federation is to finalize the
social audit policy. In October 2015, we learned that the social audit form has
been more or less improved.
Sometime in November 2015, the Union of India added
copies of the sample social audit forms for the Child Welfare Committee,
Juvenile Justice Committee, Special Youth Police Unit, Orphanage, Child Protection
Agency, Specialized Adoption, and Open Housing/Housing to its sworn documents.
Observation deck and Special Housing:
The affidavit states that these pilot test
forms will be distributed by the states, as described in the previous affidavit
dated October 29, 2015. We have not yet learned whether any actions have been
taken to conduct social audits in accordance with the sample format developed by
the Union of India or where appropriate based on the results of the pilot test. Therefore, these formats must be tested. Therefore, it makes more sense to
implement the Juvenile Justice act.
Issues Raised By The Courts:
- Whether child care institutions are managed by the state government
or by NGOs or other voluntary organizations has followed certain minimum
standards of child care in that institutions?
- Whether rehabilitation of children in need of care and protection
must be a priority?
- Whether NCPCR and SCPCRs monitors the implementation of POCSO act, 2012?
- For the rehabilitation and social re integration, does we have any
training of personnel dealing with children.
The definition of child in need of care and protection under Section 2(14)of the
Juvenile Justice Act should not be interpreted as an comprehensive definition.
The definition is illustrative and the benefits envisaged for children in need
of care and protection should be extended to all such children in fact requiring
state care and protection.
The government of the Union and the governments of the
states and territories of the Union must ensure that the registration process of
all childcare institutions is actively completed and that all data is verified
by December 31, 2017. This information should be provided to all interested
officials. The registration process should also include a monthly database of
all children in need of care and protection.
When maintaining the database,the
competent authority should consider confidentiality and data protection issues.
The states and territories of the Union are committed to Ensure that the minimum
due diligence standards required by the JJ Act and Model Rules are met by
The governments of the states and union territories should develop plans for the
full and proper utilization of grants provided by the Union Government under the
Integrated Child Protection Scheme (along with expenditure statements).
Returning the grants as unspent or using them infrequently grants will not
benefit anybody else and are therefore a waste of resources.
It is critical that
the Union Government, as well as the governments of the States and Union
Territories, focus on the rehabilitation and social reintegration of children
who require care and protection. The Government of India has several schemes,
including skill development vocational training etc, that must be utilized while
keeping the need for rehabilitation in mind of such Child.
The governments of the
states and union territories are directed to establish Inspection Committees, as
required by the JJ Act and the Model Rules, to conduct regular inspections of
child care institutions and to prepare inspection reports so that the living
conditions of children in these institutions improve. These Inspection
Committees must be formed on or before 31st July 2017.
On or before December 31, 2017, they should conduct the first inspection of
child care institutions in their jurisdiction and submit a report to the
concerned government of the States and Union Territories. It is extremely
important to develop an individual child care plan, and governments in all
states and territories must ensure that every child in every daycare center has
a child care plan.
This process may seem long and arduous, but it is necessary.
The individual child care plan preparation process is an ongoing process that
should be started immediately,and an individual child care plan should be
prepared for each child in each nursery.December31, 2017.
The schooling of employees as required via way of means of the JJ Act and the
Model Rules is essential. There are an variety of academies that could take in
this assignment which include police academies and judicial academies in the
States. There also are country-wide stage our bodies that could help on this
system of schooling which include our bodies just like the Bureau of Police
Research and Training, the National Judicial Academy and others which include
hooked up NGOs.
Wherever feasible schooling modules need to be organized at the
earliest. It is time that the governments of the States and Union Territories
bear in minded-institutionalization as a possible alternative. It isn't always
essential that each toddler in want of care and safety have to be positioned in
a toddler care institutions. Alternatives which includes adoption and foster
care want to be critically taken into consideration via way of means of the
The importance of social testing cannot be overemphasized.
Some of the above-mentioned laws and regulations, as well as the Controller and
Auditor General of India, have already explained the necessity of conducting
social audits. In view of this position, the National Committee for the Protection
of Children's Rights and the State Committees for the Protection of Children's
Rights must take the social audit process seriously.
This may be the best way to
ensure transparency and accountability in the way children are handled and
operated. Nursing facilities and other facilities under the JJ Act and the Model
Rules can Control and monitoring.
Although every high court juvenile justice committee can play a role in
enforcing the JJ Act and the Model Rules, there is no doubt that every committee
needs the help of a small. We urge the juvenile justice committees to
seriously consider the establishment of a secretariat to assist them and
instruct the state and federal territorial governments to assist the juvenile
justice committees of the high courts, and cooperate with the juvenile justice
committees in this sense.
We acknowledge the contribution of Ms.Aparna Bhat for
her great interest in the issues raised in this PIL and her continued and
effective support to the court. the supreme court legal services committee gave
honor to Ms.Aparna Bhat out of funds of juvenile justice issues. Although there
may be other issues that are particularly relevant to children in need of care
and protection, we keep these issues open and grant liberty to the
petitioner, including requests to modify or clarify the above description.
The Union of India is coordinated to impart our headings to the concerned
Ministry or Division of each State and Union Territory for execution and to
group important data in regards to the execution of these bearings with the help
of the National Commission for the Protection of Child Rights and the State
Commission for the Protection of Child Rights. A status report in such a manner
ought to be recorded in this Court at the latest 15th January, 2018.
Conclusions And Suggestions:
Till now many child care institution are not registered, so it needs an
effective implementation of the said judgment. State has to conduct some more
social audit programs so that they can learn more about how to audit that in
child care institutions because the concept of social audit is new for them. By
issuing model social audit papers to all child care institutions are not an
effective way to learn more about the audit.
They have to conduct more rehabilitation training for the child who in need of
care and protection so that children's will understand the situation and they
will get fit into our society. Skill training and vocational training are to be
conducted. NCPCR has formulated a Quick Response Cell (QRC) to attend the
emergency cases of child rights violation in furtherance of this judgment. They
had also proposed that a management information system are to be prepared for
the administration and monitoring of data related to child care institutions.
If it is necessary each commission should be assisted with National legal
services authority, according to a statement by the NCPCR. During their visits
the child who lives in child care institution have to ensure that all the child
have to live in healthy manner the state should take care of those children who
live in orphanages or child care institutions.
Award Winning Article Is Written By: Ms.Sonasri.S
Authentication No: OT130170282699-28-1021