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A case analysis on Re Exploitation of children in Orphanage in Tamil Nadu v/s Union of India

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 malnutrition).

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 India
Writ Petition (criminal) No: 103 of 2007
Decided on 5th May 2017 by an Division bench of Madan B.Lokur and Deepak Gupta.

Introduction:
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 people.

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.

The examined 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.

Definitions:
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:
    1. threatens kill or injure a child and may be executed or
    2. has killed, tortured or abandoned another child and is reasonably, a child who has been killed, abused or neglected; 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 trafficking,
  • Who is or can be persecuted for bad faith,
  • Any person who is a victim of armed conflict, civil unrest or natural disaster.

Constitutional Provision:
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.

The 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:
  1. Child who need of care and protection;
  2. Trafficked children
  3. 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 Advanced:
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 interpretation.

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.

A similar opinion, albeit in a different context, was expressed in Badshah vs. Urmila Badshah Godse. 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.

Further states 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:
  1. 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?
  2. Whether rehabilitation of children in need of care and protection must be a priority?
  3. Whether NCPCR and SCPCRs monitors the implementation of POCSO act, 2012?
  4. For the rehabilitation and social re integration, does we have any training of personnel dealing with children.

Judgement:
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 December 31,2017.

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 involved authorities.

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.

Reference:
  • https://indiankanoon.org/doc/113255681/
  • http://www.google.com/amp/s/www.outlookindia.com/newsscroll/amp/ncpcr-proposes-system-for-monitoring-of-data-related-to-child-care-institutions/1432870
  • https://advocatespedia.com/RE:EXPLOITATION-OF-CHILDREN-IN-ORPHANAGE-IN-STATE-OF-TAMIL-NADU-V-UOI-AND-ORS
  • https://curiousforlaw.com/re-exploitation-of-children-in-orphanges-in-the-state-of-tamil-nadu-vs-union-of-india-uoi-and-ors-05-05-2017-sc-manu-sc-0577-2017/

    Award Winning Article Is Written By: Ms.Sonasri.S
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