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Re Exploitation of children in orphanages in State of Tamil Nadu v/s Union of India

CASE NO – Writ Petition (criminal) no – 102 of 2007

COURT – Supreme Court of India

CORUM – Hon’ble Justice Madan B. Lokur and Hon’ble Justice Deepak Gupta.

DATE OF JUDGEMENT – May 5, 2017.

INTRODUCTION

Annually, scandals at orphanages in India have disclosed how orphan’s institutions are run. The workers at these orphanage homes have been incriminated in serious criminal offenses. In a culture of abuse and violence, the children are sexually maltreated, battered and mentally ill-treated. Cramped settlement, regular violence as a measure of regulation in lieu of proper child conduct methods are some cases of poor infrastructure at orphanages. Efforts to label these problems are outlasted, as privately-run ‘homes’ repudiate to be recorded with the Juvenile Justice Act, 2000 of India. On account of introducing the situation into its consciousness, the court accorded one of its most landmark decisions to the Government to vanquish the provisions and make the laws win.

Under Article 39 of the Indian Constitution, principles of economic and social justice are cited. A.39 (e) quotes that, health and strength of workers, men and women, and the tender age of children are not abused. A.39 (f) says 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. [1]

FACTS OF THE CASE

  • The above mentioned writ petition was enthralled upon an article titled “Orphanage or Places of sexual abuse” published in Hindustan newspaper written by Ms. Anjali Sinha.
  • The article mentioned that, the government and non-government orphanages in Mahabalipuram, Tamil Nadu were involved in systematic child sexual abuse.
  • The process disclosed how levels of child sexual abuse were recorded during phone calls.
  • The article recognizes the government agency involved in the matter and based on that article, the public interest litigation was filed.
  • A.S.Choudary was some person who passed on the article to the court and on the basis of the article, the Court had taken up the Public Interest litigation.
  • In an order passed on 7th February, 2013, it was submitted that rights of children could be secured only if the monitoring and controlling provisions contained in statutes relating to 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.
  • Later on, a detailed direction was issued to the Court regarding the incapability of the States in securing the rights of the children.
  • On 20th March, 2015, the Court uplifted the demand of a social audit in terms of Rule 64 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
  • Then in the next month i.e.17th April, 2015, the Court raised the issue of a monitoring audit under the Integrated Child Protection Scheme as well as the establishment of Juvenile Justice Boards.
  • 3 months later on 31st July, 2015 at the instance of the learned Amicus, the issue of preparing Child Care Plans was discussed on the top of laying down a policy for conducting social audits.
  • On 28th August, 2015, the problem of vacancies in the National Commission for the Protection of Child Rights was raised by this Court.
  • Lastly, on 30th October, 2015 the format for social audits was discussed, in the context of finalizing something workable and pragmatic. [2]

The learned Amicus stressed on three important problems which were –

  1. Trafficked children
  2. Children on the street.
  3. Children who are in need of protection.

ISSUES RAISED

  • Whether the recovery of children in need of care and protection should be the first concern or not?
  • Whether the National Commission for Protection of Child Rights, 2005 and State Commission for Protection of Child Rights Act, 2005 keep a check on the application of the POCSO (Protection of Child from Sexual Offences Act, 2012) or not?

CONTENTION

ARGUMENTS ADVANCED BY THE PETITIONER –

  • The Petitioner argues that, there appeared to be a lack of sense for the welfare of children, and a brooding unconcern for child sexual abuse cases in many States and Union territories.
  • There were very few chances 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 reality extremely irrelevant.

ARGUMENTS ADVANCED BY THE RESPONDENT –

  • The Solicitor Attorney General argued upon the orders issued by the Court which defined the provisions on the rights of the children, along with the provisions on ample facilities for children in sectors of health and education.
  • It has also been argued that, it appears the rights of children can only be adequately guaranteed if the supervision and control provisions contained in the law are applicable to children.
  • Furthermore, it was argued that it appears the rights of children can only be adequately guaranteed if the administration and control provisions contained in the law is wholly relevant and appropriate only for the children and nobody else. 
  • The respondent contended in the last that, training in understanding and appreciating the Juvenile Justice Laws, Model rules and guidelines is vital and simply giving copies of these documents to the staff, even if they are judicial officers or government officials is not sufficient.

RATIONALE OF THE SUPREME COURT

  • The Court pronounced that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice Act should not be interpreted as an exhaustive definition. The definition is explanatory and the advantages forecasted for children in need of care and protection should be expanded to all the children.
  • After hearing both sides, the Court directed the governments of the Union territories and the States to make sure the registration of the orphans’ institutions are registered and legally functional and verified by December 31, 2017.
  • The Court noted that, vide order dated 05.12.2018,  the Union of India was to take up to make a report on the thrust of data collected with regard to the management of child institutions and children’s rights.
  • The report was to serve as a plan for the near future. These details must be provided to the main authorities and the registration process should comprise a monthly database of all children who are in need of care and protection.
  • The Court also directed the States to set up various committees for supervision as required by the Juvenile Justice Act, 2005 and the Model Rules to regulate day-to-day inspections of child care institutions before 31st July, 2017 and to prepare reports of such inspections.
  • The State Commission for Protection of Child Rights should annually publish a report wherefore everybody is aware of all the activities being carried on.
  • The procedure of conducting a social audit must be taken up by the National Commission for the Protection of Child Rights as well as by each State Commission as it is very vital for the protection of rights of the children.
  • Lastly, the Court requested that each Juvenile Justice Committee must establish a Secretariat as its helping hand.
  • All these orders were issued to the Governments of states and union territories by the Supreme Court and the case was disposed of. [3]

The Court took the case as a PIL and made an effort to amplify the extent of the case by putting together all the acts related to protection and safety of children in this case. The court observed the Government’s impassive and unresponsive method of dealing with this subject. The Court attempted to cover each area of the case to give proper directions to the State and the Union Governments and victoriously covered even the minute areas of the case so that no disputes could emerge.

DEFECTS OF LAW

In this day and age, the language in law states women below the age of sixteen years. But these days, children between the ages of two and ten are growingly becoming victims of sexual abuse. The Government must think of re-defining the term child and impose further rigorous punishment to those involved in sexual abuse of children. The Supreme Court should create a separate category for cases regarding child sexual abuse. The POCSO (Protection of Children from Sexual offenses Act) 2012 had failed to prevent sexual assault on minors as penalties provided therein were nothing distinct than the general penalty which was provided in Indian Penal Code, 1860.

The Supreme Court recently asked the Parliament to consider “harsher” punishments for child sexual abuse. A bench headed by Justice Dipak Misra also told the Attorney general Mukul Rohtagi that, the government must define the term “child” in the context of rape under the criminal law. Several countries have enacted tough laws to check sexual abuse of children and use chemical castration – the process of utilizing drugs to lower the libido of a person without physically removing one’s sexual organs as a method to punish repeat offenders. The concept of chemical castration must be brought in India to deter the individuals who are engaged in child abuse crimes. The laws must be made stricter and the punishment for sexual abuse of children must be increased so that there is fear instilled in the minds of the offenders. [4]

INFERENCE/CONCLUSION

So far not many orphans’ institutions are registered, so it needs an effective implementation of the above-said judgment. The orphans’ institutions must conduct preventive awareness sessions in which the needs of the children are catered. They should provide proper medical treatment to the children with disabilities, or those fighting with mental issues, or those who have faced sexual abuse. They must treat all children equally irrespective of their caste, creed, gender, sex, color etc. They should make themselves available all the time for such helpless children. Additionally, they must also make sure or be certain that the child’s status must not be disclosed to anybody without the permission of the Juvenile Justice Board. Only the medical staff is free to know about all the important and relevant details of the children. The orphans’ institutions should be under CCTV surveillance so as to clear the way for supervision by the main authorities anytime during the day or night. Lastly, the Government must be notified regarding any sexual rackets taking place in these institutions or if such institutions are registered illegally.

                                                                                                                      SALONI DOSHI

                                                                                                                      BLS LLB (YEAR 3)

                                                                                                                      LORDS UNIVERSAL

                                                                                                                      COLLEGE OF LAW


[1] https://indiankanoon.org/doc/113255681/

[2] https://www.casemine.com/judgement/in/5767b12be691cb22da6d57dc

[3] https://www.advocatekhoj.com/library/judgments/announcement.php?WID=4278

[4] https://www.indiatoday.in/mail-today/story/supreme-court-considers-harsher-punishment-for-child-sex-offenders-303315-2016-01-12