As access to
the internet or computers is still restricted to a small number of internet
savvy persons, unlike information on such a public display system or on T.V. or
the radio or in newspapers, which are far more readily accessible to the general
public and useful for tracing out the missing child, we have been emphasising
the need for publishing such information about missing children in daily
newspapers and for telecasting the same on various channels. We desire that a
status report of the further progress made in this regard be furnished to the
Court on the next date of listing.
A third affidavit has been filed by Smt.
Ila Pant, Deputy Chief Probation Officer, Women and Child Development Department
Allahabad, on behalf of the Principal Secretary (Women and Child Development),
U.P. Government, Lucknow which mentions that only in 17 districts Juvenile
Justice Boards, which are required to be constituted under Section 4 of the
Juvenile Justice Act 2000, (hereinafter referred to as the Act), for juveniles
in conflict with law have been constituted and proceedings are afoot for
constituting such Juvenile Justice Boards in every district in U.P. as is
mandated by Section 7 of the Juvenile Justice Act (Amended) 2006. A committee
under the Chairmanship of Justice Y.R. Tripathi, (Retired Judge of the High
Court has been constituted for this and allied purposes.
The affidavit
thereafter repeats the averments in the previous affidavit filed on 18.9.07 on
behalf of the Principal Secretary (Women and Child Development) by Dy. Chief
Probation officer, (HQ), Lucknow. about the limited number of Government
Observation Homes for boys (17) and girls (5), which are required to be
constituted under Section 8 of the Act for detaining juveniles in conflict with
the law and of the existence of only one Special home each for convicted
juvenile boys and girls as required under section 9 of the Act. It is mentioned
that there is a proposal to constitute Government Observation Homes in all
district head quarters and 7 Government Homes have been sanctioned. We had
sought information in our dated 18.0.07 about the time frame when all the
institutions required to be constituted under the Act would come into existence
in different districts, but unfortunately even the affidavit filed today on
behalf of the Secretary (Women and Child Development) is silent on this point.
We hope that better particulars and status report on the time frame when the
needed institutions would be constructed or otherwise available shall be
furnished on these and related matters on the next date of listing, as it can be
a source of great harassment and mischief if juveniles are to be detained with
grown up offenders or they need to be sent away to distant districts where such
homes exist as that impedes parents and relatives from visiting the concerned
juveniles from time to time.
For children in need of care and protection
Section 29 the Juvenile Justice Act 2000 mandates that Child Welfare Committees
be constituted to look after the cases of children, who need care and
protection. At present only in 11 districts in U.P. Child Welfare Committees are
functioning when the Amendment Act 2006 requires constitution of Child Welfare
Committees in all districts of the State. The Committee headed by Justice Y.R.
Tripathi is also engaged in selecting the Presidents and in constituting such
Child Welfare Committees in different districts and we hope that by the next
date of listing significant progress shall be made in this regard under Section
34 of the Juvenile Justice Act 2000. Ten children's homes for boys and 4
children homes for girls and 5 children homes for infants are functioning in the
State of U.P. There is a provision for keeping children of the age group from
1-18 years in these homes for their care and protection when they are neglected
or abandoned. There are provisions for encouraging N.G.Os. to open Children's
Homes with the aid of State and Central Governments for the protection of such
children in need of care. There is also a proposal for opening a Government
Children's Home for children with mental disabilities. Under Section 34 (3) of
the Act there is a provision for registering all the institutions, which are
taking care of such children. At present only 17 such N.G.Os. are registered
with the Government. Under Section 41 (4) of the Act there are 5 special
Adoption Agencies and 12 N.G.Os., which are working for adoption of children for
their rehabilitation. Under Section 42 of the Act children of Government Homes
are sent to foster homes. There is a provision for sending children to foster
homes for their care and proper rehabilitation. Under Section 43 of the Act,
there is a provision for medical aid, education and monetary help, which is
being imparted by N.G.Os. and respectable persons of society. Four Government
Rehabilitation Centre have been constituted for girls and two for boys under
Section 44 of the Act and there is a proposal for opening up two more Government
Rehabilitation Centres. A Juvenile Justice fund has to be constituted as
provided under Section 61 of the Act. Under Section 62 of the Act, there is
provision for constitution of State Level and District Level Advisory Boards for
children who need care and protection and for children who violate the law which
render advice on eduction, training and rehabilitation of children and for
co-ordination of Government and Non-Governmental Organisations. Under Section 63
of the Act there is provision for constituting special police units and
presently 46 special police units for juveniles are functioning. The affidavit
further gives details of 19 children homes, which are functioning under the
direction of Government situated in 15 districts in the State of U.P. It also
refers to the N.G.O. "Childline India Foundation", which is functioning under
the direction of Ministry of Women and Child Development, which provides relief
to children in distress through toll free telephone numbers. We, however, hope
that the various salutary provisions will not only remain on paper and that
concrete steps shall be taken for constituting Juvenile Justice Boards,
Government Homes, which are required in all districts as per the provisions of
the Amended Act 2006. Likewise, we would like to receive the progress reports of
the constitution of Child Welfare Committees in all districts which are mandated
by Section 3 of the Juvenile Justice Act (vide its 2006 amendment). We would
also like to obtain a progress report about the constitution of Juvenile
Children's Homes in all districts of U.P. for children who need care and
protection. Also if there are any impediments in implementing the aforesaid
salutary provisions in the various Acts alluded to hereinabove for the
protection and welfare of children, such as by failure to release necessary
funds, they may be brought to the notice of this Court, which may then issue
suitable directions to the various authorities in this regard.
We also
desire that a copy of this order as well as previous orders be placed before the
Committee headed by Justice A.R. Tripathi as the committee may like to intervene
in the matter before this Court, to inform this Court on the progress made in
the matters referred to it, and also to seek any directions from this Court if
it feels that there are any impediments in carrying out its assigned tasks, for
removal of which this Court could be of any assistance.
It is further
pointed out that proceedings are under way for constituting a State Commission
for protection of Child Rights as required under Section 17 of the the
Commission for Protection of Child Right 2005 Act, in order to check trafficking
of children. Under Section 25 of the Commission for Protection of Child Rights
Act, there is a proposal to constitute Juvenile Courts in every district
equivalent to a Sessions Court for offences committed against children. We again
hope that these provisions may not only remain on paper, but concrete steps be
taken for implementing them. An offence against Children Bill, 2006 is also
under consideration by the Government of India, and we are hopeful of its early
implementation. On the next date of listing we would like to obtain a status
report from the Assistant Solicitor General, who represents the Union of India
about the likely period that we can expect the Bill to become an enforceable
law.
As our approach to tackle the problem of the missing child is not only
to look at the problem as a mere crime calling for police interventions alone,
but in our understanding there are multiple sociological reasons and factors for
a child's disappearance. For checking the problem of the disappearance of the
child a comprehensive approach is needed and we cannot merely be satisfied with
directions to the police to lodge an FIR or to investigate a crime and to
recover the missing child as apart from the criminal activities of abductors and
traffickers, other factors such as neglect and lack of protection, sexual or
physical abuse, hunger and poverty of the child and his family, absence or poor
quality of schooling, stress of studies in some cases, peer influence etc. are
some of the push factors which induce a child to run away or to fall a prey to
the wiles of child traffickers. It is for this reason that we have made efforts
to involve the Ministries of Child and Women's Development, Social Welfare,
Labour, Education, Finance etc. at the State and Central levels for addressing
these complex and inter-connected factors.
By an order dated 17.7.07 we had
emphasized the need for ensuring implementation of the fundamental right to free
and compulsory education for children in the ages of 6 to 14 years, as directed
by Article 21-A (vide 86th Amendment Act, 2002) and the decisions of the Apex
Court in the cases of J.P. Unnikrishnan and Ors. v. State of A.P., AIR 1993 SC
2178, approved in the eleven judge decision in T.M.A. Pai v. State of Karnataka
and Ors,, AIR 2003 SC 355, and the seven judge decision in P.A. Inamdar, v.
State of Maharashtra, AIR 2005 SC 355, and the need for providing mid day meals
as stressed by the Apex Court in PUCL v. Union of India, (2007) 1 SCC 728 as
food in schools would also be a deterrent to a child leaving home to meet his
food needs which are often not fulfilled in his impoverished home. We had
further stressed that once the fundamental right to free and compulsory
education was implemented it could be inferred that any child who was out of
school was either a neglected or abused child, or a trafficked child or a child
engaged in prohibited child labour. On the previous date, i.e. on 18.9.07 in
compliance with our aforesaid directions an affidavit had been filed by the
Secretary, U.P. Basic Education Board mentioning the progress made for enforcing
the fundamental right for closing gender gaps and for making the "Sarva Shiksha
Abhiyan" applicable in the whole of U.P, by 2010 under the eighth five year
plan; the number of primary/ Upper primary schools that were established;
addititional class rooms constructed; shiksha mitras appointed; and other
measures taken for girl's education; provision of uniforms etc. However in the
last order dated 18.9.07 we had noted that the Annual State of Education (ASER)
Report indicated that 5.9% children of the eligible age are out of school which
is apparently inconsistent with the Sarva Shiksha Abhiyan's figures of school
attendance and we had therefore called for an estimate of the number of out of
school children as per the ASER report and how the variance in the numbers was
to be reconciled. We had also alluded to the low quality of learning in
Parashadiya and other government schools and the surveys conducted by various
organisations on these aspects and the steps needed for improving quality of
teaching and for enhancing teacher attendance. On the last occasion the
Principal Secretary Primary Education U.P. had sought one month's time for
filing the latest household survey reports of the out of school children. On the
last date, 18.9.2007 we had also sought information from the Principal Secretary
Education about the steps taken or planned for making School head masters,
teachers, Gram Pradhans and Panchayat Adhikaris or others answerable by issuing
suitable Government Orders if chidren of the eligible age of 6-14 years are
found out of school in violation of Article 21- A of the Constitution. We regret
to note that no affidavit has been submitted today, although two months have
elapsed since our last order dated 18.9.07. Let the details sought by this Court
be submitted by the concerned Secretary by the next date of listing.
Again
no information has been furnished about the feasibility of earmarking a budget
for preparing photo identity cards as suggested by our orders dated 17.7.07 and
18.9.07 and for taking assistance of Principal Secretary Finance or from the
other sources such as Sarva Siksha Adbhiyan as that would prove a useful tool
for locating a missing child, as many indigent parents do not possess
photographs of their small children. It would also be an effective record for
authorities and others to verify whether the child was attending school as
claimed. We hope that effective steps shall be taken for compliance with this
and earlier orders and the compliance reports submitted by the next date of
listing. List this case on 22.2.2008 for further orders. Copy of this order may
be given to the learned AGA, counsel for petitioner, learned Assistant Solicitor
General, Union of India and the intervenor Sri Jagriti Singh within two weeks.
Registrar General to also communicate this order to the Principal Secretaries,
Women and Child Development, Primary Education, Labour, Finance, the D.G.P. and
other authorities to whom directions have been issued within two weeks.
We
would now like the papers of this case to be placed before Hon'ble the Chief
Justice for directions as to whether he would like this Bench to continue to
engage in this exercise of monitoring the matter described hereinabove by taking
recourse to the doctrine of "continuous mandamus" enunciated in the apex Court
decisions in Vineet Narain v. Union of India, AIR 1998 SC 889 and Union of India
v. C. Dinakar, AIR 2004 SC 2498 or he would like this case to be assigned to
some other Bench on the next date.
Dated: 16.11.2007
HSM