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An affidavit of Deputy Secretary (Legal Cell) D.G.P. Headquarters,
Lucknow dated 16.7.2002 has been filed on behalf of the State of U.P.,
which mentions that after 645 children, who were rescued up to 3.4.2007,
for the period from 4.4.2007 to 30.6.2007, 387 children have further
been rescued and therefore, a total 1032 children have been rescued from
1.1.2007 to 30.6.2007 and only 1122 children remain to be traced out,
who are missing since 2002 up to the present date.
This is immensely
gratifying information and we must congratulate the efforts of the
police, the State and Central governments and all the counsel and
officers who have come forward to give unstinting support, beyond the
call of duty and seem to have made this case their personal cause. This
is the glory of this essentially non-adversarial litigation, where we
are all embarked on a pious mission to save and rescue our missing
children, and indeed to take steps so that the pre-conditions for the
child disappearing our comprehensively addressed, and there is
significant reduction in the problem. We hope that the pressure will be
kept up even after the change in the State Government and the new
Inspector General (Crime) will ensure that there is no let up in effort
to rescue the balance 1122 children who remain to be traced out, and for
preventing future abductions of children and that an officer deputed by
him will approach the learned Additional Government Advocate and submit
the compliance report about our orders and the progress of investigation
and efforts in tracing out the remaining missing children well within
time so that affidavits may effectively be drafted and filed and proper
assistance be rendered to this Court in monitoring the issue from date
to date. A more detailed break up shows that so far as 719 children who
had gone missing in 2006, uptil 30.6.2007 316 children have been rescued
and 403 children remain to be traced out.
Shri D.K.
Singh, Joint Registrar, High Court has submitted a compliance report
signed by the In-charge Registrar General dated 16.7.2007, which
mentions that so far as our directions in the order dated 10.5.2007 for
maintaining the registers of cases of missing children, to be maintained
by the district lawyers of the Legal Services Authority, which were to
contain the details of the progress of investigation etc. and the
direction to the District Judges to submit information to the Court in
tabular form pertaining to the entries mentioned in our earlier order
and additional information that they may like to furnish, the Hon'ble
Senior Judge on 12.6.2007 has recommended that the said matter be placed
before the Administrative Committee, which is likely to be meet shortly
so that the draft circular letter which has been framed (and was
produced before us), may be circulated to the District and Sessions
Judges along with the earlier order of the Court dated 10.5.2007. We
hope that the Registry will be able to send off the said circular letter
along with our previous order within a month.
Sri D.K. Singh further points out that reports which were hitherto
unreceived from nine judgeships viz. Basti, Chitrakoot, Firozabad,
Maharajganj, Mirzapur, Shahjahanpur, Sitapur, Sonebhadra and Varanasi
have now been received. They state that legal aid is being provided by
the Legal Aid Committee to the poor persons whose children have gone
missing . Further suggestions have been given by the District Judge,
Varanasi that child labour is also a great social menace, and immediate
legal aid is needed for providing relief to the suffering child and also
for problems relating to money lending. He further suggests that child
labour should also be brought within the ambit of the special cell. We
appreciate his concern. The District Judge may hold discussions in this
regard with the Senior Superintendent of Police and the District
Magistrate concerned and if the District Level Committee considers it
feasible, there should be no objection for including these matters
relating to child labour and under the Money Lending Act also within the
ambit of the special cell.
A report of the Member Secretary, Legal
Services Authority has also been received. The said report has defined
the categories of persons who are entitled to legal aid under Section 12
of the Legal Authorities Act. They are: members of Scheduled Castes or
Scheduled Tribes, a victim of trafficking in human beings or begar, a
woman or a child, a mentally ill or otherwise disabled person, a victim
of undeserved want such as being a victim of a mass disaster, ethnic
violence, caste atrocities, flood, drought, earthquake or industrial
disaster or an industrial workman, a person in custody in a protective
home under the Immoral Traffic (Prevention) Act, 1956 or in a juvenile
home under Section 2(1) of the Juvenile Justice Act, or in a psychiatric
hospital or nursing home and a person whose annual income is less than
Rs. 50,000/- or higher amount as may be prescribed by the State
Government. The report further mentions that Legal Services Committees
have been constituted at the High Court and district Court levels and
panels of lawyers have been constituted. The parents of missing/abducted
children could contact the Secretary District Legal Services Authority
as an when they need legal aid. Logistical and financial support are
being provided to High Court Legal Services Committee as well as
District Legal Services Authorities for providing legal services as per
provisions of the Act and Rules framed thereunder.
We regret to note
that beyond quoting the provisions of the Legal Services Authorities
Act, and the formal institutional mechanisms that are in place, we fail
to find the committed and human response on how to effectively provided
legal aid to the needy sections that we were looking for, in the report
submitted by Member Secretary of the Legal Services Authority. In our
last order dated 10.5.07 we had observed: "Good institutions can be set
up, but ultimately it is the living concern of human beings, and a
spirit to find the missing child and to help the suffering parent that
will make all the difference, and the police and district
administration, the Courts and rights sensitive lawyers providing legal
aid should devise new and creative methods how to get more and more
missing children recovered, so that citizens can be truly helped." We
think that the mechanical response by the Member Secretary that the
needy person may approach the District or State Legal Services Authority
does not meet the requirements of the situation or the spirit of our
directions. The exercise of trying to locate missing children was
initiated by this Court when it was pained to learn about incidents like
the "Nithari episode" where helplessly the poor parents of missing
children were approaching police stations and other authorities only to
face rebuff, and the police was generally asking them to provide
information of their missing children! It was only when the conscience
of the Court was touched that we embarked on this exercise for
repeatedly monitoring the matter, and issuing a series of directions.
Fortunately senior police officials and others saw the importance of the
cause and gave whole hearted support in this endeavour and today in
hardly six months 1032 children have been recovered. This could not have
been done by simply quoting provisions, and by passing the buck by
telling disempowered human beings to approach A or B authority. Some
district judges and police officials as is mentioned in our previous
order have asked for aid for setting up cells for lawyers to sit. Has
the Legal Services Authority written a single letter to the district
judges concerned enquiring about how the Authority could help or tried
to provide leadership and inspiration to district judges, who still look
at giving legal aid as a formal, and perhaps unnecessary imposition?.
Has he taken up the issue of providing funds for publication of
photographs of missing children of indigent parents in local newspapers
which have been sought for by some judicial and police authorities in
their reports quoted in our previous order? This Court has been crying
hoarse in each order to set up a web site, which would contain
information and photographs etc. about the missing child. Has the Member
Secretary even cared to look at these problems and to take it up with
the government departments concerned for addressing them, if the
Authority itself lacks the financial wherewithal or given concrete
suggestions to this Court how to proceed in these matters? Is it enough
to quote laws and scriptures? What steps has the Authority taken to make
legal aid a reality for suffering humanity? We hope that now the Member
Secretary shall take proactive interest to ensure that legal cells are
effectively constituted and that he would write to the District Judges
concerned and enquire from them about the problems that they are facing
in providing legal aid, and make efforts to provide funds directly or in
coordination with other departments for publication of photographs of
the missing children in newspapers etc. for indigent resourceless
persons. Unless that human element is alive and there is a burning
desire to give legal aid, we think that mere citation of provisions of
the Act will not make legal aid a reality for so many suffering and
resourceless persons. On the next date of listing we would like details
of proactive measures taken or proposed to be taken by the Legal
Services Authorities for making legal aid a concrete reality in
different places, and cases.
In pursuance of the order
of this Court dated 10.5.2007, directions were issue by the Director
General, Prasar Bharti, New Delhi whereupon the Doordarshan Kendras at
Allahabad, Bareilly, Mau, Varanasi, Lucknow and Gorakhpur have been
telecasting informations of missing persons including children free of
cost and the time slots have been mentioned in the affidavit filed on
behalf of the Central Government. We appreciate this contribution of
Prasar Bharti to this worthy cause.
In spite of the repeated
directions of this Court in its orders dated 22.3.07 and 10.5.07 to
constitute a website on the basis of coordinated efforts between the
State and Central Governments mentioning particulars of the missing
children, displaying their photographs, which could be used by the
parents, and police etc. and which could also facilitates exchange of
information between different States and the Centre, and which could
also be available for access locally in the cells for missing children
or elsewhere in the districts, we regret to note that no progress
details for creating such web sites have been made mentioned either by
the Centre or the State authorities in their affidavits. As noted in our
order dated 22.3.2007 that the Central Government had committed to
launch the website of missing persons by June, 2007. But no information
of the progress in this regard is mentioned in the affidavit filed by
the Asst. Solicitor General today. We therefore direct the Central and
the State Governments to positively furnish relevant information about
setting up of website by the next date of listing. The State could also
utilise the police website, which we are informed by the learned
Additional Government Advocate, already exists for containing
information about missing children.
In sharp contrast to this apathy of the State and Central Governments on
this point a public spirited lawyer
Sri Jagriti Singh has himself come forward and moved an application
that a social organisation GCS
(General Collaboration Services) Varanasi with which he appears to
be connected has already developed a website http://www.missingfound.org
which has been launched in public interest. It provides on line
information/data of missing and untraced persons for free use by the
persons connected with the missing persons and the State authorities.
We direct the State to take a lesson from this public spirited lawyer
and his organization, and even to utilize the services of this
organization if it is found feasible, until the bureaucratic rigmarole
of setting up the State's website is sorted out.
Progress in
this regard should also be furnished to this Court on the next date of
listing.
There is also silence in the affidavits on our
direction in the previous order to the State government to provide
resources to the concerned police or other authorities for getting
photographs of children of indigent persons published in news papers. We
had also directed the D.M.s and Police Chiefs in different districts to
ask prominent newspapers to publish photographs of missing children as a
charitable cause. We hope that action will be taken in this regard by
the next date of listing, and a progress report submitted to the Court. |
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One further positive development in
this case is that the petitioner's son Krishna Gupta was recovered
from a train Jodhpur-Howrah Express on 19.4.2007 with the aid
of Chandra Prakash alias Chandu, a resident of his village and was
produced before the ACJM, Agra where his statement under Section 164
Cr.P.C. was recorded. The said boy was missing since 22.2.2005 about whose
disappearance an FIR was lodged at case crime No. 9 of 2007, under Section
364 IPC. However, in his statement under Section 164 Cr.P.C. he confessed
to have run away from his home while he was studying in Class XI and he
was working in Bombay in a hotel. Therefore, no offence of abduction was
disclosed. Therefore, the case of Vishnu Dayal Sharma, has become
infructuous and is closed.
It is noteworthy as already mentioned in
our previous order dated 10.5.2007 that children of older ages often run
away due to stress of studies, parental strictness or on account of
romantic liaisons, or dreams of joining the Film world etc., and that
cases of forcible abduction may not invariably be the causes of their
disappearance. However, so far as the younger children or the children
with disabilities are concerned, they are more likely to have been made
victims of abductions for ransom, or trafficking for labour or for sexual
abuse, although older children are also sometimes abducted for these
reasons. It was pointed out by the learned Additional Government Advocate
that police officials often express difficulties in recovering these
children because their parents are unable to provide photographs or
furnish any adequate facial and physical description of the children. Very
young and uneducated children or mentally weak children are often unable
to disclose their home addresses to the rescuers to unite them with their
parents.
We think that a large part of this difficulty
could be obviated if mandate of Article 21-A of the Constitution
(which was introduced by the 86th Amendment Act, 2002) and the
directives of this Court in J.P. Unnikrishnan and Ors. v. State of Andhra
Pradesh, AIR 1993 SC 2178, making primary education free and compulsory
[which aspect has been approved in the eleven Judges' bench decision
of the Apex Court in T.M.A Pai v. State of Karnataka and Ors., AIR 2003 SC
355, and again in the seven judge decision in P.A. Inamdar v. State of
Maharashtra, AIR 2005 SC 3226] are implemented by the State. A missing
child who was being educated would have no difficulty in informing his
rescuer about his address in case he is lost or is abducted. Also once
every child between the ages 6 and 14 is expected to be in school and if
any child is found outside school or loitering about or engaged in any
kind of labour or in any other condition, the police or the gram panchayat
or municipal authorities or the headmasters or other authorities or
persons would immediately conclude that the said child could be an
abducted, trafficked, neglected or abused child.
Apart from the fact
that provision of education is the best way for development of a
child which is a vital human resource for the State and society, the
provision of free mid-day meals with a minimum content of 300 calories and
8-12 grams of protein each day for a minimum of 200 days which has now
been mandated in government and government assisted schools by the Apex
Court order dated 28.11.2001 in People's Union for Civil Liberties v.
Union of India, reported in (2007) 1 SCC 728, the provision of cooked
meals would provide a good incentive to the hungry, poor child to
regularly attend school, and it would also provide a vital nutritional
supplement for developing the child's mental and physical abilities.
We, therefore, require the Principal Secretary (Education),
Secretary Women and Child Development and Principal Secretary Labour, U.P.
and other concerned authorities to furnish details to this Court on the
next date of listing about the steps that are being taken for implementing
the mandate of Article 21-A and the decisions of the Apex Court to make
primary education a free and compulsory right for all children of the
relevant age groups, and which is also the objective of the State's Sarva
Shiksha Abhiyan. The details should also be furnished about the number of
children who are out of schools either because they were not registered at
all or because they have dropped out. Apart from government data on the
question aid in this regard could also be taken by looking at the
significant survey conducted by the reputed social organisation (Pratham)
in its "Annual Status of Education Report (Rural) ASER for the year 2006
and other important surveys by reputed national or international bodies.
The Secretary, Women and Child Development may mention the steps
taken for safeguarding the interests of children as were mentioned by the
Union Ministry of Woman and Child Development and which were incorporated
in our earlier order dated 12.2.2007 especially in regard to
sensitisation of the police on gender and child related issues and also
for making the society aware about criminal activities against children,
taking measures for strengthening community and family bonds for which
police station could set up neighbourhood watch systems and making local
bodies, such as panchayat raj institution and municipal corporation more
proactive for better protection of the children. The provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000, deal both
with the child in conflict with law and child in need of care and
protection and what steps can be taken for strengthening the laws and
offering protection to children and more stringent punishment against
traffickers. The Child Labour (Prohibition and Regulation) Act, 1986 lists
the various categories of employment where Child Labour is prohibited or
regulated.
The Constitutional provisions dealing with child rights and
concerns have been summarized in paragraph 2 of the recent Apex Court
decision in R.D. Upadhyaya v. State of Andhra Pradesh, AIR 2006 SC 1946 as
under:
"For the care, welfare and development of the children, special
and specific provisions have been made both in Part III and IV of the
Constitution of India, besides other provisions in these parts which are
also significant. The best interest of the child has been regarded as a
primary consideration in our Constitution. Article 15 prohibits
discrimination on grounds of religion, race, caste, sex or place of birth.
Article 15(3) provides that this shall not prevent the State from making
any special provision for women and children. Article 21A inserted by 86th
Constitutional Amendment provides for free and compulsory education to all
children of the age of six to fourteen years. Article 24 prohibits
employment of children below the age of fourteen years in any factory or
mine or engagement in other hazardous employment. The other provisions of
Part III that may be noted are Articles 14, 21 and 23. Article 14 provides
that the State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India. Article 21
provides that no person shall be deprived of his life or personal liberty
except according to procedure established by law. Article 23 prohibits
trafficking in human beings and forced labour. We may also note some
provisions of Part IV of the Constitution. Article 39(e) directs the State
to ensure that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength.
Article 39(f) directs the State to ensure that 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.
Article 42 provides that the State shall make provision for securing just
and humane conditions of work and maternity relief. Article 45 stipulates
that the State shall endeavour to provide early childhood care and
education for all children until they complete the age of six years.
Article 46 provides that the State shall promote with special care the
educational and economic interests of the weaker sections of the people,
and, in particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.
Article 47 provides that the State shall regard the raising of the level
of nutrition and the standard of living of its people and the improvement
of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious
to health."
We have quoted the above paragraph to show that a
comprehensive strategy needs to be evolved to tackle the problem of the
missing child. Steps by the police to rescue the missing child, and action
in criminal law against the trafficker/ abductor is certainly one of the
main areas for action, but to comprehensively tackle the problem in its
totality, the root issues, about the child not going to school or being
neglected by his parents and guardians, sensitization of the community,
local bodies and the police to child and gender related issues are all
needed, and we would welcome creative suggestions from all the authorities
concerned on all these planks. Our effort, right from the beginning when
we started monitoring the efforts to trace out the missing child has to
bring the State and Central government authorities together on one
platform. It is in furtherance of the same objective that we are also
trying to bring together and to engage the Principal Secretary
(Education), the Secretary (Child and Women's) department, the Principal
Secretary (Labour), U.P. and other concerned authorities and even
concerned civil society groups, so that we may jointly endeavour to tackle
these most imperative concerns relating to the well being of our child who
is the future of our nation.
We also suggest that identity
cards may be prepared which should contain photographs of the children
when they are given free pre-primary schooling, nutritional and
other benefits under the ICDS and Anganvadi schemes for children, who are
not yet enrolled in regular schools and also a system of identity cards
containing photographs could be mandated for children going to school
which could be updated every three years with new photographs. These apart
from helping to maintain good records of the children and for verification
by authorities whether they are actually attending the school where they
are enrolled, the identity card with the child's photograph could also be
very useful for the police for tracing out a child in case he goes
missing, and the same could also be placed on the relevant website (after
it is established), in news papers and shown on television for tracing out
the missing child. The Secretaries concerned may give their suggestions on
the desirability and feasibility of preparing such identity cards
containing the photographs of the school going children also on the next
date of listing.
List
this case now for further orders/hearing and for submission of
compliance reports as above mentioned on 18.09.2007
Let a copy of
this order be given to the learned counsel for the parties concerned
within ten days.
Dated: 17.7.2007
Ishrat |