IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 92 of 2012
For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
=========================================================
ROHIT SITAPATIKUMAR VERMA - PETITIONER
Versus
STATE OF GUJARAT & 2 - RESPONDENT
========================================================= Appearance :
MR UMESH A TRIVEDI for PETITIONER : 1, MR PK JANI, LD.GOVERNMENT PLEADER for RESPONDENT : 1, None for RESPONDENT : 2 - 3.
========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/11/2012
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This writ-petition under Article 226 of the Constitution of India in the nature of a Public Interest Litigation is at the instance of a legal practitioner and has been filed for effective functioning of the Child Welfare Committee constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). The petitioner has prayed for a writ of mandamus or any other appropriate writ, order or direction upon the respondents to immediately take appropriate steps for effective functioning of the Child Welfare Committee constituted under Section 29 of the Act. The petitioner has also prayed for appropriate directions to the respondents to immediately stop keeping juveniles in need of care and protection in remand homes and set up an alternative Children's Home across the State as required mandatorily under Section 34 of the Act. The petitioner has also prayed to pass necessary orders directing the respondents to immediately make payment of monetary compensation to the parents of all the juveniles, including the parents of juvenile Ajay Hirabhai Parmar, who was kept at the observation/remand home from April 17, 2012 to April 19, 2012.
I. FACTS OF THE CASE:
2. The case made out by the petitioner in this petition may be summarised as under :
2.1 The petitioner is a resident of Ahmedabad and is a practicing lawyer. It is the case of the petitioner that the sole intention in filing the present petition is to see that the juveniles who are in need of care and protection are not detained in a manner thereby frustrating the object and reasons for which the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted by the Parliament. According to the petitioner, he has filed the present petition in the interest of all such affected juveniles in need of care and protection and who are being unlawfully detained on account of the ineffective functioning of the Child Welfare Committee constituted under Section 29 of the Act.
2.2 According to the petitioner, he had received a telephonic call on April 17, 2012 on his cellular phone from one Shri Hasmukh alias Babubhai Manilal Thakor, a resident of Paldi Gam, Ahmedabad. The person who had called up the petitioner on April 17, 2012 is running a tea stall in the name of “Shri Ram Tea Stall” in the area of Paldi Gam. The said Hasmukhbhai informed the petitioner that one juvenile named Ajay Parmar, aged 16 years, was working at his tea stall and while working, he was picked up by few officials belonging to a Child Rights Organisation. The petitioner was also informed that the officials had come in a red Maruti Van. The petitioner was also informed by the said Hasmukhbhai that the officials who had picked up the juvenile also asked him to inform the parents of the juvenile to personally remain present with necessary documentary evidence at the observation home situated at Khanpur, Ahmedabad for getting the custody of the boy.
2.3 It is the case of the petitioner that upon such telephonic information received by him, the petitioner had called up his colleague one Shri Chetan Rajput, also an advocate, and requested him to personally go to the observation/remand home and help the parents of the juvenile, named Ajay Parmar, in securing his custody by doing the needful. At around 14-00 hours on the same day, the colleague of the petitioner informed the petitioner that despite the fact that the mother of the juvenile remained present at the observation/remand home with all the necessary documentary proof, the mother was told that the custody of her son would be given only on Thursday i.e. April 04, 2012 as the Child Welfare Committee, which looks into the matter of juvenile in need of care and protection, sits only once a week and that too, on a Thursday. The petitioner was further informed that till next Thursday juvenile would be kept at the observation/ remand home. The petitioner was also informed by his colleague that on the very same day i.e. on April 17, 2012, a few other juveniles were also brought and kept at the same observation/ remand home with the juvenile Ajay Parmar.
2.4 It is the case of the petitioner that on April 19, 2012 when the Child Welfare Committee assembled, the application preferred by the mother of the juvenile Ajay Parmar was taken up for consideration and the custody of the juvenile was handed over to his mother Hiraben Bijalbhai Parmar.
2.5 According to the petitioner, the juvenile was kept at the observation/remand home from April 17, 2012 to April 19, 2012 only on account of the fact that the Child Welfare Committee sits only once in a week. It is also the case of the petitioner that although the mother of the juvenile had necessary documentary proof to get back the custody on April 17, 2012 itself, but as the juvenile could not be produced before the Child Welfare Committee, the juvenile was kept at the observation/remand home for two days.
2.5 It is also the case of the petitioner that the Juvenile Justice (Care and Protection of Children) Act, 2000 is a benevolent piece of legislation and it contemplates two sets of juveniles, namely, (1) juveniles in conflict with law and (2) juveniles in need of care and protection. The juvenile, in the present case, was a juvenile in need of care and protection and, therefore, such juvenile could not have been kept for two days at the observation/remand home as ordinarily only juveniles, who are in conflict with law i.e. juvenile offenders, are being kept at the observation/remand home. For a juvenile in need of care and protection like in the present case, there is a provision for Children's Homes as provided in Rule 29 of the Rules framed by the Central Government vide Notification dated October 26, 2007 under the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) (as amended by the Amendment Act, 33 of 2006) to be administered by the States for better implementation and administration of the provisions of the said Act in its true spirit and substance.
2.6 According to the petitioner, even the Gujarat Juvenile Justice Rules, 2011 (hereinafter referred to as 'the Rules, 2011') framed by the State Government provides for Children's Homes and Shelter Homes. According to the petitioner, juveniles who are not in conflict with law are to be kept only at Children's Homes. Thus, according to the petitioner, this is a fit case wherein an appropriate writ, order or direction on the respondents deserve to be issued for regularising the effective working and functioning of the Child Welfare Committee constituted under Section 29 of the Act.
II. STANCE OF THE RESPONDENTS:
1. It is the case of the State Government that none of the fundamental rights or any other legal right of the petitioner could be said to have been infringed or violated and, therefore, the present petition in the nature of a Public Interest Litigation deserves to be dismissed in limine. According to the State Government, the Child Welfare Committee is a statutory body constituted under Section 29(5) of the Juvenile Justice (Care and Protection of Children) Act, 2000. The committee shall consists of a Chairperson and four other members as the State Government may have to appoint, of whom at least one shall be a woman and another an expert of matters concerning children. Under Section 29(5) of the Act, the Committee functions as a Bench of Magistrates and possesses the same powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or as the case may be, a Judicial Magistrate, First Class. According to the State Government, vide Notification dated February 14, 2011, the Gujarat Juvenile Justice (Care and Protection of Children) Rules, 2011 (hereinafter referred to as 'the Rules') were framed and published in its official gazette. According to Rule 24(4) of the Rules, the Committee shall meet a minimum of one day a week, which may be extended by the State Government, depending on the case and pendency of the work. Under the said Rule, the Child Welfare Committee at Ahmedabad meets on every Thursday in a week.
3.1 Rule 19 of the Rules provides that there shall be a Child Welfare Committee in every District, which shall be constituted by the State Government by way of a Notification published in the Official Gazettee as laid down under sub- section (1) of Section 29 of the Act. Accordingly, therefore, 26 Child Welfare Committees have been appointed in all 26 districts of the State of Gujarat.
3.2 Under the Act, there is a provision for observation/ remand home as provided under Section 8 of the Act and Children's Home under Rule 30 of the Rules. According to the State Government, the observation/ remand homes are meant for juveniles in conflict with law, whereas the Children's Homes are meant for children in need of care and protection under the Act.
3.3 The juvenile one Ajay Parmar was working at a tea stall and was rescued under the action taken by the authorities against the child labour and was, accordingly, brought to the Children's Home as he was falling within the category of “a child in need of care and protection”. Thereafter, his case history as per Rule 20 [Rule 51(g)] of the Rules was prepared by the authorities and on the same day, he was produced before the Child Welfare Committee. On the same day, the Committee passed an order to produce the child on the day of the meeting of the Committee. Accordingly, on April 19, 2012, when the meeting of the Committee was held, the juvenile Ajay Parmar was ordered to be released by the Committee and consequently, the custody was handed over to his mother.
3.4 It has been denied by the State Government that due to ineffective functioning of the Child Welfare Committee, the fundamental rights of the children are violated. According to the State Government, the Committee is working in accordance with the provisions of the Act and the Rules framed under the Act. According to the State Government, ordinarily when a child is brought to the children's home, first of all, the primary details of the child are obtained by the authorities by asking the child itself. Thereafter, he or she is produced before the Child Welfare Committee. The Child Welfare Committee after appropriate scrutiny if comes to a conclusion that the child produced is in need of care and protection, then the order would be passed by the Child Welfare Committee, whereby a child would be sent to a Children's Home and further investigation with regard to the child would be undertaken.
3.5 Rule 50(1)(9) of the Rules mandates that a case history of the juvenile or the child shall be maintained as per the Form XX, which shall contain information regarding his socio- cultural and economic background. Such information is collected from the parents or guardians, employer, school, friends and community.
3.6 After the socio-economic background of the juvenile/child is obtained as per the Form XX, the child would be produced before the Child Welfare Committee on the date of the meeting of the Committee. The Child Welfare Committee before taking any decision would study the details of the child and thereafter, would take a decision whether the child still needs care and protection so as to keep the child at the Children's Home. The Committee also takes into consideration the sociological and physical conditions of the child and would also consider the impact upon the child, if the child is again to be sent back to his society. It is also the stance of the State Government that there is no provision under the Act or the Rules for payment of any compensation as prayed for by the petitioner.
4. We heard Mr.Umesh Trivedi, the learned advocate appearing on behalf of the petitioner and Mr.P.K. Jani, the learned Government Pleader appearing on behalf of the respondent- State, at length.
5. Having heard the learned counsel for the parties and having gone through the materials on record, the only question which falls for our determination in this Public Interest Litigation is as to whether any directions are required to be issued on the respondents for effective working and functioning of the Child Welfare Committee constituted under Section 29 of the Act or any other direction for better implementation and administration of provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 or Rules framed under the Act.
6. Ordinarily, the Court would allow litigation in public interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busybody or a meddlesome interloper and have not approached with malafide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
7. Before entering into the merits of this petition, it will be profitable to look into a few relevant provisions of law applicable in the present case.
8. The Juvenile Justice (Care and Protection of Children) Bill was passed in both the Houses of Parliament and had received the assent of the President on December 30, 2000. It came on the statute book as the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000). The said Act was enacted to consolidate and amend the law relating to juveniles in conflict with law and the children in need of care and protection, by providing for proper care, protection and treatment for catering to their development needs, and by adopting the child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation.
9. :: STATEMENT OF OBJECTS AND REASONS ::
“A review of the working of the Juvenile Act, 1986 (53 of 1986) would indicate that much greater attention is required to be given to children in conflict with law or those in need of care and protection. The justice system as available for adults is not considered suitable for being applied to a juvenile or the child or any one on their behalf including the police, voluntary organisations, social workers, or parents and guardians, throughout the country. There is also an urgent need for creating adequate infrastructure necessary for the implementation of the proposed legislation with a larger involvement of informal systems specially the family, the voluntary organisations and the community.
2. In this context, the following further proposals have been made -
(i) to lay down the basic principles for administering justice to a juvenile or the child in the Bill;
(ii) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults;
(iii) to bring the juvenile law in conformity with the United Convention on the Rights of the Child;
(iv) to prescribe a uniform age of eighteen years for both boys and girls;
(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill regarding juvenile or the child within a time limit of four months;
(vi) to spell out the role of the State as a facilitator rather than doer by involving voluntary organisations and local bodies in the implementation of the proposed legislation;
(vii) to create special juvenile police units with a humane approach through sensitisation and training of police personnel;
(viii) to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;
(ix) to minimise the stigma and in keeping within the developmental needs of the juvenile or the child, to separate the Bill into two parts - one for juveniles in conflict with law and the other for the juvenile or the child in need for care and protection.
(x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child.”
8. It would be profitable to quote the relevant definitions enumerated in the Act as under :
“Section 2 : In this Act, unless the context otherwise requires:
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) ''child in need of care and protection'' means a child- (i) who is found without any home or settled place or abode and without any ostensible means of subsistence, (ii) who resides with a person (whether a guardian of the child or not) and such person- (a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or (b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person, (iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after, (iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child, (v) who does not have parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable inquiry, (vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts, (vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking, (viii) who is being or is likely to be abused for unconscionable gains, (ix) who is victim of any armed conflict, civil commotion or natural calamity;
(e) "children's home" means an institution established by a State Government or by voluntary organisation and certified by that Government under section 34;
(f) "Committee" means a Child Welfare Committee constituted under section 29;
(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence;
(m) xxx xxx xxx
(n) xxx xxx xxx
(o) "observation home" means a home established by a State Government or by a voluntary organisation and certified by that State Government under section 8 as an observation home for the juvenile in conflict with law;
(p) xxx xxx xxx
(q) xxx xxx xxx
(r) xxx xxx xxx
(s) xxx xxx xxx
(t) xxx xxx xxx
(u) "shelter home" means a home or a drop-in-centre set up under section 37;
(v) "special home" means an institution established by a State Government or by a voluntary organisation and certified by that Government under section 9.”
9. It would further be necessary to quote the relevant provisions enumerated in the Act as under :
“CHAPTER : III :
CHILD IN NEED OF CARE AND PROTECTION :
29. Child Welfare Committee.-(1) The State Government may, by notification in Official Gazette, constitute for every district or group of districts, specified in the notification, one or more Child Welfare Committees for exercising the powers and discharge the duties conferred on such Committees in relation to child in need of care and protection under this Act. (2) The Committee shall consist of a Chairperson and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on matters concerning children. (3) The qualifications of the Chairperson and the members, and the tenure for which they may be appointed shall be such as may be prescribed. (4) The appointment of any member of the Committee may be terminated, after holding inquiry, by the State Government, if- (i) he has been found guilty of misuse of power vested under this Act; (ii) he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence; (iii) he fails to attend the proceedings of the Committee for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year. (5) The Committee shall function as a Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class.
30. Procedure, etc., in relation to Committee. 30. Procedure, etc., in relation to Committee.-(1) The Committee shall meet at such times and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed. (2) A child in need of care and protection may be produced before an individual member for being placed in safe custody or otherwise when the Committee is not in session. (3) In the event of any difference of opinion among the members of the Committee at the time of any interim decision, the opinion of the majority shall prevail but where there is no such majority the opinion of the Chairperson shall prevail. (4) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absence of any member of the Committee, and no order made by the Committee shall be invalid by reason only of the absence of any member during any stage of the proceeding.
31. Powers of Committee.-(1) The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human right . (2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.
32. Production before Committee.-(1) Any child in need of care and protection may be produced before the Committee by one of the following persons- (i) any police officer or special juvenile police unit or a designated police officer; (ii) any public servant; (iii) childline, a registered voluntary organisation or by such other voluntary organisation or an agency as may be recognised by the State Government; (iv) any social worker or a public spirited citizen authorised by the State Government; or (v) by the child himself. (2) The State Government may make rules consistent with this Act to provide for the manner of making the report to the police and to the Committee and the manner of sending and entrusting the child to children's home pending the inquiry.”
“Section 68 : Power to make rules.-(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of that matter is made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules.”
10. The Central Government in its Ministry of Woman and Child Development vide Notification dated October 26, 2007, has framed Rules under the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) (as amended by the Amendment Act, 33 of 2006) to be administered by the States for better implementation and administration of the provisions of the said Act in its true spirit and substance. It will be profitable to quote the relevant provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 'the Rules, 2007') as under :
“24. Sitting of the Committee – (1) The Committee shall hold its sittings in the premises of the children's home or, at a place in proximity to the children's home or, at a suitable premise in any institution run under the Act.
(2) On receiving information about child or children in need of care and protection, if circumstances are such that the child or children cannot be produced before the Committee, the Committee may move out to reach the child or children and hold its sitting at a place that is convenient for such child or children.
(3) The premises where the Committee holds its sittings shall be child-friendly and shall not look like a court room in any manner whatsoever; for example, the Committee shall not sit on a raised platform and the sitting arrangement shall be uniform and there shall be no witness boxes.
(4) The Committee shall meet a minimum of three days a week, which may be extended by the State Government depending on case and pendency of work.
(5) A minimum of three-fourth attendance of the Chairperson and Members of the Committee is necessary in a year.
(6) The duration of a sitting is dependent on the pendency of work before the Committee.
(7) Every member of the Committee shall attend a minimum of four hours per sitting.
25. Functions and Powers of the Committee – The Committee shall perform the following to achieve the objectives of the Act, namely :-
(a) take cognizance of and receive children produced before the Committee.
(b) decide on the matters brought before the Committee.
(c) reach out to such children in need of care and protection who are not in a position to be produced before the Committee, being in difficult circumstances, with support from the District Child Protection Unit or State Child Protection Unit or the State Government;
(d) conduct necessary inquiry on all issues relating to and affecting the safety and well being of the child;
(e) direct the Child Welfare Officers or Probation Officers or non-governmental organisations to conduct social inquiry and submit a report to the Committee;
(f) ensure necessary care and protection, including immediate shelter;
(g) ensure appropriate rehabilitation and restoration, including passing necessary directions to parents or guardians or fit persons or fit institutions in this regard, in addition to follow-up and coordination with District Child Protection Unit or State Adoption Resource Agency and other agencies;
(h) direct the officer-in-charge of children's homes to receive children requiring shelter and care;
(i) document and maintain detailed case record along with case summary of every case dealt by the Committee;
(j) provide a child-friendly environment for children;
(k) recommend 'fit institutions' to the State Government for the care and protection of children;
(l) declare 'fit persons';
(m) declare a child legally free for adoption;
(n) keep information about and take necessary follow-up action in respect of missing children in their jurisdiction;
(o) maintain liaison with the Board in respect of cases needing care and protection;
(p) visit each institution where children are sent for care and protection or adoption at least once in three months to review the condition of children in institutions, with support of the State Government and suggest necessary action;
(q) monitor associations and agencies within their jurisdiction that deal with children in order to check on the exploitation and abuse of children;
(r) co-ordinate with the Police, Labour Department and other agencies involved in the care and protection of children with the support of District Child Protection Unit or State Child Protection Unit or State Government
(s) liaison and network with the corporate sector and non-governmental organisations for any of the above, including for social inquiry, restoration and rehabilitation, as and when required; and
(t) maintain a suggestion box to encourage inputs from children and adults alike and take necessary action.
xxx xxx xxx
27. Production of a Child before the Committee : (1) A child in need of care and protection shall be produced before the Committee within twenty-four hours, excluding journey time, by one of the following persons -
(a) any police officer or Special Juvenile Police Unit or a designated police officer;
(b) any public servant;
(c) childline, a registered voluntary organisation or by such other voluntary organisation or an agency as may be recognised by the State Government;
(d) social worker;
(e) any public spirited citizen; or
(f) by the child himself.
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) In case the Committee is not sitting, the child may be produced before the single member of the Committee as per the provisions laid down under sub- section (2) of section 30 of the Act for being placed in safe custody of parent or guardian or fit person or fit institutions, as the case maybe, till such time that the child can be produced before the Committee.
(5) In case the single member is also not accessible, or that the hours are odd, the child shall be taken by a non-governmental organisation or Childline or Police to an appropriate institution for children registered under the Act with all the necessary documents, and placed in such institution till the time of production before the Committee.
(6) The concerned institution shall inform the Chairperson or a member of the Committee about such child and produce the child before the Committee within twenty four hours and in such cases, it may not be necessary for the person who rings a child in need of care and protection to an institution to be present at the time of production of the child before the Committee.”
11. We shall also look into a few relevant provisions of the Gujarat Juvenile Justice Rules, 2011 :
“20. Composition of the Child Welfare Committee :
(1) The Committee shall consist of a Chairperson and four other members, of whom the least one shall be a woman.
(2) The Chairperson and members of the Committee shall be appointed on the recommendation of a Selection Committee set up by the State Government, for the purose under rule 92.
(3) The Selection Committee, while selecting the Chairperson and Members of the Committee, shall as far as possible ensure that none of them are from any adoption agency.
(4) The stage Government shall provide for such training and orientation in child psychology, child welfare, child rights, national and international standards for juvenile justice to all members of the Committee as it considers necessary.
xxx xxx xxx
24. Sitting of the Committee :
(1) The Committee shall hold its sittings in the premises of the children's home or, at a place in proximity to the children's home or, at a suitable premise in any institution run under the Act.
(2) On receiving information about child or children in need of care and protection, if circumstances are such that the child or children cannot be produced before the Committee, the Committee may move out to reach the child or children and hold its sitting at a place that is convenient for such child or children.
(3) The premises where the Committee holds its sittings shall be child-friendly and shall not look like a court room in any manner whatsoever; for example, the Committee shall not sit on a raised platform and the sitting arrangement shall be uniform and there shall be no witness boxes.
(4) The Committee shall meet minimum of one day a week, which may be extended by the State Government depending on case and pendency of work.
(5) A minimum of three-fourth attendance of the Chairperson and Members of the Committee is necessary in a year.
(6) The duration of a sitting is dependent on the pendency of work before the Committee.
(7) Every member of the Committee shall attend a minimum of three hours per sitting.
30. Children's Homes :
(1) The State Government itself or in association with voluntary organizations, shall set up separate homes for children in need of care and protection, in the manner specified below -
(a) all children's homes shall be registered as child care institutions under sub-section 93) of section 34 of the Act and rule 72 of these rules;
(b) all children's homes shall be certified as per the procedure laid down in rule 71;
(c) all children's homes shall report to the concerned Committee about every child in need of care and protection received by them;
(d) children of both sexes below ten years may be kept in the same home but separate facilities shall be maintained for boys and girls in the age group of 5 to 10 years;
(e) every children's home shall include separate facilities for children in the age group of 0-5 years with appropriate facilities for the infants;
(f) separate children's homes shall be set up for boys and girls in the age group 10 to 18 years.
(g) children in the age group of 10 to 18 shall be further segregated into two groups of 10 to 15 years and 15 to 18 years.
(2) Each children home shall be a comprehensive child care centre with the primary objective to promote an integrated approach to child care by involving the community and local Non-Governmental Organisations through the Management Committee set up under rule 56 of these rules and the District Child Protection Unit or State Child Protection Unit or the State Government shall make an annual performance review of functioning of the children's homes.
(3) The activities of such centre shall focus on :
(a) preparing and following individual care plans for every child, with rights based approach, specifically addressing the child's physical and mental helath, emotional needs, education, skill development, protection and special needs if any;
(b) family based non-institutional services, such as, foster family care, adoption and sponsorship;
(c) splecialized services in situations of conflict or disaster and for juvenile or children affected by terminal or incurable disease to prevent neglect by providing family counselling, nutrition, health interventions, psycho-social interventions and sponsorship;
(d) emergency outreach service through childline (Toll Free Help Line No.1098);
(e) linkages with Integrated Child Development Services to cater to the needs of children below six years;
(f) linkages with organizations and individuals who can provide support services to children; and
(g) opportunities to volunteers willing to provide various services for children.
31. Shelter Homes :
(1) For children in urgent need of care and protection, such as street children and run-away children, the State Government shall support creation of requisite number of shelter homes or drop-in-centres through the voluntary organizations.
(2) Shelter homes shall include :
(a) short-stay homes for children needing temporary shelter, care and protection for a maximum period of one year,
(b) transitional homes providing immediate care and protection to a child for a maximum period of four months,
(c) 24 hour drop-in-centres for children needing day care or night shelter facility.
(3) The shelter homes or drop-in-centres shall have the minimum facilities of boarding and lodging, besides the provision for fulfillment of basic needs in terms of clothing, food, health care and nutrition, safe drinking water and sanitation.
(4) There shall be separate shelter homes for girls and boys as per rule 41(2)(d) of these rules.
(5) All shelter homes shall provide requisite facilities for education, vocational training, counseling and recreation or make arrangements for it in collaboration with voluntary organizations or corporate sector.
(6) The Committee, Special Juvenile Police Units, public servants, Childlines, voluntary organizations, social workers and the children themselves may refer a child to such shelter homes.
(7) All shelter homes shall submit a report of children using the shelter home facility along with a photograph of the child to the Committee, the missing persons bureau or special juvenile police unit and the District Child Protection Unit or the State Child Protection Unit.
(8) The requirements of producing as child received by a shelter home before the Committee, inquiry and disposal under sections 33, 38 and 39 of the Act shall apply only to shelter homes other than drop-in-centres as specified in rule 31(2)(c) of these rules.
(9) The services of Officer-in-charge, child welfare officer, social worker shall be provided for the proper care, protection, development, rehabilitation and reintegration needs of children in shelter homes.
(10) No child shall ordinarily stay in a short stay home for more than a year except in special circumstances with the approval of the Committee.
(11) The units of children sanctioned under the erstwhile “Scheme for welfare of Children in need of care and protection” of the Government of India may seek recognition as Shelter Homes under the Act.”
12. Mr.Trivedi, the learned advocate appearing on behalf of the petitioner, inviting our attention to Rule 24(4) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, framed by the Central Government, submitted that the rule mandates the Committee to meet at least a minimum of three days in a week, which may be extended by the State Government depending on the case and pendency of work. On the other hand, the Rules which have been framed by the State Government, more particularly, Rule 24(4) of the Rules, 2011 provides that the Committee shall meet a minimum of one day a week, which may be extended by the State Government depending on case and pendency of work. According to Mr.Trivedi, there is a conflict between the two Rules. The rule framed by the Central Government, which provides that the Committee shall meet a minimum of three days a week, is a more reasonable rule and would subserve the object with which the Act has been enacted by the Parliament, whereas Rule 24(4) of the Rules, 2011 framed by the State Government, which provides that the Committee shall meet just once in a week, frustrates the object with which the Act has been enacted.
13. We are not impressed by this submission of the learned advocate Mr.Trivedi, so far as the conflict between the two set of rules is concerned.
14. It is appropriate, at this juncture, to refer to Section 68 of the Act, which provides that the State Government may, by a notification in the Official Gazette, make rules to carry out the purpose of this Act. Section 68(1) of the Act is relevant and it reads as under :
“Section 68 : Power to make rules.-(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act ”
15. The proviso to Section 68(1) is a fairly unique provision. While Section 68(1) specifically confers power on the State Government to make rules to carry out the purposes of the Act, at first blush the Central Government is also contemporaneously conferred with the power to make rules in respect of all or any of the matters with respect to which the State Government may make rules under the Section. But, such model rules shall apply to the State only until the rules in respect of that matter is made by the State Government. A guideline is also mentioned in this regard in the proviso where it is stated that the State Government may, while making such rules (under Section 68(1) and 68(2) of the Act) as far as practical, conform to such model rules.
16. Central Rules have been framed under Section 68 of the Act. Rule 96 of the Central Rules is relevant and is extracted hereunder:
“Application of these rules:- It is hereby declared that until the new rules conforming to these rules are framed by the State Government concerned under Section 68 of the Act, these rules shall mutatis mutandis apply in that State."
17. The Central Rules, therefore, declare that the said Rules would apply in a State until rules are framed by the concerned State Government under Section 68 of the Act. Rule 96 of the Central Rules is broadly worded and there is one aspect of the said rule which requires to be specifically mentioned and we will do so, at a later stage.
18. Mr.P.K. Jani, the learned Government Pleader, submitted that the State of Gujarat has exercised its rule making power under Section 68(1) and (2) of the Act and it is, therefore, that the Rules, 2011 have been framed by the State Government. Mr.Jani contended that once the State Government exercised its rule-making power under Section 68 of the Act, then obviously the model rules, if any, framed by the Central Government would not apply in the concerned State. At any rate, the proviso to Section 68(1) makes it clear that if the primary rule making authority has already framed rule regarding any aspect, which is comprehended by the provisions of the Act, then the rule, if any, framed by the Central Government regarding the same aspect would not apply in the concerned State.
19. We find considerable force in this submission. We have already extracted Section 68 of the Act. Section 68(1) of the Act makes it clear that primary rule making authority under the Act is the State Government. The proviso to Section 68(1) of the Act further makes it clear that the rule making power of the Central Government is essentially to make model rules and even where such model rules have been made, they shall apply to a State until such time as the State Government may make rules on the same subject-matter. Where, therefore, on a subject-matter, comprehended by Sections 68(1) and 68(2) of the Act, the State Government has already made rules, a model rule framed by the Central Government on the same subject-matter, obviously would not have application to the State; since the State has already exercised its rule making authority. It is also relevant in this context to take note of the fact that it is only by Amendment Act 33/06 that a proviso has been inserted to Section 68(1) of the Act. At the same time, Section 68(1) has remained in tact. Thus, the legislature did not contemplate a contemporaneous conferment of rule making power on the State Government and the Central Government with regard to the same subject matter. The proviso to Section 68(1) brought about by Act 33/06 makes it clear that the rule making power of the Central Government would essentially be to make model rules lending guidance as it were to the State Government when they exercise their rule making power. Obviously, the power under the proviso to Section 68(1) of the Act is not contemplated as available or required to be exercised, as the case may be, in a case where the concerned State has already framed the rule concerning the same subject-matter.
20. If that be so, it is quite clear that where a subject-matter is covered by the Rules framed by the State of Gujarat, then obviously the Rules framed by the Central Government, would have no application to the State concerned.
21. Our aforesaid view is further fortified by a Constitution Bench decision of the Supreme Court in the case of Pratap Singh v. State of Jharkhand and another, reported in (2005) 3 SCC 551. In Pratap Singh (supra), the Constitution Bench in a reference made to it answered two questions, which are as under :
“74. The questions which arise for consideration in this reference are :
(i) What would be reckoning date in determining the age of offender, viz., date when produced in a Court, as has been held by this Court in Arnit Das v. State of Bihar ((2000) 5 SCC 488) or the date on which the offence was committed as has been held in Umesh Chandra v. State of Rajasthan ((1982) 2 SCC 202) ?
(ii) Whether the 2000 Act will be applicable in cases which were pending before the enforcement thereof ?”
22. While answering the reference, the Bench also dealt with the aspect of model rules. In paragraph 107 of the report, the Supreme Court held as under :
“107. We, however, do not agree that the model rules have been framed in terms of the provisions of the Act so as to attract the principles that rules validly framed are to be treated as part of the Act. It is one thing that the rules validly framed are to be treated as part of the Act as has been held in Chief Forest Conservator (Wildlife) and others v. Nisar Khan ((2003) 4 SCC 595) and National Insurance Co. Ltd. v. Swaran Singh and others ((2004) 3 SCC 297) but the said principle has no application herein as in terms of the provisions of the said Act, the Central Government does not have any authority to make any rules. In absence of any rule making power it cannot refer to the omnibus clause of power to remove difficulty inasmuch as it has not been stated that framing of any model rule is permissible if a difficulty arises in giving effect to the provisions of the Act. The Central Government is a statutory functionary. Its functions are circumscribed by S. 70 of the Act only. It has not been authorised to make any rule. Such rule making power has been entrusted only to the State. The Central Government has, thus, no say in the matter nor can it exercise such power by resorting to its power 'to remove difficulties.' Rule making power is a separate power which has got nothing to do with the power to remove difficulty. By reason of the power to remove difficulty or doubt, the Central Government has not been conferred with any legislative power. The power to remove doubt or difficulty although is a statutory power but the same is not akin to a legislative power and, thus, thereby the provisions of the Act cannot be altered. (See M/s. Jalan Trading Co. Private Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 691 at 703).”
23. In paragraph 12, the Hon'ble Mr.Justice S.B. Sinha (as His Lordship then was) held as under :
“112. The upshot of the aforementioned discussions is :
(i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) The model rules framed by the Central Government having no legal force cannot be given effect to;
(iv) xxx xxx xxx”
24. In the present case, we also propose to examine the reasonableness of Rule 24(4) of the Rules, 2011, which provides that the Committee shall meet a minimum of one day a week. We may give one simple illustration envisaging a hypothetical situation. Take a case where a juvenile in need of care and protection is picked up by the authorities under the Act. As provided under Rule 27 of the Rules, 2011, such a juvenile in need of care and protection shall be produced before the Committee within 24 hours by any of the persons enumerated under the Rules. We have been informed by Mr.Jani, the learned Government Pleader, that the Committee meets once a week on every Thursday. Take a case where a juvenile is picked up by the authorities under the Act on Friday. As provided under the Rule 27(4) of the Rules, if the committee is not sitting, then such a juvenile will be produced before the single member of the Committee as per the provisions laid down under sub-section (2) of Section 30 of the Act for being placed in a safe custody of parent or guardian or fit person or fit institutions, as the case may be, till such time that the child can be produced before the Committee. The Rule 27(5) further provides that in case even if the single member is not available, or that the hours are odd, the juvenile would be taken by the non- governmental organization or Childline or Police to an appropriate institution for children registered under the Act with all the necessary documents, and would be placed in such institution till the time of production before the Committee. Thus, if a juvenile is picked up by the authorities on Friday and even if he is produced within 24 hours before a single member of the Committee and for any reason, if the single member of the Committee is not accessible, then such a juvenile would remain at an institution till next Thursday i.e. the day on which the Committee would assemble, despite the fact that the parent or guardian would be ready and willing to take the juvenile with them on adducing the necessary documentary proof. If such a situation arises like in the present case and if the juvenile is kept at an observation/ remand home, where he may mingle with juveniles in conflict with law, then the very object and the purpose with which the Act has been enacted would get frustrated.
25. What then is the remedy to take care of such a situation ? Whether this Court sitting in a writ jurisdiction under Article 226 of the Constitution can direct the State Government to amend its Rule 24(4) of the Rules, 2011 providing that the Committee shall meet a minimum of three days a week, which would better subserve the object of the Act which is essentially enacted for juveniles in need of care and protection. The purpose of the juvenile justice legislation is to provide succour to the children who are being incarcerated along with adults and were subjected to various abuses. As observed by the Supreme Court in Pratap Singh (supra) that it would be in the fitness of things that the appreciation of the very object and purpose of the legislation is seen with a clear understanding which sought to bring relief to juvenile delinquents.
26. To answer the aforesaid question, which we have posed for our consideration, it is necessary for us to determine as to whether the Gujarat Juvenile Justice Rules, 2011 is a piece of conditional legislation or is it a piece of delegated legislation.
27. The distinction between the conditional legislation and delegated legislation has been well explained by a Constitution Bench decision of the Supreme Court in Hamdard Dawakhana and another v. The Union of India and others, reported in AIR 1960 SC 554. Justice Kapoor (as His Lordship the then was) speaking for the Constitution Bench observed that :
“29. .. .. ..The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton and Co. v. United States, (1927) 276 US 394, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leaves the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; The Queen v. Burah, (1878) 3 AC 889 : Charles Russell v. The Queen, (1882) 7 AC 829 at p. 835; Emperor v. Benoarilal Sarma, 72 Ind App 57 : (AIR 1945 PC 48); Inder Singh v. State of Rajasthan, (1957) SCR 605 : ( (S) AIR 1957 SC 510). Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. To put it in the language of another American case :
"To assert that a law is less than a law because it is made to depend upon a future event or act is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or the things future and impossible to fully know."
The proper distinction there pointed out was this :
"The legislature cannot delegate its power to make a law, but it can make a law to delegate to power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and, must therefore be subject of enquiry and determination outside the hall of legislature." (In Locke's Appeal 72 Pa. 491; Field and Co.
v. Clark, (1892) 143 US 649).
But the discretion should not be so wide that it is impossible to discern its limits. There must instead be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should not be so indefinite as to amount to an abdication of the legislative function. Schwartz - American Administrative Law, page 21.”
28. What is discernible from the principle laid down by the Supreme Court in Hamdard Dawakhana (supra) is that in the case of a conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfillment of certain conditions and what is delegated to an outside authority is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e. the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is, therefore, open to attack on the ground of excessive delegation.
29. In the present case, the parliament had delegated function of framing rules to the respective State Government. The assignment, therefore, falls within the ambit of delegated legislation. When there is a delegation, whether the Court can direct to frame a rule in a particular manner so as to sub-serve the object of the Act, is the question required to be examine. In our view, in case of a conditional delegation the Court cannot direct the Government (executive) to frame the rules because that amounts to unjust and unauthorised interference in the sphere of legislation, but if there is a delegated legislation it is open to the Court to direct the Government to frame the rules where there are none.
30. To put it in other words, if the Act is enacted and if the purpose and object of the Act, already passed and brought into force, is being defeated or frustrated by the inaction on the part of the executive to carry out the mandate of the legislature by not framing the rules, then in such a case, this Court could definitely issue appropriate writ or direction to frame the rules, but in our opinion, it would not be open to the Court to direct what type of rules should be framed, unless the challenge is to the constitutional validity of the rule and the Court strikes down the rule as ultra vires on the ground of unreasonableness or arbitrariness or on any other grounds on which a subordinate legislation can be challenged. In the present case, there is no challenge to the validity of the Rule 24(4) of the Rules, 2011, but what has been submitted before us is that the State Government while framing the rule ought to have kept in mind the object of the Act and the rule should have provided for meeting of the Committee for a minimum of three days in a week instead of one day in a week. In our opinion, the position of law is no longer res integra. The writ of mandamus cannot be issued to the legislature to enact a particular legislation. The same is true as regards the executive when it exercises powers to make rules which are in the nature of a subordinate legislation.
31. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India [1985 (1) SCC 641], the Supreme Court referred to several grounds on which a subordinate legislation can be challenged as follows:
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary."
[Emphasis supplied]
32. In Supreme Court Employees Welfare Association v. Union of India [1989 (4) SCC 187], the Supreme Court held that the validity of a subordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fair-minded authority could ever have made it. It was further held that Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorized and/or violative of general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed to the power delegated or otherwise discloses bad faith.
33. We may only say that it is for the State Government to take notice of Rule 24(4) of the Rules, 2011 and may consider to increase the number of sittings in a week.
34. We, however, propose to dispose of this Public Interest Litigation by issuing the following directions :
(i) If a child in need of care and protection is picked up by the authorities and if the persons enumerated in Rule 27 of the Rules, 2011, are unable to produce the child before the Committee within 24 hours on account of the Committee not sitting, then in such a case the child should be produced before the single member of the Committee at the earliest for being placed in safe custody of the parent or guardian or a fit person, as the case may be, till such time that the child could be produced before the committee and in the event, even if the single member is not accessible or that the hours are odd, the child shall be taken to the Children's Home as provided under Rule 30 of the Rules, 2011 or at the Shelter Home as provided under Rule 31 of the Rules, 2011, but in any event, such a child in need of care and protection shall not be taken to an observation/remand home, where he would mingle with the juveniles in conflict with law.
(ii) If the single member is also not accessible for the child to be produced for being placed in safe custody of a parent or a guardian at the time when the Committee is not sitting, then within the shortest possible period, the child should be once again produced before any other available single member, but the authorities shall not wait till the time the Committee convenes a meeting, which is ordinarily convened once in a week.
11. We are sure that the aforesaid directions shall take care of the anxiety and apprehension expressed by the petitioner in this petition.
12. So far as the relief as prayed for in terms of paragraph 12(D) is concerned, we may only say that no case has been made out for payment of any monetary compensation to the parents of the juvenile, named, Ajay Hirabhai Parmar, who was kept at the observation/ remand home from April 17, 2012 to April 19, 2012. This fact otherwise also has been disputed by the State Government in its reply.
13. We close this Public Interest Litigation and dispose of this petition in above terms.
(Bhaskar Bhattacharya, Chief Justice)
(J.B. Pardiwala, J.)
Aakar