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2019 DIGILAW 43 (MAN)

Court on its Own Motion v. State of Manipur

2019-07-18

KH.NOBIN SINGH, R.SUDHAKAR

body2019
ORDER : Kh. Nobin Singh, J. 1. Heard Shri A. Bimol, learned Senior Advocate appearing for the petitioner, Shri A. Romenkumar, learned Amicus Curiae, Shri N. Kumarjit, learned Advocate General, Manipur assisted by Shri P. Tamphamani, learned Advocate appearing for the respondents. 2. This PIL is taken up suo moto by this Court pursuant to the judgment and order dated 09.02.2018 delivered by the Hon'ble Supreme Court in Sempurna Behura Vs. Union of India & Ors., (2018) 4 SCC 433 for purpose of implementation of various provisions of the Juvenile Justice Act. After the notice having been served upon the respondents, on 27.04.2018 this court felt that the presence of the Chairperson, Manipur State Commission for Protection of Child Rights; C WCs and Juvenile Justice Boards of all the Districts, would be required to inform this Court about their views. On 28.05.2018 when the matter was taken up for consideration, this court further felt that in order to effectively monitor this case, the Registrar General, High Court of Manipur be impleaded as a party respondent. On 10.08.2019 when the matter was taken up for consideration again, Shri A. Romenkumar, learned amicus curiae bought to the notice of this court the various orders passed by the Hon'ble Supreme Court in writ petition being W.P.(C) No. 473 of 2005; Alakh Alok Srivastava Vs. Union of India & Ors., 2018 (7) Scale 88 and In Re: Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658 and in terms of the orders passed therein, the State Government and in particular, the Department of Social Welfare and the Chairperson, Manipur State Commission for Protection of Child Rights were required to make a survey as directed and mandated by the Hon'ble Supreme Court and to take necessary steps accordingly. 3. On 11.12.2012, the Government of India acceded to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations which prescribed a set of standards to be adopted by all the State parties in securing the best interest of the child. 3. On 11.12.2012, the Government of India acceded to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations which prescribed a set of standards to be adopted by all the State parties in securing the best interest of the child. Accordingly, the Juvenile Justice (Care & Protection of Children) Act, 2000 came to be enacted by the Parliament Taking into consideration the standards prescribed in the Convention on the Rights of Child, the Government of India thought it expedient to re-enact the Juvenile Justice (Care & Protection of Children) Act, 2000 and accordingly, the Juvenile Justice (Care & Protection of Children) Act, 2015 came to be enacted by it. Section 4 of the Act provides that the State Government shall constitute for every district, one or more Juvenile Justice Boards in exercise of the power and discharging the functions relating to child in conflict with law. Section 27 provides that the state Government shall by notification in the Official Gazette constitute for every district one or more Child Welfare Committees for exercising the power and to discharge the duties conferred on such Committees in relation to the child in need of care and protection. 4. In view of the non-implementation or tardy implementation of the laws beneficial to the voice-less namely, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015, various questions concerning them came to be considered in the said Sarnpurna Behura's case. It may be noted that in the Chief Justices' Conference held in the year, 2006, a resolution came to be passed to the effect that the High Courts in the country would impress upon the State Governments to setup Juvenile Justice Boards wherever not set up. It shall nominate a Judge to make periodical visits to the Juvenile Homes. As the State Government did not take up appropriate steps to fulfill the basic requirements of law, in the year 2009, the Chief Justices' Conference discussed about the progress being made in setting up the Juvenile Justice Boards, the resolution passed in the Conference in 2006 was reiterated indicating that no progress had been made by the State Governments. As the State Government did not take up appropriate steps to fulfill the basic requirements of law, in the year 2009, the Chief Justices' Conference discussed about the progress being made in setting up the Juvenile Justice Boards, the resolution passed in the Conference in 2006 was reiterated indicating that no progress had been made by the State Governments. In 2013 the issue of strengthening the Juvenile justice system was again discussed in the Conference and the mandate of setting up Child welfare Committees in all the Districts, was also emphasised to meet the requirement of children in need of care and protection. In 2015 the issue of strengthening the Juvenile Justice System was again discussed at the Chief Justices' Conference in which it was resolved that the High Courts shall continue to take all necessary steps to ensure the constitution of Juvenile Justice Boards and Child Welfare Committees and that requisite facilities were provided as per rules. 5. After having considered all aspects, the Hon'ble Supreme Court issued various directions and the relevant paragraphs of the decision as regards the Juvenile Justice Boards and Child Welfare Committees, read as under- "66. With regard to the establishment of JJBs, we were given to understand that most districts now have a JIB, but is high time that every district in every State must have a JJB. An exception could perhaps be made, such as in some districts of Arunachal Pradesh where there is perhaps no juvenile crime or, there could be some districts where the number of inquiries are very few in which event the JJB may appropriately schedule its sitting. Similarly, a 'circuit JJB' could be considered if there are some adjacent districts where the number of pending inquiries is quite few. 67. We have also been given to understand that the appointment of some social workers as members of the JJB is not necessarily in accordance with the provisions of Section 4 of the JJ Act. The relevant provision in this regard read as follows: "4. Juvenile Justice Board:- XXX XXX XXX 2. 67. We have also been given to understand that the appointment of some social workers as members of the JJB is not necessarily in accordance with the provisions of Section 4 of the JJ Act. The relevant provision in this regard read as follows: "4. Juvenile Justice Board:- XXX XXX XXX 2. A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a bench and every such Bench 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 First Class. 3. No social worker shall be appointed as a member of the Board unless such person has been actively involved in health, education, or welfare activities pertaining to children for atleast seven years or a practicing professional with a degree in child psychology, psychiatry, sociology or law. 4. XXXXXXXXX 5. The State Government shall ensure that induction training and sensitization of all members including Principal Magistrate of the Board on care, protection, rehabilitation, legal provisions and justice for children, as may be prescribed, is provided within a period of sixty days from the date of appointment. 6 and 7. XXX XXX XXX 68. The selection of social works as members of the JJB is required to be carried out in accordance with the provisions of Rule 88 read with Rule 87 of the Model Rules. It must be appreciated that the appointment of social workers is serious business, inasmuch as they bring their experience-practical and professional-while conducting an enquiry under the JJ Act. This becomes all the more important when it is appreciated that the social workers can also conduct an enquiry independent of the Principal Magistrate as provided for in Section 7 of the JJ Act. However, the final disposition of the enquiry cannot be without the Principal Magistrate as mandated in the proviso to sub-section (3) of Section 7 of the JJ Act. However, the final disposition of the enquiry cannot be without the Principal Magistrate as mandated in the proviso to sub-section (3) of Section 7 of the JJ Act. There is therefore a heavy responsibility on the social workers to make a meaningful contribution during the course of an enquiry and also at the time of its disposition. 69. In this context, it is important to note that the training of the Principal Magistrate as well as the social workers is extremely important and this is provided for in Rule 89 of the Model Rules. Unfortunately, the duration of training and the curriculum and course have not yet formulated, and the nature of training given to the Principal Magistrate and the social workers is somewhat ad hoc and unstructured. The lack of meaningful and effective training (and refresher courses) can have a vital impact on the ultimate disposition of an enquiry as also on the rehabilitation and reintegration of a juvenile in conflict with law who is before the JJB. Serious thought is required to be given to this not only from the point of view of awareness of the law and child rights but also from the point of view of sensitization of the JJBs, case management and creation of a child friendly ambience and environment within the JJB for a juvenile in conflict with law. It appears to us that not much thought has been given to these aspects of the functioning of the JJBs and that is perhaps the reason why a very large number of inquiries are pending as mentioned above, with the State of Uttar Pradesh topping the list." While disposing of the said PIL, the Hon'ble Supreme Court issued various directions which read as under: "95. Keeping in mind the concerns expressed by all learned counsel and the need to invigorate the juvenile justice system in the country, we are of the view that the following directions ought to be given and we do so. 1. The Ministry of Women and Child Development in the Government of India and the State Governments should ensure that all positions in the NCPCR and the SCPRs are filled up in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children. 2. 1. The Ministry of Women and Child Development in the Government of India and the State Governments should ensure that all positions in the NCPCR and the SCPRs are filled up in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children. 2. The NCPCR and the SCPCRs should take their duties, functions and responsibilities with great earnestness keeping in mind the faith reposed in them by Parliament. A position in these statutory institutions is not a sinecure. These bodies have a very significant and proactive role to play in improving the lives of children across the country. 3. The State Level Child Protection Societies and the District Level Child Protection Units have an enormous responsibility in ensuring that the JJ Act is effectively implemented and Child Care Institutions are managed and maintained in a manner that is conducive to the well being of children in all respects including nutrition, education, medical benefits, skill development and general living conditions. These two bodies would be well advised to take the assistance of NGOs and civil society to ensure that the JJ Act serves the purpose for which it is enacted by Parliament. 4. The State Government must ensure that all position in the JJBs and CWS are filled up expeditiously and in accordance with the Model Rules or the Rules framed by the State Government. Any delay in filling up the positions might adversely impact on children and this should be avoided. 5. The JJBs and CWCs must appreciate that it is necessary to have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time and justice is given to all juveniles in conflict with law and social justice to children in need of care and protection. This is a constitutional obligation. 6. The NCPCR and the SCPCRs must carry out time-bound studies on various issues, as deemed appropriate, under the JJ Act. Based on these studies, the State Government and the Union Territories must take remedial steps. 7. In particular the NCPCR and the SCPCRs must carry out a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers. Based on these studies, the State Government and the Union Territories must take remedial steps. 7. In particular the NCPCR and the SCPCRs must carry out a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers. It must be emphasized that the role of a Probation Officer is critical for the rehabilitation and social reintegration of a juvenile in conflict with law and due importance must be given to their duties as postulated in the Model Rules and Rules, if any, framed by the State Governments and the Union Territories. 8. The MWCD must continue to make creative use of information and communication technology not only for the purpose of collecting data and information but also for other issues connected with the JJ Act such as having a database of missing children, trafficked children and for follow up of adoption cases etc. With the utilization of technology to the fullest extent, administrative efficiency will improve considerably, which in turn will have a positive impact on the lives of children. 9. It is important for the police to appreciate their role as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children. There is therefore a need to set up meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In this context, it is necessary to clearly identify the duties and responsibilities of such Units and Officers and wherever necessary, guidance from the available expertise, either the National Police Academy or the Bureau of Police Research and Development or NGOs must be taken for the benefit of children. 10. The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event. 11. The management of Child Care Institutions is extremely important and State Governments and Union Territories would be well advised to ensure that all such institutions are registered so that children can live a dignified life in these Institutions and issues of missing children and trafficking are also addressed. 12. 11. The management of Child Care Institutions is extremely important and State Governments and Union Territories would be well advised to ensure that all such institutions are registered so that children can live a dignified life in these Institutions and issues of missing children and trafficking are also addressed. 12. State Governments and Union Territories would be well advised to appoint eminent person from civil society as Visitors to monitor and supervise the Child Care Institutions in all the districts. This will ensure that the management and maintenance of these Institutions are addressed. We have no doubt that the State Legal Service Authorities and the District Legal Service Authorities will extend full assistance and cooperation to the Government authorities in this venture as well as to the Visitors. 13. The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State Government and the Union Territories. If financial resources are not made available for the welfare of the children we shudder to think what could be better utilization of the funds. 14. NALSA has done a remarkable jobs in collecting data and information relating to the JJ Act, as evidenced by the three part Report prepared by it. We request NALSA to carry forward the exercise and complete a similar Report preferably before 30th April, 2018 to assist all the policy making and decision making authorities to plan out their affairs. 15. The importance of training cannot be over-emphasized. It is vital for understanding and appreciating child rights and for the effective implementation of the JJ Act. All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Justice Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position. A very positive step has been taken in this regard by NALSA and we expect the NCPCR with the assistance of the SCPCRs to carry forward this initiative so that there is meaningful implementation of the JJ Act. 16. A very positive step has been taken in this regard by NALSA and we expect the NCPCR with the assistance of the SCPCRs to carry forward this initiative so that there is meaningful implementation of the JJ Act. 16. Since the involvement of the State Governments and the Union Territories is critical to child rights and the effective implementation of the JJ Act, it would be appropriate if each High Court and the Juvenile Justice Committee of each High Court continues its proactive role in the welfare of the children in their State. To make the involvement and process more meaningful, we request the Chief Justice of every High Court to register proceedings on its own motion for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities. A copy of this judgment and order should be sent by the Secretary General of this court to the Registrar General of each High court for being placed before the chief justice of every High Court for initiating suo moto proceedings." 6. An affidavit on behalf of the respondent No. 6 was filed wherein it has been stated that in all the 16 (sixteen) districts of Manipur except Noney and Kamjong District, Special Juvenile Justice Units have been set up. The case laws relating to child rights are being imparted to trainees of different ranks at Manipur Police Training College, Pangei. The Special Juvenile Police Unit includes 2 (two) Social Workers having experience in the field of child welfare of which, one is a woman. In almost all the Police stations, Police Officer not below the rank of Assistant Sub-Inspector are designated as Child Police Officers exclusively for dealing with children. The Special Juvenile Police Units are headed by Deputy Superintendent of Police as District Nodal Officer. An affidavit on behalf of the respondent No. 2 was filed wherein it has been stated that in exercise of the power conferred under Section 18 of the Commission for Protection of Child Rights Act, 2004, all the members have been appointed. The Manipur Commission for Protection of Child Rights is mandated to look into the welfare of the children of the State and all kinds of child rights violation in the state. The Manipur Commission for Protection of Child Rights is mandated to look into the welfare of the children of the State and all kinds of child rights violation in the state. The requisite staff for the State Child Protection Society and District Child Protection Units who were recruited on contract basis, have been regularised. The Child Welfare Committees for 9 (nine) Districts have been constituted and all the Chairman and members have been appointed under the provisions of the said Act Juvenile Justice Boards have been constituted in 9 (nine) Districts. The Juvenile Justice Boards and the CWCs are sitting two to five times in a week in an average for majority of the Districts. The Director General of Police, Manipur was requested to take necessary action for compliance with the direction of the Hon'ble Supreme Court. As many as 53 (fifty three) child care institutions under ICDS funded and 63 (sixty three) CCIS which are under the financial assistance of charitable donation, have been registered under the Act The State and District Level Inspection Committee for CCIS as recommended by the State Selection Committee chaired by a retired Judge of the High Court, Manipur have been constituted. The Juvenile Justice Fund has been created by the State of Manipur with the State budget of Rs. 4 lakhs per annum to meet the expenditure required for the welfare and rehabilitation of the children under the Act. 7. It may be noted that the Juvenile justice (Care & Protection of Children) Act, 2015 is law enacted by the parliament and all the State Governments including the State of Manipur, are duty bound to implement its provisions in letter and spirit. The failure on the part of the State Governments prompted the Hon'ble Supreme Court to take up the issue in the Sampurna Behrua case. After hearing the learned counsel appearing for the parties and in particular, the Advocates appearing for various States, the said PIL was disposed of with the observations and directions mentioned therein. 8. Even after a lapse of more than four years from the date of enactment of the said act, the State of Manipur has not implemented the provisions of the said Act nor has it complied with the directions issued by the Hon'ble Supreme Court. 8. Even after a lapse of more than four years from the date of enactment of the said act, the State of Manipur has not implemented the provisions of the said Act nor has it complied with the directions issued by the Hon'ble Supreme Court. Prior to the Act coming into force, the criminal courts in the country were dealing with any case relating to offence committed by any person irrespective of whether he/she is a major or minor. The children in conflict with law have been carved out and are now being dealt with by the Juvenile Justice Board or the Children Court as the case may be. It is said that children in the country constitute 40% of the total population and the number of cases involving children are increasing day by day. The Juvenile Justice Board is not an ordinary board but a special court and since it functions like a court dealing with criminal cases involving children, it needs to have adequate infrastructure, manpower and financial support as that of a court. In the State of Manipur, not a single post of Principal Magistrate to chair the Juvenile Justice Board has been created by the State Government so far nor has the sanctioned strength of the Manipur Judicial Officer Grade-in been increased suitably to man the Juvenile Justice Board, in a sense, the Juvenile Justice Boards have been constituted only in paper. The existing the Manipur Judicial Officers Grade-III are given the additional charge with the result that it is impossible for them to hold sitting as the Juvenile Justice Board regularly, even though the Hon'ble Supreme Court has observed that it shall sit regularly. So far as the infrastructure is concerned, only one room is provided for the Juvenile Justice Board where the Chairman, member, APPs, staff, private counsel and his client etc have to come and sit there together like a meeting for general discussion. There is no separate room for recording the statement of the children in conflict with law. 9. So far as the infrastructure is concerned, only one room is provided for the Juvenile Justice Board where the Chairman, member, APPs, staff, private counsel and his client etc have to come and sit there together like a meeting for general discussion. There is no separate room for recording the statement of the children in conflict with law. 9. In view of the aforesaid circumstances, this Court vide its order dated 16.01.2019 issued the following directions: "(i) In the first phase, the State Government shall create four posts of Principal Magistrate, within three months from the date of receipt of a copy of this order, to hold the charge of Juvenile Justice Boards in respect of the four valley districts where the cases are more in number and the remaining five posts shall be created by the State by the end of this year; (ii) In the same manner, the State Government shall establish, at least, four child friendly courts and four child friendly police stations, as required under the Rules, in respect of the four valley districts within three months from the date of receipt of a copy of this order and the remaining shall be established by the end of this year; (iii) The State Government shall create separate posts of APP to conduct cases before the Juvenile Justice Boards; (iv) Apart from what has been directed above, the State Government shall ensure that all the provisions of the Act and the Rules made thereunder are implemented without any loss of time." 10. On 10.07.2019 when this PIL was taken for consideration, this Court was informed that a petition for special leave to appeal had been preferred by the State Government before the Hon'ble Supreme Court against the said order dated 16.01.2019 and accordingly, this PEL was directed to be listed on 18.7.2019 on which a copy of the order dated 15.7.2019 of the Hon'ble Supreme Court was produced before this Court for perusal. On perusal thereof, it is seen that no notice has so far been issued in the SLP No. 14244 of 2019 nor has the order dated 16.1.2019 passed by this Court been stayed by the Hon'ble Supreme Court. On perusal thereof, it is seen that no notice has so far been issued in the SLP No. 14244 of 2019 nor has the order dated 16.1.2019 passed by this Court been stayed by the Hon'ble Supreme Court. On 15.7.2019 when the said SLP No. 14244 of 2019 came up for consideration, it was simply adjourned by four weeks on a letter being circulated by the counsel appearing for the petitioner seeking time to file an application. It appears that it was not brought to the notice of the Hon'ble Supreme Court that the said order dated 16.01.2019 was passed by this court in order to implement the directions issued by the Hon'ble Supreme Court. 11. In view of the above, we are inclined to adjourn the matter to 31.07.2019 for report compliance by the State Government, failing which the Principal Secretary (Social Welfare) and the Secretary (Law), Government of Manipur shall remain present in person in the Court on 31.07.2019 to explain as to why they have not complied with the order of this court. A copy of this order may be furnished to Shri N. Kumarjit, learned Advocate General, Manipur and to the Principal Secretary (Social Welfare) and Secretary (Law). List on 31.07.2019.