Juvenile Justice (Care and Protection of Children) Act, 2015 – Child Rights – Non implementation or tardy implementation of laws – It is time for the State to strongly and proactively acknowledge that even children in our country have fundamental rights and human rights and they need to be enforced equally strongly.
CIVIL ORIGINAL JURISDICTION
(Madan B. Lokur) and (Deepak Gupta) JJ.
February 9, 2018
WRIT PETITION (CIVIL) NO. 473 OF 2005
Sampurna Behura ….Petitioner
Union of India & Ors. ….Respondents
J U D G M E N T
Madan B. Lokur, J.
1. What can a citizen do if the State pays no attention to his or her fundamental or human or statutory right, nor takes serious interest in fulfilling its constitutional or statutory obligations? What if that citizen is a voiceless child or someone whose voice cannot be heard over the din of governance – for example, physically or mentally challenged persons, senior citizens, and other disadvantaged sections of society such as scheduled castes, tribals and several others? The aggrieved would perhaps approach the judiciary (if he or she could and as a last resort) for the enforcement of a human right. Should the judiciary take corrective steps and be accused of ‗judicial activism‘ or overreach – or should the cynics and skeptics have their day resulting in the grievance of the voiceless and the disadvantaged remaining unheard and the fundamental and human rights lying unaddressed?
2. These questions arise in the context of the virtual non-implementation or tardy implementation of laws beneficial to voiceless (and sometimes silenced) children, particularly, the Juvenile Justice (Care and Protection of Children) Act, 2000 (the Act of 2000) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act). We record and acknowledge our appreciation for the efforts of Sampurna Behura in highlighting some of these issues by way of a Public Interest Litigation and to learned counsel for the appearing parties in rendering assistance enabling us to address some of these issues by not making these proceedings adversarial, but a constructive effort for the benefit of the children of our country. No one has any doubt that it is time for the State to strongly and proactively acknowledge that even children in our country have fundamental rights and human rights and they need to be enforced equally strongly.
3. If Nelson Mandela is to be believed, ―Our children are our greatest treasure. They are our future. Those who abuse them tear at the fabric of our society and weaken our nation.‖ [Address by President Nelson Mandela at National Men’s March, Pretoria on 22 November 1997] Our policy and decision makers need to heed this advice and warning and appreciate that they are not doing any favour to the children of our country by caring for them – it is their constitutional obligation and the social justice laws enacted by Parliament need to be effectively and meaningfully enforced.
Background and Chief Justices Conferences
4. In a prescient understanding of child rights, the Chief Justices‘ Conference held in 2006 (presided by the Chief Justice of India with participation by the Chief Justice of every High Court) the following resolution was passed: ―
a) That High Courts will impress upon the State Governments to set up Juvenile Justice Boards, wherever not set-up. The Chief Justices may nominate a High Court Judge to oversee the condition and functioning of the remand/observation homes established under the Juvenile Justice (Care and Protection of Children) Act, 2000.
b) The Chief Justices of the High Courts will expedite the matter with the respective State Governments for setting up of Juvenile Justice Boards, wherever they have not yet been set up.
c) The Chief Justices of the High Courts will nominate a Judge to make periodical visits to Juvenile Homes, wherever set up, and the learned Judge may suggest remedial measures for the betterment of the conditions of the juvenile homes and inmates.‖
5. The above resolution was passed almost six years after the Act of 2000 came into force – meaning thereby that even about six years after Parliament enacted a law for the benefit of children, the State Governments had not taken steps to fulfill one basic requirement of the law, that is, to set up Juvenile Justice Boards.