It is most dismaying, degrading and disappointing to note that shocked at the absolute pathetic state of shelter homes like Nari Niketans and Children Homes where many inmates, including a deaf and dumb girl, was subjected to rape and forcible abortion, the Uttarakhand High Court in a recent case titled Shivangi Gangwar v State & others Writ Petition (PIL) No. 07 of 2016 dated May 23, 2018 while expressing its shock has been compelled to passed a string of directions ranging from regular inspection of such custodial institutions, segregation of normal and mentally ill inmates to strict action against those employing children for begging or drug peddling or anyone meting out corporal punishment to children in child care institutions and loans to the inmates of After Care Organization to set up entrepreneurial activities.
Where will the poor and hapless children and women go if they are subjected to the worst atrocities even in Nari Niketans and child care institutes? What is even more worst is that even those who are deaf and dumb are not spared! This under no circumstances can be allowed to go unnoticed, unchecked and unpunished!
To be sure, a Bench of Justice Rajiv Sharma and Justice Sharad Kumar Sharma also directed that the trial in the case of sexual harassment of the deaf and dumb inmate at Nari Niketan in Dehradun by a sweeper which has been moving at snail pace since 2016, with mere five prosecution witnesses examined, so far be completed within six months while also ordering suspension and disciplinary proceedings against Ramesh Chandra Kashyap who is music teacher at the National Institute for the Visually Handicapped at Dehradun’s Rajpur Road for sexually harassing a child. No doubt, the offences against minors and women must be decided at the earliest. This alone explains why even the Uttarakhand High Court directed that the trial in the case to be registered against Kashyap be completed within three months.
Be it noted, the Bench was deciding a PIL filed by Shivangi Gangwar who highlighted the molestation, rape, harassment and victimization of Nari Niketan inmates in Uttarakhand, more particularly in Nari Niketan at Kedrapuram in Dehradun. The petitioner informed the court that the state government is running three Nari Niketans and two shelter homes at Haldwani and Almora. It was also informed that the conditions of these Nari Niketans are deplorable. It was also brought out that the mentally ill/retarded inmates are also kept with their children in Nari Niketans, which is not permissible under the law.
Not stopping here, two inmates have died in mysterious circumstances and what is even more worse and appalling is that no inquiry was held to fix the responsibility. Fourteen children were suffering from malnutrition and taken to a hospital. The news reports led to the District Magistrate visiting the shelter home at Haldwani where he noticed deplorable conditions, lack of recreational facilities and that the inmates were not allowed to move out except for visiting court or hospital for treatment and no step is taken to restore the inmates to their guardians.
Truth be told, it is the bounden duty of the State Government to make sure that no wrong acts are committed in Nari Niketans and shelter homes which operate in their areas of jurisdiction. No one should be spared if anyone is found guilty. There can be no complacency on this. The Bench minced just no words in saying it very clearly and categorically in para 127 of the landmark judgment that, “The rape and abortion of the helpless deaf and dumb girl, the mysterious death of the two inmates speaks volumes of mismanagement of the institution. These institutions must be respected and maintained like temples. The music teacher violating the body of a child in the National Institute for the Visually Handicapped cannot be permitted to be repeated. The society should be sensitive and compassionate towards the children, who are admitted in these Child Care Institutions trusting the system. How these things can happen under the very nose of the administration is difficult to fathom.”
In para 3 of this landmark judgment, it is specifically pointed out that, “It is averred in the petition that in the State, two inmates of Nari Niketan, Kedarpuram, Dehradun have died under mysterious circumstances. One deaf and dumb inmate has been subjected to rape/sexual harassment and forcible abortion. The death of two inmates is suspicious. The State has not taken any appropriate action to ascertain the cause of death of two inmates. One sweeper was arrested in sexual harassment of the deaf and dumb inmate of Nari Niketan, Kedarpuram, Dehradun. His DNA matched with the victim.”
It also has to be conceded that the inmates are living in inhuman conditions. The inmates of Nari Niketans are not allowed to go outside the Nari Niketans except to attend the Court proceedings and for medical treatment to hospital. The conditions of shelter homes are also very pathetic.
Going further, the mentally ill/retarded inmates are also kept in the Nari Niketans. There is no adequate facility of psychiatrists for these mentally ill/retarded inmates. In para 8 of the landmark judgment, it is revealed that, “The different Non-Governmental Organizations (NGOs) are also running Nari Niketans/shelter homes/children homes are also deplorable. No arrangements have been made for return of inmates to their homes. It is the duty of the State Government to make policies in furtherance of Articles 39, 39-A and 47 of the Constitution of India. In para 9, it is mentioned that there is overcrowding in the Nari Niketans.
Needless to add, there were many other such short comings and wrong doings that were pointed out by the petitioner. The petitioner thus wanted the court to pass appropriate directions to check all such glaring shortcomings and malpractices that were going on with impunity and prayed for the same. The Uttarakhand High Court then after taking all these things into account passed the following directions specific to certain cases of illegalities at these centres and other guidelines for both NGO and government-run homes as under : –
A. There shall be a direction to learned District and Sessions Judge, Dehradun, to conclude the Sessions Trial No. 59 of 2016 (rape of deaf and dumb inmate of Nari Niketan), within six months from today by holding the trial on day-to-day basis. The statement of prosecutrix shall be recorded with the assistance of an expert or a person familiar with the mode of conveying her ideas in day-to-day life.
B. The state government is directed to pay exemplary damages/compensation of Rs 25 lakh or pension @ Rs. 11,000/- per month to the deaf and dumb inmate, who was raped and forced to abort the baby. The Chairperson, Child Welfare Committee, Dehradun, shall open the account of the deaf and dumb inmate in a nationalized bank, in which, the exemplary damages/compensation amount or pension amount would be credited every month.
C. The management of the National Institute for the Visually Handicapped, 116 Rajpur Road, Dehradun, is directed to put Ramesh Chandra Kashyap, music teacher, National Institute for the Visually Handicapped, 116, Rajpur Road, Dehradun, under suspension forthwith and to commence disciplinary proceedings against him for violating the human rights and dignity of the child of the school and to conclude the same within three months from today.
D. The Director-General of Police, State of Uttarakhand, is directed to register FIR against Ramesh Chandra Kashyap forthwith under the POCSO Act and Indian Penal Code. The inquiry and investigation shall be completed within three weeks from today and thereafter, the challan shall be put up in the court of law. The trial shall be concluded, if prima facie, case is found against Ramesh Chandra Kashyap, music teacher, within three months from today.
E. The state government is directed to frame rules under Section 110 of the Act and to notify the same within six months from today, till then the Rules i.e., the Juvenile Justice (Care and Protection of Children) Rules, 2016 shall be followed by the state.
F. The respondent-state is directed to constitute the Child Welfare Committee for each district of the state within 12 weeks from today. The chairperson and members of the committee shall be appointed on the recommendations of the selection committee to be constituted under Rule 87 of the Rules, 2016.
G. The state government is directed to constitute a selection committee within a period of four weeks from today, for a period of three years by notification in the Official Gazette, comprising of a retired Judge of High Court as the Chairperson to be appointed in consultation with the Chief Justice of the High Court, one representative from the Department implementing the Act not below the rank of Director as the ex-officio Member Secretary, two representatives from two different reputed non-governmental organizations respectively working in the area of child development or child protection for a minimum period of seven years but not running or managing any children’s institution, two representatives from academic bodies or Universities preferably from the faculty of social work, psychology, sociology, child development, health, education, law, and with special knowledge or experience of working on children’s issues for a minimum period of seven year and a representative of the State Commission for Protection of Child Rights.
H. All the individuals, police officers or any functionary of any organization or a nursing home or maternity home, who or which finds and takes charge, or is handed over a child who appears or claims to be abandoned or lost, or a child who appears or claims to be an orphan without family support are directed to give information to the Childline Services or the nearest police station or to a Child Welfare Committee or to the District Child Protection Unit,within 24 hours as per Section 32 of the Act, 2015, in the welfare of child.
I. The State Government is directed to give financial support of sum of Rs 1.00 lakh to children living in Child Care Institutions for the process of rehabilitation and social reintegration as per Section 39(4) read with Section 46 of the Act.
J. The state government is directed to ensure that all the institutions, whether run by a state government or by voluntary or non-governmental organizations, which are meant, either wholly or partially, for housing children in need of care and protection or children in conflict with law are registered within a period of three months from today, if not already registered under the law.
K. The action be taken under Section 42 of the Act, 2015 against the persons, in-charge of an institution housing children in need of care and protection and children in conflict with law, who fails to comply with the provisions of sub-Section 1 of Section 41 of the Act, 2015.
L. The state government is also directed to establish and maintain, by itself or through voluntary or non-governmental organizations, open shelters in each district as per the requirement and the same be registered under Rule 22.
M. The state government is also directed to undertake the programmes of sponsorship to children under Section 45 read in conjunction with Rule 24.
N. The state government is directed to establish and maintain observation homes in every district or cluster of districts either by itself or through voluntary or non-governmental organizations read with Rule 26. In case of Child Care Institution housing girls, only female Person-in-charge and staff shall be appointed and also to follow the staffing.
O. The state government is directed to ensure that in Children Home, children below the age of 10 years should have separate bathing and sleeping facilities, separate home for boys and girls of age group 7-11 years and 12-18 years, separate facilities for children upto the age of six years and infants.
P. The state government is directed to ensure that as per Rule 29, Child Care Institutions having more than 50 children and prescribed proper infrastructure for them, including dormitories, classrooms and special infrastructure.
Q. The state government is directed to ensure that as per Rule 30, in every child care institution, each child shall be provided following minimum standards of clothing and bedding, there are sanitation and hygienic facilities.
R. Every Child Care Institution shall prepare the menu chart with the help of a nutritional expert or doctor to ensure balanced diet and variety in taste.
S. Every child care institution in the state is directed to adhere to the following minimum nutritional standard and diet as per Rule 22.
T. Every child care institution is directed to ensure the presence of Medical Officer or on call whenever necessary for regular medical check-up and treatment of children.
U. The state government is directed to ensure that in every child care institution, a nurse or a paramedic shall be available round the clock.
V. Every child care institution has also been directed to ensure a proper medical care, and maintain norms as set out by the court with regard to mental health of the inmates and also provide them vocational training and recreational facilities like indoor and outdoor sports, picnics and outings to events like education fair or planetarium etc.
Having said this, it must also be brought out here that the Bench apart from what has been stated above also passed some general directions dealing with child protection and management of child care institutions as under: –
1. The state government is directed to constitute State Child Protection Society and District Child Protection Unit for every district to take up matters relating to children with a view to ensure the implementation of the Act including the establishment and maintenance of institutions as provided under Section 106 of the Act.
2. The state government is directed to give wide publicity through media including television, radio and print media at regular intervals so as to make the general public, children and their parents or guardians aware of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Rules framed thereunder.
3. All the persons-in-charge of child care institutions are directed to discharge following duties as per Rule 61.
4. The persons-in-charge are ordered to stay within the premises to be readily available as and when required by the children or the staff.
5. The state government is directed to follow Rule 75, in case of death or suicide of child in a child care institution.
6. The state government is directed to follow Rule 76 in case of abuse and exploitation of the child in the child care institution.
7. The state government is directed to issue necessary directions to all the child care institutions to follow Section 97 and Rule 79 dealing with release of a child from child care institution.
There are other directions also that had been issued. The other directions include: –
1. The state government is directed to implement Section 95 of the Act qua transfer of a child to place of residence.
2. The child suffering from mental illness or addicted to alcohol or drugs or any other substance which lead to behavioural changes shall be sent to psychiatric hospital or psychiatric nursing home, in accordance with Medical Health Act, 1987.
3. Segregation of mentally ill inmates who be sent to the psychiatric nursing home and psychiatric hospital forthwith.
4. The state government has also been directed to appoint the inquiry officer not below the rank of Deputy Inspector General of Police to inquire about the death of inmates of Nari Niketan, Kedarpuram, Dehradun, in the years 2014.
5. It has also been told to establish at least one aftercare organization in the state for rehabilitation of the children of the age group of 18-21 years.
6. The state government is directed to constitute inspection committee for the entire state and districts for all institutions registered or recognized to be fit under the Act,within six weeks from today. The inspection committee shall mandatorily conduct visit to all facilities at least once in three months in a team of not less than three members, of whom at least one shall be a woman and one shall be a medical officer, and submit reports of the findings of such visits within a week of their visit, to the district child protection units or state government for taking appropriate actions.
7. No person in the state shall employ or use any child for the purpose of begging. The police are directed to register the case against the persons, who employ the child for the purpose of begging, under Section 76 of the Act. Any person, who, for the purpose of beggary amputate or maims the child, be sternly dealt with.
8. The state machinery is directed to ensure that no person shall use a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance.
9. Corporal punishment is banned in all the child care institutions and the persons involved therein be sternly dealt with under Section 82 of the Act.
10. The committee/board is directed to allow the child on special occasions like examination, marriage of relatives, death of kith or kin or accident or serious illness of parent or any emergency of like nature to grant leave urgently.
On a concluding note, there can be no two opinions about the irrefutable fact that this landmark judgment has issued very laudable directives. But this alone is just not enough. It is the bounden duty of the state government and all others to whom the directions have been issued to implement it in letter and spirit. Only then will the true purpose of this landmark and laudable judgment which is both excellent and exemplary be served and benefit those for whom they have been issued! This has to be ensured at all cost!
Going one step ahead, it has to be further said that all courts also must adhere to what has been said in this landmark judgment. It is the constitutional and statutory duty of courts to ensure that the rights of children and hapless women are protected at all costs and under all circumstances. In para 126, it has been very rightly observed in this landmark judgment that, “The people who are mandated to protect the children admitted in the Child Care Institutions have failed to protect the children. The conscious of the society is pricked when the people ordained to protect the children are themselves found sexually molesting/abusing the children. It is a classic case of “Fence Eating The Grass”. The faith and trust of the society is eroded when the people under the law supposed to protect the human rights and the dignity of the children violates the law. The psyche of the children is severely damaged. It is the constitutional and statutory duty of the Courts to protect the rights of children by invoking its parens patriae jurisdiction.” Rightly said!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001,
Uttar Pradesh.
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