2010 ALL MR (Cri) 1926
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
V.K. TAHILRAMANI AND R.M. SAVANT, JJ.
Nil Vs. State Of Goa & Anr.
Public Interest Litigation (Suo Motu) No.2 of 2008
8th December, 2009
Respondent Counsel: Mr. S. S. KANTAK,Ms. SAPNA MORDEKAR
Other Counsel: Mr. S. D. PADIYAR
Juvenile Justice (Care and Protection of Children) Act (2000), S.9 - Care and protection of children - Orphanage - It is obligation of Government to ensure that all children, housed in orphanage are assured of acceptable living conditions.(Paras 21, 22)
2. This petition has its origin in the Reports dated 10.3.2008 and 4.10.2008 submitted by the learned Principal District and Sessions Judge, North Goa, Panaji of the inspection held by him during his personal visits to Apna Ghar, Merces and the reports published in "The Times of India" dated 22.10.08 and Herald dated 30.10.08. These reports pointed out certain defects in Apna Ghar which have been treated as Public Interest Litigation (suo motu).
3. 'Apna Ghar' is the observation cum children's home, established by the Government of Goa under the Juvenile Justice (Care and Protection of Children) Act, 2000. Apna Ghar is basically an orphanage, most of its inhabitants being abandoned and orphaned children. Juveniles, in conflict in law, are also housed in Apna Ghar. It is an elementary requirement of any civilised society and it has been so provided in various statutes concerning children that children should not be confined to jail because incarceration in jail has a dehumanising effect and it is harmful to the growth and development of children. Hence, juveniles in conflict in law are not placed in jails, but they are kept in remand homes or children's home, like the present one. The purpose of the juvenile justice legislation is to provide succour to the children who were being incarcerated along with adults and were subjected to various abuses, as well as to provide care and protection to children in need of the same. It is not only a beneficent legislation, but also a remedial one. Juvenile justice homes/children's home give protection to children who have been in situations of social maladjustment, abandonment, delinquency or neglect.
4. The Juvenile Justice Act, in its present form, has been enacted in discharge of the obligation of our country to follow the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also known as the Beijing Rules. Inter alia, the Rules provide that while in custody, juveniles shall receive care, protection and all necessary individual assistance - social, educational, vocational, psychological, medical and physical - that they may require in view of their age, sex and personality. The international treaties, covenants and conventions although may not be a part of our municipal law, the same can be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. The Court should appreciate the position that it is the protector of the helpless children living within its jurisdiction and such care and attention and provisions of amenities as are necessary for their proper upkeep and bringing up should be ensured. Children are the future of the country. On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the country. Like a young plant, a child takes roots in the environment where it is placed. Howsoever, good the breed be if the sapling is placed in a wrong setting or an unwarranted place, there would not be the desired growth. Same is the situation with the human child.
(1) the space provided for the Court room of Juvenile Justice Board is inadequate inasmuch as there is no chamber/retiring room with toilet for its members, two of whom are ladies. The staff is inadequate, there is no adequate space for storage of the case files and there is also no toilet facilities for the advocates who appear before the said Juvenile Justice Board. Copy of the report dated 10.3.2008 was sent to the Director (WCD), but no action has been taken.
(2) the report published on "Times of India" dated 22nd October, 2008 shows that the conditions are unhygienic and although there is erratic water supply, there is ankle deep water in the toilets and there are no sufficient number of beds.
(3) the statement of Mrs. Bhatikar, one of the Juvenile Justice Board Members, if true, is disturbing. She has opined that Apna Ghar is like a prison and not a reformation home. It is a jail from which small time juveniles leave as big time criminals.
(4) the Report further shows that there were ten boys who were detained for coming in conflict with the law, and a related report on Herald dated 30th October, 2008 shows that five of them escaped on that day.
(5) the statement of the Director that it is difficult to control so many children shows that there are not enough caretakers to man the institution.
(6) there also appears to be no facilities provided either for schooling or learning any trade or occupation and the only activity for the children appears to be one hour games every evening.
(7) there is no separation between the delinquent and neglected children (girls).
Needless to say as the very title of the said Act shows it was enacted by Parliament with a view to provide for proper care, protection and treatment by catering to the development needs of those children who were in conflict with law and those in need of care and protection pursuant to the State's responsibility under the relevant articles of the Constitution of India. The above report, prima facie showed that the provisions of the said Act were not being followed in letter and spirit.
6. In recent years, children and their problems have been receiving attention of both the government as also of the society, but we must say that the problems are of such enormous magnitude that all that has been done till now is not sufficient. If there be no proper growth of children of today, the future of the country will be dark. Today's children will be the leaders of tomorrow who will hold the country's banner high and maintain the prestige of the Nation. If a child goes wrong for want of proper attention, training and guidance, it will indeed be a deficiency of the society and of the government of the day. We appreciate that this is a difficult job but an intricate situation requiring delicate handling with full understanding of the problem would definitely achieve goals. Every society must, therefore, devote full attention to ensure that children are properly cared for and brought up in a proper atmosphere where they could receive adequate training, education and guidance in order that they may be able to have their rightful place in the society when they grow up.
7. In view of the report of the Principal District Judge and the newspaper reports, which, inter alia, showed that there was lack of hygiene, inadequate security, insufficient staff, no proper steps for rehabilitation, notices came to be issued to the State Government. In response to the notices, the learned Advocate General appeared and affidavits came to be filed on 2.2.09 and 28.8.09, dealing with various observations made in the report as well as the steps taken by the Statement Government for effective functioning of the institution.
8. In the Affidavit dated 2.2.2009, filed by the Director, Department of Women and Child Development, it is stated that on the date of filing of the affidavit, there were 94 inmates. Twenty one children are in the toddler section i.e. age group upto 6 years, 24 children are undergoing studies in various residential schools in Goa, who visit home during their vacations. The children in the toddler section have separate accommodation arrangements. There are at present 6 juveniles who are housed separately.
9. As regards premises for holding the sittings of Child Welfare Committee (CWC) and Juvenile Justice Board (JJB), two independent structures lying within the campus are in the process of renovation for use of CWC and JJB. There is ample space for public waiting, storage of records and seating of clerical staff with independent and separate toilet facilities. The affidavit stated that both these structures are likely to be ready for use by end of February, 2009.
10. The affidavit further stated that the structures will have a Court Room, Chamber for Presiding Officers with independent toilet, Advocate Room, Staff room and a separate toilet. The affidavit further stated that steps have already been initiated to recruit additional staff including two Assistant Cooks, 7 Ayas, 2 LDCs and 2 stenographers and applications have been already invited and recruitment process will be completed expeditiously. Repairs of toilets and pipelines have already been completed through PWD and toilets are being maintained and kept in good condition.
11. The affidavit further stated that there are sufficient number of beds. However, the mattresses were not in good condition. Mattresses are in the process of being replaced and order to that effect has already been placed and 20 mattresses have already been received.
12. It is further stated in the affidavit that the juveniles in the observation home at Apna Gar are provided with primary education i.e. Govt. Primary School, besides Vocational Classes in cookery/bakery were conducted from June to August, 2007 by Agnel Vocational Training Institute, Agnel Ashram, Verna, Goa. Besides that Clay/Paper mache, tailoring and embroidery, batik printing are provided to the inmates on regular basis for which services of staff of Directorate of Craftsmanship are availed by the institution. According to the affidavit, these courses are in place from June, 2006. It is stated that on 2.12.2008 another stream of vocational classes have been started for the children which includes coir making, artificial jewellery, soap making, chalk making and candle making with assistance of Govt. Polytechnic, Panaji under community development programme. Further courses in Mehndi, flower making and ceramic painting will be conducted/organized by Polytechnic Curchorem in the months of January, February and Summer Vacation. The affidavit further stated that the juveniles of the observation home are also provided with technical education at Montfort Vocational Training Centre, Corlim.
13. By order dated 2.2.09, Advocate Mr. Padiyar was appointed as Amicus Curiae in the matter to assist the Court. We had called upon the learned Amicus Curiae to furnish his suggestions in respect of improvement of the facilities and infrastructure at Apna Ghar, pursuant thereto, the learned Amicus Curiae has on 22.6.09 filed his suggestions in respect of the facilities and infrastructure at Apna Ghar, which we found very useful. Prior to that, on 15.4.09, learned Amicus Curiae and learned Advocate General visited Apna Ghar. Certain lacunae were noticed and proposals were made for correcting the same. Meanwhile Mr. Padiyar submitted his suggestions which were as follows :
A.1. Immediate repairs and renovation of toilets, urinals at the orphanage blocks as well as the juvenile blocks and replacement of broken doors, wash-basins, etc..
2. Immediate painting works to be completed in respect of all the blocks of orphanage, juvenile homes and toddlers sections.
3. Immediate repairs and replacement of the dangerously leaning electrical fixtures including electrical switch boards, wires, broken tube lights.
4. Repairs/replacement of the existing pipelines.
The above works to be executed preferably through Goa State Infrastructure Development Corporation as the works are immediate and urgent.
B.1. Increase in the number of security personnel/guards.
2. Immediate appointments of qualified Counselors. It is informed that there are two posts and the recruitment rules are being framed. Till vacancies are filled counselors can be appointed on contract basis.
3. Increase in the number of caretakers, males as well as females. Present staff totally insufficient.
4. Increase in the number of matrons and aayas.
C.1. Training to the staff to deal with inmates.
D.1. Vocational Courses to the inmates including cookery/bakery, embroidery, crafts, carpentry, plumbing etc. on regular basis with the help of various vocational institutions in the State/by employing suitable trainers at Apna Ghar itself.
E.1. Classes in vocal/classical music.
F.1. Additional bed sheets to be procured on urgent basis in the toddler/orphanage sections.
14. The additional affidavit filed on 28.8.2009, states that the independent premises for holding sittings of Child Welfare Committee (CWC) and Juvenile Justice Board (JJB) has already been completed and additional staff such as 2 Assistant Cooks, 8 Ayas and 2 Lower Division Clerks have already been recruited. Fresh steps are being taken to recruit stenographers as the earlier steps did not elicit any response. Mattresses which were not in good condition have been replaced.
15. In the affidavit dated 28.8.09 in respect of the suggestions made by Mr. Padiyar, learned Amicus Curiae, it is stated that the toilets and the urinals at the orphanage blocks and the juvenile blocks have been repaired. WC pans and wash basins have been replaced. The painting work which was initiated was kept pending so as to undertake the same after completion of replacement of windows/grills, and the same is now started. Further, steps have already been initiated to repair and replace the damaged electrical fixtures including electrical switch board/wires, broken tube lights. The repairs/replacement of the existing pipeline have already been completed.
16. As regards the adequacy of the number of security personnel/guards, in the affidavit it is stated that there are 20 caretakers, and 4 security personnel, round the clock. For appointment of qualified Counselors recruitment rules have already been finalised and steps will be soon initiated to fill up the 2 posts of Counselors. To the suggestion to increase the number of Matrons and Ayas, it is stated that there were 3 Matrons and new 3 more Matrons have been recruited on contract and one is deployed from protective home. Thus, there are 7 Matrons and 14 Ayas as of now. It is stated that the Department is tying up with SCAN to impart training to the staff to deal with inmates. For the purpose of imparting classes/training in vocal/classical music, art and theatre to the inmates, a teacher is appointed from the Directorate of Art and Culture in addition to the regular classes of tailoring, painting, craft, etc. are being held. The additional bed-sheets have already been procured for being used in the orphanage including the toddlers/orphanage section. Steps are taken from time to time to carry out repairs of the damaged items. Every effort is being made to ensure that Apna Ghar/observation home functions in the most effective manner and takes good care of the inmates.
17. Mr. Padiyar stated that on inspection he found that except the repairs to the toilets and urinals, all other repairs and renovation have been completed. Learned Advocate General, upon taking instructions, makes a statement that so far as toilets and urinals are concerned, the repairs and renovations will be completed within a period of two months from today. The statement is accepted.
18. Mr. Padiyar has submitted that as far as security arrangements are concerned, one more security guard is necessary. The learned Advocate General states that appropriate proposal will be made to the Government and he assures that the same would be processed within a period of 3 months. He further submitted that so far as the issue as regards appointment of Counselors is concerned, steps have been taken inasmuch as advertisement on all India basis has been issued and the said process will also be completed as expeditiously as possible. So far as this issue is concerned, the State to ensure that the appointment is made as expeditiously as possible and not later than 3 months from today.
19. As regards Caretakers, there are 20 caretakers i.e. 13 males and 7 female. A proposal has already been initiated for increasing the number of caretakers to 24 male and 12 female caretakers in institution. Learned Advocate General gives assurance to the Court that the said proposal will be pursued and adequate increase in the number of caretakers will be made within a period of three months from today. Learned Advocate General also stated that issue of devising a scheme for juveniles who cross 18 years is also under consideration. We hope and trust that necessary steps will be taken in that direction, as expeditiously as possible.
20. Mr. Padiyar submitted that services of an Art teacher were provided. However, the Art teacher from the Director of Art and Culture visited the premises only once and thereafter, did not visit the Apna Ghar. Learned Advocate General stated that the Government will ensure that an Art Teacher visits the Apna Ghar regularly or else some alternate arrangement would be made within a period of three months.
21. It is not just the building and facilities therein which are important, but there should also be provision for mental nourishment. Children, as long as they are in the children's home, they should be kept occupied and the occupation should be congenial and intended to bring about adaptability in life aimed at bringing about a self reliance and picking of humane virtues. Efforts have to be made to encourage education and to provide vocational training, so that when the child comes out of the home he/she can earn his/her livelihood and does not resort to crime. Thus, educational, moral, and vocational training are some of the features which need to be addressed. The whole thrust is to see that after release the children will not relapse into crimes and for this, they should be given proper incentives and training to live a normal life, by training them in the fields of cooking, baking, tailoring, embroidery, pottery, painting, music, etc. Games, sports and other recreational facilities help to inculcate a sense of discipline and social responsibility in the children. Therefore, the observation cum children home, in case the true purpose is to be achieved, has to provide the proper atmosphere, environment, situations and circumstances for reformation.
22. We have been monitoring the affairs of Apna Ghar over the last one year where this matter has been pending before this Court. We are of the opinion that substantial progress has been made and now it is time to dispose of the matter finally. The two affidavits filed by the Director, Department of Women and Child Development show the steps which have already been taken and are being taken to rectify the deficiencies which were pointed out, so that children in conflict with law, neglected or abandoned, are properly taken care of. It is hardly necessary to point out that it is the obligation of the Government to ensure that all such children, housed in Apna Ghar are assured of acceptable living conditions. In view of the steps taken by the State Government and the assurances given to the Court, we dispose of this Writ Petition.
23. We would direct the State of Goa to take prompt action and proceed to implement the directions given by us in this judgment as well as the assurances given to this Court by the State. We hope and trust that there would be strict compliance with the directions now made and there would be no occasion for any further direction to be made for the self-same purpose. Compliance report be filed before this Court within a period of four months from today.
We place on record our appreciation of the services rendered by learned Advocate General and the learned Amicus Curiae. The State of Goa shall pay to the learned Amicus Curiae a sum of Rs.5,000/- for his able assistance. However, Mr. Padiyar, learned Amicus Curiae submits that the said amount of Rs.5,000/- may be remitted to the Goa State Legal Services Authority. We, accordingly, direct that the said amount of Rs.5,000/- shall be deposited with the Goa State Legal Services Authority.