Guidelines For

Socio-Legal Research
(Paper - III)
Topic:-THE INADEQUACIES OF
IMPLEMENTING JUVENILE
JUSTICE ACT: A SocioLegal Perspective

BY:-
Sanjit Kumar Naskar
B.A.LL.B. 5 Years Xth Sem
G.H. Raisoni Law School.

Date: / / 2014
 CERTIFICATE

This is to certify that Mr. Sanjit Kumar Naskar has attended and completed his
Socio-Legal Research work as required in partial fulfilment of B.A.LL.B. 5
Years Xth Semester (New) course during academic session 2014 under my
supervision and guidance.

Nagpur Dr. J.L. Aparajit

ACKNOWLEDGEMENT

This Socio-Legal Research work is the manifestation of encouragement and

support of Dr. J.L. Aparajit, Principal of G.H. Raisoni Law School. My
heartfelt thanks to him for his extended cooperation in every possible
manner, rights of inception to study. I also express my deep sense of
gratitude towards those who have directly or indirectly helped make this
assignment a success, without them this assignment would not have been
materialised.

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LIST OF CASE LAWS

 Court on its own motion -versus- State of Punjab



3
LIST OF CASE STUDIES

 CCA - Cent

4
LIST OF TABLES

 CCA - Cent

5
LIST OF MAPS

 CCA - Cent

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ABBREVIATIONS

 CCA - Central Children’s Act

 JJA - Juvenile Justice Act

 JJ(C&P)- Juvenile Justice(Care & Protection of Children) Act

CONTENTS

CHAPTER I Theoretical Background

CHAPTER II Research Methodology

CHAPTER III Analysis and Interpretation of Data

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CHAPTER IV Major Findings, Conclusions and
Suggestion

BIBLIOGRAPHY

ANNEXURES

CHAPTER I
THEORETICAL BACKGROUND

 The Evolution of the Law in India (1773- 2000):-

The concept of juvenile justice in India is very old in origin. The Children’s
actions, both criminal and non criminal, were governed by the existing Hindu
and Muslim laws.

The Hindu law of Manusmriti referred to certain offences; one of them

include the example of a child, who was littering on a public street, was not held
liable for the action so done, but as a punishment was required to clean the
litter.

Similarly; under the Muslim law, a young boy was not punished for having sex
with consenting adult woman.

The ancient Code of Hammurabi (1790 BC) contained provisions which

prohibited the act of differential treatment of children by the family members.
Also the responsibility of maintenance and supervision of children were vested
in the family.

 [1773 -1850] :

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 During the Colonial Regime, the first centre for destitute children called
“Ragged School,” was established in 1843 by Lord Cornwallis. The
Ragged Schools were charitable schools, dedicated to providing free
education of destitute children.

 [1850 – 1919] : Some of the most important laws passed between

this period were :-

I. Apprentice Act (1850), which dealt with young people between the ages
of 10 and 18; who were either destitute or petty offenders.

The children who were convicted, were made to serve out their sentences
as apprentices for businessmen.

II. The Indian Penal Code (1860),

Section 82 of the Act sets age limits on criminal responsibility and

excluded the children younger than 7 years age from culpability.

III. The Code of Criminal Procedure (1861),

This Act allowed for separate trials of persons younger than the age of 15
as well as their confinement in reformatories rather than prisons.

It further provided mechanisms for placement on probation.

IV. The Reformatory Act (1876 and 1897) :

The concept of a reformatory school for delinquent children came into

force with the passing of the Reformatory Schools Act of 1876.

This policy of separate treatment of juveniles was further encouraged by

the Reformatory School Act of 1897, which dealt only with the
treatment and rehabilitation of the young offenders.
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  It allowed boys younger than the age of 15 to be placed in
reformatory until 18 years of age.
 Boys younger than 14 were released on license, only on the
grounds that they had to obtain subsequent employment.

 [1919–1950] :

The Madras Children Act (1920) made provision for the custody, trial,
and punishment of juvenile offenders and provided for the protection of
children and young persons.

The law created three categories of children:

a) “child” (anyone younger than 14),

b) “young person” (anyone between the ages of 14 and 18), and

c) “youthful offender” (anyone younger than 18 guilty of an

offence).

During this time, the provinces of Bengal and Bombay also passed their

own children acts in 1922 and 1924, respectively.

 [Post 1950] :

The Constitution contained certain specific rights that could be applied to

children. Some of them are:-

 Article 15(3): Enables the State to make special provisions for

children,
 Article 21: Entitlement to free and compulsory education up to14
years.
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  Article 24: Prohibits the employment of children in hazardous
works.
 Article 39(e) and (f): Ensures distributive justice to the children in
the matter of education and provides for prevention against
exploitation and forced labour, and
 Article 45: Provides for free and complulsory education for all
children until they complete the age of fourteen years.

 The Parliament had passed a Central Children’s Act (CCA) in 1960. The
CCA provided for the care, protection, and treatment of juveniles. The
states with existing laws were free to enforce their own laws.

 Since the State Acts lacked consistency in terms of defining delinquency,

court procedures and other institutionalization practices, the parliament
felt a need for a uniform children’s justice Act. Hence, the parliament
passed the Juvenile Justice Act of 1986. (JJA)

 The JJA despite being a remarkable legislation in the field of juvenile

justice, failed at various levels to fulfil the aims and goals of ensuring
special care and protection to juvenile delinquents.

 Therefore, a committee was appointed under the chairmanship of Justice

Krishna Iyer to prepare a children code. This committee prepared the
Code Bill 2000. Following which the Juvenile Justice (Care & Protection
of Children) Act, 2000 was enacted.

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CHAPTER II
RESEARCH METHODOLOGY

1] TITLE OF THE STUDY:

The Inadequacies Of Implementing Juvenile Justice Act :

A Critical Study with the help of decided cases.

The researcher has conducted this socio-legal research study with the help of
Empirical or Non–Doctrinal Research Design.

This Research Design is used in order to find out the impact of the inadequacies
in implementing the Juvenile Justice Act and the effect of Judicial decisions on
the people and the society at large.

2] PROBLEM OF THE STUDY:

With the passing of JJ (C&P) Act, there are certain inadequacies in

implementing the present Juvenile Justice System. Some of them are stated
below:-

I. The Juvenile Justice Act does not have specific provisions for
juveniles relating to education, health, legal and social. In the absence of
any adequate system of identification of juvenile in need of care and
protection, the scope and implementation of this law becomes
restricted.

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 II. This Act failed to provide for procedural guarantees like right to counsel
and right to speedy trial.
III. The resources and infrastructure required for the
effective implementation of this law is hardly proportionate to the
population and geographical regions covered under it.
IV. Children caught in the system are often helpless with little redressal.
The children who are being kept in Observation Homes or Special Homes are
effected by the problems like sexual abuse, drug abuse etc.
V. The lack of institutional infrastructure and trained manpower in the states
has defeated the whole objective of this legislation. The requirement of
constitution of Child Welfare Committees and Juvenile Justice board is
largely remain unfulfilled resulting in the delay of disposal of cases.
VI. There is no index of performance measurement of the institutions in the
area of juvenile justice. Therefore, there is no way of knowing the quality
of performance of these institutions of juvenile justice.
VII. There are number of incidences violating the procedure of handling of
juveniles by the police. It is due to their insufficient training in handling
of Juveniles in conflict with law.
VIII. The basic idea of juvenile justice was to reintegrate the child into family
and society. This needs a proper network of rehabilitation and after care
services. Unfortunately, this arrangement is almost nonexisting in
Juvenile Justice System.

 Structural and Procedural Gaps within the Juvenile Justice System (JJS),

 Specific principles of juvenile justice that have been overlooked in the

JJ(C&P),

Specific principles of juvenile justice that have been overlooked in the

JJ(C&P),

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 Despite the changes brought about the JJ (C&P) there are certain specific
principles as envisaged under the (CRC) and the Constitution of India
These include:
1. Firstly and most importantly, the JJ (C&P) has over looked certain
crucial legal issues that have been raised for interpretation time and again
before the Supreme Court and the High Courts. These questions were not
clarified by the preceding JJA and the same has not been done in the
current Act and can be enunciated as follows-
 • The relevant date for the application of the Act. The Act in no way has
categorically mentioned whether the act is to apply to a juvenile from the
day of the commission of the alleged offence or from the date the juvenile
is produced before the magistrate. • Whose responsibility is it to prove
that the accused is a child? • The relationship between JJ(C&P) and other
legislations containing an overriding clause. By doing so, the JJ(C&P)
had created lacunae where such important issues are left to the vagaries of
judicial interpretation, which in a country like India can prove to be very
detrimental in the long run as the free rein of judicial interpretation can in
most cases lead to rights being flouted rather than being upheld. Further
the JJ(C&P) has potential for severe penalization of children. The
exclusion of imprisonment from section 16(1) is most subtle and has been
attained ironically by the addition of the word ‘life’. It is important to
note that there was no policy change proposed in the Parliament at the
time of the passing of the Bill, but yet by introducing the word life before
imprisonment it has made possible through judicial construction of the
same to impose imprisonment on children. This change has so far gone
unnoticed and could be a result of an over zealous drafting procedure
aimed at excluding all punishments for children. The failure to exclude
imprisonment with the exception of life imprisonment from this section is
in complete contradiction with the rest of the legislation and the
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commitment India has made by signing various international instruments.
Judges and others, like the judge who imposed life imprisonment
Chanchu despite the ban under the JJA, will pounce on this change and
gleefully send children committing serious offences to prison. This is
contrary to the commitment of providing for proper care, protection, and
treatment by catering to the children’s developmental needs and adopting
a child friendly approach in the adjudication and disposition of matters in
the best interest of children. 2. The police remain the primary agency for
bringing children specially those in conflict with the law within the
purview of the act. The provision enabling constitution of the board and
the committee for a group of districts coupled with the various omissions
such as production of children before a magistrate within 24 hours,
prohibition against keeping them in police stations and presence of a
lawyer leave the children under complete control of police. There is no
obligation per se to produce a child before the board or the committee.
The problem is further compounded as the act provides that children not
released on bail by the police officer maybe kept only in an observation
home. An observation home, too, maybe established for a district or a
group of districts. It can be pointed out that in the state
ofMaharashtra (Marathwada Region) there is only one observation home
for girls. What this entails is that more children (girls in this particular
case) will remain in police stations or be sent to an observation home
which in most likelihood will be far away from their place of residence.
3. The JJ (C&P) fails to provide for procedural guarantees like rights to
counsel and speedy trial. 4. Surprisingly there is no linkage between the
JJ (C&P) and the other related legal provisions for children, such as child
labour, primary education, sexual abuse, disabilities and health. 5. Section
16 of the JJ (C&P) provides for segregation of a juvenile who has
attained the age of 16 years and has committed a serious crime from other
15
 juveniles within the same observation home. This provision in all aspects
not only defeats the best interest principle but is also a violation of the
right to development of the child. 6. Punishment for cruelty towards a
juvenile or child or exploitation of juvenile employed as provided in
Sections 23-26 is imprisonment for a term up to 6 months or fine or both.
This being a serious offence, the punishment as prescribed under this
section should be enhanced and a provision for compensation of the
victim should be provided. 7. Section 8 of the JJ (C&P) provides for a
time limit within which the preliminary inquiries are completed (four
months). However in reality and as observed by a large number of NGO’s
this is rarely done which entails that a large number of children remain in
observation homes for a period amounting to more than 4 months. 8. The
Observation homes set up under this JJ (C&P) are temporary reception
centres for children awaiting inquiry, bail or trial, thus no provisions for
education are provided. This being the case a large number of children
who are confined for long periods are denied their inherent constitutional
right to education. 9. Finally many states have still not complied with the
provisions of the 2000 JJ (C&P), One of the many examples in this regard
is the case where a Juvenile Justice Board in the state of Punjab was only
set up on the 15th of September 2006, i.e. 6 years after the JJ (C&P) came
into force .

 Pendency and its impact on hearings,

 Delayed social investigation reports and the impact on bail, 

 Child rights lawyering and the right to legal aid,

 Certain misconceptions regarding the juvenile justice system in the

society.

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 Misconception# 1: Juvenile crime rate is very high and our society is at
risk. Juvenile crime constitutes a miniscule fraction of the total crimes
being committed in India. As per the National Crime Records Bureau’s
annual reports on Crime in India, the percentage of crimes under Indian
Penal Code (IPC) reportedly committed by juveniles to total IPC crimes
reported in the country has ranged from 1.0% to 1.2% in the last three
years. Approximately 65% of juveniles were apprehended for property-
related offences such as theft and burglary. As opposed to this, only 5%-
8% were apprehended for crimes such as rape and murder. While media
reportage of juvenile crime has increased in the recent past, evidence on
the ground does not support the view that juvenile crime has assumed
massive proportions in India. The fear that Indian society is “under
threat” from its children is grossly exaggerated.
 Misconception#2: Juveniles who commit “adult crimes” are fit to be
tried as adults. Numerous studies in developmental psychology have
found that, contrary to perceptions of early maturation, adolescence is a
period of tremendous physiological, hormonal, emotional as well as
structural changes in the human brain and therefore it is a time of great
vulnerability. Biologically, humans are making a transition into
adulthood through these changes.. With the advent of brain-imaging
technology, researchers from the University of Alberta have now found
that structural changes continue well into the early 20s. Jay Giedd of the
U.S. National Institute of Mental Health who has studied the
development of the adolescent brain for over two decades, even pegs it at
25 years.
 The act of engaging in “adult” crimes such as murder and rape does not
imply maturity. On the contrary, it is direct evidence of vulnerability of
juveniles to reckless behaviour. Research indicates that the likelihood of
adolescents committing crimes in groups is higher than that of adults.
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 Studies by psychologists and neuroscientists show that adolescents are
more prone to peer pressure, negative influence, are less likely to focus
on future outcomes, are less risk-averse than adults, and evaluate risks
and benefits differently.
 According to the American Psychological Association, American
Psychiatric Association, and the American National Association of Social
Workers, older adolescents “lack the adult capacities to exercise self-
restraint, to weigh risk and reward appropriately, and to envision the
future that are just as critical to mature judgment, especially in
emotionally charged settings”. Further, the brain system develops at
different times throughout adolescence. Psychologists have found that the
vulnerability to indulge in risky or reckless behaviour is greater in middle
adolescence (14-17 years). This is borne out by the Crime in India data
over five years, which reveals that majority of juveniles apprehended fall
in the age group of 16-18 years. This is a time when they need the most
support and attention in order to enable them to complete their passage
into adulthood in a responsible and safe manner.
 Misconception# 3: Treating juveniles who commit serious crimes as
adults will serve as a deterrent against juvenile crime and therefore
promote public safety. There is no evidence available to support the claim
that subjecting juveniles who commit serious crimes as adults will deter
crime. There is however, a lot of evidence that the exact opposite is true.
In comparative studies by Jeffrey Fagan, Associate Professor, School of
Criminal Justice, Rutgers, involving adolescents before the adult criminal
court in New York and those before the juvenile court, what emerged was
“that the New York kids treated as adult criminals were rearrested faster,
more often, and for more serious crimes, and more often were returned to
prison.”

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 Banishing juveniles to adult prisons will expose them to hardened
criminals who will feed on their vulnerability and initiate them into
serious crime. This will put society at a higher risk and increase the
supply to organized crime. Instead, according to Arlene Manoharan, the
head of a multi-disciplinary team which works with juveniles and their
families at the Centre for Child and the Law, National Law School,
Bangalore, “the wider community can play a crucial role to ensure that
quality reformatory/rehabilitation services are made available to this
group of adolescents, many of who ache to get the help they need to get
out of the vicious cycle of violent crime and start life afresh.” Evidence
on the ground supports the science-based assertion that a caring
environment can undo the damage done by a lack of it in the past. In
Bangalore, the ECHO Center for Juvenile Justice has imparted training to
135 juveniles since 2002 to enable them to serve as Traffic Police
Assistants, transforming them from “law breakers” to “law enforcers”
thus demonstrating the power of a reform-oriented approach.
 Misconception# 4: Heinous crimes are different and juveniles involved
in it are truly sadistic. They are an exception and must be treated
differently. Due to the sensational nature of heinous crimes, it is easy to
believe that those involved in them are just born evil. Besides, the same
apparatus that helps each one of us to accept more responsibility and
mature when guided to do so by the adults around us, goes dangerously
against us when the adults exhort us in a different direction. Nowhere has
this been more apparent than in Africa, where children have been
recruited as soldiers in many conflicts, particularly in the Democratic
Republic of Congo and Sierra Leone.
 They have engaged in what we would consider heinous crimes. World-
over, children from impoverished backgrounds fall prey to gangs that
initiate them into violence. John Hubner, author of “Last Chance in
19
 Texas,” spent nine months at a Texas State School listening to young
violent offenders tell their life and crime stories. He notes, “A common
theme for gang kids was their initiation, which in most gangs, is a drive
by. One girl told how her gang-affiliated brother helped her hold the
pistol because she was 7 years old. Another boy met a Latin Kings gang
leader when he was a pre-teen. When he did his drive-by (shooting), the
gang leader helped him hold the pistol, too, because he was just a little
guy. So yes, it happens all the time because violence is a rite of passage
in gang culture.”
 Rites of passage are as old as the emergence of tribes, and are seen in all
walks of life, such as ragging in India. Adults today might remember the
humiliation they experienced and the humiliation they may have heaped
on their juniors during ragging experiences, which take place in even
prestigious academic institutions, a tradition that has helped keep this rite
of passage alive in spite of the best efforts of society. Some ragging
experiences do turn heinous, and an honest reflection might reveal that
there isn’t much other than good luck that has protected some of us from
crossing the line to harm others irreparably.
 Instead of condemning juveniles, Geeta Sajjanashetty, a Bangalore-based
advocate believes that “Just as a juvenile can be influenced to commit
crime, given the opportunity, care and protection, he can also be
transformed into a law abiding citizen.” Acclaimed novelist C.S. Lewis
once said, “When I was ten, I read fairy tales in secret and would have
been ashamed if I had been found doing so. Now that I am fifty, I read
them openly. When I became a man I put away childish things, including
the fear of childishness and the desire to be very grown up.” Indeed, our
children exhibit the zeal to be all grown up but what it means to be
grown-up is largely influenced by the grown-ups around them. There is

20
 perhaps little as heartbreaking as adults taking advantage of a child’s
innate desire to “grow up” and egg them on to harm others grievously.

3] RATIONALE OF THE STUDY:

Juvenile justice has been given some shape with Juvenile Justice (Care and
Protection Of Children) Act 2000. Persons dealing with children need to
sensitize themselves with this Act. One needs to know the provisions made, to
understand whether it is being properly implemented.

Only on observing it being implemented, can one get insight into the problems
inherent in it, and if one knows the problems, one can suggest improvements in
the Act.

Even if the law gives adequate guidelines, institutions are still needed to look
after the children in distress or children in conflict with law.

4] REVIEW OF LITERATURE:

There are several research articles published in this field by various

Indian researchers from the disciplines of Sociology, Social Work,
Psychology and Law. Almost all leading Indian research journals publish
such articles; while major contribution is found in Indian Journal of
Criminology and Criminalistics, social defence, sociqal welfare and in Indian
Journal of Social Science. Vital articles are as follows - Ali Mubarak (1990)
21
on adjustment and deviance among school children, Amati B.H (1975,75,94)
on juvenile delinquency and police, family as a sociological survey. Juri
Baruah (1991) wrote an article on Disciplining the Child rural-urban
variation. Bedi M. S. (1985, 1988 & 1995) wrote on significance of J.J.
Act, co-ordination among J.J. functionaries and practical problems of
correctional institutions in India. Shri Chokalingam K. (1974) studied
redivism in relation to certain social factors-Broken house, parental rejection,

vagrancy and bad company. Diaz S. M. (1993) has advocated community

education for combating juvenile delinquency. Mrs. Gupta Madhu and
Prabha (1978) wrote on relationship between intelligence and delinquent
tendencies. Justice V. K. Krishna Iyer (1994) wrote on jurisprudence of
juvenile justice. Dr. Sudha Kaldate (1978) wrote on juvenile delinquency
in developing countries. Kodanda Ram (1986) has rightly pointed out that
cognitive style is absent in father. Kamala Kumar (1979) on juvenile
guidence bureau. Mandal B. B. (1990) on Homes for the destitute Children
in Bihar, Misra V. D. (1981) on Direction of agression and reaction to
frustration in juvenile delinquency.
Mrs. Sarla Mukhi (1979) has thrown the light on the role of the family
in the development of child. Shri Mukhopadhyay A. N. M. (1978) has
correlated child welfare and distributive justice. Shri Nagala B. K. (1981)
wrote the research article entitled 'The juvenile delinquency in society, while
Pawar M. S. (1993) has wroked on Rehabilitation of juvenile delinquents
in India. Shri Punalekar S. P. (1993) has put forward the contribution of
Gujrat state for caring the destitute children. Padmawati A. (2009) wrote
on status of juvenile welfare in the state of Andhra Pradesh. Shri Raghu P.
and Devi Prasad (1994) studied the street children in Vishakhapattanam
city. Rampal S. K. (1987) studied juvenile offenders. Shri Ravindram Nair
(1979) wrote an "Reaching the deprived child". Mrs. Shah H. Jyotsna (1976)

22
has given some fresh thinking on juvenile courts. Shukla K. S. (1981) has
thrown the light on role of the police in juvenile justice, while Sikka K. D.
(1980) has seriously suggested to reexamined the juvenile justice system.

5] RESEARCH DESIGN:

A} Nature/Type of Study

B} Universe

 Population

 Sample and Sample Size

 Sampling Method

C} Method of Data Collection

D} Sources of Data Collection

E} Tools of Data Collection

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6] CHAPTERISATION:

The entire study is organised into seven chapters. The first chapter
"Introduction", includes the concept of juvenile delinquency, review of
previous work done, choice of topic and region, objectives, hypothesis,
data sources and entire methodology of the study. Chapter two "Juvenile
delinquency in India" includes nature, characteristics, social factors in
general in India. Juvenile delinquency as observed in different states of
India is also studied. The status and position of Maharashtra in the context
of India is comparatively studied and analysed in detail. Out of the next
two core chapters, the chapter three entitled "Juvenile delinquency in
Maharashtra (Part-I)", deals with spatial patterning on the basis of
percentages, rates, age and sex variation and correlation criterian police
rural range and City Commissioner range wise. Chapter IV entitled "Juvenile
delinquency in Maharashtra (Part-II)", deals with the spatio temporal
variations offence wise with choropleth technique, ranking of offences,
forecating the trend of juvenile delinquency offence wise and the future of
juvenile delinquecy system on the basis of trend line analysis. Chapter five
"Trends of juvenile delinquency in Kolhapur" deals with study of juvenile
delinquents arrested in Kolhapur district. The later part of this chapter, gives
the analysis of case studies. Chapter six entitled "Legal controls and judicial
responses" gives the account of Juvenile Justice System functioning in India
and in Maharashtra in particular. The decision given by High courts and
Apex court of India are also discussed. The last chapter i.e. chapter seven
includes conclusion and suggestions of the research work.

24
7] OBJECTIVES OF THE STUDY:

The general objective of the research work is to study the

spatiotemporal changes in juvenile delinquency districtwise in this state
through socio-legal perspectives with giving the emphasis on Kolhapur
district.
The objectives in particular are listed below -
i) to study the different causes of juvenile delinquency in Maharashtra.
ii) to study the delinquency characteristics and differences among
boys and girls separately.
iii) to study the legal control and judicial responses to juvenile
delinquency in this state.
iv) to study the day to day functioning of the major correctional
institutes of juvenile delinquency.
v) to study the present functioning of juvenile delineuqncy courts
in state and in Kolhapur district in particular.
vi) to assess the reliability of various after care programmes and
rehabilitation procedure in the state.

25
8] HYPOTHESIS:

The wide gap exists between the theory and practice of juvenile justice
in Maharashtra. The ground realitions regarding juvenile justice are much
at variance with the idealism projected through the legislation. There is a
heavy workload all round in courts, police and probation services.
Due to the heavy load, the functioning of the whole system expected
by the legislation is not effectively working. The wide gap be minimised.
The idealism projected through the legislation be perfectly reflected and be
inconsistent with the day to day working of all the services.

From the above primary hypothesis following sub-hypotheses have been

formulated-

1) Large scale prevalence of the phenomenon of child labour is due to poverty,

illiteracy and ignorance of people.

26
2) Child labour is prevalent predominantly among under-privileged, backward
communities of the society.

3) Parental attitude is also responsible for the existence of child labour.

4) Administrative apathy is one of the factors responsible for the failure of laws
in effectively controlling child labour.

5) NGOs play a vital role in the eradication of the practice of Child labour.

6) There is absence of proper rehabilitation programme for the rescued children.

7) Lured by the availability of cheap labour, the employer actively promotes

child labour.

9] OPERATIONAL CONCEPTS AND VARIABLES OF THE STUDY:

27
This research is used to answer my question: Does the change in family
structure have an effect on juvenile delinquency? My dependent variable is
juvenile delinquency, and my independent variable is change in family
structure. I propose that changes in the family structure like divorce, increase in
female-headed households, and working mothers increase juvenile delinquency.
I collected data from 1980 to 2006 from several existing services with ―year‖
as the unit of analysis. I constructed a data set consisting of the following
variables: juvenile violent crime rates, divorce rates, rate of working mothers
with children under age 18, percent female-headed households, percent of
population aged 15-25, unemployment rate, incarceration rates, drug rates, rates
of gun ownership, police employment, percent of those with weekly religious
service attendance, percent of persons who have a ―great deal‖ of confidence in
the Executive branch of the United States, and percent of people who say they
can trust others. The data represents the 27

28
entire U.S. and will accurately illustrate the link between family structure and
delinquency eliminating most threats to external validity. My dependent
variable in this study is juvenile delinquency rates. Juvenile delinquency is the
amount of criminal or deviant behavior engaged in by an individual under age
18. Specifically, in this paper, the type of delinquency I include in my analysis
is juvenile violent crime. Therefore, juvenile delinquency is measured by the
juvenile violent crime index that includes offenses such as murder and non-
negligent manslaughter, forcible rape, robbery, and aggravated assault. The
juvenile violent crime index is the rate of juvenile arrests per 100,000
population between persons age 10 and 17. The juvenile violent crime data are
from the National Center for Juvenile Justice from the Office of Juvenile Justice
and Delinquency Prevention website (http://www.ojjdp.ncjrs.gov/).
My independent variable, change in family structure, is the extent to which the
structure of families in the U.S. depart from the traditional nuclear family of
father, mother and children. To measure change in the family structure, I
include three variables: divorce, female-headed households, and mothers in the
workforce. I explored if these factors co-varied sufficiently to allow combining
them into a composite measure, but they did not. Therefore, they are analyzed
separately. Divorce rates from the years 1980 to 2006 are gathered from the
U.S. Census Bureau in ―Statistical Abstract of the United States: 2009.‖
Divorces are measured by rate per 1,000 population. To measure percent of
female-headed households, I use the U.S. Census Bureau‘s Current Population
Survey data which includes family households where females are the head of
the household. The percent of female-headed households was obtained by
dividing the number of female households by total number of households. To
measure percent of families with 28

29
working mothers, data was taken from the U.S. Department of Labor Statistics.
This variable is measured by percentage of women with own children under age
18 who are employed.

A. Control Variables

I also examine other potential causes of fluctuations in juvenile delinquency

rates such as age structure, police presence, gun ownership, drug rates,
incarceration rates, and other changing institutions (the economy, religion, the
political system, and community) that could render the relationship between
family structure and juvenile delinquency spurious. These variables were
included in Conklin‘s analysis of why crime rates fell, and are important to
include in this study. The analysis of these variables ranges from 1980-2006 as
well. For age structure I use data from U.S. Census Bureau‘s Current Population
Reports. Age structure is measured by the percent of the population from age
15-24 from the estimates taken in July of each year. These data (in all cases)
were split into two groups (15-19 and 20-24), added together and divided by the
total population. For years, 1980, 1990, 2000, 2002-2006, I used the U.S.
Census Bureau‘s Current Population Reports. These years were the only ones
included in this table. For years 1981-1989, I used U.S. Census data from the
Population Estimates Branch. These data were only available by state. For these
data, I used the same formula as before, but I added the two age groups together
for each state and divided by the total U.S. population. For the year 2001, I used
National population estimates from the U.S. Census Bureau. Again, I summed
the 15-19 and 20-24 age group and then divided by the total population for July
2001.
For police presence, I use employment data from the U.S. Department of
Justice‘s Bureau of Justice Statistics. These data, collected from the
―Sourcebook of Criminal Justice Statistics Online‖
30
(http://www.albany.edu/sourcebook/pdf/t1252006.pdf), measure police
employment by 29

31
the total number of state and local sworn police full-time equivalent
employment. Police employment is measured in raw numbers of police
employed each year. For the missing data in years 1996 and 2001, I extrapolate
the data for 1996 police employment using this formula: (Data for 1997-Data
for 1995)/2 + Data for 1995 = Data for 1996. The General Social Survey is
conducted by face-to-face interviews each year starting in 1972 (excluding
years where funding was limited). Whenever face-to-face interviews could not
be conducted, alternative methods were used such as telephone interviews and
computer-assisted personal interviewing. For gun ownership, the data were
collected from the General Social Survey (GSS) Online
(http://www.norc.org/GSS+Website/). The variable I use from the GSS is
―have gun in home.‖ Gun ownership is defined as the percentage of persons
that responded ―yes‖ to having a gun in their home. For the missing data in
years 1981, 1983, 1986, 1992, 1995, 1997, 1999, 2001, 2003 and 2005, I
extrapolate the data using the same formula as for the police employment
missing data. For drug rates, I use data from Monitoring the Future Survey.
Drug rates are measured as the percentage of 12th graders who have used drugs
in the last 12 months. These rates included all illicit drugs. For incarceration
rates, I use data from the U.S. Census Bureau‘s Bureau of Justice Statistics.
Incarceration rates are defined as adults in prison and represent the total number
of adults in prison in the United States. The data for years 1980-2003 were
collected from Sourcebook of Criminal Justice Statistics, 2003. The data for
years 2004-2006 were collected from Statistical Abstract of the United States
(2010).
To measure changes in the economy, I use unemployment data from the U.S.
Department of Labor‘s Bureau of Labor Statistics. The unemployment rate is
the number of persons 30

32
unemployed per 1,000 population. The rates were presented monthly for every
year between 1980 and 2006. To get the annual unemployment rate for each
year, I added all monthly rates together for each year and divided by 12.
Religion, political system, and community data were collected from the General
Social Survey (GSS). I measured religion by the variable ―how often r attends
religious services‖ in the GSS. The data represents those who attend religious
services every week. For the missing data for years 1981, 1992, 1995, 1997,
1999, 2001, 2003 and 2005, I extrapolate the data as I did before with police
employment and gun ownership. The political system variable, which refers to
the political legitimacy of the government, is defined as the amount of
confidence a person has in the Executive Branch of the U.S. government. This
variable, reported in the GSS, is the percentage of those who responded that
they had a ―great deal of confidence‖ in the government. For the missing years
1981, 1985, 1992, 1995, 1997, 1999, 2001, 2003 and 2005, I extrapolate the
data using the same equation as for missing data in Religion. Lastly, the
community variable refers to the collective efficacy in a community.
Community is specifically defined as the amount of social trust that a person
feels toward others. The GSS asks respondents, ―can people be trusted.‖ I
measure collective efficacy by the percentage of people who responded they can
trust people. For the missing data years 1981, 1982, 1985, 1992, 1995, 1997,
1999, 2001, 2003 and 2005, I extrapolate the data using the same equation as
previous missing data.
Using this data set, I conducted a time series analysis to examine the changes
from 1980-2006. My variables are continuous and are measured at the ratio
level. Time series uses multiple regression techniques with ―year‖ as the case
to show relationships between variables. This technique allowed me to separate
the effects on the dependent variable so it is possible to 31

33
examine each variable‘s effect on juvenile delinquency (Allison, 1999). To do
this, I uploaded my data set to SPSS. Many of the control variables discussed by
Conklin are not included in the analysis. Multicollinearity is often a problem
when analyzing aggregated data using regression-based techniques (see, for
example, Land, McCall and Cohen 1990). To render this, I checked for
problems of multicollinearity in the models, and eliminated any variables that
did not significantly contribute to the model or show problems with
multicollinearity. I began by investigating the bivariate correlations between all
of my control variables and my dependent variable. I also investigated the
partial correlations among my control variables, my independent variables, and
my dependent variable.
When addressing reliability in this study, the variables that are included in this
study are common variables used on family and delinquency research. The
conceptualization of these variables have been based on data from reliable
sources such as the U.S. Census Bureau and the General Social Survey. The
GSS questionnaire has been given nationally and consistently since 1972. In
addition, many of my variables contain multiple indicators. My independent
variable has three indicators: divorce, female-headed households, and working
mothers. This allowed me to measure this variable from a wider range of
content within my definition of ―family structure.‖ When addressing validity,
according to my conceptual definitions for my variables, the measures are
appropriate and fitting. My definition of my independent variable, change in the
family structure, is defined as the extent to which the structure of families in the
U.S. depart from the traditional nuclear family of father, mother and children
(see above). My measures for ―change in the family structure‖ like divorce,
female-headed households and working mothers all demonstrate a deviation
from this traditional image. My dependent variable, juvenile 32

34
delinquency, is measured by the juvenile violent crime index. Violent crime is a
type of juvenile delinquency, and measuring this confirms its concurrent
validity due to data collected nationally on arrest rates for violent crime each
year.

10] LIMITATIONS OF THE STUDY:

A core component of the DUCO juveniles questionnaire required youths to

provide sensitive information on the extent of their offending and illegal drug
use, as well as their personal experiences of neglect, physical and emotional
abuse. Much of the information provided by participants is in relation to
activities that may not have been detected by law enforcement agencies, or
disclosed to anyone else prior to the interview. Given the nature and content of
this information, the DUCO project, like all projects of this nature, is limited to
the extent to which the self-reported information is reliable.
In the field of criminology, research has shown that self-reported offending by
adult prisoners is generally reliable, and that self-reported criminal histories are
consistent with official records (Peterson et al. 1980). With respect to the
accuracy of disclosures of illegal drug use, the DUMA project has established

35
that a high degree of consistency exists between drug use reported in interviews
and the detection of drug use in urinalysis (Milner et al. 2004), and that
detainees with higher socio-economic status were most likely to underreport
drug use (McGregor & Makkai 2003). However, findings are more erratic in
regards to juveniles. Comparing self-reported substance use with urinalysis in
Canadian adolescents, Williams and Nowatzki (2005) found that a quarter of
juveniles underreported substance abuse. Strangely, one third overreported –
that is, they self-report using substances but their urinalysis was negative.
Williams and Nowatzki (2005: 299) concluded that self-reported substance use
amongst juvenile samples appears to have only ‘fair validity’.
These findings suggest that the potential limitations of sel-report studies listed
in the adult DUCO reports (Makkai & Payne 2003; Johnson 2004) may be of
greater importance to the present study. The potential limitations referred to in
the adult DUCO studies related to accuracy of memory recall, willingness to
report sensitive or private experiences, and anticipated benefits of participation
in terms of early release or other privilages.
There are other issues that need to be recognised that are germane in the
juvenile setting. Commentators have pointed to the deficiencies that young
people in the justice system may have with oral communication, such as
formulating a ‘coherent account of events’ relating to their own offending
(Snow & Powell 2004: 224). A related issue is the temptation to exaggerate
substance use or criminal behaviour, apparently to impress or to shock
interviewers, or perhaps with the general hope of standing out as special.
Interviewers in DUCO noted that youths occasionally stressed their own
excesses with pride (see further Ogilvie & Lynch 2001). Finally, it is true that
juveniles have the benefit of recalling events that have generally occurred
recently compared with the events recalled by adult offenders. On the other
hand, commentators have underscored some of the difficulties caused by
immature cognitive, moral and social development when young people analyse
36
their own criminal behaviour (Prichard & Burton-Smith 2004). This may mean
juveniles’ constructs of, for example, assault may not be in accordance with
legal definitions of that crime, causing over-estimation in some cases and under-
estimation in others.

11] TIME SCHEDULE:

37
12] POSSIBLE CONTRIBUTION OF THE STUDY:

CHAPTER III
ANALYSIS AND INTERPRETATION OF DATA

38
CHAPTER IV
MAJOR FINDINGS, CONCLUSIONS AND SUGGESTION

Uniformity on the national level with regard to different treatment and other
procedures relating to juvenile is still lacking. Prescribed institutions for
custody and adjudication, trial and treatment of juveniles prescribed under the
acts have not yet been properly created which is a major set back to successful
implementation of Juvenile Justice Act, 2000. Lack of training in handling the
force relating to the children on the part of the officials is also a decisive factor
in non-implementation of the Act to full swing. Lack of coordination amongst
various institutions involved in the process is also considered as failure to
implement the Act apart from financial crunch in the institutions which is a
discouraging factor in implementation of the beneficial legislation.
The Act has not prescribed minimum age below which the Act would not be
applicable. The Act fails to expressly lay down the age of innocence. The
definition of juvenile delinquency provides almost no scope for any acts to be
dealt within the community.

1. The concept of parental responsibility encouraging child delinquency is also

missing in the Act. It has been noticed that many a times parents are
responsible for putting their children where they are exploited and abused.
39
2. The education, recreation and training of the children in observation homes
has not been properly provided for. The Act has also failed to consider basic or
school education. Besides this higher education and training of these children
should also be considered and included in the Act.

3. The Act has failed to provide for procedural guarantees like right to speedy
trial. Though the Act provides for time frame for conclusion of the trial but it is
observed that a number of a cases are still pending in the courts for years.

4. The Act of 2000 is silent on inter-country adoption. Linkage between

Juvenile Justice Act, 2000 and other legal provisions relating to child labour,
primary education, sexual abuse, adoption, disabilities, health etc. is missing.

5. The juvenile justice adjudicatory cadre is drawn from the cadre of

Magistrates of the state judiciary. The other implementing agencies and
institutions like police are also not separate. Lack of institutional infrastructure
and trained manpower has contributed a lot to blur the objective of the
legislation.

6. No obligation has been cast on the part of the state in the Act on account of
which a right based perspective is missing in the Act. So whatever in the name
of protection is given to the child is not seen as a right but a charity or welfare.
There is no specific provision ensuring services for children relating to
education, health, legal and social. Even identification of the 'juvenile in need of
care and protection' is not done for want of proper mechanism.

7. Keeping the high level of sensitivity of the issue and alarming rate of
increasing number of juveniles a regular coordination amongst various
40
government agencies working in the area is needed. But this coordination is
missing and the Juvenile Justice Act, 2000 does not have any provision to
ensure the continuous supervision, monitoring and evaluation of the functioning
of juvenile justice system as a whole.

8. The coverage of the Act is quite limited and a large number is still away from
its purview. The children affected by drug abuse, HIV/AIDS, militancy, disaster
etc. do not have any redressal under the Act and the issues like marriage, female
foeticide, working children, street children is also not covered under it.

9. The problem gets engraved due to lack of support services to venerable

families which are factories for turning their children into delinquency. There is
no yardstick to standardize the facilities and services in the institutions in
different states. There is no way to know the quality of performance of various
institutions working in the area of juvenile justice.

10. The police which has a direct and immediate contact with the juvenile
delinquents more than often violates the procedure for handling the juvenile and
police indifference in implementing the law is most disappointing. There are
instances to record a wrong age in the police record to avoid their fatigue in
taking the juvenile delinquent before the Juvenile Justice Board. The
arrangement for reintegrating the child into family and society for its proper
rehabilitation and after care service is almost non-existent.

11. The Supreme Court is of the view that whenever any law is enacted by the
government it should be ensured beforehand that the states are ready with the
infrastructure to implement it otherwise besides blunting the objective of law
this puts the whole machinery into unnecessary pressure and frustration. Our
zeal to bring the law is more pronounced than evolving the ways and means to
41
enact the same. The need to make a proper study and feasibility is imperative.
At times the goals of such laws are too ambitious and they do not relate well to
the ground level situation.

12. The problem of special care and needs of the disabled children have been
ignored by the Act. The standards of quality care have also not been laid.

13. The expansion of definition of 'child in need of care and protection' could
lead to undue influence in the lives of poor children and the families by the
system.

On the Basis of the Critical Study the Following Suggestions are Given:
A. Juvenile Justice Board
1. As referred in section 4 of the Act, a special training programme must be
prepared and the officers of the Board including the Principal Magistrate should
be given training of child psychology and child welfare.
2. Ambience of the place where the Board holds enquiry should be child
friendly. Wearing of black coats, using raised platforms or dias etc should be
avoided. Practice of making the juvenile stand in front of the Board should be
stopped. The child must be made comfortable and feel free from fear of any
person. Sittings can be held by the Board in the observation homes.
3. Basic infrastructure like computer, typewriter, stenographer, furniture and
buildings should also be provided to the Board for smooth discharge of duties.
4. There should be a proper maintenance of files and case records.
5. Video linking of the homes should be provided for children to facilitate
inspection and supervision by the Board to keep a check on anything done
against the best interest of the child.
6. At least one of the two social workers in a Board should be a person with a
minimum qualification of law degree.
42
7. The Board should be provided with a list of experts in the field of
psychology, counseling, clinical psychiatrist, NGOs, panelists of advocates and
fit institutions and fit persons, observation homes, special homes and voluntary
organizations who are dedicated to the field of child welfare. The services of
such persons may be utilized. The officers manning the juvenile courts/Boards
need to be sensitized to the development need of the juvenile in which case,
flexible enough to respond to new discoveries in social sciences research and
willing to invest in the experiment with promising new interventions for
offenders.
8. For giving good services to the juvenile and the parents of the child, they
should be treated psychologically in consultation with a psychiatric. For the
same, a psychologist and one social worker, who has awareness of the relevant
law, must be appointed in the Juvenile Justice Board.
9. Co-operation of NGOs and other social organizations may also be sought for
by the J J Board in addition to special juvenile police unit and probation officer.
Probation officer should be given the sufficient training that how they have to
prepare the social investigation report which will help the JJB. Lady probation
officer be appointed instead of government probation officer for the preparation
of social investigation report.
10. One government welfare official should be appointed by the government to
work as a liaison officer between the NGO and Juvenile Justice Board child
welfare committee. In this regard, the State Government Welfare Department
may organize seminar, sensitization and orientation programme inviting all the
probable officials, police personal who are responsible for better delivery of
justice to the children
B. Treatment of Juvenile
1. Juvenile should be brought before J J B within 24 hours.

43
2. The age of the juvenile should be determined with reference to the date of
commission of the offence. A detailed scientific investigation for determination
of the age is not required.
3. The Board should ensure that privacy rights of the juvenile are not violated
and section 21 of J J Act is strictly complied in letter and spirit.
4. The juvenile has the same Constitutional safeguards like other adult
offenders. The statement of the juvenile under section 313 Cr PC should be
recorded and if he/she wants to adduce evidence then that should also be
allowed.
5. In no case the juvenile shall be sentenced to death or committed to prison in
default of payment of fine or default of furnishing security.
6. Whenever a juvenile is produced before a magistrate not empowered to
exercise the powers of the board under the J. J. Act such magistrate should
without any delay record such opinion as regards the juvenile and forward the
records and the juvenile to the Board and the board shall hold the enquiry as if
the juvenile had originally been brought before it.
7. Judges in the juvenile courts should be trained to recognize the educational,
social and treatment needs of the children in crisis.
8. Mere implementing the laws without there being proper infrastructure or its
proper implementation remains incomplete. This part should also be
simultaneously dealt with by all concerned government or non-governmental
agencies.
9. There is religion based adoption system in India. It needs to be under uniform
law not based on religion and a comprehensive inter-country adoption law is
also required.
10. For proper implementation and giving relief to the juveniles determination
of age is a relevant factor. In India because of many reasons many children do
not have birth certificates so even in absence of age proof the beneficial
provision of the Act should be made applicable to the child in appropriate cases.
44
C. Procedure for Inquiry
l. Principal Magistrate should not be entrusted with any other work of the
criminal court except the JJB as the Board is required to complete the enquiry
within 4 months.
2. Due to the variations in state rules from state to state, there is an ambiguity
regarding proper implementation of provisions of the Act. Therefore, common
rules should be followed throughout India in all JJ Boards.
3. Stay in special home or observation home to be ordered only in exceptional
cases and for strong reasons which are to be recorded.
4. The board should conduct independent and private inquiries with the juvenile
to ascertain whether he/she was abused, sexually or otherwise by anyone or is
suffering from any disease and if it so the juvenile be sent to government
hospital for checking and treatment.
5. The Board should also ensure that the police officer who apprehends a
juvenile should inform the parent or guardian of the juvenile regarding such
apprehension.
6. The Board shall not adjudicate the proceedings or affect the dispositions of
the enquiry without calling the report of probationary officer.
7. Summary procedure should be adopted during enquiry instead of summons
procedure trial.
8. No joint proceeding of a juvenile and an adult accused should be held.
9. Monthly group meeting should be organized of all departments which are
engaged in the welfare of the child i.e. District Judge, members of J.J.Board,
welfare officer and superintendent of the observation home etc for discussing
the programme for welfare and betterment of children.
10. JJ B should conduct awareness programmes about offences against children
in every school situated in their jurisdiction through legal aid campaign.
11. The Board may also be complainant and lodge the case in any regular court
when it is found that provisions of section 21,23,25,26 have been violated and
45
offence is committed against the juvenile by any person who has been given
actual control or control of the juvenile.
D. Rehabilitation/ Shelter Home/ Observation Home.
1. There should be separate homes for juveniles and the destitute should not be
mixed with the juveniles. Homes should not be constructed like jails. The
homes for children should be video linked to facilitate inspection and
supervision by the Board so as to keep a check on anything done against the
best interest of the child. Also, surprise visits should be made at the special
homes, juvenile homes and observation homes. Senior citizens should be
involved as community resource person to look after the well being of the
children in various homes with their expertise in different fields.
2. Schooling of the children in the homes up to the age of 14 should be made
compulsory. They should he given the best of the facilities and opportunities
like any Boarding school (hostel) making a course of moral science and civics
compulsory for those who are in homes. For the welfare of juvenile, he must be
allowed to go on leave and released on license during examination so that he
can continue with his studies. Sponsorships should be provided for education of
juveniles in good institutions. Personality enhancement courses should be
organized. There is no provision of providing legal aid under JJ Act. There is no
assistance provided by the lawyer to a juvenile facing a criminal charge before
the Board. This is a serious loop hole in the Act, which requires immediate
attention.
3. For better welfare of juvenile games, sports and other functional programmes
may be organized in observation home and institution and encourage the
juvenile to participate in these programme so they connect themselves with
society. During festival seasons some cultural programmes should be organized
in the homes for the inmates with the assistance of voluntarily organizations.
4. Adoption used in section 41 should be defined to avoid conflict.

46
5. The property right of the juvenile on adoption be incorporated in the Act in
clear terms.
E. Police
l. The state governments should be directed to establish a special juvenile police
unit in every district and the unit must be specially instructed and trained in
child psychology and child welfare. The public prosecutors handling the cases
should be sensitised and given training with the juvenile police.
2. As soon as a juvenile 'in conflict with law' is apprehended by the police
he/she should be placed under the charge of the special juvenile police unit or
the designated police officer. Police should be given sufficient direction that
summons or warrant of the juvenile be served/executed in time so that the JJB
can complete the enquiry within four months as per the mandate of the J J A.
3. A time limit should be fixed for investigation. Juvenile police officers who
investigate the case, must submit the final form within 60 days or 90 days
depending upon the nature of the offence from the date of complaint.
4. A social worker may be associated in the investigation made by the police
officer. In the child cell at least one lady police officer should be
posted/appointed.
5. The police department also plays a very important role in ensuring child
protection. But, practically police officials are not aware about provisions of the
JJ Act. Hence, awareness programmes should be conducted at the police station
level wherein Principal Magistrate and members of J JB, members of child
welfare committees and NGOs should also be involved.
F. Miscellaneous
l. The High Court should take initiative to create and establish more and
exclusive Juvenile Justice Boards in order to dispose Juvenile cases within
specified period as intended in J. J. Act, of 2000.
2. The Juvenile Justice Board should be made functional on all working days
and the proceedings be held on all working days.
47
3. The Act should be amended to enable the JJB to directly entertain complaints
of child for offence against them instead of being through police so that the
child can give his complaint without any fear.
4. The J J Act, 2000 does not make any difference between a male and a female
child. Such scheme of the J J Act however fails to take a note of the fact that the
female juvenile being highly vulnerable is likely to be more comfortably and
conveniently exploited and even abused adversely. Such a female juvenile
needs special protection even at an observation home or at a place of safety,
notwithstanding the fact that voluntary social organizations may come forward
to provide a place of safety. An inbuilt safety mechanism is required to be
provided to such a female juvenile in the Act itself.
5. Provision should be made to divert at least 25% of the fine amount collected
by the criminal courts at each place towards creation of a juvenile welfare and
rehabilitation fund, at the disposal of the J J Board of the particular place/area to
be utilized by it in day to day rehabilitation need of the juvenile or child
concerned.
6. Section 16(1) of the Act should be amended and expression “life
imprisonment", be substituted by expression "any imprisonment”. This shall be
in consonance with the Legislative intent in section l6(2) of the Act.
7. The Act is silent as to whether a juvenile involved in a TADA/POTA/NDPS
Act case can be bailed out under section l2. To avoid any confusion and give
immediate relief to the juveniles the Act should specifically provide for bail
even in cases of abovesaid catagories.
8. The Juvenile Justice Act is silent about doing justice to the victims who have
been victimized in the hands of juveniles. Necessary provisions/amendments
should be made in this regard.
9. 'Protective custody' should be defined in Juvenile Justice Act to avoid any
confusion.

48
10. The Act should make it clear as to when enquiry commences. Section 14
being silent about it may create confusion.
11. Voluntary social organisation with necessary government supervision and
assistance should be allowed to run after care programmes to build a meaningful
and constructive after care programme in order to rehabilitate the inmates by
helping them to secure jobs in various government and private undertakings.
12. Until special police units are constituted investigation of cases of juveniles
should be done by the specially trained police officers for which a training
should be imparted to them.
13. Orientation courses, seminars and awareness programmes should be
organized by government on juvenile justice on regular intervals to enable the
functionaries imbibe the message discussed and conveyed to them.
14. It is not enough to make good legislation unless it is honestly, strictly and
scrupulously enforced without fear and favour. The Juvenile Justice Act has
been enacted for the purpose of providing care and protection to the child. So
the functionaries of the JJS should enforce the Act honestly, strictly and without
any fear and favour.
15. The primary purpose of JJS being protection of the child, it is required to
adopt measures for keeping the child integrated with the family and within the
mainstream of the society. The Advisory Board should be established at the
central, state, district and city level for integration of the children with the
family. The Advisory Boards should be provided infrastructure and facility so
that desired qualitative output can rendered by them.
16. The community participation should be maximised.
17. NGOs working on the street and with children should be increasingly
involved. For children without family, every efforts should be made to find out
an alternative family placement, failing which institutionalization may be
resorted to.

49
18. The pattern of the SOS children’s villages which stood recommended as far
back as 1920 by the Indian Jail Committee 1919-20 should be followed by the
homes established or recognized for placing children. Community services for
education, vocational training and recreation alongwith other children in the
society may be used by these homes to ensure that the institutionalized juveniles
are not marginalised and that the standard of programmes for the
institutionalized children is at par with those for other children.
19. The community based programmes should be under close supervision to
ensure fulfillment of obligation by the child and the person in whose care
juvenile is placed under the placement order. For this purpose the number of
probation officers/social workers and case workers be also increased to the
standardized ratio between such workers and children.
20. The National Commission for Protection of Child Rights (NCPCR) was set
up in March 2007 under the Commission for Protection of Child Rights Act,
2005, an act passed by Parliament in December 2005. The Commission's
Mandate is to ensure that all Laws, Policies, Programmes, and Administrative
Mechanisms are in consonance with the Child Rights perspective as enshrined
in the Constitution of India and also the UN Convention on the Rights of the
Child. The Commission should focus and evolve programmes for all categories
of children co-ordinating various programmes, undertaking follow-up of its
recommendation with various other bodies and departments to create a database
for policy formulation and review.
21. The states should establish a clear relationship between JJA and other
legislations that affect the life of the children covered under its scope.
22. There is need to evolve alternative ways of dealing with children. Merely
renaming the existing structures as by done the JJA serves no purpose. The state
should start experimental projects with alternative ways for dealing with
children and after successful evaluation they should be made part of the
enforceable law.
50
23. Probation and other community based programmes, apart from being cost
effective should be preferred for their potential for ensuring better care and
rehabilitation of juveniles.

Conclusion:
In brief, it can be said that juvenile justice system in India has gained
momentum. Attitude and perception towards Child Rights needs a change. On
the legislative side a lot of work has been done in India but implementation part
still requires improvement. The laws enacted requires to be effectively
implemented to achieve the desired goal of welfare of the children. The society
must encourage children's participation in matters effecting their rights as
services to the children are no longer a charity. The judiciary has played an
appreciable role and contributed a lot in proper and beneficial implementation
of the juvenile justice legislation by interpreting the provisions of Juvenile
Justice Acts so as to provide maximum benefit and relief to the maximum
number of the juveniles covered under the beneficial and favourable legislation.
A good intended legislation, properly and sincerely implemented and visionary
interpreted, can significantly reverse the crime trends in the juveniles.

51
BIBLIOGRAPHY:

52
ANNEXURES:

53
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QUESTIONNAIRES:

Are the various Child Acts sufficient to tackle the problem of juvenile
delinquency in India?
► Are the law executing agencies properly executing the law in favour of the
juvenile delinquents?

56
► Is it dangerous to club the juvenile delinquent with the hardcore criminal, if
separated what physiological, mental changes are likely to flow?
► Is the concept of rehabilitation and reformative measures a reality or a
hypothecation?
► Whether the Supreme Court has to a considerable point succeeded to make
the real objectives of the various Acts in reforming the juvenile delinquent in
India?
► Whether there is an inflow of juvenile delinquent in India?
► Whether the society is a hub of the production of juvenile delinquent in
India?
► Whether the reformative rehabilitation institutions provided by the
Government of India are sufficient to reform the criminal mind of the juvenile
delinquent in India?
In the present research study, an attempt has been made to examine and answer
all the above expected questions. The various issues of this multifaceted
problem have been examined thoroughly in the light of statutory provisions and
judicial decisions.

NGO/government partnership
Section 1: Regarding form of relationship
1. What type of relationship does your NGO have with the government?
2. In your opinion, how does the government define its relationship with your
NGO (say
in legal terms, written documents etc.)?
3. At what stage of the organisation was the government involved (e.g.:
program
identification, design, implementation, expansion or appraisal)?
4. Did your NGO start out as a partner or as a project of the government?

57
5. Who initiated the partnership (GovernmentINGO/International agency/any
other)?
6. If initiated by the NGO, why did it choose to partner with the government?
7. Have these objectives changed since the initiation of partnership? What is it
now?
8. What strategies did the NGO use to involve the government?
9. Why did you decide to work with the government? Was there any other
option?
Section 2: Organisational aspect of the partnership
1. What is the form of government control over your organisation (government
represented in the board or in advisory capacity)? Has it undergone any
changes?
2. Did the NGO have a say in defining the form of relationship and the level of
government participation?
3. What are the advantages of working with the government? What are the
advantages
towards your NGO? And what are the advantages towards your programmes?
4. Did the partnership help in initiating new projects?
5. What percentage of your funding is dependent on the government? What are
your
other sources of funds?
6. What according to you are the limitations of working with the government?
7. What strategies do you employ to maintain government relations (example:
resources
utilized in paperwork, in terms of person hours)?

Section 3: Service related aspects of the partnership

I. Were you required to initiate or/and abandon new projects because of the
government

58
involvement?
2. What are the various activities of the NGO? Which activities reqUIre a
working
relationship with the government?
3. Has the NGO been able to influence any related national/state policies? Can
you give
an example?
4. Has the NGO influenced changes within the government structures (for
example,
greater participation, sharing information)?
5. What were the reasons for the government to work with your organisation?
6. Have you advocated for the replication of the partnership model outside
Mumbai?

59
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

1. Civil Writ Petition No.9968 of 2009 (O&M)

DATE OF DECISION: April 09, 2013

Court on its own motion

…..Petitioner
versus

State of Punjab
.....Respondent

2. Civil Writ Petition No.2693 of 2010 (O&M)

Hemant Goswami and another
…..Petitioners
versus
Union of India and others
.....Respondents

3. Civil Writ Petition No.5544 of 2011 (O&M)

Court on its own motion
…..Petitioner
versus
State of Haryana
.....Respondent

4. Civil Writ Petition No.13137 of 2012 (O&M)

The National Commission for the Protection of Child Rights (NCPCR)
60
…..Petitioner
versus
The State of Haryana and others
.....Respondents

5. Civil Writ Petition No.22727 of 2012 (O&M)

Court on its own motion
…..Petitioner
versus
State of Haryana
.....Respondent

6. Civil Writ Petition No.22744 of 2012 (O&M)

Court on its own motion …..Petitioner
versus
State of Punjab
.....Respondent
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON’BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.Hemant Goswami, petitioner in CWP-2693-2010 in
person,
Mr.H.C. Arora, Advocate/Amicus Curiae
Mr.Anil Malhotra, Advocate for petitioner in CWP-13137-
2012 and for respondent No.3 in CWP-2693-2010
Mr.O.S. Batalvi, Special Senior Standing Counsel with
Mrs. Kamla Malik, Advocate for Union of India
Mr.J.S. Puri, Addl. Advocate General, Punjab
Mr.B.S. Rana, Addl. Advocate General, Haryana
Mr.Sanjay Kaushal, Standing Counsel for U.T.,
61
Chandigarh
..
A.K. SIKRI, CHIEF JUSTICE:
1. The children in any society, being the most voiceless and
defenceless group, require special attention for protection of their
human rights. It is indeed the duty of the society at large, including the
legal and judicial authorities, to protect those who are helpless to
protect themselves, and this is especially true of children. The
controversy raked up through the present petitions also relates to the
rights of the children.
2. In the year 2009, this Court had taken suo motu
cognizance of the issue raised in CWP-9968-2009 pertaining to the
proper and effective implementation of the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter

referred to as ‘the J.J. Act’). The trigger point was the two news items,
one dated 18.6.2009 and the other dated 19.6.2009 depicting
appalling conditions of the Children Homes run by the Department of
Women and Children and the Observation Homes run by the
Department of Social Security. Taking cognizance of these two news
items the Vacation Judge passed orders dated June 20, 2009 directing
the Sessions Judge of the area where these Children Homes and
Observation Homes are run, to conduct a surprise visit forthwith and
report about the running of those institutions, particularly, in respect of
following:
1 The quality of food served to the inmates;
2 The medical facilities for the inmates;
3 The health status of the inmates
The reports were received on which orders dated July 09, 2009 were

62
passed directing the Secretary, Punjab State Legal Services Authority
to scrutinize these reports and put up a note indicating, in a tabulated
form, the deficiencies that need to be removed by these institutions.
Afterwards, the Juvenile Justice Committee of this Court in its meeting
held on August 11, 2009, took note of the pitiable state of affairs at the
Observation Home at Sonepat. The sordid state of the said Observation
Home depicted that Observation Home at Sonepat had two barracks
and a front side courtyard with high walls. The entry gate was similar
to jail gate. The Home was having no source of recreation facilities or
playground for the juveniles housed therein. The courtyard was filled
with stagnated water due to blockage of drainage system and there
was hardly any place for going out of barrack for using courtyard.
Enquiry revealed that there was no arrangement for potable water.
The bathrooms and kitchen were also in deplorable condition. The
Observation Home was managed by a single teacher who, besides
performing job of a teacher, was also looking after the overall
administration of the Home. In this manner, no meaningful education
was being imparted to the children. The Observation Home was found
to be worse than a prison. Observation Home at Hoshiarpur (Punjab)
was found to be no better with almost similar dilapidated conditions. It
was also noted that the juveniles were detained in both the
Observation Homes for very long periods, in some cases for 20-22
months which was against the letter and spirit of Section 2 of the J.J.
Act. As that provision entitles the juveniles to appeal as a matter of
right, the Committee, thus, felt that a lot of steps were required to put
the various provisions of the juvenile justice system on track. Some of
the violations of the J.J. Act, which were found, were:
(i) There was no nomination of Judicial Magistrate Ist Class to head
the Juvenile Justice Board so as to assign supervisory powers to
63
the Chief Judicial Magistrate to oversee and review the working
of the Juvenile Justice Board.
(ii) The requirement of establishment of Observation Homes and
Special Homes in every district was not carried out;
(iii) There was a need to sensitize not only the Juvenile Justice
Boards but also the State functionaries in regard to the
requirements of the J.J. Act.
(iv) Child Welfare Committees for every district or for group of
districts, as required under Section 9 of the J.J. Act, were not
constituted in every district.
(v) The State Governments had not fulfilled their obligation to
establish and maintain children homes either by themselves or in
association with any voluntary organizations.
vi) The State Governments were found wanting in carrying out
another statutory requirement, namely, to appoint Inspection
Committee for Children Homes for the State or a district or a
city, as the case may be.
vii) Special Juvenile Police Units were not constituted to fulfil the
requirement of Section 10 of the J.J. Act, namely, as soon as a
juvenile in conflict with law is apprehended by police, he is to be
placed under the charge of the said Special Juvenile Police or the
designated Police Officer.
ix) There was hardly any implementation of the various provisions
for process of rehabilitation and social reintegration, which
include adoption, after-care, sponsorship, etc.

3. Thereafter, this petition was taken up along with CWP

No.15317 of 2007. In both these writ petitions, various aspects were
highlighted. While these issues were taken care of and various orders
64
passed from time to time another Public Interest Litigation Petition,
being CWP No.2693 of 2010 came to be filed by Mr. Hemant Goswami.
In this petition, the issue pertaining to Child Labour has been raised
stating that many children below the age of 14 years have been found
working in various places including Panjab University, Chandigarh
which is against the provisions of Child Labour (Prohibition and
Regulation) Act, 1986. (hereafter referred to as ‘the Act of 1986’)
However, the grievance is that the authorities have not been taking
any action. On this basis, prayer made in this petition is to the effect
that children below 18 years, which is a legal age of contract, are not
made to work and a mechanism be ensured where all such people who
violate the provisions of the Act of 1986 are sternly dealt with. Prayer
is also made to the effect that suitable steps for rehabilitation of all
children engaged in prohibited employment be taken. The petitioners
also seek direction for proper implementation of Right to Education Act
so that these children are given free education and not made to do
forced labour. Notice of motion in this petition was issued on 16.2.2010
taking cognizance of the issues involved.

4. In the succeeding year, i.e., year 2011, this Court took

cognizance of one letter dated 22.3.2011 addressed to the Principal
Secretary, Haryana State Legal Services Authority, Chandigarh. In this
letter, it was highlighted that provisions of J.J. Act had not been
implemented in true and correct spirit, with specific instance of a
juvenile named therein in custody and refusal of bail to him. It was
registered as CWP No.5544 of 2011 with direction to be taken up along
with CWP No.15317 of 2007.

5. When the aforesaid three writ petitions were pending

65
consideration, National Commission for Protection of Child Rights
(NCPCR) also decided to file comprehensive writ petition, in the nature
of Public Interest Litigation. This writ petition is CWP No.13137 of
2012. In this writ petition, NCPCR has prayed for the issuance of a
writ in the nature of mandamus directing the States of Punjab,
Haryana as well as U.T., Chandigarh to take steps to constitute and set
up fully functional State Commissions for protection of child rights and
Children’s Courts under Sections 17 and 25 of The Commissions for
Protection of Child Rights Act, 2005 (CPCR Act). Direction is also
sought against the State of Punjab to take steps for nominating and
appointing a Chairperson and other Members of a fully functional
Punjab State Commission for Protection of Child Rights under Section
17 of the CPCR Act; to constitute Children’s Courts in the State of
Punjab under Section 25 of the CPCR Act; to ensure compliance of the
mandatory provisions of J.J. Act providing for compulsory registration
of Children Homes under Section 34 of the Act.

6. All these four writ petitions were clubbed together at one

stage. Replies from the respondents were elicited.

7. A brief gist of the nature of the present four writ petitions

would indicate that all these matters pertain to different shades of
rights of the children which are sought to be secured by the provisions
of various Acts. Main Acts with which we are concerned, are J.J. Act,
CPCR Act, 2005, Right of Children to Free and Compulsory Education
Act, 2009 (RTE Act) and Child Labour (Prohibition and Regulation) Act,
1986. Though the issues under these Acts may appear to be different,
in order to secure these rights, the working of all these Acts, in
tandem, is required to be examined. That was the primary reason for
66
clubbing these cases and we heard the counsel appearing in all these
cases at length on the issues involved.

8. Before we proceed further, it would be apposite to have a

glimpse of the four Acts in juxtaposition so as to have a comparative
insight into the provisions of these Acts touching upon the rights of the
child.
Name of
Enactment
Juvenile
Justice (Care
And Protection
of Children Act,
2000
Commission
for Protection
of Child Rights
Act, 2005
The Right of
Children to
Free and
Compulsory
Education,
2009
Child
Labour
(Prohibition
and
Regulation)
67
Act, 1986
Main
Objective
To provide for
the care,
protection,
treatment,
development
and
rehabilitation of
neglected or
delinquent
juveniles
Provide for
National State
Commissions,
Courts for
providing
speedy trial of
offences
against
children or
violation of
child rights &
for incidental/
connected
matters
To provide for
free and
68
compulsory
education to
all children of
age 6 to 14
years
Prohibiting
the
engagement
of children
in certain
employment
s and to
regulate the
conditions
of work for
children in
certain
other
employment
s.
Definition
of Child
under the
Enactment
Child in need of
care and
protection is
defined with 9
different points
69
Child Rights
defined as per
UN Convention
on the Rights
of the Child.
Child means a
male or female
child of the
age six to
fourteen years
Child means
a person
who has not
completed
his
fourteenth
year of age.
Important
and
relevant
Sections
under the
Enactment
Definition of
child S.2(d),
Juvenile
Justice Board
S.4-6,
Important
70
provisions for
protection of
juveniles S. 15
& 16, Child
Welfare
Committee S.
29-31, Benefits
for children
S.40-45
Definition of
Child Rights
S.2(b). National
Commission
formed under
the Act S.3
with functions
u/s 13 & 14,
State
Commission
S.24,
Children’s
Court S.25 and
26.
Definition of
child
S.2(c),(d),(e).
Rights of child
to free
education
71
S.3,4 and 5.
Protection of
rights of child
– Commission
formed under
CPCR Act
S.31-34
Definition of
child S.2(ii).
Prohibition
of
employment
of child S.3.
Child
Labour
Technical
Advisory
Committee
S.5.
Benefits for
children
under the
Act Ss.7,8
and 13
Authority
constituted
under the
Enactment
Juvenile
72
Justice Board
and Child
Welfare
Committee
National and
State
Commissions
for Protection
of Child Rights
and Children’s
Court for
speedy trial of
offences
against
children.
U/s 31,
National and
State
Commissions
for Protection
of Child Rights
as constituted
under S.3 & 17
of the CPCR
Act/Advisory
Councils
S.33,34.
Child
Labour
73
Technical
Advisory
Committee
Role of the
authority
constituted
under the
Enactment
JJ Board:
Deals with all
the proceedings
relating to the
juvenile under
law.
Child Welfare
Committee:
looks after the
children in need
of care and
protection
National and
State
Commissions:
Have the duty
of protection
of all kinds of
rights of
children as
elaborated in
74
S.13.
Children’s
Court:
Speedy trial of
offences
against
violation of
child rights.
National and
State
Commissions:
In addition to
the functions
under the
CPCR Act,
also look after
the rights of
education of
children and
inquire into the
complaints of
violation of the
same.
Child
Labour
Technical
Advisory
Committee:
to look into
75
the
complaints
of violations
under the
Act i.e.
where
children are
engaged in
employment
s in violation
of the
provisions
under the
Act.
Benefits
available to
the
children
Provides for
the
rehabilitation
and social
reintegration of
the children or
juveniles who
are guilty under
the law.
All kinds of
rights on whole
76
are protected
under the Act
due to diverse
functions and
powers u/s 13
of the Act.
Protection of
right of
education of
children of age
6 to 14 years.
Protection
of children
from being
employed in
places with
high risks to
the life of
the children
and
providing
better work
environment
for the
children.

9. Respondents were asked to file their definite action plan in

respect of the steps taken or proposed to be taken regarding the
aspects highlighted in order dated 7.9.2009 in CWP No.15317 of 2007.
77
These are:
“1) Steps for improving the living conditions in the Shelter
Homes;
2) Steps to ensure proper medical facilities to the inmates;
3) Steps to provide facilities for drinking water and
maintaining hygiene in the shelter homes;
4) Steps regarding vocational training programmes to be
started for inmates;
5) Steps to provide educational facilities to the inmates;
6) Steps regarding improvement in the quality of the food
being served to the inmates;
7. Mechanism to be put in place for periodic visits and
inspections by the officer to be nominated at each
district headquarters;
8) Removal of congestion in the shelter homes wherever
necessary;
9. Steps for providing entertainment facilities to the
inmates;
10) Steps to be taken for the establishment of Child Welfare
Committee in terms of Section 29 of the Act and
Inspection Committee in terms of Section 30 thereof;
11) Steps for the implementation of the recommendations
made by the High Court on the Administrative side that
the Juvenile Justice Board should be headed by a
Judicial Magistrate Ist Class instead of CJM as is the
position currently.
12) Steps for training of the members of Juvenile Justice
Board as also of the Judicial Officers working as presiding
officers of the Juvenile Justice board, regarding child
78
psychology.”
In compliance with those directions, affidavits were filed on behalf of
States of Punjab and Haryana. Matter was heard and thereafter orders
dated 9.11.2009 were passed requesting the Juvenile Justice
Committee of Judges of this Court to monitor the action plan submitted
by the respondents. We would like to record here that insofar as CWP
No.15317 of 2007 is concerned, that writ petition was disposed of vide
orders dated July 13, 2012. We reproduce the said order in its
entirety:
“Reply filed in Court on behalf of respondent No.3-
State of Haryana is taken on record.
This writ petition has been filed in public interest
drawing the attention of the Court to the delay being
caused in disposal of the cases wherein children in conflict
with law are arrayed as accused and further bad conditions
of the Juvenile Homes etc. were also brought to the notice
of this Court.
Notice of motion was issued on 1.10.2007. Thereafter,
many orders were passed directing the States to take
remedial steps to improve in such homes and the
respondents were also directed to constitute the Juvenile
Justice Boards (hereinafter referred to as “the Boards”)
as per the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to
as “the Act”). Many steps were also suggested to upgrade
the living conditions in the Juvenile Homes, as is evident
from the order passed on 21.3.2012, which reads as
under:-
“Having perused the various orders passed by
79
this Court from time to time in this Public
Interest Litigation, we are of the considered
view that the following issues arise for
determination by this Court:-
1. Whether under Section 14 of the
Juvenile Justice (Care and Protection
of Children) Act, 2000 and in view of the
decision of the Apex Court in Sheela
Barase (II) and others vs. UOI and
others, AIR 1986 SC 1773,
inquiries/cases which are pending
before the Juvenile Justice Boards for
more than the stipulated period of 4
months would, by implication of law,
stand closed?
2. The steps that are required to be taken
to activate the children homes, juvenile
homes, observation homes, etc. and how
best to make the required amenities and
facilities available to the juveniles who
are sent to such homes.
3. The constitution/composition and
functioning of the Juvenile Justice
Boards in the States of Punjab and
Haryana and Union Territory of
Chandigarh.
It is our considered view that if the aforesaid
three issues are to be addressed by the Court,
the issues arising in the writ petition as well as
80
the issues emanating from the various orders
passed by this Court from time to time would
stand adequately answered. We, therefore, make
it clear that we propose to confine the scope of
this Public Interest Litigation to the aforesaid
three issues and no further.”
In response to the aforesaid order, affidavits have been
filed by the States of Punjab and Haryana, respectively, wherein it
is stated that constitution of the Boards in most of the districts
is complete and wherever members are needed to be appointed
the appointment shall be made with promptitude. It is also brought
to the notice of the Court that efforts have been made to
upgrade the living conditions in the Juvenile Homes and further
that attempt shall made to see that the cases of juveniles are
disposed of expeditiously as per provisions of the Act.
In the circumstances, we dispose of this writ petition by
issuing directions to all the Presiding Officers of the Boards in
both the States of Punjab and Haryana and Union Territory of
Chandigarh to make an endeavour to dispose of the cases
involving the children in conflict with law within four months as
per the provisions of Section 14 of the Act. We further direct
Secretaries of the Legal Services Authorities in the States of
Punjab and Haryana and Union Territory of Chandigarh to ensure
that either they or their representatives shall visit the
Juvenile/Observation Homes twice a month. If any deficiency is
found, the same shall be brought to the notice of the concerned
District Magistrate/competent authority which shall be remedied
within a week thereafter. Both the States of Punjab and Haryana
and Union Territory of Chandigarh are also directed to complete
81
the constitution of the Boards where the same have still not been
constituted within three weeks from today. In case action is not
taken by the Secretaries or the representative of the three Legal
Services Authorities, the matter be brought to the notice of
Executive Chairman of the respective Legal Services Authority
who shall take steps to ensure proper living conditions in the
Juvenile/Observation Homes.”
Some interim orders have been passed in these writ petitions and in
compliance thereof half-hearted measures have been taken by the
respondents. The slow and lackadaisical approach of the authorities in
this behalf has been commented upon by the Court from time to time.
In the orders dated 14.12.2012, it was, inter alia, noted as follows:
“Though, in these petitions common issues are raised,
which pertain to various kinds of rights of the children with
emphasis on child labour that is rampant in the States of Punjab
and Haryana as well as UT, Chandigarh, CWP No.2693 of 2010 is
treated as lead case.
The Child Labour (Prohibition and Regulation) Act, 1986
(for short the, 1986 Act) was passed in the year 1986 i.e. more
than 25 years ago, which imposes a complete ban on the
employment of children upto the age of 14 years. Even today, the
reality shows otherwise. Thereafter, in the year 2005, The
Commissions for Protection of Child Rights (CPCR) Act 2005 (for
short, the 2005 Act) was passed and the main purpose of this
Act, is to ensure enforcement of various rights guaranteed to
children under the Constitution of India and other laws framed by
the Legislature. It, inter alia, provides for constitution of National
Commission as well as State Commissions and Courts for
providing speedy trial of offences against children or the violation
82
of child rights and all incidental connected matters.
The National Commission for Protection of Child Rights
(NCPCR) was constituted by the Central Government under
Section 3 of the 2005 Act. State Governments are obligatory to
constitute similar State Commissions for protection of child rights
under Section 17 of the 2005 Act.
It is an accepted position that without the constitution of
State Commissions, there cannot be proper enforcement of the
rights of the children. Functions and powers of the Commissions
are given in Section 13 of the Act, which reads as under:-
“13. (1) The Commission shall perform all or any of
the following functions, namely:-
(a) examine and review the safeguards provided by
or under any law for the time being in force for the
protection of child rights and recommend measures
for their effective implementation;
(b) present to the Central Government, annually and
at such other intervals, as the Commission may
deem fit, reports upon the working of those
safeguards;
(c) inquire into violation of child rights and
recommend initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of
rights of children affected by terrorism, communal
violence, riots, natural disaster, domestic violence,
HIV /AIDS, trafficking: maltreatment, torture and
exploitation, pornography and prostitution and
recommend appropriate remedial measures;.
(e) look into the matters relating to children in need
83
of special care and protection including children in
distress, marginalized and disadvantaged children,
children in conflict with law, juveniles, children
without family and children of prisoners and
recommend appropriate remedial measures;
(j) study treaties and other international instruments
and undertake periodical review of existing policies,
programmes and other activities on child rights and
make recommendations for their effective
implementation in the best interest of children; (g)
undertake and promote research in the field of child
rights;
(h) spread child rights literacy among various
sections of the society and promote awareness of
the safeguards available for protection of these
rights through publications, the media, seminars and
other available means; (I) inspect or cause to be
inspected any juvenile custodial home, or any other
place of residence or institution meant for children,
under the control of the Central Government or any
State Government or any other authority, including
any institution run by a social organisation; where
children are detained or lodged for the purpose of
treatment, reformation or protection and take up
with these authorities for remedial action, if found
necessary;
(j) inquire into complaints and take suo motu notice
of matters relating to,-
(i) deprivation and violation of child rights;-
84
(il) non-implementation of laws providing for
protection and development of children;
(iil) non-compliance of policy decisions, guidelines or
instructions aimed at, mitigating hardships to and
ensuring welfare of the children and to provide relief
to such children, or take up the issues arising out of
such matters with appropriate authorities; and
(k) such other functions as it may consider
necessary for the promotion of child rights and any
other matter incidental to the above functions.
(2) The Commission shall not inquire into any
matter which is pending before a State Commission
or any other Commission duly constituted under
any law for the time being in force.”
This provision itself demonstrates the need and
importance of the National Commission as well as the State
Commissions. Though the Act was passed in the year 2005 and
going by this, in letter and spirit, such Commissions were to be
constituted immediately, it is a matter of regret that for waking up
the State Governments from slumbers, such PILs are required to
be filed to remind them of their statutory duties. Even after
various orders passed in these petitions, the State Commissions
are yet to be constituted by the State of Haryana as well as the
UT, Chandigarh.
The State of Punjab constituted the Commission on
15.4.2011, but it has yet to start functioning. In the order dated
18.10.2012, directions were given to nominate the Members of the
Commission, as by that time, only Chairman of the Commission
was appointed. Three Members have been appointed just three
85
days before i.e. on 11.12.2012.
Insofar as, the State of Haryana is concerned, the
Cabinet took a decision only a couple of days before i.e. on
12.12.2012, approving the constitution of such a Commission.
Though, on the last date of hearing, the statement was made that
the Commission will be constituted with all paraphernalia and
infrastructures within a period of two months, even today,
statement is made that the Commission shall be constituted
shortly, without specifying any time bound period therefor. The
snail's pace at which things are going on, needs strong
condemnation.
The state of affairs in the UT, Chandigarh is no better
and gives a classical example of red tapism. On 18.10.2012,
statement was made by learned counsel for the UT, Chandigarh
that the proposal of constitution of the Commission has been
sent to the Central Government for its approval. Learned counsel
for the Central Government had immediately responded, which is
also recorded in the order (that the powers in this behalf have
already been delegated to the Administrator, UT, Chandigarh and
therefore, no formal approval of the Central Government is
required by the UT, Chandigarh). On this statement, direction was
given to the UT, Chandigarh to take steps for the constitution of
the Commission immediately. However, things are where these
were on the last date of hearing. Mr. Sanjay Kaushal, learned
counsel for the UT, Chandigarh, has today placed on record a
communication dated 12.11.2012, which is addressed to the
Secretary, Government of India, Ministry of Home Affairs, New
Delhi. In this communication, proposal for creation of posts for
the constitution of Commission is mentioned with the stipulation
86
that it has financial implications to the tune of Rs.76.35 lacs per
year and the Government of India is asked to accord necessary
approval for creation of the posts mentioned in this letter. Thus,
for want of financial approval, the matter is at standstill and is not
making any further headway.
If any such approval is required, we direct the Central
Government to give the necessary approval within one week from
today. Within one month thereafter, the UT, Chandigarh shall also
set up its Commission with the appointments of the Chairman
and Members and shall also take further steps for appointment of
other officials as required under the proposal.
It hardly needs emphasis that the Chairman and Members
of these Commissions are to be appointed in accordance with the
provisions of the 2005 Act and the Rules framed thereunder.
We have heard Mr. Hemant Goswami, who is petitioner
No.1 in CWP No.2693 of 2010 and Mr. Anil Malhotra, Advocate,
who is the counsel for NCPCR in CWP No.13137 of 2012, on
various issues raised in these petitions. They have made their
detailed submissions and have also given suggestions for proper
implementation of the Child Labour (Prohibition and Regulation)
Act, 1986 as well as The Commissions for Protection of Child
Rights (CPCR) Act 2005. It is also submitted that these Acts are
to be implemented and enforced in tune with The Juvenile
Justice (Care and Protection of Children) Act, 2000 and The
Right of Children to Free and Compulsory Education Act, 2009.
Comprehensive directions may require in this behalf on which Mr.
Hemant Goswami and Mr. Anil Malhotra have given their
suggestions. We have requested them to give written synopsis
containing those suggestions within two weeks with advance copy
87
to the counsel for the respondents.
It hardly needs to be reminded to the respondents that
these petitions are not to be treated as adversial litigation. On
the contrary, full cooperation and positive attitude of the States
of Punjab and Haryana as well as the UT, Chandigarh is needed
and we hope that the respondents would exhibit such attitude. It
is, keeping in view this spirit, we have requested learned counsel
for the States of Punjab and Haryana as well as the UT,
Chandigarh also to give their suggestions.”

10. Pursuant to the aforesaid orders, all the parties have given
their suggestions. Counsel for the parties were also heard in detail on
those suggestions.

Re: Child Labour:

11. Under the J.J. Act of 2000, a person up to the age of 18

years is treated as ‘child’. Same age is prescribed under the CPCR Act,
2005 as well. However when it comes to prohibition of Child Labour
Act of 1986, the definition of child means a person who has not
completed his fourteenth year of age. Thus, virtually there is no
prohibition of child labour in case of children who are more than 14
years but less than 18 years of age. Furthermore, this Act focuses on
the prohibition of employment of children in certain specified work
places, which are harmful for the children, and there is no absolute
prohibition. At the same time, now, RTE Act creates an obligation on
the part of State to provide free and compulsory education to all
children aged between 6 to 14 years. This is now the constitutional
obligation as well. As right to education is made fundamental, it would,
88
therefore, follow that as far as children up to the age of 14 years are
concerned, since they are to be provided free education, there would
be absolute ban/bar and prohibition from child labour.
12. Thus, we are of the opinion that provisions contained in
Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986
authorising the use of child labour in so called non-hazardous
industries would offend the aforesaid constitutional mandate and would
no longer be good law after the passing of RTE Act and the
amendment in the Constitution by inserting Article 21A. We would like
to reproduce the following observations of the apex court in the case of
Unni Krishnan, J.P. and others vs. State of A.P. and others,
[1993(1) SCC 645]:
“1. The citizens of this country have a fundamental right to
education. The said right flows from Article 21. This right is,
however, not an absolute right. Its content and parameters
have to be determined in the light of Articles 45 and 41. In
other words every child / citizen of this country has a right to
free education until he completes the age of fourteen years.
Thereafter his right to education is subject to the limits of
economic capacity and development of the State.”

13. We, thus, hold that there shall be total ban on the
employment of children up to the age of 14 years, be it hazardous or
non-hazardous industries. This would, however, be subject to the
exception that child should only be allowed to work with the family in
only those trades/occupations notified by the Child Labour Technical
Advisory Committee as constituted under Section 5 of the Act of 1986
and for the sole purpose of learning a new trade/craftsmanship or
vocation. This exemption too can only be permitted if the same is not
89
in violation of Article 21-A and provisions of Article 51A(k) of the
Constitution of India, i.e., where the child is attending regular school to
get education. In case the child is not studying in a school, this
exemption cannot be claimed even by the family as it affects rights of
the child as protected by the Constitution of India especially those
under Article 21 of the Constitution.

14. The thorny issue, however, is about the “child labour” in case
of children who are above 14 years of age. It is argued by Mr.Goswami
that though the Child Labour Abolition Act, 1986 imposed no bar on
the employment of such a child as labour, non-grant of protection to
the children between 14-18 years of age creates certain contradictions,
namely:
(i) Till the attainment of age of majority, no child can
consent to any contract, even an employment
contract.
ii) All employment contracts, whether verbally or in
writing or implied would be void ab initio if entered
with any person under the age of 18 years. The will
of the person below 18 years of age can be said to
be missing.
(iii) Any employment of labour which is without the will
of the person employed attracts provisions of
Section 374 of the Indian Penal Code, which reads, -
“Section 374: whoever unlawfully compels any
person to labour against the will of that person,
shall be punished with imprisonment of either
description for a term which may extend to one
year, or with both.”
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(iv) Our nation has signed and ratified (on 11th
December, 1992) the “Convention on the Rights of
the Child”. Article 1 thereof says, - “Article 1: for
the purposes of the present Convention, a child
means every human being below the age of
eighteen years unless under the law applicable to
the child, majority is attained earlier.” Thus, as per
international commitment also, the Union
Government agrees to accept a person up to the
age of 18 years as ‘child’.
(v) As per J.J. Act, 2000 which was enacted after the
ratification of the “Convention on the Rights of the
Child” by our Union Government, the child under the
legislation is defined as, “Section 2(k): “juvenile” or
“child” means a person who has not completed
eighteenth year of age.
Highlighting the aforesaid contradictions, it is argued by Mr. Hemant
Goswami, who appeared in person, that employment of any person
under 18 years of age should be treated as “prohibited and forced
labour” attracting the provisions of Section 374 of the Indian Penal
Code, as by that time such a person has not attained majority and is
incapable of giving any consent.

15. We are of the opinion that whenever a child above the age
of 14 years is forced to work, it has to be trearted as an offence under
Section 374 IPC and it is to be dealt with sternly. The problem,
however, may arise when a child between 14–18 years of age is
committed to labour by the parents willingly and with their consent. It
may be difficult to prohibit the same. Having regard to the age of the
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child fixed under the Child Labour Abolition Act, we are of the opinion
that in such circumstances, the case can still be brought before the
State Commission formed under the CPCR Act, 2005 which has the
jurisdiction to look into the matters of violation of child rights. The task
of this Commission is akin to that of Human Rights Commission with
the only difference that the State Commissions, established under the
CPCR Act, would be dealing with the human rights of children. We,
thus, hold that as and when any matter is brought to the notice of the
State Commission (or for that matter suo motu cognizance taken by
the State Commission) involving violation of child rights even where a
child above the age of 14 year is employed, the State Commission
under the CPCR Act will have the jurisdiction to deal with the same and
pass necessary directions.

16. The next area which needs attention in this case is to deal
with the violators firmly so that it acts as deterrent. The violators have
to be dealt with effectively and in a speedy manner. Therefore,
wherever violations are found, cases under the provisions of Part-IV of
the Child Labour Prohibition Act have to be registered without delay in
each and every case. In such cases, the enforcement agencies shall
also always keep in mind the provisions of Section 374 IPC and,
wherever required, this provision would be added in all cases of such
violations. The trial Courts dealing with such offences would keep in
mind the provisions of Section 374-A IPC while awarding compensation
to the victims. Whenever a victim is convicted by the trial Court and he
files appeal there-against, ordinarily, the appeal be admitted only if
penalty/compensation is deposited by the convict in the Court so that
even if it is felt that the amount of compensation is not to be realised
immediately, interest on such deposits, at least, is paid to the
92
account/victimised child. Wherever the officers fail or neglect to take
effective action immediately, apart from taking necessary disciplinary
action, action can also be taken, in appropriate cases, under Section
166 IPC against such officers.

17. There is also a need for rehabilitation of such children in

the society. Mr. Goswami has given the following suggestions in this
behalf:

“(a) Moving out the child from the exploitative environment:

the rescued child must not be left alone and should not
be sent back to parents and/or to the same
environment where he/she is again likely to be
exploited. It is the duty of the State to ensure the
availability of suitable facility/hostel where the child can
stay.
(b) Ensuring Education: As per the provisions of “The Right
of Children to Free and Compulsory Education Act or
Right to Education Act (RTE)” and the provisions of
Article 21A of the Constitution, the State must ensure
that the rescued Child is immediately admitted in the
age-appropriate class of a good school under the
provisions of RTE Act. The first preference should be
“Private Aided Schools” where there are existing
vacancies in the age-appropriate class. The State has
to monitor and ensure that the child is comfortable in
his new surroundings and all what may be necessary is
provided to the child to adapt to the new surroundings.
Suggestion is in agreement with the provisions
93
of “The Right of Children to free and Compulsory
Education Act or Right to Education Act (RTE)” and the
provisions of Article 21A of the Constitution.
(c) ENSURING FOOD/MEALS/CLOTHES/ NECESSITIES:
The State is running many incentive schemes for outof-
school children, like the mid-day scheme and many
other under Sarv Siksha Abhiyaan, etc. the State must
ensure that the recovered Child is provided healthy food
for sustenance and all basic necessities.
The proposal is in line with the proposal of the
Government of India under the “National Charter for
Children, 2003,” the “WHO Child Growth Standards
(Acta Paediatrica, International Journal of Paediatrics,
Volume 95 April 2006 Supplement 450, ISSN 0803-
5326)” and the vision of the Government under various
statutory schemes.
(D) PENALTY/COMPENSATION SHOULD BE FOR THE
BENEFIT OF THE CHILD: A sum of Rs.25,000/- or
more (suggestion is 1 lakh rupees, in view of the change
in rupee value between 1996 and 2012) should be
recovered from the violator as compensation in each
and every case of violation detected and under the
supervision of the “Commission for Protection of Child
Rights” the same should be deposited in the name of
the child as a monthly interest bearing “Fixed Deposit”
and after attaining age of majority, or after employment
of the child on attaining the age of majority, the said
amount should be deposited in a Public Provident Fund
(PPF) account in the name of the young adult, to be
94
maintained by him/her in future, but with a 5 years
lock-in period, or to be utilised for payment of fee for
any form of higher education supervised by the child
protection commission. In M.C. Mehta vs. State of
Tamil Nadu [(1996) 6 SCC 756] after referring to how
impracticable and unrealistic the distinction between
hazardous and non-hazardous processes was, the
Supreme Court directed that either employment be
given to an adult member of the family so that the child
can be taken out of employment or, as an alternative, a
corpus of Rs.25,000/- be formed by the offending
employer and out of this corpus a monthly income be
paid to the family. The Supreme Court further directed
that on discontinuation of employment, the child should
be given free education in a suitable institution.
(e) REGULAR MONITORING: the Child Protection
Commission should regularly monitor the rehabilitation
of the rescued children.”

We find these suggestions to be meritorious as they are backed with

proper rationale and, therefore, these be treated as our directions.

18. Coming to the petition of NCPCR, four reliefs are claimed

in this petition which are dealt with hereunder.

First Relief - Constitution of State Commissions for protection of child

rights.

19. As pointed out above, both the States have already

95
constituted the State Commissions. The Chairmen as well as Members
to the State Commissions are, however, yet to be appointed. Sections
17 and 18 of the CPCR Act are relevant in this behalf. As per Subsection
(2) of Section 17, State Commission is to consist of a
Chairperson and six Members with qualifications prescribed therein.
This sub-section(2) of Section 17 reads as under:-
“(2) The State Commissions shall consist of the following
Members, namely:-
(a) a Chairperson who is a person of eminence and
has done outstanding work for promoting the
welfare of children; and
(b) six Members, out of which at least two shall be
women, from the following fields, to be
appointed by the State Government from
amongst persons of eminence, ability, integrity,
standing and experience in,-
(i) education;
(ii) child health, care, welfare or child
development;
(iii) juvenile justice or care of neglected or
marginalized children or children with
disabilities;
(iv) elimination of child labour or children in
distress;
(v) child psychology or sociology; and
(vi) laws relating to children.
3. The headquarter of the State Commission shall
be at such place as the State Government may, by
notification, specify.
96
Section 18 of the CPCR Act provides for appointment of Chairperson
and other Members and power in this behalf is given to the State
Government. Proviso to Section 18 stipulates that Chairperson shall be
appointed on the recommendations of a three Member Selection
Committee constituted by the State Government under the
Chairmanship of Minister in-charge of the Department dealing with
children. Submission of the learned counsel for NCPCR was that
selection of Chairperson and six Members of the State Commissions
should be only after consultation with the High Court of Punjab &
Haryana by the respective State Governments. Though the statutory
provisions, as noted above, do not provide for such consultation, the
aforesaid plea is founded by the petitioner on the basis of judgment of
the Supreme Court in Namit Sharma vs. Union of India [JT 2012(9)
SC 196]. It is the submission that keeping in view the functions of the
State Commissions prescribed under Section 13 of the CPCR Act which
require skilled expertise, experience of judicial functioning, legal
acumen for study and interpretation of various laws pertaining to child
rights besides judicial understanding to take up complaints or suo
motu notice for protection of interests and welfare of children as also
other remedies for vindication of child rights, such functions/powers
can be best exercised by the persons who have been the Judges of the
High Court, particularly, having regard to the circumstances requiring
emergent relief. It is also argued that perusal of Section 14 of the
CPCR Act, which deals with powers relating to enquiries to be
conducted by the State Commissions and Section 15 of the said Act,
which authorizes State Commissions to take certain steps after
enquiry, would clearly necessitate that the Chairpersons heading the
Commissions must have judicial expertise to exercise the quasi judicial
functions so prescribed. Insofar as constitution of State Commission by
97
U.T., Chandigarh is concerned, Mr. Kaushal, learned Senior Standing
Counsel for U.T., Chandigarh has submitted that the Administrator,
U.T., Chandigarh has already approved the U.T. Commission for
Protection of Civil Rights and steps are afoot for getting concurrence of
Ministry of Home Affairs.

20. It cannot be disputed that Section 13 of the CPCR Act

encompasses wide range of powers, viz., to take suo motu cognizance
of complaints against abuse of child rights as also against nonadherence
to laws for protection and development of children, order
inquiry into violation of child rights and recommend initiation of legal
proceedings, examine/review safeguards for protection of child rights
and suggest measures for their effective implementation, examine
factors infringing rights of children, look into the matters of special care
for all classes and categories of children, study legal instruments and
international treaties, spread child rights literacy, conduct inspection of
children homes, etc. In order to discharge such functions, the
Chairperson needs to have legal expertise, judicial wisdom and
experience in the higher judicial echelons. The functions are clearly
quasi judicial in nature. In similar context, dealing with appointment of
Chief Information Commissioner under the Right to Information Act,
2005, the Supreme Court in Namit Sharma (supra), after examining
the functions and duties which are to be performed by the Chief
Information Commissioner and Members of the Commission, held that
those functions are of quasi judicial nature and, therefore, the Chief
Information Commissioner should be a person of judicial mind,
expertise and experience in that field. Though the similar provisions
for appointment were not declared as unconstitutional, the Court
deemed it appropriate to read down the said provision to save it from
98
the vice of unconstitutionality by recommending that the competent
authority should prefer a person who is or has been a Judge of the
High Court for appointment as Information Commissioner. The Chief
Information Commissioner at the Centre or State level should normally
be the Chief Justice of the High Court or Judge of the Supreme Court of
India. Following discussion in this behalf needs to be quoted:
“102. The independence of judiciary stricto sensu applies to the
Court system. Thus, by necessary implication, it would also
apply to the tribunals whose functioning is quasi-judicial and
akin to the court system. The entire administration of justice
system has to be so independent and managed by persons of
legal acumen, expertise and experience that the persons
demanding justice must not only receive justice, but should also
have the faith that justice would be done.
103. The above detailed analysis leads to an ad libitum
conclusion that under the provisions and scheme of the Act of
2005, the persons eligible for appointment should be of public
eminence, with knowledge and experience in the specified fields
and should preferably have a judicial background. They should
possess judicial acumen and experience to fairly and effectively
deal with the intricate questions of law that would come up for
determination before the Commission, in its day-to-day working.
The Commission satisfies abecedarians of a judicial tribunal
which has the trappings of a court. It will serve the ends of
justice better, if the Information Commission was manned by
persons of legal expertise and with adequate experience in the
field of adjudication. We may further clarify that such judicial
members could work individually or in Benches of two, one being
a judicial member while the other being a qualified person from
99
the specified fields to be called an expert member. Thus, in
order to satisfy the test of constitutionality, we will have to read
into Section 12(5) of the Act that the expression ‘knowledge
and experience’ includes basic degree in that field and
experience gained thereafter and secondly that legally qualified,
trained and experienced persons would better administer justice
to the people, particularly when they are expected to undertake
an adjudicatory process which involves critical legal questions
and niceties of law. Such appreciation and application of legal
principles is a sine qua non to the determinative functioning of
the Commission as it can tilt the balance of justice either way.
Malcolm Gladwell said, “the key to good decision making is not
knowledge. It is understanding. We are swimming in the former.
We are lacking in the latter”. The requirement of a judicial mind
for manning the judicial tribunal is a well accepted discipline in
all the major international jurisdictions with hardly with any
exceptions. Even if the intention is to not only appoint people
with judicial background and expertise, then the most suitable
and practical resolution would be that a ‘judicial member’ and
an ‘expert member’ from other specified fields should
constitute a Bench and perform the functions in accordance
with the provisions of the Act of 2005. Such an approach would
further the mandate of the statute by resolving the legal issues
as well as other serious issues like an inbuilt conflict between
the Right to Privacy and Right to Information while applying the
balancing principle and other incidental controversies. We would
clarify that participation by qualified persons from other
specified fields would be a positive contribution in attainment of
the proper administration of justice as well as the object of the
100
Act of 2005. Such an approach would help to withstand the
challenge to the constitutionality of Section 12(5).
104. As a natural sequel to the above, the question that comes
up for consideration is as to what procedure should be adopted
to make appointments to this august body. Section 12(3) states
about the High- powered Committee, which has to recommend
the names for appointment to the post of Chief Information
Commissioner and Information Commissioners to the President.
However, this Section, and any other provision for that matter,
is entirely silent as to what procedure for appointment should be
followed by this High Powered Committee. Once we have held
that it is a judicial tribunal having the essential trappings of a
court, then it must, as an irresistible corollary, follow that the
appointments to this august body are made in consultation with
the judiciary. In the event, the Government is of the opinion and
desires to appoint not only judicial members but also experts
from other fields to the Commission in terms of Section 12(5) of
the Act of 2005, then it may do so, however, subject to the
riders stated in this judgment. To ensure judicial independence,
effective adjudicatory process and public confidence in the
administration of justice by the Commission, it would be
necessary that the Commission is required to work in Benches.
The Bench should consist of one judicial member and the other
member from the specified fields in terms of Section 12(5) of
the Act of 2005. It will be incumbent and in conformity with the
scheme of the Act that the appointments to the post of judicial
member are made ‘in consultation’ with the Chief Justice of
India in case of Chief Information Commissioner and members of
the Central Information Commission and the Chief Justices of
101
the High Courts of the respective States, in case of the State
Chief Information Commissioner and State Information
Commissioners of that State Commission. In the case of
appointment of members to the respective Commissions from
other specified fields, the DoPT in the Centre and the
concerned Ministry in the States should prepare a panel, after
due publicity, empanelling the names proposed at least three
times the number of vacancies existing in the Commission. Such
panel should be prepared on a rational basis, and should
inevitably form part of the records. The names so empanelled,
with the relevant record should be placed before the said High
Powered Committee. In furtherance to the recommendations of
the High Powered Committee, appointments to the Central and
State Information Commissions should be made by the
competent authority. Empanelment by the DoPT and other
competent authority has to be carried on the basis of a rational
criteria, which should be duly reflected by recording of
appropriate reasons. The advertisement issued by such agency
should not be restricted to any particular class of persons
stated under Section 12(5), but must cover persons from all
fields. Complete information, material and comparative data of
the empanelled persons should be made available to the High
Powered Committee. Needless to mention that the High
Powered Committee itself has to adopt a fair and transparent
process for consideration of the empanelled persons for its final
recommendation. This approach, is in no way innovative but is
merely derivative of the mandate and procedure stated by this
Court in the case of L. Chandra Kumar (supra) wherein the
Court dealt with similar issues with regard to constitution of the
102
Central Administrative Tribunal. All concerned are expected to
keep in mind that the Institution is more important than an
individual. Thus, all must do what is expected to be done in the
interest of the institution and enhancing the public confidence.
A three Judge Bench of this Court in the case of Centre for PIL
and Anr. v. Union of India & Anr. [(2011) 4 SCC 1] had also
adopted a similar approach and with respect we reiterate the
same.
105. Giving effect to the above scheme would not
only further the cause of the Act but would attain greater
efficiency, and accuracy in the decision- making process, which
in turn would serve the larger public purpose. It shall also ensure
greater and more effective access to information, which would
result in making the invocation of right to information more
objective and meaningful.
106. For the elaborate discussion and reasons afore-recorded,
we pass the following order and directions:
1. The writ petition is partly allowed.
2. The provisions of Sections 12(5) and 15(5) of the Act
of 2005 are held to be constitutionally valid, but with the
rider that, to give it a meaningful and purposive
interpretation, it is necessary for the Court to ‘read
into’ these provisions some aspects without which
these provisions are bound to offend the doctrine of
equality. Thus, we hold and declare that the expression
‘knowledge and experience’ appearing in these
provisions would mean and include a basic degree in the
respective field and the experience gained thereafter.
Further, without any peradventure and veritably, we
103
state that appointments of legally qualified, judicially
trained and experienced persons would certainly
manifest in more effective serving of the ends of justice
as well as ensuring better administration of justice by
the Commission. It would render the adjudicatory
process which involves critical legal questions and
nuances of law, more adherent to justice and shall
enhance the public confidence in the working of the
Commission. This is the obvious interpretation of the
language of these provisions and, in fact, is the essence
thereof.
3. As opposed to declaring the provisions of Section
12(6) and 15(6) unconstitutional, we would prefer to
read these provisions as having effect ‘postappointment’.
In other words, cessation/termination of
holding of office of profit, pursuing any profession or
carrying any business is a condition precedent to the
appointment of a person as Chief Information
Commissioner or Information Commissioner at the
Centre or State levels.
4. There is an absolute necessity for the legislature to
reword or amend the provisions of Section 12(5), 12(6)
and 15(5), 15(6) of the Act. We observe and hope that
these provisions would be amended at the earliest by
the legislature to avoid any ambiguity or impracticability
and to make it in consonance with the constitutional
mandates.
5. We also direct that the Central Government and/or
the competent authority shall frame all practice and
104
procedure related rules to make working of the
Information Commissions effective and in consonance
with the basic rule of law. Such rules should be framed
with particular reference to Section 27 and 28 of the
Act within a period of six months from today.
6. We are of the considered view that it is an
unquestionable proposition of law that the Commission
is a ‘judicial tribunal’ performing functions of ‘judicial’
as well as ‘quasi-judicial’ nature and having the
trappings of a Court. It is an important cog and is part of
the court attached system of administration of justice,
unlike a ministerial tribunal which is more influenced and
controlled and performs functions akin to the machinery
of administration.
7. It will be just, fair and proper that the first appellate
authority (i.e. the senior officers to be nominated in
terms of Section 5 of the Act of 2005) preferably should
be the persons possessing a degree in law or having
adequate knowledge and experience in the field of law.
8. The Information Commissions at the respective
levels shall henceforth work in Benches of two
members each. One of them being a ‘judicial member’,
while the other an ‘expert member’. The judicial
member should be a person possessing a degree in law,
having a judicially trained mind and experience in
performing judicial functions. A law officer or a lawyer
may also be eligible provided he is a person who has
practiced law at least for a period of twenty years as
on the date of the advertisement. Such lawyer should
105
also have experience in social work. We are of the
considered view that the competent authority should
prefer a person who is or has been a Judge of the High
Court for appointment as Information Commissioners.
Chief Information Commissioner at the Centre or State
level shall only be a person who is or has been a Chief
Justice of the High Court or a Judge of the Supreme
Court of India.
9. The appointment of the judicial members to any of
these posts shall be made ‘in consultation’ with the
Chief Justice of India and Chief Justices of the High
Courts of the respective States, as the case may be.
10. The appointment of the Information Commissioners
at both levels should be made from amongst the
persons empanelled by the DoPT in the case of Centre
and the concerned Ministry in the case of a State. The
panel has to be prepared upon due advertisement and
on a rational basis as afore- recorded.
11. The panel so prepared by the DoPT or the
concerned Ministry ought to be placed before the Highpowered
Committee in terms of Section 12(3), for final
recommendation to the President of India. Needless to
repeat that the High Powered Committee at the Centre
and the State levels is expected to adopt a fair and
transparent method of recommending the names for
appointment to the competent authority.
12. The selection process should be commenced at
least three months prior to the occurrence of vacancy.
13. This judgment shall have effect only prospectively.
106
14. Under the scheme of the Act of 2005, it is clear that
the orders of the Commissions are subject to judicial
review before the High Court and then before the
Supreme Court of India. In terms of Article 141 of the
Constitution, the judgments of the Supreme Court are
law of the land and are binding on all courts and
tribunals. Thus, it is abundantly clear that the
Information Commission is bound by the law of
precedence, i.e., judgments of the High Court and the
Supreme Court of India. In order to maintain judicial
discipline and consistency in the functioning of the
Commission, we direct that the Commission shall give
appropriate attention to the doctrine of precedence and
shall not overlook the judgments of the courts dealing
with the subject and principles applicable, in a given
case.
It is not only the higher court’s judgments that are binding
precedents for the Information Commission, but even those of
the larger Benches of the Commission should be given due
acceptance and enforcement by the smaller Benches of the
Commission. The rule of precedence is equally applicable to
intra appeals or references in the hierarchy of the Commission.”

21. The response of State of Haryana to the suggestions is

that as per proviso to Section 18, a Committee has been constituted
under the Chairmanship of the Minister in-charge of the Department
who shall appoint the Chairperson. However, no specific plea is made
about the suggestions given above having regard to the mandate of
Namit Sharma (supra). We direct that the Chairperson should be a
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person who has been Judge of the High Court.

22. Insofar as appointments of six Members are concerned, it

is clear that no procedure or guidelines have been stipulated in Section
17 or Section 18 of the CPCR Act. The petitioner, thus, suggests that a
High-Powered Selection Committee should be constituted by the State
Governments headed by retired Judge of the High Court as
Chairperson along with suitable Members to make recommendations
for appointment of the remaining six Members of the State
Commissions. The process of selection should entail issuance of public
advertisement for inviting applications, interviewing eligible candidates
and recommending a penal of names of suitable persons. The Union
Territory, Chandigarh is directed to speed up its actions for setting up
State Commission. The States of Punjab and Haryana as well as U.T.,
Chandigarh shall also ensure that these State Commissions become
fully functional by appointing Chairpersons and Members in the manner
as highlighted above.

23. In order to have transparency in the system and fair

chance of consideration to all eligible persons, the selection should be
after issuing public advertisement for inviting applications and after
interview/discussion with the eligible candidates. It would be
appropriate if the rules are framed containing the constitution of the
Selection Committee for appointment of these Members and also
stipulating the procedure for appointment. Till that is done, we direct
that the Committee which is constituted for the appointment of
Chairperson as per proviso to Section 18 of the CPCR Act shall make
appointment of the six Members of the State Commission as well. In
the alternative, the State Governments can constitute the Selection
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Committee on the lines contained in Rule 91 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 (for short ‘J.J. Rules’).

Second Relief - Mandatory Registration of all Children Homes:

24. It is the submission of the petitioner that for the effective

implementation of the provisions of Section 34 of the J.J. Act, 2000,
the registration of Children Homes should be made compulsory. The
respondents concur with the same and the stand taken by them is that
there is necessity of mandatory registration of these children homes
and taking action against those Children Homes which are not
registered. It is also stated that no Government grant or financial aid
or any other benefit be given to such Children Homes which are not
registered. It hardly needs to be emphasised that to check
malpractices in various Children Homes, which have surfaced over a
period of time, it becomes necessary to make the registration of such
children homes not only mandatory but there has to be direct
compliance of this provision. There is need to create awareness about
this as well for which requisite steps should be taken by the
respondents. In order to ensure that these Children Homes function
properly, the State Commissions should undertake the job of
overlooking the functioning of these bodies which is also the power
given to it under Section 13 of the CPCR Act.

Third Relief – Constitution of Selection Committee under Rule

91 of J.J. Rules to make selection of Child Welfare Committee
(Rule 20), Inspection Committee (Rule 63) and Advisory
Boards (Rule 93) under the J.J. Act and Rules:

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25. We find from the replies filed by the States of Punjab and
Haryana as well as U.T., Chandigarh that Committees under the
aforesaid provisions have already been constituted and working in
these States/Union Territory. Apart from constitution of these
Committees, the petitioner has given the following two suggestions:-
“vii. The Inspection Committee must ensure that all
accounts of all privately run homes/institutions are
regularly compulsorily audited by a firm of Chartered
Accountants who should also ensure that proper account
books are regularly maintained of all financial transactions
and all payments are made or received through
cheques/bank drafts with minimal cash payments. The
regularly audited account statement must be sent to the
inspection committee by all privately run
homes/institutions. It is also suggested that SCPCR may
maintain a panel of approved Chartered Accountants at
various district levels through whom these audits of
accounts should be got done for all privately run
institutions/children homes.
vii. The Inspection Committee must ensure that in
accordance with the provisions of Section 3 of the Right
of Children to Free and Compulsory Education Actr, 2009
(RTE Act), every child of the age of 6 to 14 years shall
have a right to free and compulsory education in a
neighbourhood school till completion of elementary
education as also ensure that no form of child labour of
employment of children in any vocation, trade, business
or employment is permitted in any form whatsoever. Any
children home or institution found violating this condition
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should be reported to the SCPCR by the inspection
committee for prosecution and legal action.”

The respondents have stated that they would consider these

suggestions positively. We direct that such an exercise be done within
a period of two months, on the feasibility of accepting these
suggestions by passing necessary orders.

Fourth Relief – Constitution and notification of Children’s

Courts and appointment of Special Public Prosecutors under
Sections 25 and 26 of the CPCR Act.

26. The petitioner submits that for the purpose of conducting

speedy trial of offences relating to violation of child rights, the
provisions incorporated in Section 25 of the CPCR Act require that
State Government may by notification with the concurrence of the
Chief Justice of the High Court, specify a Children’s Court and notify
Special Public Prosecutors for conducting cases in such a court. We find
that States of Punjab and Haryana as well as U.T., Chandigarh have
already designated specific Courts of Sessions to be the Children’s
Courts and also appointed Special Public Prosecutors for conducting
cases in the Children’s Courts. Sensitisation courses are organised as
well from time to time by the Chandigarh Judicial Academy as well as
by the Government at their level. Still, we would impress upon the
Chandigarh Judicial Academy to evolve a module/training programme
for sensitizing all the stake-holders on child rights and also to deal with
the cases in the Children’s Courts.

27. We also issue a direction for creating Children’s Courts

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with specialised infrastructure. Such a court has been established in
District Court, Karkardooma in Delhi with child witness courtroom. We
impress upon the High Court as well as the Governments to establish
similar child witness courtrooms in all court complexes. The concerned
Building Committees of the High Court would look into this aspect and
take steps for establishing child witness courtrooms at the earliest. It
would go a long way for proper deposition of children as witnesses and
even in those cases which are against child offenders.

28. We would like to mention at this stage that recently, the

Parliament has enacted the ‘Protection of Children from Sexual
Offences Act, 2012’. This is an Act to protect children from offences of
sexual assault, sexual harassment and pornography. It becomes
necessary to have effective implementation of this enactment as well.
Under the Act, the National Commission and State Commissions have
been made the designated authorities to monitor the implementation.
Rules, 2012 have also been framed under this Act and Rule-6
prescribes for such monitoring with specific functions assigned to
National Commission and State Commissions. Needless to mention,
National Commission as well as State Commissions shall start
discharging their functions under this Act in a meaningful manner.
Similar duties assigned to National Commission as well as State
Commissions under Section 31 of the Right to Education Act shall also
be diligently discharged.

29. These writ petitions are disposed of with the directions

aforesaid.

( A.K. SIKRI )
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CHIEF JUSTICE
April 09, 2013 (RAKESH KUMAR JAIN)
pc JUDGE

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