Article In Mumbai ... vs The State Of Maharashtra on 7 April, 2017 Bench: A.S. Oka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.182 OF 2010
Article in Mumbai Mirror 24.08.2010
Rescue Sham. .. Petitioner
Vs
The State of Maharashtra. .. Respondent
-
Prof. Dr. Asha Bajpai along with Ms. Savita Shankaran, Amicus Curiae.
Shri P.G.Sawant, AGP for the Respondent No.1.
Shri D.P.Singh for the Respondent No.5.
--
CORAM : A.S. OKA & A.A. SAYED, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 19TH SEPTEMBER 2016
DATE ON WHICH JUDGMENT IS PRONOUNCED : 7TH APRIL 2017
JUDGMENT ( PER A.S. OKA, J )
1. This Suo Motu Public Interest Litigation was initiated on the basis of a report in Daily Mumbai Mirror on 24 th August 2010 about the inhuman condition of the Children's Home by the name Satkarm Balgriha at Shahpur, District - Thane. All the children living in the said Children's Home are mentally challenged. It was reported that recently five children died due to starvation and malnutrition. By an order dated 3rd September 2010, the First Court while initiating a Suo Motu PIL on the basis of the said report, appointed Dr.Asha Bajpai, the then sng 2 pil-182.10 Chairperson of the Centre for Socio-Legal Studies and Human Rights, Tata Institute of Social Sciences (TISS) to assist the Court as Amicus Curiae. The Government Pleader was also ordered to assist the Court. Broadly speaking, the issue concerns the Children's Homes in the State established under Section 34 of the Juvenile Justice (Care and Protection of Children) Act,2000 ( for short "the said Act of 2000) and in particular the Homes for Mentally Deficient Children ( for short "MDC Homes"). There are various orders passed from time to time in this PIL by the First Court and other Benches.
2. The order dated 11th March 2011 notes a factually important aspect that there are 27 such MDC Homes in the State. As on that date, the sanctioned capacity of these Homes was 1685 and as on that date, there were 1094 inmates. It is recorded in the said order that all 27 MDC Homes are being run by NGOs and that by way of grant, the Government gives Rs.1,140/- per month per mentally challenged child, out of which Rs.825/- per month is to be used per child whereas remaining amount of Rs.315/- per month is to be used for the administrative expenses. It is recorded that out of 27 Homes, 6 are exclusively for girls, 14 are exclusively for boys and 7 are for the Children of both the sexes. It is noted in one of the earlier orders that for the other category of children in Children's Homes, grant of Rs.950/- per child per month is being paid by the Government.
sng 3 pil-182.10
3. The issues involved in this Petition will have to be considered in light of the said Act of 2000, the Rules framed thereunder. The said Act of 2005 was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 ( for short "the said Act of 2015"). The said Act of 2015 came into force with effect from 15 th January 2015. We are also dealing with the provisions of the said Act of 2015.
4. Before we go to the issues which survive for consideration, a brief reference to the orders passed by this Court from time to time will have to be made. The order dated 16 th September 2010 deals with the specific issue of the children in Satkarm Balgriha at Shahpur. There is a reference to the various Rules in the Juvenile Justice (Care and Protection of Children) Rules, 2007 ( for short "the Central Rules") framed by the Central Government. The said order deals with the well- being and welfare of 18 children who have been housed either in the Government MDC at Ulhasnagar or at Premdan Sanstha, Airoli. There was a direction issued concerning the said 18 children. The material directions are in Paragraph Nos.10 to 13 of the said order dated 16 th September 2010 which read thus:
"10. From the material which has placed by the State Government on record, it appears that the process of granting recognition to such childrens' homes is flawed. Even a prima facie sng 4 pil-182.10 reading of the application submitted for the recognition of the home in question, shows that it had virtually no credentials or expertise in conducting a children's home for mentally challenged children. A leave and license agreement was produced in support of the application which records that certain premises which were intended as spaces for shops were to be utilised for conducting a children's home. How such an application could have been granted in the first place defies explanation. The affidavit filed by the State states that the procedures under the Act for grant of recognition to childrens' homes in the State are being reconsidered and revamped. We direct that this exercise shall be completed within four weeks' from today and a streamlined procedure for scrutinising and processing applications for the conduct of Children's Homes shall be formulated within that period. The procedure shall take due care to ensure that all applications are carefully scrutinised in order to verify the expertise of the persons involved in submitting the proposal. Norms shall be framed in regard to infrastructural facilities which must be made available, the finances that must be available to run the home, the nature of personnel who would be employed to conduct and manage the home, the availability of medical and psychiatric facilities, the nutritional requirements of the inmates and the provision of vocational training. The state government shall prescribe uniform parameters which must be observed by all such homes.
11. Rule 55 of the Juvenile Justice (Care and Protection of Children) Act 2000 provides for the constitution of a management committee for every institution. The District Protection Officer is to be the chairperson of the management committee. Detailed provisions have been made in Sub-Rule 3 of Rule 55 for the constitution of management committees.
The State Government shall within a period of four weeks from today ensure that Rule 55 is complied with by the constitution of sng 5 pil-182.10 management committees in every children's home in the state of Maharashtra.
12. We also direct that within a period of four weeks from today, the State Government shall take necessary steps for the constitution of advisory boards under Section 62, Child Protection Units under Section 62-A, inspection committees under Rule 63 and District Protection Units under Rule 81. This Court is constrained to issue peremptory directions for compliance within a time schedule in view of the negligence on the part of the State to comply with its mandatory obligations under the Act and rules. Where there is a failure by the State to discharge its mandatory obligations under the law, particularly in a case such as the present where the human rights of those unable to seek access to justice is in issue, the Court has to issue a directions that ensure the implementation of the provisions of the Act in the public interest. We clarify that the pendency of these proceedings shall not restrain the State Government from taking action in pursuance of he show cause notices that have been already issued to the institutions and the child welfare committee. The enquiry shall be completed and reports shall be placed on record by the next date of hearing.
13. The reports in regard to the condition of the children and the steps taken shall be considered by the Court two weeks from today. The proceedings shall stand over for monitoring compliance to 30 September 2010. The Secretary, Women and Child Development Department is directed to ensure that all necessary co-operation including the facility of transport is made available to the Amicus Curiae to visit the institutions and to carry out inspection".
(emphasis added)
sng 6 pil-182.10
5. In Clause 5 of the order dated 30 th September 2010, following directions were issued:-
"5. Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000 Amended in 2006, provides that the Central Government may frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed, they shall apply to the State until the rules in respect of that matter are made by the State Government. It is necessary that the State of Maharashtra frames rules in compliance with the obligations cast by the Juvenile Justice (Care and Protection of Children) Act 2000. The State Government is directed to set the procedure for doing so in motion and in the meantime, in compliance of section 68 of the Act, until the State Rules are framed, the model rules of the Central Government shall apply to the State of Maharashtra".
(emphasis added)
6. Paragraphs 6 and 7 of the order dated 16th October 2010 read thus:
"6. Our attention is also invited to the fact that Rule 46(6) requires every institution to have the services of trained counsellors or collaboration with external agencies such as child guidance centres, psychology and psychiatric departments for specialized and regular individual therapy for juvenile or child in the institution for ensuring proper mental health care. Rule 46(9) also requires that all mental health care plans for children in the institutions shall be produced before the Management Committee set up under Rule 55 every month and before the Child Welfare Committee every quarter.
sng 7 pil-182.10
7. Unfortunately, in reality no such health care, much less mental health care services are provided to the children in such institutions. It, therefore, appears to us that the concerned agency is required to make every institution provide such services of a trained counsellor and a psychiatrist on regular basis. It would, therefore, be necessary for the State Government to issue appropriate instructions to all institutions."
Under the said order, the First Court appointed a Co-
ordination Committee to make appropriate recommendations to the State Government and to coordinate the activities of various Government Agencies and the institutions recognised or to be recognised under the Rules. The Paragraph 13 of the said order gives a direction for constitution of a Co-ordination Committee, which reads thus:
"13. Accordingly, we appoint Dr.Asha Bajpai, Professor, Tata Institute of Social Sciences, as the Chairperson of the Co-ordination Committee. The other members of the Co-ordination Committee will be appointed at the next hearing. The Co-ordination Committee shall also suggest the names of sub- committees for each division of the 7 divisions in the State of Maharashtra, in consultation with Ms.Vandana Krishna, Secretary, Women and Child Development Department."
(emphasis added)
7. Under the order dated 26th October 2010, the Committee was reconstituted in terms of the Paragraph 1 which reads thus:
sng 8 pil-182.10 "1. Having heard Prof. Ms. Asha Bajpai, Amicus Curiae, Ms. Jyoti Pawar, learned Additional Government Pleader and Mr. Nitin Pradhan, learned counsel for Child Welfare Committee, Thane, we appoint the following as Chairpersons and Members of the Maharashtra State Coordination Committee for child protection:
1. Prof. Asha Bajpai
(Professor of Law) - Chairperson
2. Mr. S.B. Rathod,
Deputy Commissioner,
(Child Development) DWCD, Pune. -- Member
3. Dr. Harish Shetty
(Mental Health Expert) - Member
4. Ms. Anjali Gokaran (Social Worker) - Member
5. Ms. Chitrakala Acharya (Childline) -- Member
6. Ms. Sarita Shankaran (NGO) -- Member
Save the Children,
Bal Raksha Bharat."
(emphasis added)
The Paragraph 3 lays down the functions which the Committee was required to perform.
8. The order dated 4th December 2010 deals with the specific issue of the Government Home for Handicapped at Ulhasnagar, District Thane.
sng 9 pil-182.10
9. We have already referred to the order dated 11 th March 2011. Certain interim directions were issued under the said order which are in Paragraph 8 thereof, which reads thus:
"8. In view of the above, we issue the following directions:
(i) The State Government shall review the procedure for granting licences for running Homes for Mentally Deficient Children and as a part of such exercise, the State Government shall also place on public domain the status reports for applications for licences for running Homes for Mentally Deficient Children.
(ii) The State Government shall review all the licences for running Homes for Mentally Deficient Children after ascertaining whether they are complying with all the terms and conditions of the licence. It is clarified that where necessary, remedial steps be taken including the change of management of the concerned home, if required in interest of the inmates of the concerned home.
(iii) In order to ensure that the objects underlying provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, including the provisions dealing with Homes for Mentally Deficient Children and rules framed thereunder as well as the Government schemes for providing assistance to such homes are fulfilled, the State Legal Services Authority as well as the District Legal Services Committees and Taluka Legal Services Committees shall extend necessary cooperation and assistance in each of the districts where such Homes for Mentally Deficient Children are being run.
The Principal District Judge shall nominate a judicial officer of the rank of District Judge when the home is in District Headquarters or Civil Judge, Junior Division/J.M.F.C. Where sng 10 pil-182.10 the home is in Taluka headquarters or a remote place, (preferably a lady judicial officer in either case) to submit reports about the manner in which the concerned Homes for Mentally Deficient Children are run in their respective jurisdictions.
(iv) The State Government shall issue instructions to the District Child Welfare Officer in each district, where the Homes for Mentally Deficient Children are run, to ensure that each child is medically examined. All concerned including the Public Health Department of the State Government and the Women and Child Development Department shall ensure that each inmate of the Homes for Mentally Deficient Children undergoes medical examination by a team of experts including Physician, Mental Health Expert, Psychologist/Psychiatrist and in case of a female inmate, a gynecologist. Copies of reports of medical examination as aforesaid shall be furnished to the Chairperson of the State Coordination Committee and the Chairperson of the concerned Divisional Coordination Committee.
(v) Since the term of the present Advisory Board under section 62 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is going to expire in the month of April, 2011, while reconstituting the said Advisory Board, the State Government shall ensure that the members are appointed not only in consonance with the said statutory provisions but also that the members who have had the necessary experience and requisite sensitivity for discharging their duties under the provisions of the Act and the Rules are appointed."
10. Paragraph 3 of the order dated 7th April 2011 issues a direction regarding releasing additional amount of Rs.5,000/- by way of grant to the MDC Homes which are run by the State Government or sng 11 pil-182.10 NGOs. The said amount was ordered to be released which will be kept as a petty cash/contingency medical fund for the purposes of medical expenses on children. Under the order dated 29 th July 2011, directions were issued to the State Government to ensure that appropriate steps are taken in future for preventing occurrence of cases of sexual abuse or assault or offences against the mentally deficient children. As regards the number of MDC Homes working in the State, the Paragraph 4 of the order dated 29th March 2012 notes the status as of that date. It notes that there were 22 MDC Homes in the State out of which 5 are unaided. Two Homes at Pune and Solapur have been shut down. This order refers to the project "Chunauti" which commenced its activities on 7 th March 2012. The Co-ordination Committee was reconstituted under the said order and even a Rehabilitation Committee was constituted. The Paragraphs 6 to 8 of the said order dated 29 th March 2012 read thus:-
"6. The Coordination Committee appointed in pursuance of the directions issued in the PIL has carried out commendable work since August 2010. The DWCD as well as the Social Justice Department through the Commissioner of Disabilities must continue to be associated with the work of the Coordination Committee as well as of the Rehabilitation Committee. Special Counsel has stated before the Court that there is no reservation on the part of the State Government in doing so, save and except that the actual treatment plans and the monitoring of the rehabilitation plans should be carried out by the experts in the relevant areas. We consider the suggestion to be fair and proper. Accordingly it has been agreed that the Coordination Committee shall consist of the following persons:
sng 12 pil-182.10
1. Prof. Asha Bajpai - Chairperson
2. Dr.Harish Shetty, Social Psychiatrist
3. Ms.Sarita Shankaran, Indian Association for Promotion of Adoption (IAPA)
4. Ms.Chitrakala Acharya, Child Line India
5. Mr.Pramod Nigudkar, Committed Communities Development Trust (CCDT)
6. Ms.Naina Athale, Social Worker and Counselor
7. Deputy Commissioner, DWCD (Convener)
8. Assistant Commissioner, Office of the Commissioner for Persons with Disabilities The functions of the Coordination Committee would be to:
(i) Follow up on the directions given by this Court;
(ii) Conduct revisits, inspection and surprise visits to MDC homes in the State assisted by divisional representatives whenever required;
(iii) Attending to compliances regarding MDC homes; and
(iv) Monitoring the project Chunauti.
These are only broad guidelines indicative of the functions of the Coordination Committee and we clarify that the Committee will not be restrained by these guidelines in carrying out all other incidental and ancillary activities necessary to effectuate the proper rehabilitation of the children in the homes for mentally deficient children. The DWCD shall coordinate with all other Departments of the State Government such as Police, Health Department, sng 13 pil-182.10 Disabilities Department, Social Justice and CAS as may be required by the Coordination Committee. Special Counsel has stated before the Court that DWCD has taken up the process of sanctioning the requisite budget for the State Coordination Committee. The Committee, the Court is informed, has already submitted a one year budget to the Commissioner at DWCD and a supplementary estimate for the second year would be submitted towards the end of the first year. The Court has been assured that this issue would be processed at the earliest on an expeditious basis and the Coordination Committee will be provided with requisite resources to carry out its task. DWCD had funded the work of the Committee during the course of the last year and the Court is informed that audited accounts have been submitted for that year. Since the functioning of the Committee would be severely restricted if resources are not forthcoming at the earliest on priority basis, the Court has been assured that immediate steps would be taken to provide sufficient resources to the Committee as budgeted.
7. The Rehabilitation Committee shall consist of the following persons:
1. Prof. Asha Bajpai - Chairperson
2. Ms.Sarita Shankaran
3. Dr.Harish Shetty
4. Ms.Chitrakala Acharya
5. Ms.Naina Athale
6. Mr.Pramod Nigudkar
7. Mr.Ravi Patil, Deputy Commissioner, DWCD
8. Asst. Commissioner Disability, PWD
9. Representative from Health Services
10. CEO Children's Aid Society sng 14 pil-182.10
8. Since the children under project Chunauti have been identified and brought together for rehabilitation due to the extreme trauma which they faced under the care and protection of homes funded and supervised by the Department of Women and Child Development, that Department would continue to be represented in the Committees. The Research Society for the Care, Treatment and Training of Children in Need of Special Care, Mumbai which is an NGO that serves mentally challenged children since 1944, will be requested to provide expert assistance to the Rehabilitation Committee. The functions of the Rehabilitation Committee will be to :
1. Coordinate the communication and services of other Government Departments such as Social Justice, Health and Disability, Police, CAS as also with the monitoring committee;
2. Monitor the implementation of project Chunauti."
(emphasis added) We may note that the Department of Women and Child Development is referred as "DWCD".
11. The order dated 5th July 2012 records the issues which were canvassed by the learned Amicus Curiae which are noted in the Clauses (i) to (vii) which read thus:
"(i) A Government Resolution had been issued by the State Government on 30 May 2012, under which the children in the MDC Homes are to be transferred from the DWCD to the Social Justice Department.
There are legitimate concerns in regard to the manner sng 15 pil-182.10 in which the process of transfer would be carried out. In, particular, there is a need for a transition plan. There is also a necessity of providing adequate services and facilities to the children. The issues on which a clarification is necessary in particular are as follows and have been identified in the Report :
"(i) There is a need to clarify whether the MDC homes will now be registered under both the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PWD Act) and the Juvenile Justice (Care and Protection of Children) Act 2000 (JJ Act). Will both the Departments jointly deal with the issue? What will be the role of DWCD? They have experience in looking after children in need of care and protection. Will these children continue to be under the purview of the CWCs?
(ii) What about the NGO-run MDC institutions that are given only grants. Will the staff there be increased as per the PWD Act? What about the existing staff?
(iii) Institutions under the Social Justice Department used to run for 10 months for children who had parents. These are orphans who will need institutional care for 12 months and 24 hours a day. What is the preparedness of the Social Justice Department to look after MDC children? Will they extend that scheme to 12 months?
(iv) As per the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PWD Act).
a. Every child with disability has
access to free education (Sec 26a)
sng 16 pil-182.10
b. Setting up of special schools (Sec
26c)
c. Vocational training facilities (Sec
26d)
d. Part time classes
e. Government to provide aids and
appliances to persons with
disabilities) Sec 42.
f. To undertake rehabilitation Sec.66
g. Disability certificate to be issued to
all children. (Rule 4)
(v) As per the National Trust for Welfare of
Persons with Autism, cerebral Palsy, Mental Retardation and Multiple Disability Act 1999, there is a National Trust for welfare of persons with mental retardation (Sec 3). All mentally challenged children in institutions should benefit from this trust. One of the Objectives of the trust is to deal with problems of persons with disability without family support Sec 10(d) and to facilitate the realization of equal opportunities, protection of rights and full participation of persons with disability."
ii) A time bound plan of action and a transition plan must be chalked out for all the services and facilities to be provided to the mentally challenged children in the MDC homes. We direct that this shall be completed within a period of four weeks from today. The issues noted in (i) above shall be addressed in the plan;
iii) Thirty mentally challenged girls above the age of 18 were transferred from the MDC home at Mankhurd to the Home at Mundhwa. This was carried out in order to facilitate the housing of the Thane and Panvel children, numbering in all 35 in the MDC home sng 17 pil-182.10 at Mankhurd. If the thirty mentally challenged girls who are above the age of 18 are brought at Mankhurd, that would seriously affect the availability of space and facilities of the existing children in the home at Mankhurd. Consequently, we are of the view that until this issue is resolved and until the next date of hearing, the proposed shifting of the thirty inmates from Pune to Mankhurd should be deferred. This would not preclude the authorities from housing the girls from Pune in any other home which is considered to be in their best interest and welfare;
iv) The committee has opined that the funds which have been made available for the second phase of the work of the committee may presently be maintained with the DWCD so that as and when it is necessary to draw upon the funds, the DWCD may take the initiative in consultation with the committee. The committee may be called upon as and when required to render assistance;
v) The health check ups of the children in the homes for the mentally challenged shall be carried out periodically. A serious grievance has been expressed about the fact that the manner in which the medical examination of the mentally challenged children had been conducted in the past was insensitive and the girls were subjected to repeated gynecological examination. The learned amicus curiae points out that this is a source of harassment to the girls and that a gynecological examination should not be carried out as a routine measure. We are in agreement of the suggestion and expect that the authorities would deal with the issue with sensitivity. The medical examination should be carried out having regard to the mental status of the children and in a manner that would not cause harassment to the children. Routine and repeated gynecological examinations affect the dignity of the mentally challenged girls. Such examinations should be carried out under due safeguards only where medical reasons and advice require them. Moreover, this should be done by and with supervision of a woman medical officer. For this purpose, it would be necessary for the State to hold a video conference meeting with the Civil Surgeons of all the concerned hospitals to lay down parameters sng 18 pil-182.10 and sensitise them. This should be carried out expeditiously before the next date of hearing;
vi) The learned AGP states that the salaries of the employees of the Children's Aid society have been paid until May 2012 and arrears if any, will be paid expeditiously, within a period of one week from today;
vii) It is reported that there is a delay of between six months to one year in payment of the maintenance grants in respect of the mentally challenged children. This is completely without any justification whatsoever. We direct that the State Government shall put into place all necessary administrative arrangements to ensure that the grants are paid on time. All the arrears, should, in any event be cleared within a period of one month. The grants should be paid at least at quarterly intervals, if not earlier."
12. Under the order dated 15th January 2013, following directions were issued:-
"(i) We take on record the in principle decision taken by the Principal Secretary in the Woman and Child Development Department and by the Secretary in the Social Justice Department that control of the 19 MDC homes in the State of Maharashtra shall be handed over by WCD to the Social Justice Department and that all the pending formalities shall be completed by the end of March 2013. We also note the decision that until this process is complete, both the departments shall be jointly responsible for, in particular, the education and health needs of the mentally deficient children lodged in the homes.
We direct that the Social Justice Department shall be primarily responsible for attending to the educational and health needs of the mentally deficient children and shall inter alia provide educators and assist in the preparation and implementation of rehabilitation plans. The Social Justice sng 19 pil-182.10 Department shall ensure that special teachers from the special schools shall periodically and at least once a week visit the homes for carrying out an assessment of all the children lodged in the homes. This assessment shall be completed within a period of three weeks from today. A suitable rehabilitation plan shall be drawn up by the Social Justice Department within a period of four weeks thereafter. A copy of the rehabilitation plan shall be made available to the Amicus Curiae who would be at liberty to furnish her suggestions in regard thereto. By the next date of hearing the Court shall be apprised of the status of implementation of the rehabilitation plan. Implementation of the rehabilitation plan shall commence forthwith after the plan is drawn up. The Commissioner of Disabilities shall be associated with the entire process and we direct that he shall extend all co- operation including by making available necessary infrastructure and human resource inputs where required;
(ii) The WCD shall within a period of two weeks from today attend to the request made by the Public Works Department for the sanctioning of funds for carrying out the construction of repair and raising the compound wall of the MDC home at Mankhurd. The Public Works Department shall thereupon take steps for carrying out the work of repair and upgradation of the compound wall so as to increase the height to an appropriate level as required. This exercise shall be completed well in time before the next date of hearing;
(iii) The Senior Inspector of Police, Trombay Police Station shall continue with his investigation and make all necessary efforts to trace out the two missing children referred to in the earlier order of this Court. Necessary security arrangements at the MDC home at Mankhurd shall continue to be made."
(emphasis added ) sng 20 pil-182.10
13. The order dated 12th February 2013 refers to the repairing work done in MDC Home at Mankhurd. Further directions were issued on 24th June 2013 by a Division Bench of this Court in terms of Clauses
(i) to (ix) of Paragraph 1. The order dated 24 th September 2013 refers to the recommendations of the Committee for the Child Protection appointed by this Court. In Paragraph 9, the Division Bench issued the following directions:-
"9. In summary, we recapitulate our directions thus:
(i) The State Government has informed the Court that budgetary provisions have been made for 2013-14 and have been approved in the previous session of the Legislative Assembly. The Court has been assured that grants will be provided by the Social Justice Department to the registered MDC homes in Maharashtra. We direct that until this takes place, interim provision shall be made for education and health facilities for all mentally challenged children in MDC homes in Maharashtra;
(ii) The Department of Social Justice and Empowerment is directed to provide the Committee with the required funds for revisits to the MDC homes;
(iii) By the next date of hearing, the Court shall be apprised in regard to the provision of compensation to the sexually abused children of the Thane and Panvel Homes by the DWCD, Government of Maharashtra;
(iv) The admission of the children from the Chunauti Project to Jai Vakeel School for special education is approved; and sng 21 pil-182.10
(v) An exit plan shall be prepared by the next date of hearing by the DWCD in cases where homes for mentally challenged children have to be shut down. The status of homes that are shut down and who have received new licences shall be placed by DWCD on its website."
14. Then comes a detailed order passed by another Division Bench of this Court on 18th September 2014. The Paragraphs 6 to 10 of the said order read thus:-
"6. In our view, it will be necessary to have a coordination between CWC and Social Justice Department since the aim and object of both these departments is the same namely to look after orphan children and therefore it is not material whether the Homes and the Social Justice Department are covered under the Juvenile Justice Act or not. We therefore, direct the State Government to ensure that the orphan children who are kept in Homes which are under Social Justice Department should either be continued with the same Home or may be transferred to other Homes under the CWC, so that adequate care and protection is provided to them and similarly the educational and vocational training also be given to them. We direct the Principal Secretary, CWC Department to find out ways and means to ensure that the Homes which are covered under these Departments give the same facilities and privilege as the other Homes, which are covered under the Juvenile Justice Act. A direction given by this Court, be complied hereinafter. Once these children are kept at the Homes under Social Justice Department, they shall be monitored as long as they are kept there.
sng 22 pil-182.10
7. Other grievance made by the Amicus Curiae, that since last two years directions have been given by this Court from time to time to CWC and State Government, but there is no material to indicate whether these directions have been actually complied with or not. Secondly, it is submitted that this Court has directed the State Government to award a compensation to the children who are abused at the Homes at Thane and Panvel. It is submitted that a Committee has to be formed to know whether the said compensation has been paid to these children or not. Lastly, it is submitted that direction was given to take inspection of the Homes at Thane and Dhule. It is further submitted that the Home at Aurangabad is closed down and the children are transferred to the Homes at Dhule and Pathardi. It is submitted that report may be called so as to know us what had happened to these children.
8. In our view, it would be proper if a direction is given to CWC and concerned authorities to submit a report about the action taken on various orders of this Court passed from time to time. A Committee appointed by this Court may tender orders to the Principal Secretary CWC and the State Government of Maharashtra. Thereafter, State Government shall submit a report on the action taken by them on the various orders passed by this Court. Secondly, a report be submitted about the status of the children who were transferred from Aurangabad to Pathardi and Dhule and the action taken after inspection was made. This Court be informed by filing a report stating therein the amount of compensation which was paid to the abused children who are kept in Thane, Panvel shelter Homes and were transferred later on to Mankhurd Home.
"9. We direct the office to add the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and multiple Disabilities as a party-respondent. Notice be issued to the said Trust. The Trust is directed to sng 23 pil-182.10 inform this Court whether they would be in a position to make any contribution to the persons with autism, cerebral palsy, mental retardation and multiple disabilities and other similar ailments and for the purpose of giving vocational training to them and their restoration.
10. We also expect the Social Justice Department to formulate a scheme for adult, mentally retarded persons who are abused. We are informed that several orders were passed by this Court but directions have not been complied with. We therefore, direct the Principal Secretary, CWC to look into the matter and form a scheme and report this Court. A reply may be given within four weeks."
15. In Clauses 2 to 4 of the order dated 30 th October 2014, the following directions were issued:-
"2. We are, therefore, directed the Child Welfare Committee, Mentally Deficit Home at Mankhurd and the Social Justice Department, to make assessment of all those children, who are kept in home where the mentally challenged children are kept and if it is found that some of the children are in fact, not mentally challenged, they should be sent to homes for normal children and they should then be sent to normal schools. A report to that effect may be submitted to this Court within a period of four weeks from today.
3. The State Government shall, therefore, should carry out this exercise in all mentally deficient children's (M.D.C.) homes in the State of Maharashtra and if possible, complete this exercise within a period of four weeks.
4. We are informed that there are several adults mentally challenged, who are above the age of sng 24 pil-182.10 18 years, who have not been given vocational training, the State Government to make a list of such children who are kept along with mentally deficient children in the same home and prepare a scheme for their rehabilitation. The State Government shall also look into all other deficiencies which are presently facing in the mentally deficit homes. Mrs.Asha Vajpayee to prepare a list of all these deficiencies and hand over a copy of the same to the concerned officer of Social Justice Department."
16. The order dated 20th March 2015 deals with implementation of "Manodhairya Scheme". Clauses 2 and 3 of the said order read thus:-
"2. We are of the view that it is not necessary to give any cut off date for the implementation of these schemes since they are for the benefit of the abused children who are orphans and who are mentally challenged children living in children homes. In our view, it is the duty and statutory obligation on the part of the State to provide compensation to these abused children.
3. We direct the Principal Secretary, Women & Child Development Department to determine the said compensation which is payable to these children. If it is not done, this Court will be constrained to consider the said issue and determine the compensation which is payable to these children on the basis of the scheme which is framed. Secondly, in our view, nutrition, education training and health needs to be taken care of by the State till these children are rehabilitated and all other Departments of both Central and the State Government should be jointly involved and are made responsible for the education, health and rehabilitation of the children in all MDC Homes sng 25 pil-182.10 in Maharashtra alongwith Social Justice and DWCD."
(emphasis added) Clauses 8 to 10 of the said order incorporate important directions which read thus:-
"8. It is further submitted that advanced OT equipments are required for intensive therapy. It is submitted that there are some children who are bedridden and wheel chair bound and it is possible to observe lifelong changes in their physical condition if they are provided with intensive therapy at this stage of their lives. The list of equipments along with appropriate price is mentioned in the said report. The total price is Rs 27,800/-. In our view, this suggestion can be implemented and these equipments should be made available to MDC Home at Mankhurd within four weeks. The grievance also has been made that the grants are not received by the Homes as per PWD Act. It is also submitted that there is no proper school in MDC Home and persons above 18 need to be taken care of by another special assistance scheme for them. It is also submitted in the report that the experts appointed by Social Justice Department may be held accountable to the High Court appointed Committee and lastly it is submitted that Chunauti rehabilitation model may be replicated in MDC Homes in Maharashtra by the Social Justice Department.
9. We are of the view that there is some substance in the suggestion which has been given by the High Court appointed Committee and we feel that Chunauti rehabilitation model which has succeeded in the MDC Home at Mankhurd should be replicated in all the MDC Homes in Maharashtra.
sng 26 pil-182.10
10. We direct the Principal Secretary, Women & Child Welfare Department and Social Justice Department to ensure that the Chunauti rehabilitation model is replicated in all the MDC Homes in Maharashtra and compliance report to that effect is submitted to this Court by the State Government and steps be taken by the State Government pursuant to the directions given by this Court today within four weeks from today."
(emphasis added )
17. The order dated 31st August 2015 again deals with the "Manodhairya Scheme". Paragraph 5 of the said order reads thus:-
"5. It is submitted that 'Manodhairya Scheme' is applicable to the victims of assault of acid attack and sexual assault. It is submitted that there are several cases where the boys are also victims of sexual assault. It is submitted that if the Manodhairya Scheme is not made applicable to the boys, separate schemes should be formulated to the benefit of the boys or children who are victims of sexual assault. We direct the Government to consider this suggestion also and inform us whether any steps are taken or any committee is formed for the purpose of considering this suggestion. Since there are number of cases where sexual assault on the boys have increased and several cases are pending before the competent courts constituted under the POCSO Act, the learned government pleader shall also inform us about the steps taken by the Government in this regard on the next date."
(emphasis added )
sng 27 pil-182.10
18. The Paragraph 2 of the order dated 16 th October 2015 deals with Nirbhaya Scheme. The Paragraphs 2 and 3 of the said order read thus:-
"2. We would like to know whether Nirbhaya scheme has become operational in the State of Maharashtra. Under the said scheme the children who are mentally challenged are taken under the cover of insurance and the premium which is to be paid is nominal. The State-Government to inform us whether they propose to pay the said premiums out of the funds, allocated for the scheme. We are informed that the National Trust has written letters to the Secretary, Government of Maharashtra. Department of Social Welfare and the Disability Commissioner, Government of Maharashtra. However, no response has been given by these authorities. We would like to know what further steps have been taken by these authorities, in response to the letter written to them by the National Trust, which comes under the Ministry of Social Justice and Empowerment, Government of India. In the compliance report it is stated that the State Co- ordination Committee has held its first meeting on 8.9.2015 and it was unanimously decided to float the Niramaya scheme to all the mentally challenged and disabled children who are admitted in all MDC Homes.
3. The Respondent-State to file their response within 4 weeks. The State-Government is also directed to clarify whether Niramaya Manodhairya scheme is made applicable to the boys, who are victims of sexual assault and acid attack; and whether there is utilisation body which monitor disbursement of funds. S. O. to 19.11.2015 at 3.00 p. m."
sng 28 pil-182.10
19. The order dated 23rd June 2016 notes that compensation has been granted in relation to 24 girls in the sum of Rs.3,00,000/-
each. However, no decision was taken as regards 11 victims. A direction was given to the State Government to take a decision as regards payment of compensation to 11 victims. The order dated 2 nd August 2016 notes that the learned Amicus Curiae tendered a document recording financial requirements of the children. Her suggestion regarding expansion of the Committee appointed by this Court is also noted. The Paragraph 2 of the said order takes a note of the fact that there are 300 girls and boys in MDC Home at Mankhurd. A direction was issued to immediately start work of repair of the said MDC Home at Mankhurd. It also notes that the Hon'ble Chief Minister is the Chairperson of the said Committee which runs the said Home.
20. We have heard the submissions of the learned Amicus Curiae who has ably assisted the Court. We have perused her suggestions in writing We have heard the learned AGP. We have perused various compliance reports which are placed on record. We have also perused the compliance affidavits filed from to time.
21. The basic issue involved in this Petition is as regards the condition of Homes for mentally challenged children who are covered by the definition of the child in need of care and protection under sng 29 pil-182.10 Section 2 of the said Act of 2000. Sub-clause (iii) of Clause (d) of Section 2 of the said Act of 2000 reads thus:
"(d) "child in need of care and protection" means a child -
(i)..........
(ii)...........
(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after."
(emphasis added)
22. The children of the said category are covered by Clause (iv) of Sub-section (14) of Section 2 of the said Act of 2015, which reads thus:
"2(14)"child in need of care and protection" means a child -
(i)............
(ii)...........
(iii)..........
(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee."
(emphasis added)
sng 30 pil-182.10
The definition under the said Act of 2015 is a wider definition. The definition includes not only destitute children but also children having parents or guardians who are unfit to take their care.
23. The Clause (f) of Article 39 which is incorporated in Part IV (Directive Principles of State Policy) of the Constitution of India is relevant which reads thus:-
"39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing
(a) .....
(b) .....
(c) .....
(d) .....
(e) .....
(f) that children are given opportunities and
facilitate to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."
24. Article 21A of the Constitution of India which is a fundamental right conferred on the children is also relevant our our consideration, which reads thus:
"21A. Right to education.-- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."
sng 31 pil-182.10
25. Under Clause (f) of Article 39 of the Constitution of India, it is the duty of the State to ensure that there is a policy for securing that the children are given opportunities and facilities to develop in a healthy manner. Clause (f) of Article 39 will certainly apply to the mentally ill or mentally challenged children. Merely because they are mentally ill or challenged, they cannot be deprived of their fundamental right under Article 21A of the Constitution of India. Article 45 which is also a part of the directive principles of the State Policy provides that the State shall provide early childhood care and education for all children until they complete the age of six years.
26. It is in light of the constitutional provisions that we must advert to the provisions of the said Acts of 2000 and 2015. Sections 34, 35 and 36 of the said Act of 2000 deal with the Children's Home which read thus:
"34. Children's homes.-(1) The State Government may establish and maintain either by itself or in association with voluntary organisations, Children's Homes, in every district or group of districts, as the case may be, for the reception of child in need of care and protection during the pendency of any inquiry and subsequently for their care, treatment, education, training, development and rehabilitation.
(2) The State Government may, by rules made under this Act, provide for the management of Children's Homes including the standards and the nature of sng 32 pil-182.10 services to be provided by them, and the circumstances under which, and the manner in which, the certification of a Children's Home or recognition to a voluntary organisation may be granted or withdrawn.
(3) Without prejudice to anything contained in any other law for the time being in force, all institutions, whether State Government run or those run by voluntary organisations for children in need of care and protection shall, within a period of six months from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, be registered under this Act in such manner as may be prescribed.
35. Inspection.- (1) The State Government may appoint inspection committees for the Children's Homes (hereinafter referred to as the inspection committees) for the State, a district and city, as the case may be, for such period and for such purposes as may be prescribed.
(2) The inspection committee of a State, district or of a city shall consist of such number of representatives from the State Government, Committee, voluntary organisations and such other medical experts and social workers as may be prescribed.
36. Social auditing.- The Central Government or State Government may monitor and evaluate the functioning of the Children's Homes at such period and through such persons and institutions as may be specified by that Government."
27. The Sub-section (1) of Section 34 uses the word "may". The same will have to be interpreted in light of the Directive Principles of State Policy contained in clause (f) of Article 39 and Article 21A of the Constitution of India. Sub-section (1) of Section 34 will have to be interpreted to mean that the State Government is under an obligation sng 33 pil-182.10 to establish and maintain either by itself or in association with the voluntary organisations, Children's Homes and especially the MDC Homes, in every district or group of districts, as the case may be, for the reception of child in need of care and protection during the pendency of any inquiry under the said Act of 2000. Even after inquiry is over, the State Government has to make arrangements for taking the care, treatment, education, training, development and rehabilitation of the children in need of care and protection in the Children's Home. Sub- section (3) of Section 34 provides for registration of all the institutions whether State Government run or those run by voluntary organizations for children in need of care and protection. Section 34 will have to be read with Rule 29 of the Central Rules. The Rule 29 reads thus:
"29. Children's Homes.? (1) The State Government itself or in association with voluntary organizations, shall set up separate homes for children in need of care and protection, in the manner specified below-
(a) all children's homes shall be registered as child care institutions under sub-section (3) of section 34 of the Act and rule 71 of these rules;
(b) all children's homes shall be certified as per the procedure laid down in rule 70;
(c) all children's homes shall report to the concerned Committee about every child in need of care and protection received by them;
(d) children of both sexes below ten years may be kept in the same home but separate facilities shall be maintained for boys and girls in the age group 5 to 10 years;
sng 34 pil-182.10
(e) every children's home shall include separate
facilities for children in the age group of 0-5 years with appropriate facilities for the infants;
(f) separate Children's Homes shall be set up for boys and girls in the age group 10 to 18 years;
(g) children in the age group of 10 to 18 shall be further segregated into two groups of 10 to 15 years and 15 to 18 years.
(2) Each children home shall be a comprehensive child care center with the primary objective to promote an integrated approach to child care by involving the community and local Non- Governmental Organisations through the Management Committee set up under rule 55 of these rules and the District Child Protection Unit or State Child Protection Unit or the State Government shall make an annual performance review of functioning of the children's homes;
(3) The activities of such centre shall focus on:
(a) preparing and following individual care plans for every child, with rights based approach, specifically addressing the child's physical and mental health, emotional needs, education, skill development, protection and special needs if any;
(b) family based non-institutional services, such as, foster family care, adoption and sponsorship;
(c) specialized services in situations of conflict or disaster and for juvenile or children affected by terminal or incurable disease to prevent neglect by providing family counselling, nutrition, health interventions, psycho-social interventions and sponsorship;
(d) emergency outreach service through child line ( Toll free Help Line No. 1098);
sng 35 pil-182.10
(e) linkages with Integrated Child Development
Services to cater to the needs of children below six years;
(f) linkages with organizations and individuals who can provide support services to children; and
(g) opportunities to volunteers willing to provide various services for children."
(emphasis added)
28. When it comes to the children in the Children's Home, Section 43 of the said Act of 2000 is relevant, which reads thus:-
"43. Sponsorship.- (1) The sponsorship programme may provide supplementary support to families, to Children's Homes and to special homes to meet medical, nutritional, educational and other needs of the children with a view to improving their quality of life.
(2) The State Government may make rules for the purposes of carrying out various schemes of sponsorship of children, such as individual to individual sponsorship, group sponsorship or community sponsorship."
29. Section 43 which deals with the 'Sponsorship' will have to be read with Rule 37 of the Central Rules. Rule 37 of the said Central Rules reads thus:
"37. Sponsorship.? (1) The State Government shall prepare sponsorship programme in consultation with the Non Governmental Organisations, Child Welfare Committees, other relevant government agencies and the corporate sector.
sng 36 pil-182.10 (2) The State Government, with the help of District or State Child Protection Units shall identify families and children at risk and provide necessary support services in the form of sponsorship for child's education, health, nutrition and other developmental needs.
(3) The Children's Homes and special homes shall promote sponsorship programmes as laid down in section 43 of the Act.
(4) The institutions receiving sponsorship, shall maintain proper and separate accounts of all the receipts and payments for the programme.
(5) The Board or the Committee shall make an order in Form XVIII for support to a juvenile or child through sponsorship and send a copy to the District or State Child Protection Unit or the State Government for appropriate action."
No such sponsorship programme prepared by the State Government is placed before this Court. The State Government will have to come out with a sponsorship scheme for giving effect to the statutory provisions.
30. Rule 70 of the Central Rules deals with certification or recognition and transfer of Management of Institutions and after care organizations under Section 34 of the said Act of 2000. Rule 70 reads thus:
"70. Certification or recognition and transfer of Management of Institutions and after care organizations.? sng 37 pil-182.10 (1) Any organization desiring certification under the Act shall make an application together with a copy each of the rules, bye-laws articles of association, list of members of the society or the association running the organization, office bearers and a statement showing the status and past record of specialized childcare services provided by the organization, to the State Government, who shall after verifying the provisions made in the organization for the boarding and lodging, general health, educational facilities, vocational training and treatment services may grant certification or recognition under sections 8, 9, 34, 37, 41 and 44 of the Act, as the case may be, on the condition that the organization shall comply with the standards or services as laid down under the Act and the rules framed their under, from time to time and to ensure an all round growth and development of juvenile or child placed under its charge.
(2) Any organization desiring recognition under the Act shall make an application to the Competent Authority, who shall after due inquiry, recommend the State Government for such recognition.
(3) The State Government may, transfer the management of any State run institution under the Act to a voluntary organization of repute, who has the capacity to run such an institution; and certify or recognize the said voluntary organization as a fit institution to own the requisite responsibilities under a Memorandum of Understanding for a specified period of time.
(4) The State Government may, if dissatisfied with the conditions, rules, management of the organization certified or recognized under the Act, at any time, by notice served on the manager of the organization, declare that the certificate or recognition of the organization, as the case may be, shall stand withdrawn as from a date sng 38 pil-182.10 specified in the notice and from the said date, the organization shall cease to be an organization certified or recognised under sections 8, 9, 34, 37,41 or 44 of the Act, as the case may be:
Provided that the concerned organization shall be given an opportunity of making a representation in writing, within a period of thirty days, against the grounds of withdrawal of certificate or recognition of that organization.
(5) The decision to withdraw or to restore the certificate or recognition of the organization may be taken, on the basis of a thorough investigation by a specially constituted advisory board under section 62 of the Act.
(6) On the report of the advisory board, the Officer-
in- charge of the institution shall be asked to show cause so as to give an explanation within thirty days.
(7) When an organization ceases to be an organization, certified or recognised under sections 8, 9, 34, 37,41 or 44 of the Act, the juvenile or the child kept therein shall, be transferred to some other institution of repute, certified or recognized under sections 8, 9, 34, 37,41 or 44 of the Act or discharged, in accordance with the provisions of the Act and the rules relating to their discharge and transfer by giving intimation of such discharge or transfer to the Board or the Committee, as the case may be."
31. Even the Rules 71 and 72 are material which read thus:
"71. Registration under the Act. ? (1) All institutions and organisations running institutional or non-institutional care services for children in need of care and protection, whether run by the government or voluntary organization, shall get themselves registered under sub-section (3) of section 34 of the Act.
sng 39 pil-182.10 (2) All such institutions shall make an application together with a copy each of rules, bye-laws, memorandum of association, list of governing body, office bearers, balance sheet of past three years, statement of past record of social or public service provided by the institution or organization to the State Government, who shall after verifying that provisions made in the institution or organization for the care and protection of children, health, education, boarding and lodging facilities, if any, vocational facilities and scope of rehabilitation, may issue a registration certificate to such organization under sub-section (3) of section 34 of the Act and as per this rule.
72. Grant in aid to certified or recognized organization.? (1) An organization certified or recognized or registered under sections 8, 9, 34, sub- section (3) of section 34, 37 or 44 of the Act, may during the period when certification or recognition or registration is in force, may apply for grants-in-aid by the State Government, for the maintenance of juvenile or child received by them under the provisions of the Act; and for expenses incurred on their education, treatment, vocational training, development and rehabilitation.
(2) The grants-in-aid may be admissible, at such rates, which shall be sufficient to meet the prescribed norms, in such manner and subject to such conditions as may be mutually agreed to by both the parties.
(3) In case of transfer of management of government run homes under sections 8, 9, 34, sub-section (3) of section 34, 37 and 44 of the Act to a voluntary organization, the same budget which the Government was spending on that home, shall be given to the voluntary organization as grant-in-aid under the sng 40 pil-182.10 Memorandum of Understanding signed between both the parties describing their role and obligations."
(emphasis added)
32. Under the said Act of 2015, Section 50 is a pari materia with Section 34 of the said Act of 2000, which reads thus:
"50. Children's Home.--
(1) The State Government may establish and maintain, in every district or group of districts, either by itself or through voluntary or non-governmental organisations, Children's Homes, which shall be registered as such, for the placement of children in need of care and protection for their care, treatment, education, training, development and rehabilitation.
(2) The State Government shall designate any Children's Home as a home fit for children with special needs delivering specialised services, depending on requirement.
(3) The State Government may, by rules, provide for the monitoring and management of Children's Homes including the standards and the nature of services to be provided by them, based on individual care plans for each child."
33. Sections 54 and 55 of the said Act of 2015 are also relevant, which read thus:
"54. Inspection of institutions registered under this Act.--
(1) The State Government shall appoint inspection committees for the State and district, as the case may be, for all institutions registered or recognised to be fit under this sng 41 pil-182.10 Act for such period and for such purposes, as may be prescribed.
(2) Such inspection committees shall mandatorily conduct visits to all facilities housing children in the area allocated, at least once in three months in a team of not less than three members, of whom at least one shall be a woman and one shall be a medical officer, and submit reports of the findings of such visits within a week of their visit, to the District Child Protection Units or State Government, as the case may be, for further action.
(3) On the submission of the report by the inspection committee within a week of the inspection, appropriate action shall be taken within a month by the District Child Protection Unit or the State Government and a compliance report shall be submitted to the State Government.
55. Evaluation of functioning of structures.-- (1) The Central Government or State Government may independently evaluate the functioning of the Board, Committee, special juvenile police units, registered institutions, or recognised fit facilities and persons, at such period and through such persons or institutions as may be prescribed by that Government.
(2) In case such independent evaluation is conducted by both the Governments, the evaluation made by the Central Government shall prevail."
(emphasis added)
34. The Maharashtra Juvenile Justice (Care & Protection of Children) Rules, 2002 (for short "the State Rules") are also relevant. Rule 16 deals with the establishment of Children's Home. Rule 23 deals with Certification of Institutions or Organisations and Recognition of sng 42 pil-182.10 the Children's Home. Rules 80 to 83 of the State Rules which are material read thus:
"80. Sponsorship--
(1) The State Government shall prepare sponsorship programme in consultation with non- governmental organisations, functionaries of the juvenile justice system, other government agencies and the corporate sector.
(2) The Commissioner with the help of District Child Protection Unit and the Child Welfare Committee shall identity families and children in need of care and protection, and provide them with necessary support services in the form of sponsorship for child's education, health, nutrition and other development needs. This list of families and children shall be revised every year.
(3) The Juvenile justice Board may in fit cases refer to the Child welfare Committee, a juvenile or his family for sponsorship support, and shall send a copy of such referral to the State Government for appropriate action.
(4) The Commissioner shall be designated with the task of disbursing sponsorship support to identified families and children, and ensuring that the sponsorship support is utilized by the parent or child for the purpose for which it was sanctioned.
81. Social Auditing--
The State Government shall monitor and evaluate the functioning of the Home annually with the help of leading organisations working with the children, besides Autonomous bodies like National Institute of Public Cooperation and Child development, Indian Social Institute, Child line India Foundation, National Institute of Social Defence, Tata Institute of Social Sciences, Nirmala Niketan, Shrimati Nathibai Damodar sng 43 pil-182.10 Thakercey, Central and State level Social Welfare Boards, Department of Criminology, Psychology, Sociology, Law of recognised Universities etc.
82. Inspection--
(1) Deleted (2) The team shall also make suggestions for the improvement and development of the institution.
(3) Deleted (4) Not less than three members shall carry out the inspection visits.
(5) The Committee may visit the homes either by giving a prior intimation or by surprise. (6) The Committee shall interact with the children during the visits to the institution, to determine their well being and uninhibited feedback.
(7) All concerned authorities shall take the follow up action on the findings and suggestion of the children.
(8) The inspection team shall be given an identity card.
83. Inspection of Institutions, monitoring and evaluation--
(1) The Inspection Committee shall only enter the premises of the homes for the purpose of inspection. (2) During the institution rounds, the Inspection Committee shall give every juvenile or child committed or remanded to its care an opportunity to make any complaint or application to him which such juvenile or child may wish to make.
(3) Every such inspection visit shall at the conclusion of his inspection, be noted in the inspection book of the institution or home as a proof that he has inspected it on a particular date.
sng 44 pil-182.10 (4) The Inspection Committee shall furnish the report to the Commissioner and the State Advisory Board.
(5) Any place of safety in which a juvenile or child is kept shall be open to inspection.
(6) The occupier or manager of such place of safe custody shall give every facility to the inspecting committee and the others as stated above who visits the juvenile or child for the purpose of making inquiries into his case.
(7) Any registered medical practitioner empowered in this behalf by Government may visit any institution or home, a fit person or fit institution at any time with or without notice in order to report to the Superintendent and the competent Authority on the health of the Juvenile/child and the sanitary condition of the institution.
(8) Deleted
(9) Deleted
(10) The industrial, technical, agricultural or other vocational training classes run by the institutions shall be inspected by the Director of Employment and Director of Training or by an officer authorized by him in this behalf or by any officer of the Agricultural or other Departments concerned, as the case may be, and he shall forward the inspection report to the Competent Authority."
35. Rule 84 of the State Rules 2002 is also material. The said Rule reads thus:
"84. State children's fund--(1) The State Government shall create a fund at the State level under section 61 of the Act to be called the State Children's Fund (here in after referred to as "the sng 45 pil-182.10 fund") for the welfare and rehabilitation of the juvenile or child dealt with under the provisions of the Act.
(2) In addition to voluntary donation, the Central Government shall also make contribution to State Children's Fund.
(3) The fund shall be applied for the following purposes-
(a) To implement programmes for the welfare and rehabilitation of children and which do not fall in any of the Central Government or State Government or any other scheme;
(b) To provide for medical aid or surgery for major illnesses for juvenile or child;
(c) To provide for fees for higher or
vocational or technical education;
(d) Deleted
(e) To do all other things that are incidental
and conducive to the above purpose.
(4) For the management and administration of the
Fund, a Board of Management shall be set up under the chairmanship of the Secretary, Women and Child Development Department under sub- section (3)of the section 61.
(5) For the management and administration of the Fund, Government shall constitute a Board of Management consisting of the following members:-
* Secretary (Women & Child Development Department) --Chairman * Commissioner (Women & Child Development Department)--Member sng 46 pil-182.10 * Deputy Commissioner --Child development * (Women & Child Development Department)
--Member Secretary-Treasurer.
(6) A non-official member shall, unless he resigns his office or dies or otherwise vacated his office at an earlier date, hold office for a period not exceeding two years. A member nominated to fill a casual vacancy shall hold office so long only as the member in whose place he is nominated would have held it if the vacancy had not occurred.
(7)(i) A non-official member other than the chairman may resign his office by writing under his hand addressed to the Chairman.
(ii) The chairman may resign his office by writing under his hand address to government.
(iii) The resignation shall take effect from date of its acceptance or on the expiry of thirty days from the date of its receipt by the Chairman or, as the case may be, by Government, whichever is earlier.
(8) A non-official member shall be deemed to have vacated his office--
(a) If he becomes of unsound mind or is
declared insolvent;
(b) If he is convicted of any offence which in
the opinion of Government involves
moral turpitude;
(c) If in the opinion of the Government, it is
not desirable that he should continue to be a member.
(9) The Board of Management shall meet at least once a year at such places and on such dates and at such times as may be appointed by the chairman.
sng 47 pil-182.10 (10) The quorum for a meeting of the Board of Management shall be four. If a meeting of the Board of Management could not be held for want of quorum, then the meeting shall automatically stand adjourned till the same day in the next week at the same time and place or if that day is a public holiday. Till the next succeeding day which is not a public holiday, at the same place and time.
(11) The assets of the Fund shall include all such grants and contributions, recurring or non- recurring, from the Central Government and State Government as well as the voluntary donations from any individual or organisation.
(12) All withdrawals shall be made by cheque or requisitions, as the case may be, signed by the Secretary-cum-treasurer in the case of amounts not exceeding rupees one thousand and signed duly by the secretary-cum-treasurer and other member of the board of management to be nominated by the Board of Management.
(13) The regular accounts shall be kept of all money and properties, and all incomes and expenditures of the Fund and shall be audited by a notified firm of chartered Accountants, or any other recognized authorities as may be appointed by the Board.
(14) The auditors shall also certify the expenditure form the Fund made by the secretary-cum- treasure.
(15) All contracts and other assurances shall be in name of the Board of Management and signed on their behalf by the secretary-cum-treasure and one member of the Board of the Management authorized by it for the purpose.
(16) The Board of Management shall invest the proceeds of sale or other disposal of the property, sng 48 pil-182.10 as well as any money or property not immediately required to be used to serve the objective of the Fund, in any one or more of the mode of investment for the time being authorized by the law for the investment of trust money as the Board of Management may think proper.
(17) The Board of Management may delegate to one or more of the members such of its power, which in its opinion are merely a procedural arrangement."
It is not clear whether the said Rule has been implemented by establishing State Children's Fund. Now under Section 105 of the said Act of 2015, there is a provision for establishing Juvenile Justice Fund. Section 105 reads thus:
"105. (1) The State Government may create a fund in such name as it thinks fit for the welfare and rehabilitation of the children dealt with under this Act.
(2) There shall be credited to the fund such voluntary donations, contributions or subscriptions as may be made by any individual or organisation.
(3) The fund created under sub-section (1) shall be administered by the Department of the State Government implementing this Act in such manner and for such purposes as may be prescribed."
If the State Government has not established such a Fund , the State will have to establish the same. The fund will be very useful for taking care of medical needs of the children in the Children's Homes as the State Government is empowered to accept voluntary donations.
sng 49 pil-182.10
36. The first issue to be dealt with is as regards setting up monitoring and the functioning of MDC Homes in Maharashtra. We have already quoted the relevant provisions of the said Act of 2000 and the said Act of 2015. In view of the directive principles of the State Policy read along with the provisions of Section 34 of the said Act of 2000 and Section 50 of the said Act of 2015, it is the obligation of the State to establish and maintain adequate number of Children's Homes in the State. If the State cannot do itself, it is enjoined to do so with the help of voluntary organizations. The State Government will have to undertake an exercise to determine as to how many Children's Homes and especially MDC Homes are required to be set up in the State. It is all the more necessary for the State Government to set up Homes for the children covered by Clause (iv) of Section 2(14) of the said Act of 2005. In view of Sub-section (3) of Section 34 of the said Act of 2000, from 22nd August 2006, it became mandatory for all the institutions, whether the State Government run or those run by the voluntary organizations for children in need of care and protection to get registered under the said Act of 2000 in such manner as may be prescribed by the Rules. The said Children's Homes are subject to inspection under Section 35 of the said Act of 2000.
sng 50 pil-182.10
37. Under the said Act of 2015, there is a similar provision for establishing Children's Home. Sub-section (1) of Section 50 of the said Act of 2015 itself requires registration of such Children's Home. Sub- section (3) thereof confers a rule making power on the State Government to provide for monitoring and management of the Children's Homes including the standards and the nature of services to be provided by them, based on individual care plans for each child. The State Government needs to exercise the said rule making power. Under Sub-section (1) of Section 54 of the said Act of 2015, the State Government is under an obligation to appoint Inspection Committees for the State and Districts for inspection of all the institutions which are registered under Section 50 of the said Act of 2015. Sub-section (2) of Section 54 provides that such Inspection Committees shall mandatorily conduct visits to all facilities for housing the children in the area allocated, at least once in three months. The State Government is required to take action within a period of one month from the date of submission of such report. Under Clause (xiii) of Sub-section (2) of Section 110 of the said Act of 2015, there is a Rule making power conferred on the State Government providing for an appointment of Inspection Committees as contemplated by Sub-section (1) of Section 54 of the said Act of 2015. Under the Maharashtra Rules of 2002, the Rule 16 provides for details regarding the facilities to be provided in sng 51 pil-182.10 Children's Home, such as, availability of a Medical Officer, availability of Vocational Training, availability of trained Counsellor, etc. The Inspection Committees are bound to note whether the Children's Homes have the facilities in terms of Rule 16. The Rule 11 provides that the State Government should constitute Advisory Boards at various levels. Under Rule 23, it is provided that if the State Government is not satisfied with the working of any organization or institution, it may direct the Advisory Board to make an inquiry. On the basis of the reports submitted by the Advisory Board, the State Government is empowered to issue notice to the organizations or institutions for rectification of defects. The State Government is empowered to withdraw certification of the Children's Homes. In such case, the children are required to be transferred to another organization/institution. There is one more important provision under Section 106 of the said Act of 2015 which will help the cause of the Children's Home, if it is implemented. Section 106 reads thus:
"106. Every State Government shall constitute a Child Protection Society for the State and Child Protection Unit for every District, consisting of such officers and other employees as may be appointed by that Government, to take up matters relating to children with a view to ensure the implementation of this Act, including the establishment and maintenance of institutions under this Act, notification of competent authorities in relation to the children and their rehabilitation and co-ordination with various official and non-official agencies concerned and to discharge such other functions as may be prescribed"
sng 52 pil-182.10 This provision is again mandatory in nature. The State will have to implement the said provision in its true letter and spirit.
38. Now we deal with the issue of Government grants to the Children's Home. As per the Government Resolution dated 13 th September 2013, grant is admissible to Children's Homes run by Non- Government Organizations. As per the said Government Resolution, for MDC Homes, grant of Rs.990/- per head per month is paid which is to be utilized for food, clothing and other needs of the inmates. For other Children's Homes, the grant admissible is Rs.900/- per head per month which is to be utilized for food, clothing and other needs of the inmates. No part of these amounts can be spent on the salary of the employees or on the administrative expenses. For that purpose, a sum of Rs.315/- per head per month is released to the Children's Homes of both the categories. No reasons are required to be recorded that the grant is grossly insufficient and therefore, the decision to pay such inadequate grant is arbitrary.
39. We have quoted Rule 16 of the State Rules of 2002 which mandates that the Children's Homes should be provided adequate infrastructure as set out therein. Rule 72 of the Central Rules empower the State Government to provide grant to the Children's Homes. Moreover, considering the obligation of the State Government of sng 53 pil-182.10 establishing Children's Homes and of giving facilities therein and considering the Clause (f) of Article 39 of the Constitution of India, no debate is required to hold that the grant at the aforesaid rates is wholly inadequate. In fact this grant at the present rates is not sufficient for the survival of the children in the Children's Homes. The decision to pay grant at such rates is arbitrary and is violative of Articles 14 and 21 of the Constitution. It is an obligation of the State to establish Children's Homes of its own or through voluntary Organizations. It is the obligation of the State to ensure that the adequate grants are released to such Homes so that the very object of setting up such Homes is fulfilled. We propose to direct the State Government to take immediate decision on the issue of increasing the grants. The State Co-ordination Committee appointed under the order of this Court will be empowered to make concrete recommendations to the State Government for increasing grants. It will be impossible for the MDC Homes to maintain the children in such meager amount.
40. We may note here that even the material placed on record of this Petition shows that some MDC Homes as well as Children's Homes run by Non-Government Organizations had to close down. One of the main reasons must be grossly inadequate grant. By providing such inadequate grant, the State Government has committed the breach of its constitutional and statutory obligations. Unless the quantum of sng 54 pil-182.10 grant to the Children's Homes and especially the MDC Homes is not immediately increased, the Homes may not be able to sustain itself. Therefore, by way of interim measure, till the Government takes a final decision, we propose to direct the State Government to pay grant at the rate of Rs.2,000/- per head per month to the MDC Homes and grant of Rs.1,500/- per head per month to the other Children's Homes. We also propose to direct the State Government to pay grant of Rs.500/- per head per month towards administration expenses. This amount will be payable with effect from 1st April 2017.
41. As per the directions of this Court issued on 16th October 2010, by the Government Resolution dated 29th November 2010, the State Government has constituted the Maharashtra State Co-ordination Committee for Child Protection (for short "State Co-ordination Committee"). On 4th December 2010, a direction was issued for formation of a Divisional Co-ordination Committee for each of the six Divisions. Accordingly, the Divisional Co-ordination Committees have been established. We propose to direct continuation of the Co- ordination Committees and Divisional Co-ordination Committees. However, as suggested by the learned Amicus Curiae, persons working in the fields of finance and law should be added to the State Level Co- ordination Committee within a period of two months from the date on which a recommendation is made by the said Committee.
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42. A direction was issued on 11 th March 2011 by this Court to the learned Principal District Judges to nominate a Judicial Officer of the rank of District Judge where the MDC Home is at the District Head- quarters or a Civil Judge, Junior Division/Judicial Magistrate, First Class where the MDC Home is at Taluka Head-quarters to regularly visit MDC Homes and to submit a report especially in relation to the care provided to the mentally challenged children. The said order must also continue with a direction to the Judicial Officer to forward reports of inspection to the State Level Co-ordination Committee.
43. The State Government will have to pay appropriate allowances to the Members of all the Committees appointed under the orders of this Court for attending the meetings and travelling allowance to the members of Committees to enable them attend meetings and to visit the MDC Homes.
44. The other issue is about the education of the children in MDC Homes. This issue will have to be now considered in the context of Article 21A of the Constitution of India. We have already quoted Article 21A of the Constitution of India.
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45. Under Article 21A of the Constitution of India, the State is under an obligation to provide free and compulsory education to all the children of the age of six to fourteen years in such manner as the State may, by law, determine. In view of the mandate of law, considering the object of establishment of MDC Homes, the State Government will have to ensure that all the children in MDC Homes should get education up to the age of fourteen years. In fact, till the time the children are in MDC Homes, the State Government will have to ensure that they get education. Needless to add that for mentally challenged or ill children, necessary arrangements will have to be made for special education.
46. During the course of hearing, it was noted that in terms of the order dated 30th October 2015, compensation has been sanctioned to 35 children in the sum of Rs.3 lakhs each.
47. In the order dated 16th October 2015, a decision of the Co- operation Committee taken in its meeting held on 8 th September 2015 is noted. The said decision taken was in relation to apply Niramaya Scheme to all the mentally challenged and disabled children who are admitted in all the MDC Homes. Necessary steps in that behalf be taken by the State Government and it be ensured that the scheme is made applicable accordingly. The premium will be payable by the State Government.
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48. Under the order dated 20th March 2015, this Court referred to "Chunauti Rehabilitation Model" which was exclusively implemented in MDC Home at Mankhurd. A direction was issued under the said order to the State Government to ensure that the Chunauti Rehabilitation Model is replicated in all MDC Homes. The said order is not yet implemented. A Note dated 6 th March 2016 submitted by Prof.Dr.Asha Bajpai, Amicus Curiae, records that the said Chunauti Rehabilitation Model has been replicated in the MDC Homes at Solapur.
49. Another issue is about an utilization of compensation amount released to 35 children. A Utilization Committee will have to be formed. The learned Amicus Curiae in her letter dated 10 th July 2016 has submitted a suggestion for constitution of Utilization Committee for monitoring the utilization of the compensation amount. We propose to accept the said suggestion. We propose to approve the object of the Utilization Committee as suggested by the learned Amicus Curiae in the said letter. The learned Amicus Curiae shall submit a copy of the chart containing the requirements of the children to the said Committee.
50. The other issue which will have to be addressed by the State Government is about the mentally challenged and disabled sng 58 pil-182.10 children in MDC Homes in the State after they attain majority. There are large number of Non-Government Organizations having residential and educational facilities for such persons with disabilities. The State Co-ordination Committee will have to identify the said Institutions and evolve a scheme in co-ordination with the said institutions for accommodating the said children who attained the age of 18 years. We propose to issue appropriate directions in this behalf.
51. As indicated earlier, the State-Coordination Committee for Child Protection constituted under the orders of this Court as well as Divisional Committees and Rehabilitation Committee will have to continue. The State Government will be entitled to fill in the vacancies caused by resignation, death etc in terms of the recommendations which may be made by the State Co-ordination Committee. In the event, any material change is required in the constitution of the Committee, necessary Application will have to be made in this disposed of Petition.
52. In some of the MDC Homes, the children who are inmates may be the victims of the offence and, therefore, necessary security will have to be provided to them. There are directions issued by this Court in another PIL under which an elaborate scheme is in force for protecting the witnesses. In terms of the said scheme, necessary sng 59 pil-182.10 protection will have to be granted to the said children. Due to the orders passed by this Court, some of the mentally challenged children are in a position to attend formal schools. Even such child will have to be protected by the State Government as they will have to leave their respective MDC Homes for attending their respective schools. The Children Protection Policy and Code of Conduct framed by the Coordination Committee has been submitted to this Court. The Committee will have to submit a copy thereof to the appropriate department of the State Government and the State Government will have to finalise the Child Protection Policy and Code of Conduct. If necessary, after consulting the Coordination Committee, an appropriate decision will have to be taken by the State Government within a period of three months from the date of this Judgment.
53. On 16th September 2010 and 16th April 2014, a direction was issued by this Court that the State Government shall issue instructions to the District Child Welfare Officer in each District where MDC Homes for mentally deficient children are located to ensure that each child is medically examined by a team of medical experts such as Physicians, Mentally Health Expert, a Psychiatrist or Psychologist and in case of female, a Gynecologist . The District Child Welfare Officer shall ensure that such medical examination is conducted within a period of six months through Doctors of Civil and Public Hospitals.
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54. By an order dated 20th March 2015, a direction was issued to the Chairperson of the National Trust to ensure that a health insurance is provided to the children in MDC Homes in Maharashtra. There is a Government Resolution dated 26 th April 2016 which records that a National Trust has extended Niramaya Health Scheme to 14 grant-in-aid to MDC Homes and 4 non-grant-in-aid in MDC Homes. Necessary steps will have to extend to the said scheme to the children of all the MDC Homes in the State.
55. There are various directions issued by this Court for implementation of the said Act of 2000. Now, the State Government will have to take all possible steps to implement the said Act of 2015 in relation to the following aspects:-
(a) Establishment of Child Welfare Committees in each State having complete infrastructure;
(b) Registration of Child Care Institutions as provided in Section 41 and taking action for non-registration;
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(c) Framing of Rules for the purposes of undertaking
various programmes of sponsorship as provided in Sub-section (1) of Section 45 of the said Act of 2015;
(d) Establishment of Observation Homes in every District in accordance with Sub-section (1) of Section 47 of the said Act of 2015;
(e) Establishment of Special Homes under Section 48 of the said Act of 2015;
(f) Establishment of Children's Homes under Sub-section (1) of Section 50 of the said Act of 2015 in every District of the State;
(g) Appointment of Inspection Committees as provided in Sub-section (1) of Section 54 of the said Act of 2015 and inspection by the Inspection Committees of all facilities, housing the children at least once in three months;
(h) Implementation of Sections 105 and 106;
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(i) Exercise of Rule making power under Sub-section
(1)and (2) of Section 110 of the said Act of 2015;
56. The directions given to review all licenses for running Homes for mental deficient children will continue to operate. There is material on record to show that the said direction issued on 11 th March 2011 has been implemented in some cases. The direction issued on 29 th March 2012 for transfer of children in MDC Homes which are likely to be shut down will continue to operate.
57. There was a direction issued on 15th November 2013 directing the Social Justice Department of the State Government to ensure that special teachers from the special schools shall periodically visit and, atleast once in a week, MDC Homes for carrying out assessment of all the children lodged in the Homes. The said direction will continue to operate.
58. Under the order dated 18 th September 2014, a direction was issued to ensure that benefit of Sarva Shikshan Abhiyan granted to the children with disabilities in MDC Homes should be permitted to continue till they attain the age of 18 years. The said direction will continue to operate.
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59. There is already a direction issued under the order dated 20th March 2015 to ensure that "Chunouti Rehabilitation" is implemented in all MDC Homes in the State of Maharashtra. This direction will have to be implemented in relation to all MDC Homes. In terms of the order dated 29 th July 2011, guidelines for the cases of sexual abuse/assault/sexual offences against the mentally deficient children have been framed which shall continue to operate. The State Government will have to periodically review the said guidelines. Another issue will be as regards the fencing/compound wall to be erected for securing MDC Homes at Mankhurd. There is already a direction issued by this Court to ensure that all the repairs are carried out. Necessary action will have to be taken within a period of six months from today;
60. Before we come to the directions and operative part of the Judgment, we must record our appreciation for the assistance rendered by Dr.Asha Bajpai, the Amicus Curiae, who is also the Chairperson of the State Co-ordination Committee. Considering the valuable assistance rendered by her, we propose to direct the State Government to pay her a sum of Rs.1,25,000/- which may be utilized by her in several social activities undertaken by herself or by Tata Institute of Social Sciences (TISS). We leave it to her to decide for what purpose the said amount sng 64 pil-182.10 is to be utilized. We also express our appreciation for the services rendered by colleagues of Dr. Bajpai who assisted her and the members of the Committees established by the Court. Their contribution is invaluable. We must also record our appreciation for the Newspaper which came out with the article which lead to initiation of these proceedings.
61. The discussion made above shows that there are proper Legislations in place, but there is a complete failure to implement the same. All that this Court is doing is to ensure the implementation of the existing Laws. We hope and trust that the State Government will not treat this PIL as an adversarial litigation.
62. There are several findings recorded in this Judgment. We make it clear that even if there are no directions specifically incorporated in the operative part on the basis of the findings, the State is bound to take appropriate steps on the basis of the findings.
63. Accordingly, we issue the following directions:
(a) All interim directions issued from time to time in this Petition shall continue to operate as the final directions subject to modifications specifically made under the Judgment and Order;
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(b) It is the legal and Constitutional obligation of the State Government to set up adequate number of MDC Homes in the State and provide them all the infrastructure and facilities as required by the said Act of 2015 and the Central Rules. The State Government shall ascertain number of such Homes required in the State with the help of experts including the Maharashtra State Coordination Committee for Child Protection. An appropriate decision shall be taken by the State Government within a period of four months from today.
Thereafter, the State Government shall take steps to establish requisite number of MDC Homes in the State as expeditiously as possible;
(c) The State Government shall within a period of one month from today ensure that a Management Committee under Rule 55 of the Central Rules is constituted for every children's home in the state of Maharashtra;
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(d) The Maharashtra State Co-ordination Committee for
Child Protection constituted under the orders of this Court as well as Divisional Coordination Committees shall continue to exist and shall continue to discharge its duties as provided in various orders of this Court passed from time to time and in particular the order dated 29th March 2012. The State Co-ordination Committee shall also monitor compliance with all the directions issued under this Judgment and order as well as the interim directions/orders continued under this Judgment and Order. Even the Rehabilitation Committee constituted under the Orders of the Court shall continue to function and continue to discharge the duties specified in the order dated 29 th March 2012;
(e) The vacancies caused of the members of all the non-
statutory Committees constituted under the order of this Court on account of death or resignation or otherwise shall be immediately filled in by the State Government as per the recommendations of the State Co-ordination Committee. On the sng 67 pil-182.10 recommendation of the State-Coordination Committee, the State Government shall add or remove the Members of the aforesaid Committees. As observed in the Judgment, two members having expertise in finance and law respectively shall be added by the State Government to the State Coordination Committee if a recommendation to that effect is made by the said Committee ;
(f) If the State-Coordination Committee needs any further directions on any aspect, it is free to submit a report to the Registrar (Judicial-I) of this Court. On the receipt of report, the Registrar (Judicial-I) shall place the matter before the appropriate bench for issuing necessary directions;
(g) The State Government shall pay adequate remuneration to the members of all the Committees constituted under the orders of the Court. They shall be paid travelling allowance for attending the meetings and for making visits to the Children's Homes. We are sure that the allowances shall be fixed considering the status of the members.
sng 68 pil-182.10 Necessary order/GR shall be issued by the State Government within a period of two months from today;
(h) The State Government shall immediately constitute a Utilization Committee for monitoring the utilisation of the compensation released to 35 children. While constituting a Utilization Committee, the State Government shall act in accordance with the suggestions of the learned Amicus Curiae incorporated in her letter dated 10 th August 2016.
The Committee shall be constituted comprising of the persons who are mentioned in the said letter dated 10th August 2016 within a period of one month from today. The Committee constituted shall ensure that compensation sanctioned to 35 children is properly utilized. The learned Amicus Curiae shall submit a copy of the chart containing the requirements of the Children submitted by her to this Court to the said Committee;
(i) The concerned MDC Homes in which the said children are kept shall be bound by the recommendations of the Utilization Committee;
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(j) The State Government shall endeavour to exercise the
Rule making power under Sub-Section (2) of Section 110 of the said Act of 2015 within a period of six months from today with a view to give complete effect to the said Act of 2015;
(k) The State Government shall endeavour to create Juvenile Justice Fund in accordance with Section 105 of the said Act of 2015 within a period of nine months from today;
(l) The State Government shall establish State Child Protection Society and District Protection Units in accordance with Section 106 of the said Act of 2015 within a period of nine months from today:
(m) At present, the State Government is releasing grant the the Children's Homes in the sum of Rs.900/- per normal child per month and Rs.990/- for per child per month per mentally challenged child in addition to the administration grant of Rs.315/- per head per month. We hold that the payment of grant at the sng 70 pil-182.10 aforesaid rates is arbitrary which is violative of Articles 14 and 21 of the Constitution of India;
(n) By way of interim measure, till the Government takes a final decision on the issue of substantial increase in the grant, we direct the State Government to pay grant at the rate of Rs.2,000/- per head per month to the MDC Homes and the grant of Rs.1,500/- per head per month to the other Children's Homes. We also propose to direct the State Government to pay grant of Rs.500/- per head per month towards administration expenses. The grant shall be released with effect from 1st April 2017.
(o) The grants shall be released in terms of the Government Resolution dated 13th September 2014. Thus, 80% of the grants shall be released in first quarter of every Financial Year by way of advance;
(p) Appropriate decision on the substantially increasing the grant with retrospective effect shall be taken by the State Government within a period of three months from today after considering the sng 71 pil-182.10 recommendations of the State Coordination Committee. The revised grant shall be payable from 1st April 2017 or such earlier date as may be decided by the State Government ;
(q) Unless the reasonable amount is fixed by substantially increasing the grant admissible as per the Government Resolution dated 13th September 2013, the Non-Government Organizations will find it impossible to run the Children's Homes and especially the MDC Homes and, therefore, the State Government is under an obligation to take a policy decision of increasing the grant substantially.
(r) The direction issued on 9th December 2012 to forthwith enhance the security cover provided for the children in MDC Home at Mankhurd shall be implemented within a period of two months from today, if not already implemented;
(s) If the children housed in the other MDC Homes are victims of the offence or witnesses, apart from providing necessary security cover to every such sng 72 pil-182.10 MDC Homes, the State Government shall ensure that necessary protection is granted to the children who are either victims of the offences or who are witnesses in terms of the protection granted to the victims and/or witnesses as per the prevailing policy;
(t) The children who are permitted to attend the formal/regular schools shall be also given necessary protection and security which will ensure that they visit the schools and come back after the school activities are over;
(u) The Child Protection Policy and Code of Conduct for the staff of MDC Homes, for teachers and staff of special schools for dealing with the children with disabilities framed under the orders of this Court shall continue to operate. It will be open for the State Government to periodically review the same;
(v) The directions issued under the orders dated 16th September 2010 and 16th April 2014 for medical examination of the children in the MDC Homes meant for mentally deficient children shall continue to operate;
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(w) The concerned District Child Welfare Officers shall
ensure that the children are medically examined by a team of experts including a Physician, Mental Health Expert, Psychologist/Psychiatrist (if any) and in case of a female inmate, a Gynecologist. Medical examination shall be conducted at least twice a year;
(x) The Niramaya Health Insurance Scheme shall be extended to all the mentally challenged and disabled children in all the MDC Homes in the State whether aided or non-aided. The State Government shall take necessary steps in this behalf by taking up the matter with the Chairperson of the National Trust. This direction shall be implemented within a period of three months from today. Needless to add that the premium shall be payable by the State Government; (y) The State Government shall ensure that entire machinery as indicated in Paragraph 55 above under the Juvenile Justice (Care and Protection of Children) Act, 2015 is set up and the provisions thereof are implemented in its true letter and spirit in the entire State;
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(z) However, as directed earlier, the Rule making power
under sub-Sections (1) and (2) of Section 110 shall be exercised within a period of six months from today. The State Government shall file an affidavit within a period of two months from today indicating an outer limit within which the rules shall be framed; (aa) In view of Sub-section (2) of Section 111 of the said Act of 2015, the directions issued by this Court from time to time for implementation of the said Act of 2000 will continue to operate till the entire framework under the said Act of 2015 is established by the State Government;
(bb) The directions issued under the order dated 5 th February 2011 to ensure that the resource persons at the vocational training centers run by the Government of Maharashtra regularly visit the Homes for mentally challenged children to provide all necessary services like speech therapy and vocational training to the inmates shall continue to operate;
sng 75 pil-182.10 (cc) As directed earlier, the State Government shall scrupulously implement the provisions of Section 41 of the said Act of 2015 read with Section 42 thereof; (dd) The District Legal Services Committees and Taluka Legal Services Committees shall extend necessary cooperation and assistance to Children's Homes in their respective Jurisdictions ;
(ee) A copy of this Judgment and Order shall be forwarded to the Secretary of the Maharashtra State Legal Services Authority who shall communicate the aforesaid directions to all the District and Taluka Legal Services Authority;
(ff) The directions issued under the order dated 11th March 2011 to nominate Judicial Officers for visiting MDC Homes will continue to operate. Inspection shall be carried out by Judicial Officers so nominated once in every six months. Reports shall be forwarded to the State Level Co-ordination Committee to enable it to take up the matter with appropriate authorities;
sng 76 pil-182.10 (gg) A contingency fund of Rs.5,000/- in cash shall be placed at the disposal of each MDC Homes which can be used for expenditure incurred in case of medical emergency;
(hh) The State Government shall consider of revising the said amount periodically and preferably after every two years;
(ii) The Child Welfare Committees under Section 27 of the said Act of 2015 shall be constituted in all Districts. The State Government shall ensure that vacancies to the posts of Chairperson and members shall be filled in immediately. The State Government shall start process of making appointments at least six months before the term of the members of the Committees is likely to expire. All the necessary infrastructure such as a decent office, adequate staff, furniture, computers, printers, etc. shall be provided to all the Child Welfare Committees;
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(jj) In case of mentally deficient children in MDC Homes
who complete the age of 18 years, necessary steps shall be taken in terms this judgment and order so that the said children can be accommodated in proper homes run by the Non-Governmental Organizations;
(kk) The "Chunauti Rehabilitation Model" shall be replicated in all MDC Homes in the State. This direction shall be complied with within a period of three months from today;
(ll) As directed under the orders passed by this Court, the benefit of Sarva Shikshan Abhiyan shall be extended to the children in MDC Homes;
(mm) We direct the State Government to pay a sum of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand) to Dr. Asha Bajpai, the learned Amicus Curiae within a period of two months from today. It will be open for her to use the said amount for the social activities undertaken by herself or by Tata Institute of Social Sciences;
sng 78 pil-182.10 (nn) The Petition is disposed of with the aforesaid directions;
(oo) It will be appropriate if, for reporting compliance, this Petition is placed before the same bench or at least to a bench to which one of us is a party. Necessary directions in this behalf shall be obtained by the Registrar (Judicial-I) from the Hon'ble the Chief Justice on the administrative side; (pp) For reporting compliance, firstly the Petition shall be listed on 30th June 2017 at 11.00 a.m. Compliance affidavit shall be filed by the State Government on or before 27th June 2017.
.