IN THE HIGH COURT OF DELHI
W.P. (C) No. 6830 of 2007 & CM 14015/2007 Date of decision: 3rd September, 2008
In a judgment given by Justice Dr. S. Muralidhar the High Court has highlighted the loopholes in the system to protect the juveniles in the country and made important observations and given directions for all stakeholders in the system. The case also highlights the plight of young girls working as domestic workers due to poverty who are often subjected to various kinds of physical and mental abuse. The judgment also takes into account the fact of violation of laws, laid down under welfare legislations, because of lack of knowledge. It reiterates some important guidelines for the provision of legal aid to the children.
Facts of the case: The petition arose out of a letter dated 12th September 2007 addressed to a learned Judge of the High Court by Dr. Bharti Sharma, Chairperson, Child Welfare Committee (CWC), Nirmal Chhaya Complex, Jail Road, New Delhi. That letter was treated as public interest litigation. In the said letter Dr. Sharma referred to the case concerning the illegal adoption of a male infant born on 13th August 2007 to a girl who was a rape victim as well as a minor. The case was first brought to light by the reporter of a television channel, CNN IBN. The minor girl was a domestic worker with a placement agency by the name of Adivasi Sewa Samiti, Shakurpur. According to the minor girl, the placement agency sold her infant to a couple. These facts were brought to the notice of the CWC by an NGO, Palna and the CWC taking the cognisance of the case instructed the SHO of Police Station Saraswati Vihar to admit the minor mother as well as her infant, both answering the definition of children in need of care and protection under the Juvenile Justice (Care and Protection of Children) Act, 2000 [JJ Act], to the Children’s Home for Girls, Nirmal Chhaya under the care and protection of the CWC. The placement agency owners told the victim girl that the child was born dead and later sold the child for Rs.23, 000.
Observations of the Court on the grave injustice meted out to juveniles:
“This case brings to light the poignant plight of several child domestic workers who are taken in by placement agencies, and in turn are placed in many households in this city. These young children come from faraway places in the country and, as in this case, belong largely to the disadvantaged sections of the society. The employment of such children for work is driven essentially by poverty which compels poor parents to part with their children for money. Despite the notification under the Child Labour (Prohibition & Regulation) Act, 1986 [`CLPRA‟] issued by the Central Government prohibiting employment of children in domestic households it is not uncommon to find in our immediate environs little girls employed as carers of babies and toddlers. They work for long hours on arduous tasks unsuited to their tender age. All this is, no doubt, illegal but it would be too simplistic to consider this to be a merely legal issue. It needs no reiteration that the JJ Act has itself been made in terms of Article 15 (3), Article 39(e) and (f), Articles 45 and 47 as well as the International Convention on the Rights of the Child (CRC) which has been ratified by India. The preamble to the JJ At makes express reference to these provisions as well as to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juvenile Deprived of their Liberty (1990). The need to strictly enforce all these provisions is even more urgent and it would hardly suffice to be sanguine that the mere enactment of the Act would itself bring about the transformation in the lives of destitute children. Apart from awareness of legal provisions, the State would have to be constantly reminded of its obligations under the Constitution to create circumstances conducive to the healthy development and care of children in their homes. The GNCTD and the Delhi Police will also pay attention to the need for sensitizing concerned Station WP(C) No. 6830/2007 Page 16 of 19 Housing Officers (SHOs) in cases arising under the JJ Act so that the applications made by the prosecution before the JJB or MM, are not mechanically drawn up as was perhaps done in this matter.”
Important directions and suggestions given by the Court:
1. The Court urged the GNCTD to create greater awareness of the provisions of the JJ Act and the CLPRA both through the print and electronic media and in particular in schools and residential colonies, through the resident welfare associations.
2. The court observed that the monitoring of the functioning of placement agencies would have to be undertaken on a far more rigorous scale to ensure that minors are not allowed to be employed and placed in domestic households. Further the court suggested to the GNCTD to seek the involvement of the Child Rights Commission at the Central and State levels in formulating scheme and programmes in the area.
3. The Court drew attention to the mandatory nature of Rule 77(3) of the JJ rules which requires that “In case of a child in need of care and protection and produced as a victim of a crime before a Magistrate not empowered under the Act, such Magistrate shall transfer the matter concerning care and protection, rehabilitation and restoration of the child to the appropriate Committee.” Therefore, the presentation or transfer of the case by the Magistrate to the CWC or the JJB at the earliest possible stage is of utmost importance. The judicial officer should immediately transfer the case without going into details of claims and counter claims, to the JJB and/or the CWC which are specialized bodies constituted under a special Act meant for care and protection, rehabilitation and restoration of the child in need of care and protection.
4. The Court also made an observation as regards providing legal services and legal aid to children under the JJ Act and CLPRA. Despite each child being mandatorily entitled to free legal aid under Section 12 of the Legal Services Authorities Act, 1987 and there being a specific provision in the form of Rule 14 of the JJ Rules very often the CWC and JJB resort to the services of NGOs. It was observed that it is essential that both the District Legal Services Committees as well as the Delhi State Legal Services Authority, on a priority basis, constitute a special panel of advocates with the requisite degree of sensitivity to such cases to handle on a daily basis in the proceedings in the JJB as well as CWC. They should be available round the clock on call and a complete list of names with their telephone and mobile numbers should be made available o these authorities for that purpose. The court added that the payment for rendering such services should be commensurate with the expertise and standing of such advocates so that their continued assistance at all times is available to the JJB and the CWC. The panel should be constantly reviewed after getting a feedback.