An Edited Excerpt from In Re: Right to Privacy to Adolescents (2024)
Apart from the State’s constitutional obligations, the statutes have enough provisions to address this situation.
Section 19 of the POCSO Act
The first relevant statutory provision is Section 19 of the POCSO Act. Section 19 of the POCSO Act reads thus:
“19. Reporting of offences.
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(5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.”
Thus, under sub-section (6) of Section 19, it was the duty of the police to report the matter to the Child Welfare Committee (for short, ‘CWC’) and the Special Court within a period of twenty-four hours from the time the police had the knowledge about the commission of the offence.
Child Welfare Committee
Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for setting up the CWC. The powers of the CWC have been laid down in Section 29 of the JJ Act, which reads thus:
“29. Powers of Committee. —
(1) The Committee shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection.
(2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.”
Thus, the authority of the CWC is to dispose of the cases for care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection. The authority conferred on the CWC creates a corresponding obligation.
Child in need of Care and Protection
A child in need of care and protection has been defined under sub-section (14) of Section 2 of the JJ Act, which reads thus:
“2. Definitions:-
(14) “child in need of care and protection” means a child—
(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child or not) and such person—
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
(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; or
(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and wellbeing of the child; or
(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or
(vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for unconscionable gains; or
(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;”
If a child is residing with a person who has injured, exploited or abused the child or has violated any other law for the time being in force meant for the protection of the child, the said child becomes a child in need of care and protection.
Thus, if a child who is a victim of an offence under the POCSO Act is residing with the accused, the child becomes a child in need of care and protection. Even a child who has a parent or guardian and if such parent or guardian is found to be unfit to take care of the child, in such a case, the child is covered by the definition under sub-section (14) of Section 2 of the JJ Act. Therefore, the CWC has to exercise the power to provide basic needs and protection to such children in need of care and protection.
Duty of Child Welfare Committee
Giving information of the commission of offence under the POCSO Act, as required by Section 19(6) of the POCSO Act, is not an empty formality. The CWC has to immediately step in and take action as provided under Section 30 of the JJ Act, which reads thus:
“30. Functions and responsibilities of Committee.—
The functions and responsibilities of the Committee shall include—
(i) taking cognizance of and receiving the children produced before it;
(ii) conducting inquiry on all issues relating to and affecting the safety and well-being of the children under this Act;
(iii) directing the Child Welfare Officers or probation officers or District Child Protection Unit or non-governmental organisations to conduct social investigation and submit a report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child’s individual care plan and passing necessary directions to parents or guardians or fit persons or children’s homes or fit facility in this regard;
(vii) selecting registered institution for placement of each child requiring institutional support, based on the child’s age, gender, disability and needs and keeping in mind the available capacity of the institution;
(viii) conducting at least two inspection visits per month of residential facilities for children in need of care and protection and recommending action for improvement in quality of services to the District Child Protection Unit and the State Government;
(ix) certifying the execution of the surrender deed by the parents and ensuring that they are given time to reconsider their decision as well as making all efforts to keep the family together;
(x) ensuring that all efforts are made for restoration of abandoned or lost children to their families following due process, as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered child as legally free for adoption after due inquiry;
(xii) taking suo motu cognizance of cases and reaching out to children in need of care and protection, who are not produced before the Committee, provided that such decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee by Special Juvenile Police Unit or local police, as the case may be, under the Protection of Children from Sexual Offences Act, 2012;
(xiv) dealing with cases referred by the Board under sub-section (2) of section 17;
(xv) co-ordinate with the police, labour department and other agencies involved in the care and protection of children with support of the District Child Protection Unit or the State Government;
(xvi) in case of a complaint of abuse of a child in any child care institution, the Committee shall conduct an inquiry and give directions to the police or the District Child Protection Unit or labour department or childline services, as the case may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be prescribed.”
Under clause (vi) of Section 30, it is the duty of the CWC to ensure care, protection, appropriate rehabilitation or restoration of children in need of care and protection based on the child’s individual care plan. The CWC cannot wait till the children in need of care and protection are produced before it.
Under clause (xii) of Section 30, the CWC must take suo motu cognizance of the cases and reach out to the children in need of care and protection. What is important here is clause (xiii) of Section 30, which mandates that it is the duty of the CWC to take action for the rehabilitation of sexually abused children who are children in need of care and protection.
Section 31 of the JJ Act reads thus: “31. Production before Committee.—
(1) Any child in need of care and protection may be produced before the Committee by any of the following persons, namely:—
(i) any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer of District Child Protection Unit or inspector appointed under any labour law for the time being in force;
(ii) any public servant;
(iii) Childline Services or any voluntary or non-governmental organisation or any agency as may be recognised by the State Government;
(iv) Child Welfare Officer or probation officer;
(v) any social worker or a public spirited citizen;
(vi) by the child himself; or
(vii) any nurse, doctor or management of a nursing home, hospital or maternity home: Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.”
Sub-section (2) of Section 31 confers power on the State Government to provide for the manner of submitting the report to the CWC and the manner of sending and entrusting a child to a children’s home or a fit facility. Section 32 of the JJ Act enjoins an individual or police officer to make a report regarding a child found separated from his/her guardian.
Then comes Section 36 of the JJ Act which provides for inquiry to be made by the CWC on production of child or on receipt of a report under Section 31. Sub-section (1) of Section 36 provides that the CWC may pass an order to send the child to a children’s home or a fit facility or a fit person.
Sub-section (2) of Section 36 contemplates speedy social investigation by social welfare or child welfare officers. The social investigation is required to be completed within fifteen days. This enables the CWC to pass final orders.
After completion of the inquiry, the final order is to be passed in accordance with sub-section (3) of Section 36, which reads thus:
“36. Inquiry.— .. .. .. .. .. .. .. .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .. .. (3) After the completion of the inquiry, if Committee is of the opinion that the said child has no family or ostensible support or is in continued need of care and protection, it may send the child to a Specialised Adoption Agency if the child is below six years of age, children’s home or to a fit facility or person or foster family, till suitable means of rehabilitation are found for the child, as may be prescribed, or till the child attains the age of eighteen years.”
The process of rehabilitation and social re-integration
Then comes the crucial provision of Section 39 incorporated under Chapter VII. Section 39 deals with the process of rehabilitation and social re-integration, which reads thus:
“39. Process of rehabilitation and social re-integration.—
(1) The process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care: Provided that all efforts shall be made to keep siblings placed in institutional or non-institutional care, together, unless it is in their best interest not to be kept together.
(2) For children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed there by the order of the Board.
(3) The children in need of care and protection who are not placed in families for any reason may be placed in an institution registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the process of rehabilitation and social integration shall be undertaken wherever the child is so placed.
(4) The Children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes or place of safety on attaining eighteen years of age, may be provided financial support as specified in section 46, to help them to re-integrate into the mainstream of the society.”
After care of children leaving child care institution
There are various provisions, such as foster care, providing a sponsor to the children, etc. Section 46 is another salutary provision that provides that any child leaving child care on completion of eighteen years of age may be provided with financial support to facilitate re-integration into the mainstream of society in the manner as may be prescribed by law. Section 46 of the JJ Act reads thus:
“46. After care of children leaving child care institution.— Any child leaving a child care institution on completion of eighteen years of age may be provided with financial support in order to facilitate child’s re-integration into the mainstream of the society in the manner as may be prescribed.”
“After care” has been defined in Section 2(5) of the JJ Act. It is a provision for financial or otherwise support to persons in the age group of 18 to 21 years.
Conclusion
Thus, the JJ Act has adequate provisions to ensure the care, protection, treatment, and rehabilitation of the victim of an offence under the POCSO Act. The ultimate object is to integrate the child in need of care and protection into society to lead a dignified and meaningful life.
The JJ Act is a complete code that makes provisions for the care, protection, treatment, and development of children in need of care and protection. The JJ Act provides for making available their basic needs and protection. The Act takes care of all the needs of the victims under the POCSO Act who fall under the category of children in need of care and protection. The object is to undertake the rehabilitation and social re-integration process of such victims based on individual care plans as provided under Section 39 of the JJ Act.
Section 46 is a provision that requires the State Governments to frame rules to provide financial support to any child living in a child care institution upon completion of 18 years of age. The financial support has to be very exhaustive as the object of financial support is to facilitate a child’s re-integration into mainstream society.
However, at the grassroot level, sub-section (6) of Section 19 is not being implemented. Even if the information is provided to the CWC, the children in need of care and protection are not being produced before the CWC. Even if the information is given under sub-section (6) of Section 19 of the POCSO Act, the CWCs are not taking any action, though, under clause (xii) of Section 30, CWC has the duty to take suo motu congnizance of the cases and reach out to the children in need of care and protection who are not produced before the CWC.
Under sub-section (6) of Section 19, the police are under a mandate to report the matter to the jurisdictional Special Court or the jurisdictional Sessions Court, in the event the Special Court has not been established. On getting information, it will be ideal if the Special Courts or the Sessions Courts forward the information to the jurisdictional CWC. It is very crucial that sub-section (6) of Section 19 is scrupulously implemented and the CWCs take immediate action to protect the victim.
It is the responsibility of the State to take care of helpless victims of such heinous offences. Time and again, we have held that the right to live a dignified life is an integral part of the fundamental right guaranteed under Article 21 of the Constitution of India. Article 21 encompasses the right to lead a healthy life. The minor child, who is the victim of the offences under the POCSO Act, is also deprived of the fundamental right to live a dignified and healthy life. The same is the case of the child born to the victim as a result of the offence. All the provisions of the JJ Act regarding taking care of such children and rehabilitating them are consistent with Article 21 of the Constitution of India.
Therefore, immediately after the knowledge of the commission of a heinous offence under the POCSO Act, the State, its agencies and instrumentalities must step in and render all possible aid to the victim children, which will enable them to lead a dignified life. The failure to do so will amount to a violation of the fundamental rights guaranteed to the victim children under Article 21. The police must strictly implement sub-section (6) of Section 19 of the POCSO Act. If that is not done, the victim children are deprived of the benefits of the welfare measures under the JJ Act. Compliance with Section 19(6) is of vital importance. Non-compliance thereof will lead to a violation of Article 21.
Unfortunately, in our society, due to whatever reasons, we find that there are cases and cases where the parents of the victims of the offences under the POSCO Act abandon the victims. In such a case, it is the duty of the State to provide shelter, food, clothing, education opportunities, etc., to the victim of the offences as provided in law. Even the child born to such a victim needs to be taken care of in a similar manner by the State. After the victim attains the majority, the State will have to ensure that the victim of the offence can stand on his/her legs and, at least, think of leading a dignified life. That is precisely what Section 46 of the JJ Act provides.
Reference
Re: Right to Privacy to Adolescents (2024)