A Supreme Court Bench of Justices Nageswara Rao and Aniruddha Bose has directed the district authorities under the Juvenile Justice Act to immediately upload information of children who have been orphaned after March 2020 owing to the Covid-19 pandemic, and immediately take charge of such children without waiting for any further orders.

While hearing the suo moto case In Re: Contagion of Covid in Children Protection Home, the court took note of an application filed by the Amicus Curiae Gaurav Agrawal seeking directions with respect to children who have been adversely impacted due to the pandemic by losing either one or both parents, reported LiveLaw. He also highlighted increased incidents of child trafficking especially of girl children.

The Division Bench directed the Additional Solicitor General, Aishwarya Bhati, for Union of India and counsels for states to procure the latest information on identification of children who have been orphaned, and the steps taken to attend to their basic needs by May 30. It has also ordered that it does not need States to file affidavits at this stage. Amicus Gaurav has been directed to prepare a note after receiving information from all State counsels, and circulate it by Monday (May 31) evening.

As per a LiveLaw report, the Bench also noted, “ASG Bhati and Counsel for NCPCR (National Commission for Protection of Child Rights) have submitted that all concerned district authorities may be directed to upload information mentioned above immediately or latest by tomorrow evening for purpose of gathering statistics of children orphaned in pandemic.” A portal named ‘Bal Swaraj’ is operational at all concerned district authorities who have been given access to it with instructions to upload necessary information.

The Bench also told the Centre, “Give us the figures of children who’ve lost parents, both as well as one. Please find out the number and what it is that states have done under the act (Juvenile Justice Act) and if they’ve been attended to immediately. If they haven’t, please instruct officials to start identifying these children.”

Submissions before the SC

Gaurav Agarwal submitted that NCPCR has already taken cognisance of this issue in April as there were some news reports that orphans were being adopted illegally. This led them to come up with a standard operating procedure (SOP) for state authorities to initiate any adoption process.

He added that NCPCR has also set up an online portal whereby the state authorities have to feed in data regarding children and the various steps taken by them for rehabilitation. LiveLaw reported that since NCPCR is a commission which is a guidance/recommendatory body, these SOPs should be implemented by state authorities, which is why the application was moved.

ASG Bhati, apprised the court about the steps taken by the Union like issuing advisories specifically for orphans, single parents, abandoned or seemingly abandoned children. Under the Juvenile Justice (Care and Protection of Children) Act, 2000, a Child Welfare Committee is set up in each district to look over cases of protection, rehabilitation, etc.

Further, she also told the court that the Centre has issued directions that One Child Care Institute in each district has to be earmarked for such children in need. LiveLaw quoted her saying, “We have also declared children protection staff as frontline workers for the purpose of vaccination which has enabled roughly 50 percent of child care protection staff to be vaccinated.” There are telemedicine services made available with the help of some doctors for both physical and mental health care for both children care homes and the staff.

Union Minister of Women and Child Development Smriti Irani had recently tweeted about committing efforts to support 577 children who lost their parents to Covid-19 between April 1 and May 25, 2021. But a non-government organisation Save The Children told SabrangIndia that considering the number of Covid-death underreporting and rising number of children losing one parent, the situation may be worse than what the figure suggests.

The order may be read here:

Related:

GoI claims 577 Covid-orphans, but numbers may far exceed official data: Outreach workers
Is the right to health a forgotten constitutional mandate?
Covid-19 Vaccine: Where are the crores of doses manufactured, but not administered?

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There is an easy way of denying rights or declaring a rightful tribal an encroacher : Just deny him the information within time.

There is an easy way of denying rights or declaring a rightful tribal an encroacher. Just deny him the information within time. He is evicted from the forest where he was dwelling for generations.

Delay the order of rejection of claim by sixty days, so that he cannot appeal within prescribed 60 days. Or don’t send summons or don’t deliver them to right persons. It is not the issue of denial of information sought under RTI Act.

Its deliberate abdication of responsibility of communicating the rejection of claim. If tribal asks information under RTI Act, the babus have another weapon- Section 8(1). They also have a F16 i.e., ‘file is missing’.

Story of 61 Bhill tribe residents in Rajasthan forest

This is the life and death story of 61 Bhill tribe residents who are facing the danger of eviction from their home i.e., Rajasthan forest, since centuries, because of undue rejection of their claims under Forest Rights Act, 2006.

Tribals and other traditional groups, who dwell in forests do not know how to document their rights, and preservation of the papers about property transactions. Most of their transactions are oral.

Unlike civilised (so-called) sections, the oral agreements of tribals are not breached. When a Bhill tribal, Devi Lal, got a summon for verification of his claim in forest officer’s court, he was immensely happy and preserved the summon letter by lamination. For him it gives some proof of his right to reside in forest.

Like Devi Lal, sixty other Bhils also received summons in 2015 but their claims were rejected. As per law, they can appeal within 60 days from rejection. But they were not informed, nor rejection order was delivered.

As they could not appeal, the rejection was confirmed. Information is an important issue in access to justice. The best way of denial of rights, as practiced by bureaucrats, is not to give information about rejection before the appeal time is expired.

The forest dweller has a double risk. If he does not claim right of residence under Forest Rights Act, he will be deprived of what he was having from forefather’s time. He must file a claim. If his claim is admitted and title is given, it is a positive recognition of his possession.

It does not mean some new right accrued to him. But if his claim is rejected for any reason, he will lose everything- home and living rights. He will be considered encroacher and may get uprooted soon or later.

It is strange that if some one fails to prove his claim, he will be disappointed, that is all. But under this FRA, on failure, the claimant deemed to be encroacher and he will evicted, i.e., he will be immediately punished for crime of encroachment, though he was living there for generations.

Can tribals bring satellite images?

Can innocent tribal people prove their residence through satellite images? Officially, 46 per cent of the claims are rejected by such ‘insufficiency’ and other suspicious process. Then they face risk of immediate eviction.

Although the FRA rules list numerous kinds of admissible evidence, including statements from village elders, permanent improvements to land such as bunds, and genealogy tracing ancestry to persons mentioned in old land records, States often make additional demands that are not a part of the Act.

In Gujarat, the government insisted on records from forest department to prove the claim. Strangely they also asked them to produce the satellite imagery, that too, only from Gandhinagar Institute or the Bhaskaracharya Institute for Space Applications and Geo-informatics.

Officers breach the law

Out of 118,000 claims filed till 2008, one third of them are rejected for reasons of not furnishing such documents. The Forest Rights Act requires only proof possession in December 2005, but contrary to this Gujarat officers, reportedly insisted proof of possession before 1980.

In 2013, the Gujarat High Court struck down these requirements and said: “to demand from such a class of citizens strict proof as regards their rights would frustrate the very object with which the Act has been enacted”. The court directed the officers to review such rejected claims.

Review is mandatory

In March 2018, the Ministry of Tribal Affairs issued a statement saying that it had asked chief secretaries of state governments where the rejection rates are high, to “mandatorily” review all such claims from April 1, 2014.

As of November 2018, the latest month for which data are available, Chhattisgarh had rejected most individual claims (455,000), followed by Madhya Pradesh (350,000) and Maharashtra (120,000).

Claimants asked to produce 75-year-old documents, but office files go missing!

The problem of evidence is worse for “other traditional forest dwellers OTFD”, those who do not belong to a scheduled tribe. They must prove “continuous existence” in the forest for 75 years, which is almost impossible.

By a rule, Karnataka wants 75-year-old documents. The sarkari machinery that ask dwellers to produce 75-year-old documents, is so efficient that its files will go missing.

The tribals filed the claims between 2010 and 2012 to their homes and agricultural fields. But their papers are missing. They do not give acknowledgments at least.

Devi Lal went several times to panchayat only to hear the answer ‘file is under process’.

As there was no communication about claims, Devi Lal and other farmers filed fresh applications in 2017. As their earlier claims were rejected by the SDLC, they could not file a new claim.

Why were they rejected? For tracking the claim papers and reasoned orders of rejection they filed RTI requests. They got some papers in response, including one that says request is under process.

In fact, files were absent. Such actions of SDLC’s are in violation of several of FRA provisions, such as Section 12 (A) (3) that says a rejection should be conveyed “in person” so that the claimant can file an appeal within 60 days; and Section 12 (A) (10) that says the reasons for rejection must be recorded in writing.

FRC constituted because of RTI

In some of cases, the Forest Rights Committees were also not constituted. They constituted FRC only in June 2018, three days after an RTI was filed seeking the names of the committee members.

The committee had five members, though the law says it should have no fewer than 10. There were no women representatives, as the law says there must be. There was a “vice president” appointed to the committee, an illegal position.

Postal receipts of the right-to-information requests filed by the Bhils of Rawatbhata block in Rajasthan’s Chittorgarh to track their claims under the Forest Rights Act.

While the claimants did not receive the rejection orders, even the office also does not have the 61 rejection orders, allegedly sent to panchayat samithi, which says rejection orders were forwarded to Bhainsrorgarh village panchayat for distribution.

Panchayat office claims that they did not find any such order. When confronted with facts and figures, the officers were silent. Head of SDLC says he was not aware of Devi Lal case.

Non-communication of rejection orders is confirmed by the Ministry in its affidavit before apex court on February 27, 2019, saying that the Ministry was aware of concerns around rejections, including a high rate of rejections and “non-communication of rejection order (sic)”.

(Based on media reports)

Courtesy : Hans News Service
Originally published on 10 June 2019.

(The writer is former Central Information Commissioner and Professor of Law, at Bennett University, Greater Noida.    His mail ID is : madabhushi.sridhar@gmail.com )

Courtesy: Counter Current

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