“The Act makes no difference between orphaned and abandoned children,” said Justices Gautam Patel and Neela Gokhale while hearing an interim application in a pending petition by The Nest Foundation, a charitable trust that runs Angels Nest, a home for girls, in Marol, Andheri (east). The interim order was passed on February 9.

The foundation had urged the HC to direct the state to issue ‘orphan’ certificates to two inmates and also to consider them under the 1% orphan quota for admission to undergraduate health science courses. Both young women had been abandoned at a young age, the girls have been staying in the home since 2008, when they were 4 and 5 years old, respectively. Their mothers hardly visited them.

On February 9, HC had rapped the state for saying that benefits given to orphaned children cannot be given to abandoned children as the government resolution (GR) for allotment of 1% orphan quota makes a distinction between them. Making a careful reading of the Section 2 (42) sub-clause (ii) of the Juvenile Justice Act the division bench noted apart from the definition of the word “orphan”, the sub-clause states that an orphan is also a child whose legal guardian is not able or unwilling to take care of the child. The same simply requires inter alia a declaration as ‘abandoned’ by the Committee after due enquiry. The High Court looking at all the details of the two young women satisfied itself that both did indeed fit under the category of “orphaned” and could be declared as such so as to enable their admissions to institutes of higher learning.

“Para 5.We have also considered the provisions of the JJ Act and in particular, the definition of “abandoned child” in Section 2(1). This requires inter alia a declaration as ‘abandoned’ by the Committee after due enquiry. The definition states that an abandoned child is a child who is deserted by his biological or adoptive parents or guardians. We hold that there is no dispute about abandonment at all. What remains is the declaration that is required by the Committee “after due enquiry.”

Para 5..We have also considered the provisions of the JJ Act and in particular, the definition of “abandoned child” in Section 2(1).. We also note the definition of “orphan” in Section 2(42) of the Act. Interestingly, this definition in sub-clause (ii) states that an orphan is also a child whose legal guardian “is not willing to take or capable of taking” care of the child. The unwillingness in this case of the guardians of both young ladies is manifest from the record as it stands. 6. We must also make reference to the general principles of care and protection of children as set out in Chapter II of the Act. Almost all of them will apply to the case in hand.”

The duties and responsibilities of the Child Welfare Committee (CWC) under the JJ Act  are laid out under Section 30. Sub-clause (xi) says that one of these is the declaration of orphan, abandoned and surrendered children as legally free for adoption after due enquiry (which was not a point of issue in this case. However, the Court held in Para 7, that the the Act itself does not seem to make a sharp distinction between a child who is abandoned and a child who is orphaned.”

The judges essentially concluded that making a distinction defeats the purpose of the 2015 Act, 2015, that does not distinguish between a child who is abandoned and a child who is orphaned. They directed the Child Welfare Committee (CWC) to take a decision on their applications.
State’s advocate Jyoti Chavan informed that the CWC has issued ‘abandoned child’ certificates to the girls. But the foundation’s advocates pointed out that under the GR, the educational reservation is for orphaned children and not for abandoned children.

It was then that the judges repeated that since the Act does not differentiate between both, and that the court would clarify the same. In the order, they noted that CWC “issued the certificates to the two young ladies, declaring them as abandoned children” and also the foundation’s submission that in the GR, the reservation (for education in certain institutes) only mentions ‘orphan’ children. “We believe there is an answer to be found within the statute. We do not expect statutory interpretation from the CWC,” the judges added, and posted the hearing on March 2.

Exercising the powers of high courts under Article 226 of the Constitution of India, the HC accepted the police report about the background of the young women in in question. Say the Judges,

“Para 4. The police report indicated that the mother of one of these two young ladies (again we are being extra cautious to avoid any possible identification) had a love marriage and had severed ties with her family. Her whereabouts are unknown. At the last known address of the other young lady’s birth mother, there was somebody else entirely. The police certify that the actual whereabouts of the two mothers are unknown. “

Furthermore, the Judges held,

“Para 8. Having regard to the facts as they have unfolded, we are satisfied that the necessary material for a declaration by the Child Welfare Committee (“CWC”) is already on record. At best, the CWC may wish to meet the two young ladies themselves and interview the head of the orphanage. We do not prevent that, and leave it open to the CWC to consider if that is even necessary.

Para 9… The enquiry by the Committee is directed towards a certification that the child is fit for adoption or other forms of child care. But these two ladies are not children any longer, as we noted at the forefront. What they seek really is a declaration that their childhood at the Petitioner orphanage was one that was spent in a state of their being under the provisions of the JJ Act especially as abandoned children and orphans. This isthe limited documentation that is sought. They need this certification for their future educational endeavours.

Cutting through the bureaucratic red tape of arguments put forward by the State, the Court had further clarified,

Para 10.The declaration and the report of the Committee does not, of its own, grant admission to an education course or certify eligibility for reservation. Those may be separate matters that the two young ladies must face once they have the certificate from the CWC and apply for admission against some form of reservation. 11. To put it differently, these two young ladies having been abandoned as children, have reached adulthood as abandoned children and orphans but without there being any certification of their status as such. They need that certification today to progress and get ahead in life. We ourselves are sufficiently satisfied with the factual material but the Act does contemplate an enquiry and declaration by the Committee. It is for this limited purpose that we direct the CWC to issue the necessary declaration after the limited enquiry that we have outlined above. To clarify: this enquiry does not relate to the two young ladies as children today but to their past as children until adulthood in the orphanage. The Committee is not to reject the application for noncompliance since we are satisfied that there is sufficient compliance. 12. The Interim Application itself that is before us along with its compilations and any annexures to the Petition will be treated as the application before the Committee. For convenience of the CWC, the Petitioner’s attorneys may separately compile that documentation.”

[ This Order was passed in Interim Application (L) No. 30500 of 2022, and partly in regard to the amended prayers in the Petition Writ Petition Number 2164/2022, The News India Foundation v/s State of Maharashtra.]

Last year, 2022, the NEST Foundation trust filed a petition in the HC, challenging a July 2021 notice by the District Women and Child Development Office to vacate the premises and shift 31 girls to another home as it is not a registered child care institution. In February 2022, the HC granted interim protection against their transfer. That issue was not being presently decided –what was is the future educational studies of two young women due to bureaucratic distinction being created between the words “orphan” and “abandoned” in the statute.

Advocate Abhinav Chandrachid with Akanksha Agarwal and Ismail Shaikh appeared for the petitioners and Ms PH Kantharia, government pleader for the state.

The interim order of the High Court may be read here:

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Approach juvenile justice cases with care and sensitivity: Meghalaya HC to JJBs

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The Meghalaya High Court set aside the order of Juvenile Justice Board (JJB), Khliehriat which had denied bail to a child alleged to be in conflict with law, as the order violated section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Background

The Child in conflict with law (CCL) was directed by JJB, Khliehriat to be kept at Observation Home (Boys), Shillong as he was alleged to be involved in a physical relationship with a 16 year old girl who was found to be pregnant and is the alleged victim. A bail application was preferred but the same was denied by JJB on September 28 mainly on the ground that at that juncture, the statement of the survivor is yet to be recorded under Section 164 Cr.P.C.

Hence, a revision petition was filed before the Meghalaya High Court against the order contending it runs contrary to provisions of section 12 of the Juvenile Justice Act. Under Section 12(1) of the JJ Act 2015, bail can be denied to a juvenile only on the ground that (a) the release of such juvenile is likely to bring him into association with any known criminal and (b) that if released he may be exposed to moral, physical or psychological danger or (c) that his release would defeat the ends of justice.

Further, the petitioner also contended that in the bail application, the mother of the CCL had undertaken that she will take full responsibility and shall ensure that the CCL undergo proper counselling and this was not appreciated by the JJB while denying bail.

The single judge bench of Justice W. Diengdoh observed that provision of section 12 of the JJ Act has to be understood in the context of the Statement of Objects of the same. In the introductory part of the said Act of 2015, it has been noted that:

“… The Juvenile Justice (Care and Protection of Children) Act, 2015 ensures proper care, protection, development, treatment and social re-integration of children in difficult circumstances by adopting a child-friendly approach, keeping in view the best interest of the child…”

The court also referred to the Statement of Objects and Reasons of the Act which cites Directive Principles of State Policy which make the State responsible to ensure that all needs of children are met and their basic human rights are protected. The Court also highlighted the provisions of United Nations Convention on the Rights of Children ratified by India in 1992 which, inter alia, requires the state to deal with a child accused of violating penal law while taking into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

The court thus held,

“…one can safely come to the conclusion that in dealing with a CCL, the courts or for that matter, the Juvenile Justice Board (JJB) is called upon to be highly sensitive keeping the welfare of the child in uppermost concern. Again, the JJB when called upon to apply the provision of Section 12 of the said JJ Act, regard has to be had to the welfare of the child (Juvenile) inasmuch as, confining such child in custody in whatever form would not be beneficial to the overall development of the child’s personality.”

The court also took into consideration the directions issued by the apex court to all Juvenile Justice Boards in the light of the Covid-19 pandemic that they should “consider taking steps to release all children on bail, unless there are clear and valid reasons for the application of the proviso to Section 12, JJ Act 2015”.

The court held that since the bail was denied only on the ground that the statement under Section 164 Cr.P.C of the survivor has not been recorded, the order violated the statutory provision present in the said Section 12(1) and stated that the Principal Magistrate did not apply any judicial discretion while denying bail.

The court while granting bail with conditions stated, “In view of the above, the impugned order cannot stand the scrutiny of law and is accordingly set aside”.

While disposing the petition, the court called upon “all the Juvenile Justice Boards in the State to strictly adhere to the statutory provision of Section 12 of the JJ Act, 2015 while considering the issue of grant or refusal of bail for a CCL and to approach any case where a juvenile is involved with care and sensitivity.”

The complete order may be read here.

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Mumbai: Three minor girls scaled a 15- foot boundary wall to escape Dongri Children’s Home on Nov 2. The girls, aged between 16 and 17, used tables and a ladder to scale the wall. Authorities believe that they wanted to go home for Diwali.
 
One of them has returned voluntarily to the remand home while the others are still at large.
 
“The girl went straight to her Borivli home, but after her family didn’t allow her to stay with them, she went to local police station and informed them she had escaped from Dongri remand home and wanted to go back there. The Borivli police then brought her back,” said Trupti Jadhav-Sankpal, superintendent at Dongri Children’s Home in a report by Hindustan Times.
 
“The other two girls are yet to be traced. They were both recently admitted to the remand home. One is from Bihar and was found 10 days ago, at Dadar station by the Government Railway Police. The other is from Tamil Nadu and was found by a non-profit organisation at Chhatrapati Shivaji Terminus (CST) a few days ago,” the report said.
 
According to the police, on Friday evening, the three girls excused themselves saying they needed to go to the bathroom. They took a ladder that authorities believe was on the premises by the Public Works Department (PWD) and tried to use it to scale the 15-foot boundary wall.
 
“When they found it wasn’t tall enough, the girls pulled out a few tables, piled them up and perched the ladder on the tables. They walked on the boundary wall till they reached a spot where they could use a nearby tree to jump on to the roof of an adjoining public toilet and escape. Authorities of Dongri Children’s Home discovered the girls were missing when they didn’t return from the washroom and a head count was carried out to confirm this. They then informed the police who launched a manhunt. Senior inspector Sandeep Bhagdikar confirmed the incident and said no offence has been registered against the runaway girls. He said the correction home is conducting its own inquiry. The police said a fourth girl had also planned to run away, but abandoned the plan halfway,” the report said.
 
This is the fourth incident of children admitted to Dongri Children’s Home attempting an escape in 2018. In February, five boys attempted an escape in the same manner. The boys, aged between 12 and 16 years, had been brought to the shelter home after being rescued by NGOs and the police. They escaped due to the negligence of PWD officers who left their equipment in the shelter.
 
The remand home a juvenile correction facility for minors involved in petty crimes. There have been many instances of children escaping from the centre based in Umerkhadi, which has faced flak for not being able to provide basic facilities to juvenile offenders.
 
In October 2016, 10 children escaped a remand home in Matunga and three others ran away from a children’s home in Bhiwandi in August 2016 after attacking a security guard.
 

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