'Our Orders Are Only On Papers': Gujarat HC Flags State's Silence On 'Specific Queries' On Functioning Of State Child Rights Commission

While hearing a PIL seeking effecting implementation of child protection laws in the state, the Gujarat High Court on Friday orally said that the court's "specific queries"–including functioning of state child rights commission and conducting of social audit, recorded in its earlier order had remained unanswered further questioning how affidavits were being drafted which do not answer these queries. 

The high court, after taking note of an affidavit filed by the state, during the hearing orally said, that it seemed that during the drafting of the affidavits, the court's orders containing the queries were not being read, adding that its orders were "only on papers". 

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi was hearing a 2021 PIL seeking a direction for effective implementation of the Supreme Court's order in Sampurna Behura vs. Union of India and others (2019). The plea further sought "strict and effective implementation" of the Juvenile Justice (Care and Protection of Children) Act 2015, the Protection of Children from Sexual Offences (POCSO) Act 2012 and the Commissions for Protection of Child Rights Act 2005.

State Commission for Protection of Child Rights not functioning

During the hearing on Friday (September 20), advocate Pragyan Sharma appearing for the petitioners–Bachpan Bachao Andolan and Sampurna Behura, referred to the report of the State Legal Services Authority and submitted that the 'State Commission for Protection of Child Rights' (SCPCR) which is the "main body" tasked with carrying out "social audit" is not functioning for the last four years. 

For context, a social audit is conducted to assess the management of child care institutions. 

"Nothing has happened. State has been committing time and again. It is really unfortunate," Sharma said. He further referred to the high court's January 18 order in the matter and said that it was an "admitted fact" that the commission was not constituted. 

Referring to the statement made by the state's counsel as recorded in the January 18 order the high court on Friday asked the state's counsel whether any further affidavit had been filed in the matter. 

As the state's counsel pointed to its affidavit which contained its submission, the high court orally noted that the affidavit was of April this year. 

"In January you said the process is on, in April you said process is ongoing; in September you are not aware of the results so what submission you would make?" the high court orally said. 

To this the state's counsel said that he had received instructions today morning and sought some time ensure compliance. "We will ensure that within two weeks we will report the compliance. We will do the needful," he said. 

To this the high court orally said that from January till date, eight months had gone by. It further orally added, "You are the state authority you have to be prompt.Then you are justifying. How can you justify your inaction? Instead of placing any affidavit, you must have looked to that. You were aware that you have not done so. You should have said in the beginning that 'yes we are at fault and please grant me time' instead of justifying your inaction". 

Social Audit

With respect to conducting of social audit, Sharma said that concerned department had stated that the "social audit is responsibility of the SCPCR". 

At this stage the Chief Justice orally said, "But the department is part of it. For women and child development there is a department of the State. Secretary of that department is answerable as to why social audits are not been done. Is there any response?"

Sharma said that no explanation had been given as to why throughout there had been no social audit. He submitted that a detailed affidavit had been filed by the state that "in that there is no mention of social audit". 

The high court thereafter further orally said, "Queries of the court are not answered and there are many things said in the affidavit about implementation. But specific queries of the court on social audit there is no answer...What I suppose is when you are drafting affidavits you don't even read our orders. And this is how affidavits of the officers are coming up. Our orders are only on papers. They are not worth consideration for even officers of the court who are representing the state authorities. If you are not giving any credence to our orders who else will do? How could you draft such an affidavit where you are not answering our query? And then you are drafting affidavit of the Secretary, Woman and Child Development who is supposed to give answer to every query. So that means that our orders are not supposed to be looked into at all. And this is happening in every case". 

The high court further orally said that the petitioner's counsel as well as the court employs its "energies", and the court writes orders by giving "sufficient judicial time" so that everything comes in the order to enable answers to the court's queries; however "nobody is reading" the same. 

It further orally said, "And this is the state of affairs of the state department. The advocates appearing for the state authorities they are not giving consideration to our orders...For you they are only on paper. And this is how responses are coming. This affidavit is in reply to our two orders after sufficient time given by us. And then reply is only narration of what–'I have done, Whatever I have achieved, I'm so prompt, I'm so good in working'. We are not here to assess your performance. We are you asking you certain questions please answer. If you can answer alright; if you cannot answer alright. But then why you are doing this? Why asking for appreciation from us?"

The high court orally said that the affidavit in response to the court's order has to be "specific" and that while the affidavit of the state contained charts etc., yet there was no answer on SCPCR and as to why social audit had not been done. 

Child protection policy

Meanwhile Sharma again pointed to the January 18 high court order which notes that the Supreme Court had in its Sampurna Behura judgment had directed the Central Government to frame the National Child Protection Policy on prevention of offences against children.

The January order of the high court notes that as per Rule 3(5) of the Protection of Children from Sexual Offences Rules, the respective governments are required to "formulate a child protection policy based on the principle of zero tolerance to violence against children", to be adopted by institutions, organizations, or any other agency working with, or coming in contact with children. The order noted that as per an October 2023 RTI reply received from the Gujarat State Child Protection Society, the implementation of the State Child Protection Policy by the Gujarat Government is "currently under process". 

Sharma thereafter said that the State in its response to this issue had stated that "because the central government has not framed it", it (state) was "not doing anything".  He further submitted that the State had said that the draft of the national policy was prepared in 2018 and inputs were sought from the states by the centre, however the final version of the national policy is yet not published by the Ministry of women and child development. 

He submitted that Rule 3 (5) Protection of Children from Sexual Offences Rules mandates the state government to frame the policy. Sharma further said that this child protection policy is to be adopted by primary schools and even to protect children such as those found under flyovers.

"This is very vital...policy is aimed at protecting those children," Sharma adding that almost 18 states have this policy already in place including states such as Maharashtra and Karnataka. He submitted that the fact that because the final version of the national policy (on the subject) after 2018 has not been notified by the Centre, is no answer for the state not to go ahead and publish a policy. 

Taking note of the Rule, the high court orally said,"Not only schools but child care institutions would also have to follow the policy. Because I think this policy should be state centric.Centre has framed a model policy but every state has its own challenges. According to their social construction, society, kind of cases coming in the state".

The high court noted that there were three aspects–constitution of SCPCR, social audit, and state child protection policy–which the court had already taken note of in its January order which had yet not been complied with.

Sharma said that at this stage he was restricting to these three aspects, and ones these are in place he will highlight the other aspects which may require consideration. 

After some hearing, the high court listed the matter after two weeks. 

Background

The high court had in its January 18 order had noted the state counsel's submission that some "time may be provided to constitute the State Commission as per the mandate of Sections 17 and 18 of the Protection of the Child Rights Act, 2005". 

The court had thereafter said, "Noticing the same, we direct the State Government to take necessary steps to fill up all the vacant posts of the members of the staff, to bring the State Commission in place and make it workable.It is further pointed out that the State Commission for Protection of Child Rights (constituted under Sections 17 and 18 of the Protection of Child Rights Act, 2005) is required to publish annual reports which significantly contribute to the goal of effective monitoring and execution of various laws including the Juvenile Justice Act, 2015 and the POCSO Act, 2012 besides the Protection of Child Rights Act, 2005. As the Commission is not in existence, monitoring for implementation of these statutes cannot be made". 

The court had then also called for filling up of various posts in the District Child Protection Units in a time bound manner. 

Case title: Bachpan Bachao Andolan and Anr. v/s State of Gujarat & Ors.

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