Mentally-Challenged Kids Cannot Be Deprived Of Their Fundamental Rights: Bombay HC [Read Judgment]

The Bombay High Court, recently held that under Article 39(f) of the Constitution, it is the duty of the state to make policy for healthy development of children, and certainly towards mentally-ill and mentally-challenged children. Merely because they are mentally-ill or -Challenged, they cannot be deprived of their fundamental right under the Article 21A of the Constitution.

A division bench of Bombay High Court comprising Justice AS OKA and Justice AA Sayed was considering a suo moto public interest litigation (PIL), which was taken up on the basis of a news report in daily Mumbai Mirror dated August 24, 2010. The news report was in relation to the death of five mentally-challenged children due to starvation, malnutrition and inhumane condition at Children's Home named Satkarm Balgriha at Shahpur, Thane.

"Under Clause (f) of Article 39 of the Constitution of India, it is the duty of the State to ensure that there is a policy for securing that the children are given opportunities and facilities to develop in a healthy manner.   Clause (f) of Article 39 will certainly apply to the mentally ill or mentally challenged children.  Merely because they are mentally ill or challenged, they cannot be deprived of their fundamental right under Article 21A of the Constitution of India.   Article 45 which is also a part of the directive principles of the State Policy provides that the   State   shall   provide   early   childhood   care   and   education   for   all children until they complete the age of six years", it said

It appointed Dr. Asha Bajpai of Tata Institute of Social Sciences as amicus curiae and government pleader to assist the court.

The PIL was considered in the light of constitutional provisions and the Juvenile Justice (Care and Protection of Children) Act, 2015, and the rules framed there under.

Following directions were given by the court to the state government:

1. The court directed that interim orders passed in the matter will operate as final till the time modified by order or judgment;


2. Set up adequate number of homes for Mentally Deficient Children (MDC homes) with infrastructure and facilities as per the 2015 Act as expeditiously as possible. Also, set up a management committee for every children home in state;


3. Constitute:

                    Management committee for every child home

                    Maharashtra state co-ordination committee to monitor the compliance of the direction given in the judgment

                     Divisional co-ordination committee

                     Utilisation committee to monitor the utilisation of compensation released;

4. Make rules within six months under the 2015 Act to give complete effect of the 2015 Act;


5. Create a juvenile justice fund within one month;


6. Establish state child protection society and district protection units within nine months;


7. Increase grants to the children homes as the present rates are violative of Article 14 & 21 of the Constitution;


8. Moreover, effective April 1, 2017, the court ordered to grant Rs. 2,000 per head per month to MDC homes & Rs 1,500 to children homes, in addition to Rs. 500 per head per month towards the administrative expenses till the time government makes a final decision to increase the grants;


9. Security cover to every MDC homes by the state. Moreover, the state will ensure necessary protection to victims and witnesses of offence;


10. Child protection policy and code of conduct for the staff of MDC homes formulated by the order of this court will continue to operate with periodical review by state government;


11. Duty of district child welfare officer to ensure medical examination of children in MDC homes every two years by experts;


12. Niramaya Health Insurance Scheme for children in all MDC homes, whether aided or non­aided;


13. Vocational training to children of MDC homes;


14. Directions dated March 11, 2011, to nominate judicial officers will continue to operate. A judicial officer will inspect the homes once in every six months and submit a report to state level co­ordination committee;


15. Benefit of Sarva Shikshan Abhiyan shall be extended to the children in MDC homes;


16. For medical emergencies, a contingency fund of Rs. 5,000 in cash be placed at the disposal of MDC homes and the amount be revised at least every two years; and


17. Once the child in MDC home completes 18 years, steps be taken to accommodate him/her in a proper home run by an NGO.

For reporting compliance, the matter was listed on June 30. The state shall file affidavit on or before June 27.