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In The State Of Tamil Nadu vs Union Of India & Ors.
July, 17th 2018
     ITEM NO.3                     COURT NO.3                 SECTION PIL-W

                         S U P R E M E C O U R T O F       I N D I A
                                 RECORD OF PROCEEDINGS

     Writ Petition(s)(Criminal)        No(s).   102/2007

     RE EXPLOITATION OF CHILDREN IN ORPHANAGES
     IN THE STATE OF TAMIL NADU                                    Petitioner(s)

                                           VERSUS

     UNION OF INDIA & ORS.                                         Respondent(s)
     (Applications for impleadment and directions)

     Date : 11-07-2018       This matter was called on for hearing today.

     CORAM :                 HON'BLE MR. JUSTICE MADAN B. LOKUR
                             HON'BLE MR. JUSTICE DEEPAK GUPTA


     For Petitioner(s)       Ms. Aparna Bhat, Adv. (A.C.)
                             Ms. Joshita Pai, Adv.

                             Mr.   Huzefa Ahmadi, Sr. Adv.
                             Mr.   Zulfiker Ali P.S, Adv.
                             Md.   Thoyyib Hudawi, Adv.
                             Ms.   Lakshmi Sree Puthenpurackal, Adv.
                             Mr.   Faisal M. Aboobacker, Adv.

                             Dr.   Anindita Pujari, Adv.
                             Ms.   Kavita Bhardwaj, Adv.
                             Ms.   Aarti Kumar, Adv.
                             Ms.   Nidhi Sharma, Adv.
                             Ms.   Harsha Garg, Adv.


     For Respondent(s)
     UOI                     Mr.   Maninder Singh, ASG.
                             Ms.   V. Mohana, Sr. Adv.
                             Ms.   Rashmi Malhotra, Adv.
                             Ms.   Vimla Sinha, Adv.
                             Ms.   Swarupma Chaturvedi, Adv.
                             Mr.   G.S. Makker, Adv.
                             Ms.   Sunita Sharma, Adv.
                             Mr.   Raj Bahadur, Adv.
                             Mr.   Ravindera Kumar Verma, Adv.
                             Mr.   Mukul Singh, Adv.
Signature Not Verified
                             Mr.   Mohan Prasad Gupta, Adv.
Digitally signed by
MEENAKSHI KOHLI
Date: 2018.07.12
                             Mr.   B.V. Balram Das, Adv.
17:07:36 IST
Reason:                      Mr.   Rohit Rao N., Adv.
                             Mr.   Mukund P. Unny, Adv.


                                            1
                      Mr. Bhuvan Mishra, Adv.
                      Mr. Sanjiv Das, Adv.
                      Mr. Arvind Kumar Sharma, Adv.
                      Mrs. Anil Katiyar, AOR
                      Ms. Sushma Suri, AOR
                      Mr. M.K. Maroria, Adv.
                      Mr. S.A. Haseeb, Adv.

NCPCR                 Ms.   Anindita Pujari, Adv.
                      Ms.   Kavita Bhardwaj, Adv.
                      Ms.   Aarti Kumar, Adv.
                      Ms.   Nidhi Sharma, Adv.
                      Ms.   Harsha Garg, Adv.
                      Mr.   Ashok K. Srivastava, AOR

Kerala                Mr.   Balgopal, Sr. Adv.
                      Mr.   Mukundan, Adv.
                      Mr.   Nitya Nambiar, Adv.
                      Mr.   G. Prakash, Adv.


           UPON hearing the counsel the Court made the following

                                 O R D E R

     We have heard the learned Amicus, the learned ASG and learned

senior counsel appearing for the State of Kerala.                  We have also

gone through the status report presented by the learned ASG in the

Court today in compliance of the judgment dated 03.04.2018.                   We

have also gone through the affidavit of the Chief Secretary, State

of Kerala filed on 10th July, 2018.



1.   List of Child Care Institutions

     The    learned   ASG    submits   that    in   the    status    report   in

compliance of the judgment dated 29.01.2018 and 08.03.2018 (Volume

103), it is stated on page 10 thereof that there are 7109 child

care institutions in the country that have been registered, 401 are

in   the   process    of    registration,     290   have    been    temporarily

registered while 64 are unregistered.          There is a category called


                                       2
'others' which has 763 child care institutions.                            There are also

child care institutions that are involved in some court case.                             The

total number of child care institutions comes to 8631.

    It is pointed out that the State of Kerala has not provided

information     on    unregistered       child      care    institutions       but   it    is

reported    that     there    are     1189    orphanages      under    the    control      of

Orphanages and Other Charitable Homes (Supervision and Control)

Act, 1960 (for short 'the Act').

    It     is   further      stated    that       some   States     like    Telangana     and

Meghalaya have closed down some child care institutions or have

withdrawn their registrations.

    The status report of child care institutions, as on 30 th June,

2018, should be placed on record.

    In this context, we may also mention that the State of Kerala

has filed an affidavit but there is some lack of clarity in the

facts and figures given by the State of Kerala including number of

charitable institutions registered under the Act as well as the

number of child care institutions that have been converted into

hostels and Madrassa as well as the number of children in these

institutions.        The State of Kerala is directed to supply necessary

information on affidavit.

    It is further pointed out that the details of the financial

grants given and utilization thereof have not been clearly stated

by the State of Kerala and information in this regard should be

given in detail to the Union of India.

    It     is   submitted      by     the    learned       Amicus    that    as   per     the

affidavit there are a large number of children who have been sent

                                              3
back to their parents and that financial grants for such children

runs into lakhs of rupees.            It is not clear whether such saved

funds are being utilized and how they are utilized.                      This should

also be stated by the State of Kerala on affidavit.

     Learned counsel for the State of Kerala has pointed out that

some schemes are being implemented by the State of Kerala.                     It is

not necessary to make any comment in respect of these schemes or

their utility.



2.   Social Audit

Direction No.11 in our judgment dated 05.05.2017 states as follows:

       "11.      The   importance      of    social     audits      cannot     be

       over-emphasized.         The    necessity      of   having    a    social

       audit has been felt in some statutes which have been

       mentioned above and also by the Comptroller and Auditor

       General    of   India.       That    being   the    position,      it   is

       imperative      that   the   process    of     conducting     a    social

       audit must be taken up in right earnestness by the

       National Commission for the Protection of Child Rights

       as well as by each State Commission for the Protection

       of Child Rights.         This is perhaps the best possible

       method by which transparency and accountability in the

       management and functioning of child care institutions

       and other bodies under the JJ Act and Model Rules can

       be monitored and supervised."




                                        4
     We are distressed to note from the affidavit filed by the

Union of India that a large number of States have not permitted the

National Commission for Protection of Child Rights (NCPCR) or its

agency to conduct social audits.         We make it clear that since there

is a direction of this Court and if the State Governments are

resisting in conducting the social audits, it appears that they are

trying to hide something and so they do not want social audits to

be conducted under the directions of this Court.            It is unfortunate

that these State Governments are playing hide and seek game.               We

reiterate the direction to the NCPCR to conduct social audits in

terms of Direction NO. 11 of order dated 05.05.2017 and expect the

State Governments to cooperate.

     The Union of India will also issue an advisory to all the

State Governments to comply with the directions more particularly

since it involves financial implications and we would not like any

allegation of corruption to be made against the State Governments

due to resisting social audits.



3.   Utilization of Software

     It has been brought to our notice that there is Management

Information Software (MIS) that is being utilized in the State of

Bihar under the aegis of UNICEF.         In this context, the learned ASG

says that there is also a software being utilized in the State of

Assam under the aegis of UNICEF.          It would be appropriate if the

Ministry of Women and Child Development gets in touch with the

UNICEF   in   Bihar,   Assam   and   Delhi     to   study    the   Management

Information Software so that this technology can be utilized for

                                     5
full details of all the children in various child care institutions

and plans for their rehabilitation etc.








4.     Non utilization of funds under ICPS

       There has been a large scale non-utilization of funds by the

various State Governments under the Integrated Child Protection

Scheme (ICPS).         This is extremely unfortunate.            Since funds are

made    available      for    the   benefit   of    children,     if   the    State

Governments do not utilize them, the loss is that of children of

the State.

       Apart from non-utilization of funds, it has been pointed out

that utilization certificates have not been given by some of the

States.

       To make matter worse, no plan of action has been prepared by

the States for financial year 2018-19.              Almost three months have

gone by in the financial year and so it is strange that the States

do not have any plan of action and financial proposal for the

benefit of children of their States for this financial year.

       We direct the States to provide utilization certificates to

the Ministry of Women and Child Development and also to prepare

plans for children of the States for financial year 2018-19.

       The Ministry of Women and Child Development should issue an

advisory    to   all    the   State   Governments    in   this    regard     at   the

earliest.




                                         6
5.   Performance Audit

     It is pointed out by the learned Amicus that while some States

have, in fact, utilized the funds made available under the ICPS,

there is no performance audit of the programmes for which funds are

being utilized.

     It is stated by the learned ASG that performance audit is part

of the ICPS and the audit will be conducted by the Ministry of

Women and Child Development.

     Necessary audits are directed to be completed at the earliest

both at the District as well as State level.       Details in this

regard should also be placed before us on affidavit on the next

date of hearing.

     Affidavits should be filed by the State of Kerala and by the

Union of India within a period of four weeks from today.

     List the matters on 10th August, 2018.




(MEENAKSHI KOHLI)                               (KAILASH CHANDER)
  COURT MASTER                                    COURT MASTER




                                  7
ITEM NO.3                 COURT NO.3               SECTION PIL-W

               S U P R E M E C O U R T O F      I N D I A
                       RECORD OF PROCEEDINGS

             Writ Petition(s)(Criminal)    No(s).102/2007

RE EXPLOITATION OF CHILDREN IN ORPHANAGES
IN THE STATE OF TAMIL NADU                                Petitioner(s)

                                  VERSUS

UNION OF INDIA & ORS.                                     Respondent(s)

WITH    IA     No.138502/2017-INTERVENTION/IMPLEADMENT       and     IA
No.138504/2017-CLARIFICATION/DIRECTION             and               IA
No.138510/2017-INTERVENTION/IMPLEADMENT            and               IA
No.138511/2017-CLARIFICATION/DIRECTION          &                    IA
No.24401/2018-IMPLEADMENT                   and                      IA
No.24403/2018-CLARIFICATION/DIRECTION

(Applications by Yatheem Khanas)

WITH
SLP(C) No. 4905/2018 (XI-A)

 SLP(C) No. 5087/2018 (XI-A)

 SLP(C) No. 8777/2018 (XI-A)

 SLP(C) No. 9565/2018 (XI-A)


Date : 11-07-2018 These matters were called on for hearing today.

CORAM :
          HON'BLE MR. JUSTICE MADAN B. LOKUR
          HON'BLE MR. JUSTICE DEEPAK GUPTA

For Petitioner(s)   Ms.   Aparna Bhat, Adv. (A.C.)
                    Mr.   Pukhrambam Ramesh Kumar, Adv.
                    Ms.   Joshita Pai, Adv.
                    Mr.   Mayank Sapra, Adv.
                    Ms.   Rahat Sharma, Adv.

For Respondent(s)   Mr.   A.N.S. Nadkarni, ASG
UOI                 Mr.   Maninder Singh, ASG
                    Ms.   V. Mohana, Sr. Adv.
                    Mr.   K. Radhakrishnan, Sr. Adv.
                    Mr.   K. Parameshwar, Adv.
                    Ms.   Rashmi Malhotra, Adv.
                    Mr.   Sanjiv Das, Adv.


                                   8
                         Mr. S.A. Haseeb, Adv.
                         Ms. Swarupma Chaturvedi, Adv.
                         Mr. G.S. Makker, Adv.
                         Ms. Sunita Sharma, Adv.
                         Mr. Rohit Rao, Adv.
                         Mr. Raj Bahadur, Adv.
                         Mr. Mohan Prasad Gupta, Adv.
                         Mr. Ravindera Kumar verma, Adv.
                         Mr. Mukul Singh, Adv.
                         Mr. B.V. Balram Das, Adv.
                         Mr. M.K. Maroria, Adv.
                         Mr. M.P. Gupta, Adv.
                         Mrs. Anil Katiyar, AOR
                         Ms. Sushma Suri, AOR

Applicant                Mr.   Huzefa Ahmadi, Sr. Adv.
                         Mr.   K.A. Jaleel, Adv.
                         Mr.   Zulfiker Ali P.S., Adv.
                         Md.   Thoyyib Hudawi, Adv.
                         Mr.   Towseef Ahmad Dar, Adv.

NCPCR                    Ms.   Anindita Pujari, Adv.
                         Ms.   Kavita Bhardwaj, Adv.
                         Mr.   Amitoy Singh, Adv.
                         Mr.   Ashok K. Srivastava, AOR



         UPON hearing the counsel the Court made the following
                                O R D E R

            Issue notice on the applications.

            Learned      amicus   curiae,      Mr.   G.S.    Makker,    learned

        counsel for Union of India and Mr. G. Prakash, learned

        counsel for State of Kerala accept notice.

            Reply be filed within four weeks.

            Rejoinder, if any, be filed within two weeks.

            It is stated by learned counsel appearing for the

        Yatheem Khanas that in all there are 207 Yatheem Khanas

        out of which 81 have already closed down.                      In other

        words,   there     are    only   126    Yatheem     Khanas   that   are

        functioning.       The list of the Yatheem Khanas will be







                                          9
given to the Chief Secretary of the State of Kerala as

well as to the Secretary in the Ministry of Women and

Child Development and learned amicus curiae.

   Until the next date of hearing, no coercive steps

will be taken in respect of these 126 Yatheem Khanas.

However, the NCPCR may conduct inspection, if necessary,

in any of these 126 Yatheem Khanas.

   List the matters for hearing on 29th August, 2018.


 (SANJAY KUMAR-I)                     (KAILASH CHANDER)
    AR-CUM-PS                           COURT MASTER




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