SC: Officials duty bound to reply to Commissions set up under CPCR Act

The Hon’ble Supreme Court, on 13th January 2020, in the matter of National Commission for Protection of Child Right & Ors. v. Dr. Rajesh Kumar & Ors. observed that if any official is asked for information by any of the Commissions established under the Commissions for Protection of Child Rights Act, 2005, he is duty bound to reply to the letters of the Commission.

The Hon’ble Supreme Court observed that:

The National Commission for Protection of Child Rights (NCPCR/National Commission) and State Commissions (SCPCR/State Commission) for Protection of Child Rights have been clothed with identical powers and functions. The Commissions have been constituted with a view to not only protect the rights of children but also to suggest ways and means of enhancing the rights of children and ensuring that laws made for the protection of children are effectively implemented. These commissions exercise extremely important powers. They must function only for the protection and betterment of children. These commissions cannot become sources of power, self­ aggrandisement or means of obtaining the trappings of power like official cars, bungalows etc. The people who are appointed to such commissions must in a true sense be friends of the children, willing to spend their time and energy to help children rather than pushing their own personal or political interest. (Para 7)

Amongst many others, the main functions and powers which a commission is required to perform are examining and reviewing the legal provisions enacted for protection of children so that they are effectively implemented; inquire into cases of violation of rights of children and recommend the initiation of proceedings in such cases; examining the factors which inhibit the enjoyment of rights by children in circumstances mentioned in Section 13(d) of the Commissions for Protection of Child Rights Act, 2005 (CPCR Act) and recommend remedial measures; taking a deeper look into matters relating to children in need of care and protection, children in distress, children belonging to marginalised and disadvantaged sections, children in conflict of law, children without family or children of prisoners; to study various international instruments, treaties and policies, undertake research in the field of child rights, spread awareness about child rights; increase child literacy etc. Section 13(1)(i) empowers the commission to itself inspect or cause to be inspected any juvenile custodial home or any other place of residence or institution meant for children whether such institution is run by the State Government or the Central Government or any other authority and includes institutions run by social organisations which, in our opinion, would include NGOs also. The Commissions can take up all other necessary functions and are required to present to the Central Government/State Government, as the case may be, reports in these regards. (Para 9)

Giving children in adoption without following the prescribed procedure or guidelines would definitely be a matter which could be inquired into both by the NCPCR or the State Commission. (Para 9)

In the context in which the word ‘inquire’ occurs in Section 13(1) (j), it obviously means something more than just making a request for information. It envisages the Commission playing an active role in ascertaining the facts relating to the three circumstances dealt with in this provision. It is more than just sending a letter. It is more akin to a preliminary inquiry and if such inquiry indicates that the rights of the children have been violated or the laws have not been implemented or the policy decisions or guidelines have been violated then the Commission must also suggest remedial measures. This power to inquire under Section 13(1)(j) will also have to be read with the power under Section 13(1)(c) which includes the power to inquire into the violation of child rights and recommend initiation of proceedings in such cases. Reading these two clauses together it is obvious to us that ‘inquire’ is not making note on the file but something more. (Para 13)

No person(s), including members of the Commissions whether it be the National Commission or the State Commission, are permitted to take media with them when they visit any of the homes set up under the JJ Act or under any other law. The privacy of the children is of the highest importance. In this fight between two bodies, the children cannot be made subject matter of a media war. (Para 25)

Police officials should realise that when the Commissions constituted under the CPCR Act ask for some relevant information, they must respectfully reply to the same and not rake up the dispute of so ­called ‘jurisdiction’. Even the police officials must realise that these Commissions have been constituted for the welfare of the children. (Para 33)

If any official is asked for information by any of the Commissions, he is duty bound to reply to the letters of the Commission. One Commission may raise the issue that since it is seized of the matter and is inquiring into it, the National Commission should not start another inquiry, but it is not for the officials to raise such an issue. Whether an inquiry has actually been initiated or not cannot be decided by an official. This has to be decided either by the Commission or by a Court of law. (Para 33)

When a Commission asks for information, the letter should be formulated like a request and not like an order. Even if there is non­compliance of such request, the Commission should send another letter in stronger terms directing the official to provide the requisite information. But there is no need to threaten officials with arrest. This should only be done as a last resort. (Para 35)

If the NCPCR decides to inquire into a matter then it must procure the services of a translator to get the documents translated from the regional languages. It cannot, on the one hand, take over the inquiry even if the State Commission has not started the inquiry and, on the other hand, rely upon the authorities of the State to provide the translation. (Para 35)

Copy of judgement: Judgement_13-Jan-2020

-Adv. Tushar Kaushik

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