Child protection- Social action litigation as a catalyst

SOCIAL ACTION LITIGATION
AGAINST CHILD ABUSE
A presentation by
Maj Gen Nilendra Kumar
An effort for
Bachpan Bachao Andolan
and
Lex Consilium Foundation

SOCIAL ACTION LITIGATION AS A
CATALYST TO JUDICIAL
INTERVENTION AND POLICY
FORMULATION

NEED FOR INTERVENTION
 A judicial intervention may be
sought when-
a) There is no policy, or
b) The policy existing is not being adhered to,
or
c) There are gaps, infirmities or flaws in the
policy.

INTERVENTION
A procedure used in lawsuit by which a court
allows a third person who was not originally
a party to the suit to become a party, by
joining with either the plaintiff or the
defendant.

POLICY FORMULATION
The act of creating laws or setting
standards for a government. It is
also directing the course of action to
be pursued by a government.

CONSTITUTIONAL COURTS
A constitutional court is a high court or supreme
court that deals primarily with constitutional
law. In this context the court is called upon to
rule whether laws that are challenged are in fact
constitutional i.e. whether they conform to the
constitutionally established rights and
freedoms.

In the context of a law suit filed or defended,
by an individual acting on behalf of a group,
is an effort to seek a judgement from a
constitutional court on public interest
litigation initiated.

UNDER AMERICAN LAW
A class action is a civil court procedure under
which one party, or a group of parties, may sue
as representatives of a larger class. To proceed,
the court must permit the class action. If the
class action is certified, members of the class
must be given notice and the opportunity to
exclude themselves from the proceeding. The
class members who opt out are not bound by
the judgement in the case.

JUDICIAL INTERVENTION
The involvement by the courts in matters
that concern citizens in order to expedite
justice. This intervention as an approach is
criticized on the ground that a judicial
system should not get involved in matter of
law making.

PUBLIC INTEREST LITIGATION
Is the litigation for protection of public interest.
A PIL may be initiated in a court of law by the
aggrieved party, by another party or by the
court itself( suo moto).
PIL is a tool by which a court of law can
initiate and enforce action to serve and secure
significant public interest.

Social action litigation as an instrument
for securing socio-economic justice for
the under privileged has been one of the
outstanding development in the
contemporary legal world.

CONCEPT OF EXTENDED
JUSTICEABILITY
The PIL, raising the question of governance,
moves the court to compel the government
to do its duty or to prevent the government
from doing what it was legally forbidden to
do.

PIL or social action litigation(SAL) began in
Supreme Court of India, initially before a bench
of two reform minded judges. They adopted
new approach to grant reliefs to persons for
whom Judicial help had been beyond reach on
issues affecting their security, livelihood , liberty
and dignity. The concept of PIL is in consonance
with the principles enshrined in Article 39A of
the Constitution of India to protect and deliver
prompt social justice through courts of law.

ARTICLE 39A
EQUAL JUSTICE AND FREE LEGAL
AID
The State shall secure that the operation of
legal system promotes justice, on the basis of
equal opportunity, and shall in particular,
provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that
opportunities for securing justice are not denied
to any citizen by reason of economic or other
disabilities.

As a new brand of litigation, public interest
litigation, is not meant to be adversial in nature.
It is intended to vindicate public interest where
fundamentals and other rights of people who
are poor, ignorant or are in a socially or
economically disadvantageous position, go un-
redressed. PIL is meant to be a co-operative &
collaborative effort of the parties and the court
to secure justice for the poor and the weaker
sections.

ELEMENTS OF SOCIAL ACTION LITIGATION
 Key procedural elements of SAL are as under-
1. Epistolary jurisdiction. The access to justice or judicial
redress may be sought without a lawyer or even the filing
of formal papers. The supreme court or high court can
convert a letter from a member of public into a writ
petition.
2. Locus standi or widened roles of standing. Any member
of public or social action group acting bonafide may
approach the court on behalf of an individual or class,
unable to do so on its own.
3. Sociological commissions of Inquiry. The supreme court
started appointing social activist, researchers, journalists as
court commissioners.
4. New remedies and monitoring. A wide variety of remedial
orders were issued and a monitoring agency created.

PIL beneficiaries include those effected by
prison conditions and pre-trial detention rights,
bonded labourers, pavement dwellers, rickshaw
pullers, construction workers, adivasis and
dalits, and of course those victims of child abuse
or neglect.

ACCESS TO JUSTICE
Access to justice is viewed as a right vested with
every citizen and is a necessary compliment of
administration of justice. Citizens can approach
courts for resolution of disputes seeking
appropriate remedies for the wrongs, injuries or
damages suffered by them.
Further, they can move the Supreme Court for
enforcement of the rights guaranteed under the
Constitution or any enacted law. The High
Courts can be moved for enforcement of both
constitutional and other rights.

EXTENSIVE USE OF INTERIM ORDERS
The courts are operating on interim orders, so
that even when there is no time to complete a
case, steps can be taken to control state action.
The use of interim orders is a key to success of
social interest litigation. Such a practice by the
courts allows them to cope with delays. Huge
backlogs are used by the judiciary to exercise
discretion to pick and choose from among
those demanding a hearing to jump the queue
to pay attention to cases of social justice.

LETTER PETITIONS
Sunil Batra (ii)V DelhiAdministration;
(1980) 3 SCC 488.
Bench : JusticesVR Krishna Iyer, R.S. Pathak, and O Chinappa
Reddy.
Decided on 20th December, 1979.
FACTS OFTHE CASE
Sunil Batra, a prisoner inTihar Jail, Delhi, wrote a letter to a
Supreme Court judge complaining about the brutal behaviour
of a JailWarden as a means to extract money from the victim
through visiting relations.
The court initiated proceedings in the nature of habeas
corpus.

JUDGMENT
Petitions by way of letters addressed to
the court outlining the issues of concern
are treated as sufficient or acceptable to
the initiation of the adjudicatory
process.

RE-LOOK AT CONCEPT OF
LOCUS
Where a person or a class of persons to whom
legal injury is caused by reason of violation of a
fundamental right is unable to approach the
court for judicial redress on account of poverty
or disability or socially or economically
disadvantaged position, any member of the
public, acting bonafide, may move the court for
relief under Article 32.

LOCUS STANDI
The right to bring an action or to be heard at
a given forum.

POWER TO DISREGARD
PROCEDURAL TECHNICALITIES
It would not be right or fair to expect a person
acting ‘pro bono publico’ to incur expenses out of
his own pocket for going to a lawyer and
preparing a regular writ petition for being filed in
court for enforcement of the fundamental rights
of the poor and deprived sections of the
community, and on such a case, a letter
addressed by him can legitimately be regarded
as an “appropriate proceeding”.

This is however subject to the
modicum of administrative rules of the
court, providing for verification of
fitness of the cause, the scope and
availability of other reliefs, the
bonafide of the person addressing
such letters etc. There is a good
reason for the insistence that such
letter petitions should be decided after
proper scrutiny.

People’s Union for Democratic Rights V.
Union of India,
(1982) 3 SCC 235.
18 Sep 1982
Bench : Justices PN Bhagwati and Baharul Islam
FACTS OF THE CASE
The matter related to observance of various
labour laws in relation to workmen employed in
the construction of Asian Games projects.
Children below the age of 14 were said to be
employed in construction work.

HELD
1. Public Interest Litigation is a strategic arm of
the legal aid movement intended to bring
justice within the reach of the poor masses.
2. The poor too have civil and political rights and
the rule of law is meant for them too.

3. Any member of public acting bonafide and
not out of any extraneous motivation may
move the court for judicial redress of the
legal injury or wrong suffered by persons in
disadvantaged position.
4. Construction work is a hazardous
occupation and employment of children
below 14 years must be prohibited in every
type of construction work.

5. State to take necessary steps for interdicting
violation of fundamental rights covered by
Articles 17 or 23 or 24 enforceable against
private individuals.

MANDAMUS
 A writ issued by a court to compel the
performance of a particular act by a lower
court or a government officer or body, usually
to correct a prior action or failure to act.

Vineet Narayan V. Union of
India,
(1998) SCC 226.
 Where the CBI and other governmental
agencies failed to carry out their public duty
to investigate the offences, instead of
hearing the matter through, a writ of
mandamus was issued to the authorities
keeping the matter pending while
investigations were being carried out on
subject to monitoring and issuing of orders by
the court.

 Monitoring was intended for the proper progress
of the investigation without directing or
channelling the investigation or in any other
manner prejudicing the right of those who might
be accused, to a full and fair trial. This was done
to eliminate any impression of bias or lack of
fairness or objectivity and to maintain the
credibility of the investigation. The continuing
inertia of the agency to even commence a proper
investigation could not be tolerated any longer.

DOCTRINE OF CONTINUING
MANDAMUS
It is a writ of mandamus issued to a
lower authority by the higher authority in
general public interest asking the officer
or authority to perform its task
expeditiously for an unstipulated period
of time for preventing miscarriage of
justice.

Continuing mandamus has the
effect of making the agencies
perform their statutory function.

BANDHUA MUKTI MORCHA V. UOI,
AIR 1984 SC 802.
BENCH : JUSTICES PN BHAGWATI , RS PATHAK AND
AMARENDRA NATH SEN
The court took a recourse to continuing
mandamus to monitor proper
investigation into the complaints of
major illegalities.

FACTS OF THE CASE
Bonded labour is rampant in brick kilns, stone
quarries, crushing mines, beedi manufacturing,
carpet weaving, construction industries, agriculture,
power looms, fish processing, unorganised and
other informal sectors.

The court in these cases did not
concern themselves with the
accusations on a meritorious basis but
only by the due performance of the
duties and obligations on the part of the
government agencies to fairly, fully and
properly investigate into every such
accusation against every person and to
take a logical final action in accordance
with the law.

SPACE TO SOCIAL ACTION GROUPS
Neerja Chaudhary V. State of MP;
AIR (1984) 3 SCC 243.
Bench: Justices PN Bhagwati and AN Sen.
Decided on 8th May, 1984.
FACTS OF THE CASE
The Civil Rights Correspondent of “Statesman”, a leading
newspaper, wrote a letter to one of the judges of the
Supreme Court highlighting the matter of rehabilitation of
135 freed bonded labourers who had been released from
bondage. They were living almost on the verge of starvation

Held, It is through social action group working
amongst the poor that we shall be able to
discover the existence of bonded labour and we
shall be able to identify and release them. There
are, fortunately, in our country a large number of
such dedicated social action groups – young
men and women inspired by idealism and moved
by a passionate and burning zeal to help their
fellow beings – whose services can be utilized
for identification, release and rehabilitation of
bonded labourers.

We would strongly urge upon the State
Government to include the representatives of such
social action groups in the vigilance committees
and to give them full support and cooperation.
These social action groups may appear to be
unorthodox and unconventional and their actions
may be marked by a sense of militancy, but they
alone will be able to deliver the goods and it is
high time that the State Governments should start
taking their assistance instead of looking down
upon them and distrusting them.

SOCIAL ACTION GROUP
The activity when people come together to
solve a problem in their community rather
than ask the government to do it for them.

RIGHTS OF CHILD
The right to free and compulsory education for
children below the age of 14 is guaranteed. Public
interest protecting the rights of the child has an
Article 21 dimension. Exploitation by way of child
labour, trafficking, impairment of adoption rights,
enforcing legislations, dealing with age of marriage
are issues dealt with by domestic and international
law.
- J P Unnikrishnan V State of AP; AIR 1993 SC 2178; MC
Mehta V State of TN, AIR 1997 SC 699; M C Mehta V State
of TN; (1996)6 SCC 756, Bandhua Mukti Morcha V UOI;
1986 (Supp) SCC 553.

Pratap Singh V. State of Jharkhand,
(2005) 3 SCC 551.
Bench : Justices N Santosh Hegde, SN Variava, BP Singh, HK Sema and
HB Sinha.
Decided on 2nd February, 2005.
FACTS OF THE CASE
The appellant was alleged to be one of the conspirators to
have caused the death of the deceased by poisoning. He was
subsequently arrested. A petition was filed on his behalf before
the CJM claiming that he was a minor on the date of
occurrence.

 Held, it is the age of the child on the date of
the commission of an offence that
determines the applicability of the Act and not
the date when he is produced before the
competent authority or court.

 The whole object of the Juvenile Justice Act is
to provide for the care, protection,
treatment, development and rehabilitation of
neglected or delinquent juveniles. The Act
being a benevolent legislation, an
interpretation must be given which would
advance the cause of the legislation, i.e. to
give benefit to the juveniles.

PUCL V. State of Tamil Nadu,
(2013) 1 SCC 585
Justices K S Radhakrishnan and Dipak Misra
Decision dated 15 Oct 2012

FACTS OF THE CASE
1. The PIL reported telltale miseries of
bonded labourers and their exploitation in
India.
2. The Supreme Court issued interim
orders on 13 May, 1994 for
identification of such bonded labourers, to
initiate criminal proceedings against their
employers, to extinguish their debts/
liabilities and provision for their suitable
rehabilitation etc.

3. NHRC was entrusted to monitor and oversee
the directions.
4. An expert group of NHRC submitted its ‘Action
Taken Report’ on 6 June, 2001.
5. Supreme Court vide its orders dated 5 May,
2004, issued further directions to all the States
and Union Territories to submit status reports
to NHRC every six months.
6. NHRC submitted yet another report on 10 Aug,
2009, and a revised report on 3 Sep, 2011, to
show an unsatisfactory state at ground level.

Held,
1. Fresh surveys to be conducted periodically
once in every three years.
2. Proper education to children to be ensured.

BACHPAN BACHAO ANDOLAN V
UOI,
(2014)16 SCC 616,
Decision dated 10 May 2013
Bench : Justices Altamas Kabir , Vikramjit Sen and SA
Bobde
FACTS OF THE CASE
The matter related to the existing state about
handling of complaints regarding missing children
by the concerned police stations.

Held ,
1. In case of every missing child reported there
will be an initial presumption of either
abduction or trafficking, unless in the
investigation, the same is proved otherwise.
Accordingly, when ever any complaint is filed
before the police authorities regarding a
missing child the same must be entertained
under Section 154 Cr.PC.
2. Each police station should have, at least one
police officer, especially instructed and trained
and designated as a Juvenile Welfare officer
in terms of Sec 63 of the Juvenile Justice Act.

3. Para legal volunteers, who have been
recruited by the Legal Services Authorities,
should be utilized so that there is at least one
paralegal volunteer, in shifts, in the police
station to keep a watch over the manner in
which the complaints regarding missing
children and other offences against children
are dealt with.

4. A computerized programme, which would
create a net work between the Central
Child Protection Unit or the Head of the
Organization and State Child Protection
Units, District Child Protection Units, all
specialized Juvenile Police Units, all
Police Station, all Juvenile Justice Boards
and all Child Welfare Committees. The
said suggestion should be seriously taken
up and explored by the National Legal
Services Authority with the Ministry of
Women and Child Development. Once
introduced, the website link should also be
made known to the public at large

5. Every found / recovered child must be
immediately photographed by the police for
purpose of advertisement and to make
people aware of the missing child.
Photographs of the recovered child should
be published on the website and through the
newspapers and even on the TV so that the
parents of the missing child could locate their
missing child and recover him or her from
the custody of the police.

PARAG BHATI V. STATE OF UP
(2016) 12 SCC 755
BENCH : Justices AK SIKRI and RK AGRAWAL
FACTS OF THE CASE
The appellant was arrested on a charge of murder.
He was produced before the juvenile court. His
father filed an application indicating his date of birth
and produced various school certificates, the
juvenile was referred to the medical board for
determination of age. The issue was whether
ossification can be the last resort to prove the
juvenility of the accused.

When an accused commits a grave and
heinous offence and thereafter attempts to take
statutory shelter under the guise of being a
minor, a casual or cavalier approach while
recording as to whether an accused is a
juvenile or not, cannot be permitted as the
courts are enjoined upon to perform their duties
with the object of protecting the confidence of
the common man in the institution entrusted
with the administration of justice.

COMMENTS
The experience of last 30 years have led
some jurists to remark that there are not
too many cases in which investigating
agencies, in a case involving continuing
mandamus, have ended investigation in
favor of the accused.

The golden rule which most investigating
agencies follow is that if a court is
conducting a continuing mandamus, it is
easier to file a charge sheet and let the
court decide whether evidence exists or not.

KhushbooJain V.MinistryofRailways,
DelhiHighCourt,
WPCivilNo.5365 of 2012
Decisiondated13Feb2013
Bench : Justices D Murgesan & VK Jain
FACTS OF THE CASE
Dealt with the plight of children who arrive and
stay at railway stations.
There were destitute children rescued at
railway stations by security personnel of RPF,
GRP and railway staff.

Held,
1. any such security personnel can
produce any child arriving and staying
at a railway station before the Child
Welfare Committee within 24 hours of
his being found. Till his so production
he will remain in the safe custody of the
Security Personnel/ Station Master.

2. Station Master to provide separate
space for male and female
children. They are to be given
adequate care and attention
including meals.

3. If the committee is not
sitting, produce the children
before a single member.
4. Wide publicity to be given of
this information in leading
newspapers and on website.

ICPS
The Integrated Child Protection Scheme
(ICPS) is a government programme
implemented by the Government of
India to help secure the safety of
children, with a special emphasis on
children in need of care and protection,
juveniles in conflict with the law and
other vulnerable children.

Its primary purpose is to create
a central structure to provide
oversight and standardization
for pre-existing and evolving
child protection schemes in
India.

AMERICAN STANCE
ADMINISIBILITY OF INDIRECT TESTIMONY OF A
CHILD
In the case of a 3 1/2 year old Ohio boy, whose
wounds were visible to his teachers at the day care
centre, upon questioning, it was found that the
mother’s boyfriend was to blame.
US Supreme Court ruled that the teacher’s reports of
child abuse based on conversation with young children
can be admitted as testimony despite a defendants
effort to assert his constitutional right.
The accused was awarded 28 year prison sentence.

QUOTE
“Unbridled discretion, however benevolently
motivated is frequently a poor substitute to
principle and procedure.”
-Gault, In re
387 US 1 (1967)

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