* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : February 04, 2014
Judgment Delivered on : March 03, 2014
+ WP(C) 9590/2009
CHHATRAVAS, CHANDRA ARYA
VIDYA MANDIR ..... Petitioner
Represented by: Mr.Maninder Singh, Sr.Advocate
instructed by Mr.Nitinjya Chaudhary,
Advocate
versus
THE DIRECTOR, DEPTT OF WOMEN
AND CHILD DEV. & ANR. ..... Respondents
W.P.(C) No.9590/2009 Page 1 of 24
Represented by: Mr.Rajeeve Mehra, ASG instructed
by Ms.S.Pushkarna, CGSC,
Mr.Neeraj Chaudhary, CGSC,
Mr.Aditya Malhotra, Mr.Ravjot
Singh, Mr.Gaurav Sharma, Ms.Sana
Sundaram and Ms.Aditi Mohan,
Advocates for UOI with
Ms.A.Kapoor, Deputy Secretary,
Ministry of Women and Child
Development
Mr.G.Tushar Rao, Advocate for
Intervener – Arya Bal Griha
Mr.Digvijay Rai, Advocate for
Intervenor – Arya Kanya Sadan,
Mr.Amit Mahajan, Advocate for
Chandravati Chaudhary Smarak Trust
Mr.Anant Kumar Asthana, Advocate
for applicant/HAQ Centre for Child
Rights Intervener in CM
No.5131/2012
Mr.Sushil Dutt Salwan, Advocate
with Ms.Latika Dutta, Advocate for
GNCT
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. No doubt the officers of the Department of Women and Child
Development, Government of NCT of Delhi are an illuminating lot, but it
appears that half of them are fused and the remaining half are confused.
Sometimes the stand taken is that with the promulgation of the Juvenile
Justice (Care and Protection of Children) Act, 2000, the Women and
Children Institutions Licensing Act, 1956 has been repealed and thus it is
pleaded that the petitioner would not be entitled to a renewal of the license
granted to it under said Act for running a home for orphans or parents who
cannot support their children and that the petitioner should obtain a
permission under the Juvenile Justice (Care and Protection of Children) Act,
2000. At other time the stand taken is that a license under the Women and
Children Institutions Licensing Act, 1956 has to be obtained but after the
petitioner obtained the necessary permission under the Juvenile Justice (Care
and Protection of Children) Act, 2000. Shifting the stand in the pleadings
and the communications as aforesaid, a lot of confusion was created by the
shifting stand taken. As recorded in the order dated July 30, 2012 the final
stand taken was that the Women and Children Institutions Licensing Act,
1956 stood repealed with the promulgation of the Juvenile Justice (Care and
Protection of Children) Act, 2000.
2. The fused and the confused stand taken by the first respondent
therefore compelled us to issue a notice to the Additional Solicitor General
W.P.(C) No.9590/2009 Page 2 of 24
so that proper assistance could be rendered to the Court.
3. Hearing arguments on February 03, 2014 and February 04, 2014 the
matter was reserved for judgment.
4. Since there would be a reference to various statutory provisions and as
we intend to refer to the same in a brief manner, we record at the outset that
the statutory provisions under column No.A would be referred to by the
short name under column No.B. The same would be:-
A. B.
1. Women and Children Institutions Licensing
Act, 1956
Licensing Act, 1956
2. The Children Act, 1960 Children Act, 1960
3. Orphanages and other Charitable Homes
(Supervision and Control) Act, 1960
Orphanages Act, 1960
4. The Juvenile Justice Act, 1986 JJ Act, 1986
5. Juvenile Justice (Care and Protection of
Children) Act, 2000
JJ Act, 2000
5. The Constitution of India has accorded a special status to the children
and we find a reference to the children in the Articles of the Constitution
concerning Fundamental Rights as also the Directive Principles of State
Policy. To wit : Article 24, 39(e) and (f) as also Article 45.
6. With the increase in the number of neglected children and orphans at
the time of partition, the Licensing Act, 1956 was promulgated noting that a
large number of children houses and orphanages had mushroomed where
destitute children were exploited; conditions being inhumane in these
institutions. Section 2(b) of the Act defined an institution to mean an
institution established and maintained for the reception, care, protection and
welfare of women or children and Section 2(a) defined a child to mean a boy
or a girl who had not completed the age of 18 years. Section 3 barred
W.P.(C) No.9590/2009 Page 3 of 24
establishment or maintenance of an institution after the commencement of
the Act except under and in accordance with the conditions of a license
granted as per the Act.
7. The writ petitioner had established an institution for the reception,
care and protection as also welfare of children and had obtained a license for
the same under the Licensing Act, 1956. The license was for running a
home for orphan girls and destitute boys and girls with effect from August
08, 1973. The same was renewed from time to time and lastly till August
06, 2008.
8. Aforesaid writ petition was filed because of an ambivalent stand taken
by respondent No.1. Flip flopping, sometimes the stand taken was that no
license was required to be issued and sometimes the stand was that after the
registration was granted under sub-Section 3 of Section 34 of the JJ Act,
2000 only then would the license be extended under the Licensing Act, 1956
i.e. registration envisaged by Section 34(3) of the JJ Act, 2000 was stated to
be a prior requirement and a condition for being eligible to be issued a
license under the Licensing Act, 1956.
9. The writ petition was filed praying that the respondent No.1 be
directed to renew the license under the Licensing Act, 1956 without insisting
upon obtaining registration under Section 34(3) of the JJ Act, 2000.
10. As per the writ petitioner, and we refer to the amended writ petition, it
provides, free of charge, boarding and lodging to 400 orphan girls at its
campus at Chander Arya Vidya Mandir at East of Kailash another institution
by the name Chandra Ashraya Griha is also located in the same campus
where 75 orphan and destitute girls are housed. It appears that at Arya
Anathalaya and a Kanya Sadan at Daryaganj either orphaned children or
children who cannot be maintained by their parents are lodged; these would
W.P.(C) No.9590/2009 Page 4 of 24
be boys and girls.
11. The factual matrix would be relevant only to note that children housed
by the petitioner at its homes are either orphans or those whose parents or a
single parent cannot maintain the child.
12. Reverting back to the Licensing Act, 1956 under which petitioner was
granted a license way back in the year 1973 to establish an institution for the
reception, care, protection and welfare of children, we find that the said act
was brought into force in Delhi in the year 1960 because sub-Section (3) of
Section 1 of the Act required a notification to be issued in the official gazette
giving the appointed date on which date the Act would come into force in a
State. The Delhi Women and Children Institutions Licensing Rules, 1960
were simultaneously promulgated to give flesh and blood to the bone
structure under the statute concerning the nitty gritties of the infrastructure
and facilities at the Institutions so that inspection thereof could be effected
and those desirous of establishing the institutions knew what they were
supposed to provide for.
13. Though not relevant, we may note that as per Section 12 of the
Licensing Act, 1956, as from the date of the commencement of the
Licensing Act, 1956 in any State, any corresponding law in force in the State
immediately before such commencement would stand repealed.
14. The Orphanages Act, 1960 was promulgated on April 09, 1960 noting
that hundreds of orphanages and charitable homes, whose conditions were
pitiable, had mushroomed in India. The Act was intended to make a
provision for the supervision and control of orphanages and homes for
neglected women and children and for matters connected therewith. As per
sub-Section (3) of Section 1 of the Act it was to come into force when a
notification appointing the date of its applicability was notified by each
W.P.(C) No.9590/2009 Page 5 of 24
State. Section 31 of the Orphanages Act, 1960 stated that as from the date of
the coming into force of the Act in any State, the Licensing Act, 1956 or any
other Act corresponding to the said Act in force in that State immediately
before such commencement shall stand repealed. It needs to be highlighted
that as per the Orphanages Act, 1960 a child was defined to mean a boy or a
girl who has not completed the age of 18 years. A „home‟ was defined to
mean an institution, whether called an orphanage, a home for neglected
women or children by any name called, maintained or intended to be
maintained for the reception, care, protection and welfare of women or
children. A Board was constituted as per Section 7 to supervise and control
generally all matters relating to the management of homes in accordance
with the provisions of the Act.
15. Concededly no notification under sub-Section (3) of Section 1 of the
Orphanages Act, 1960 has been promulgated till date in Delhi and thus in
Delhi the provisions of the Orphanages Act, 1960 do not apply and as a
consequence in Delhi the Licensing Act, 1956 continued to operate.
16. Seven months after the promulgation of the Orphanages Act, 1960,
the Children Act, 1960 was promulgated on December 26, 1960 and as per
sub-Section (3) of Section 1 thereof the said Act was to come into force in
the Union Territories alone on such date as the Administrator of the Union
Territory would notify in the official gazette. Vide a notification dated
December 01, 1961 No.F.40(8)/61-DSW(1), the Children Act, 1960 was
brought into force in the Union Territory of Delhi with effect from January
01, 1962.
17. The Children Act, 1960 was promulgated to provide for the care,
protection, maintenance, welfare, training, education and rehabilitation of
neglected and delinquent children and for the trial of delinquent children in
W.P.(C) No.9590/2009 Page 6 of 24
the Union Territories. Section 58 of the Children Act, 1960 read as under:-
W.P.(C) No.9590/2009 Page 7 of 24
“58. Act 8 of 1897 and certain provisions of Act 2 of 1974 not
to apply.-
(1) The Reformatory Schools Act, 1897, and section 27 of the
Code of Criminal Procedure, 1973, shall cease to apply to any
area in which this Act has been brought into force.
(2) The Women's and Children‟s Institutions (Licensing) Act,
1956 shall not apply to any children‟s home, special
school or observation home established and maintained under
this Act.”
18. It is apparent that vide sub-Section 2 of Section 58, the Licensing Act,
1956 ceased to apply to any Children Home, Special School or Observation
Home established and maintained under the Children Act, 1960.
19. The Children Act, 1960 defined a child, vide Section 2(e), to mean a
boy who had not attained the age of 16 years or a girl who had not attained
the age of 18 years. Vide Section 2(g) Children Home meant an institution
established or certified by the Administrator under Section 9 as a Children
Home. Section 9 reads as under:-
“ 9. Children’s homes –
(1) The Administrator may establish and maintain as many
children‟s homes as may be necessary for the reception of
neglected children under this Act.
(2) Where the Administrator is of opinion that any institution
other than an institution established under sub-section (1) is fit
for the reception of the neglected children to be sent thereunder
this Act, he may certify such institution as a children‟s home for
the purposes of this Act.
(3) Every children‟s home to which a neglected child is sent
W.P.(C) No.9590/2009 Page 8 of 24
under this Act shall not only provide the child with
accommodation, maintenance and facilities for education, but
also provide him with facilities for the development of his
character and abilities and give him necessary training for
protecting himself against moral dangers or exploitation and
shall also perform such other functions as may be prescribed to
ensure all round growth and development of his personality.
(4) The Administrator may, by rules made under this Act,
provide for the management of children‟s homes including the
standards and the nature of services to be maintained by them
and the circumstances under which, and the manner in which,
the certificate of a children‟s home may be granted or
withdrawn.”
20. Children Home would thus be a place where neglected children would
be accommodated so that they could be educated and provided with facilities
for the development of their character etc. as envisaged by sub-Section 3 of
Section 9. A few explanatory words may be spoken of by us at this stage. A
re-look at sub-Sections (1) and (2) of Section 9 of the Children Act, 1960
would evidence that Children‟s Home could be established either by the
Administrator or individuals. If established by individuals the same had to
be recognized by the Administrator on being certified that such institution
would be fit for a Children‟s Home for the purposes of the Children Act,
1960. It could be argued that since because of sub-Section 2 of Section 58
of the Children Act, 1960 the Licensing Act, 1956 shall not apply to
Children‟s Home, Special School or Observation Home established under
the Children Act, 1960 and as Children‟s Homes were established as per
sub-Section 1 of Section 9 by the Administrator, the provisions of the
Licensing Act, 1956 would not apply to said Children‟s Homes alone and
that the provisions of the Licensing Act, 1956 would continue to apply to
institutions certified by the Administrator as fit for the reception of neglected
children as per sub-Section (2) of Section 9, but the argument overlooks the
fact that the certification contemplated by sub-Section (2) of Section 9 is „to
certify such institutions as a Children‟s Homes for the purposes of this Act‟.
21. As per Section 2(l) a neglected child was defined as one who was
found begging or found without having any home or settled place of aboard
or any ostensible means of sustenance or was destitute, whether as an orphan
or not or had a parent or guardian who was unfit or unable or was not
exercising proper control over the child or was a child living in a brothel or
with a prostitute or who frequently went to a place uses for purposes of
prostitution.
22. Section 2(m) defined an Observation Home to mean an institution or
place established or recognized by the Administrator under Section 11 of the
Act as an Observation Home. Section 11 reads as under:-
W.P.(C) No.9590/2009 Page 9 of 24
“11. Observation homes –
(1) The Administrator may establish and maintain as many
observation homes as may be necessary for the temporary
reception of children during the pendency of any inquiry
regarding them under this Act.
(2) Where the Administrator is of opinion that any institution
other than an institution established under sub-Section (1) is fit
for the temporary reception of children during the pendency of
any inquiry regarding them under this Act, he may recognize
such institution as an observation home for the purposes of this
Act.
(3) Every observation home to which is child is sent under
this Act shall not only provide the child with accommodation,
maintenance and facilities for medical examination and
treatment, but also provide him with facilities for useful
occupation.
W.P.(C) No.9590/2009 Page 10 of 24
(4) The Administrator may, by rules made under this Act,
provide for the management of observations homes including
the standards and the nature of services to be maintained by
them and the circumstances under which, and the manner in
which, an institution may be recognized as an observation
home or the recognition may be withdrawn.”
23. The inquiry referred to in sub-Section 1 of Section 11 was the one
envisaged by Section 8 of the Act.
24. Section 2(q) defined a Special School to mean an institution
established or certified by the administrator under Section 10. The said
Section reads as under:-
“10. Special schools –
(1) The Administrator may establish and maintain as many
special schools as may be necessary for the reception of
delinquent children under this Act.
(2) Where the Administrator is of opinion that any
instruction other than an institution established under subSection
(1) if fit for the reception of the delinquent children to
be sent thereunder this Act, he may certify such institution as a
special school for the purposes of this Act.
(3) Every special school to which a delinquent child is sent
under this Act shall not only provide the child with
accommodation, maintenance and facilities for education but
also provide him with facilities for the development of his
character and abilities and give him necessary training for his
reformation and shall also perform such other functions as may
be prescribed to ensure all round growth and development of
his personality.
(4) The Administrator may, by rules made under this Act,
provide for the management of special schools, including the
standards and the nature of service to be maintained by them
W.P.(C) No.9590/2009 Page 11 of 24
and the circumstances under which and the manner in which,
the certificate of a special school may be granted or
withdrawn.”
25. Section 2(j) of the Children Act, 1960 defined a delinquent child to
mean a child who has been found to have committed an offence.
26. In a nut shell, the Children Act, 1960, after defining a child as per
Section 2(e) went on to make special provisions for two categories of
children : (i) a neglected child as defined under Section 2(l); and (ii) a
delinquent child as defined under Section 2(j).
27. A Board called the Child Welfare Board was constituted under
Section 4 and was charged with the duty to discharge the powers conferred
upon the Board in relation to neglected children. As regards delinquent
children, the Children Court established under Section 5 of the Act was
empowered to discharge the duties conferred upon such Court in relation to
delinquent children under the Act.
28. The Children Act, 1960 laid the foundation for Juvenile Jurisdiction.
Various States in India enacted the Children Act and this led to the
observation of the Supreme Court in the decision reported as AIR 1986 SC
1773 Sheela Barse & Anr. Vs. UOI & Ors. to enact a uniform legislation on
the subject throughout the country.
29. The JJ Act, 1986 was promulgated. Section 63 thereof read as under:-
“63. Repeal and savings. –
If, immediately before the date on which this Act comes into
force in any State, there is in force in that State, any law
corresponding to this Act, that law shall stand repealed on the
said date :
Provided that the repeal shall not affect –
W.P.(C) No.9590/2009 Page 12 of 24
(a) The previous operation of any law so repealed or
anything duly done or suffered thereunder; or
(b) Any right, privilege, obligation or liability acquired,
accrued or incurred under any law so repealed; or
(c ) Any penalty, forfeiture or punishment incurred in
respect of any offence committed against any law so
repealed; or
(d) any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid, and any
such investigation, legal proceeding or remedy may be
instituted, continued or enforced and any such penalty,
forfeiture or punishment may be imposed, as if this Act
had not been passed.”
30. As held in the decisions reported as AIR 1955 SC 352 Ameer-unNissa
Begum
&
Ors.
Vs.
Mahboob
Begum
&
Ors.,
AIR
1975
SC
155
Indian
Tobacco
Co.Ltd.
Vs.
The
Commercial
Tax
Officer
Bhavanipore
&
Ors.
and
AIR 1979 SC 602 G.P.Nayyar Vs. State (Delhi Administration) according to
the Common Law Doctrine, the repeal of the repealing enactment would not
revive the Original Act if the second repealing enactment manifests an
intention to the contrary. Since the JJ Act, 1986 contained provisions
relating to Juveniles, both delinquent as also neglected; a neglected juvenile
being amongst others one without a home or means of subsistence and is
destitute as also having a parent or a guardian who was unfit or incapacitated
to exercise control over the juvenile, the repeal under the JJ Act, 1986, vide
Section 63 thereof of any law corresponding to said Act, would repeal the
Children Act, 1960 but that would not mean that the Licensing Act, 1956
would revive qua neglected and destitute children.
31. In the State of Delhi the Juvenile Justice (Delhi) Rules, 1987 were
promulgated on November 17, 1987 and as per Rule 55, the Delhi Children
Rules, 1961 were repealed.
32. On November 20, 1989 the General Assembly of the United Nations
adopted the Convention on the Rights of the Child wherein a set of standards
to be adhered by all State parties in securing the best interest of the child
were prescribed. The convention emphasized the social re-integration of
children to the extent possible. The Government of India having ratified the
convention found it expedient to re-enact the existing law relating to
juveniles bearing in mind the standards prescribed in the Convention on the
Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (Beijing Rules); the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty (1990) and all
other relevant International Instruments.
33. The JJ Act, 2000 was promulgated to consolidate and amend the law
relating to Juveniles. In the year 2007 Juvenile Justice (Care and Protection
of Children) Rules, 2007 were promulgated. Section 69 of the JJ Act, 2000
repealed the JJ Act, 1986.
34. Under the JJ Act, 2000, Children‟s Home, Observation Homes,
Shelter Homes and Special Homes were conceived of as per the definitions
contained in Section 2(e) – to be read along with Section 34, Section 2(o) –
to be read along with Section 8, Section 2(u) – to be read along with Section
37 and Section 2(v) – to be read along with Section 9. The said provisions
read as under:-
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“2(e). "children's home" means an institution established by a
State Government or by voluntary organization and certified by
that Government under section 34.
34. Children's homes.-
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(1) The State Government may establish and maintain either by
itself or in association with the voluntary organizations,
children's homes, in every district or group of districts, as the
case may be, for the reception of child in need of care and
protection during the pendency of any inquiry and subsequently
for their care, treatment, education, training, development and
rehabilitation.
(2) The State Government may, by rules made under this Act,
provide for the management of children's homes including the
standards and the nature of services to be provided by them,
and the circumstances under which, and the manner in which,
the certification of a children's home or recognition to a
voluntary organization may be granted or withdrawn.
(3) Without prejudice to anything contained in any other law
for the time being in force, all institutions, whether State
Government run or those run by voluntary organizations for
children in need of care and protection shall, within a period of
six months from the date of commencement of the Juvenile
Justice (Care and Protection of Children) Amendment Act,
2006, be registered under this Act in such manner as may be
prescribed.”
“2(o). "observation home" means a home established by a State
Government or by a voluntary organization and certified by
that State Government under section 8 as an observation home
for the juvenile in conflict with law.
8. Observation homes.-
(1) Any State Government may establish and maintain either by
itself or under an agreement with voluntary organizations,
observation homes in every district or a group of districts, as
may be required for the temporary reception of any juvenile in
conflict with law during the pendency of any inquiry regarding
them under this Act.
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(2) Where the State Government is of opinion that any
institution other than a home established or maintained under
sub-section (1), is fit for the temporary reception of juvenile in
conflict with law during the pendency of any inquiry regarding
them under this Act, it may certify such institution as an
observation home for purposes of this Act.
(3) The State Government may, by rules made under this Act,
provide for the management of observation homes, including
the standards and various types of services to be provided by
them for rehabilitation and social integration of a juvenile, and
the circumstances under which, and the manner in which, the
certification of an observation home may be granted or
withdrawn.
(4) Every juvenile who is not placed under the charge of parent
or guardian and is sent to an observation home shall be
initially kept in a reception unit of the observation home for
preliminary inquiries, care and classification for juveniles
according to his age group, such as seven to twelve years,
twelve to sixteen years and sixteen to eighteen years, giving due
considerations to physical and mental status and degree of the
offence committed, for further induction into observation
home.”
“2(u). "shelter home" means a home or a drop-in-centre
set up under section 37.
37. Shelter homes.-
(1) The State Government may recognize, reputed and capable
voluntary organizations and provide them assistance to set up
and administer as many shelter homes for juveniles or children
as may be required.
(2) The shelter homes referred in sub-section (1) shall function
as drop-in-centres for the children in the need of urgent support
who have been brought to such homes through such persons as
are referred to in sub-section (1) of section 32.
W.P.(C) No.9590/2009 Page 16 of 24
(3) As far as possible, the shelter homes shall have such
facilities as may be prescribed by the rules.”
“2(v). "special home" means an institution established by a
State Government or by a voluntary organization and certified
by that Government under section 9.
9. Special Homes.-
(1) Any State Government may establish and maintain either by
itself or under an agreement with voluntary organizations,
special homes in every district or a group of districts, as may be
required for reception and rehabilitation of juvenile in conflict
with law under this Act.
(2) Where the State Government is of opinion that any
institution other than a home established or maintained under
sub-section (1), is fit for the reception of juvenile in conflict
with law to be sent there under this Act, it may certify such
institution as a special home for the purposes of this Act.
(3) The State Government may, by rules made under this Act,
provide for the management of special homes, including the
standards and various types of services to be provided by them
which are necessary for re-socialization of a juvenile, and the
circumstances under which and the manner in which, the
certification of a special home may be granted or withdrawn.
(4) The rules made under sub-section (3) may also provide for
the classification and separation of juvenile in conflict with law
on the basis of age and the nature of offences committed by
them and his mental and physical status.”
35. Rules 2(d), 2(k) and 2(l) of the Juvenile Justice (Care and Protection
of Children) Rules, 2007 defining „child friendly‟, „orphan‟ and „place of
safety‟ read as under:-
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“2(d). "child friendly” means any process in interpretation,
attitude, environment and treatment, that is humane,
considerate and in that best interest of the child.
XXX
2(k). "orphan" means a child who is without parents or willing
and capable legal or natural guardian.
2(l). "place of safety” means any institution set up and
recognized under sub-Section (3) of Section 12 and sub-Section
(1) of Section 16 of the Act for juvenile in conflict with law or
children.”
36. Rules 2(m) and 2(n) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 read as under:-
“2(m) “recognized” means a person found fit by the competent
authority or, an institution found fit by the State Government on
the recommendation of the competent authority as per clauses
(h) and (i) of section (2) of the Act; or, recognition of an
institution or agency or voluntary organization by the State
Government to operate as a children‟s home, observation home
and special home; or a shelter home, specialized adoption
agency or after care organization under sub-section (1) of
section 37, sub-section (4) of section 41 and clause (a) of
section 44 of the Act.
2(n) “registered” means all institutions or agencies or
voluntary organizations providing residential care to children
in need of care and protection registered under sub-section (3)
of section 34.”
37. Rules 70 and 71 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 read as under:-
“70. Certification or recognition and transfer of
Management of Institutions and after care organizations.―
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(1) Any organization desiring certification under the Act shall
make an application together with a copy each of the rules,
bye-laws articles of association, list of members of the society
or the association running the organization, office bearers and
a statement showing the status and past record of specialized
childcare services provided by the organization, to the State
Government, who shall after verifying the provisions made in
the organization for the boarding and lodging, general health,
educational facilities, vocational training and treatment
services may grant certification or recognition under sections
8, 9, 34, 37, 41 and 44 of the Act, as the case may be, on the
condition that the organization shall comply with the standards
or services as laid down under the Act and the rules framed
their under, from time to time and to ensure an all round
growth and development of juvenile or child placed under its
charge.
(2) Any organization desiring recognition under the Act shall
make an application to the Competent Authority, who shall
after due inquiry, recommend the State Government for such
recognition.
(3) The State Government may, transfer the management of
any State run institution under the Act to a voluntary
organization of repute, who has the capacity to run such an
institution; and certify or recognize the said voluntary
organization as a fit institution to own the requisite
responsibilities under a Memorandum of Understanding for a
specified period of time.
(4) The State Government may, if dissatisfied with the
conditions, rules, management of the organization certified or
recognized under the Act, at any time, by notice served on the
manager of the organization, declare that the certificate or
recognition of the organization, as the case may be, shall stand
withdrawn as from a date specified in the notice and from the
said date, the organization shall cease to be an organization
certified or recognized under sections 8, 9, 34, 37,41 or 44 of
the Act, as the case may be:
W.P.(C) No.9590/2009 Page 19 of 24
Provided that the concerned organization shall be given an
opportunity of making a representation in writing, within a
period of thirty days, against the grounds of withdrawal of
certificate or recognition of that organization.
(5) The decision to withdraw or to restore the certificate or
recognition of the organization may be taken, on the basis of a
thorough investigation by a specially constituted advisory
board under section 62 of the Act.
(6) On the report of the advisory board, the Officer- in- charge
of the institution shall be asked to show cause so as to give an
explanation within thirty days.
(7) When an organization ceases to be an organization,
certified or recognized under sections 8, 9, 34, 37, 41 or 44 of
the Act, the juvenile or the child kept therein shall, be
transferred to some other institution of repute, certified or
recognized under sections 8, 9, 34, 37,41 or 44 of the Act or
discharged, in accordance with the provisions of the Act and
the rules relating to their discharge and transfer by giving
intimation of such discharge or transfer to the Board or the
Committee, as the case may be.
71. Registration under the Act –
(1) All institutions and organizations running institutional or
non-institutional care services for children in need of care and
protection, whether run by the government or voluntary
organization, shall get themselves registered under sub-section
(3) of section 34 of the Act.
(2) All such institutions shall make an application together
with a copy each of rules, bye-laws, memorandum of
association, list of governing body, office bearers, balance
sheet of past three years, statement of past record of social or
public service provided by the institution or organization to the
State Government, who shall after verifying that provisions
made in the institution or organization for the care and
protection of children, health, education, boarding and lodging
W.P.(C) No.9590/2009 Page 20 of 24
facilities, if any, vocational facilities and scope of
rehabilitation, may issue a registration certificate to such
organization under sub-section (3) of section 34 of the Act and
as per this rule.”
38. Thus, under the JJ Act, 2000 the position could be stated : for children
in need of care and protection Children‟s Home are conceived of and for
children in conflict with law Observation Homes and Special Homes are
conceived of. As regards Shelter Homes the same would be for children in
care of urgent need and support as also for juveniles.
39. Concededly the Children Act, 1960 which was promulgated on
December 26, 1960 was brought into force in the Union Territory of Delhi
on January 01, 1962. Vide sub-Section 2 of Section 58 thereof, the
Women‟s and Children‟s Institutions (Licensing) Act, 1956 ceased to apply
to any Children‟s Home, Special School or Observation Home established
and maintained under the Children Act, 1960.
40. The Licensing Act, 1956 applied to all institutions which were
established for the reception, care, protection and welfare of children. It is
apparent that with the promulgation of the Children Act, 1960 institutions
which would be a Children‟s Home, an Observation Home or a Special
School would no longer be governed by the Licensing Act, 1956 for the
reason these institutions would be governed hitherto fore by the Children
Act, 1960. The definition of a neglected child as per Section 2(l) of the
Children Act, 1960 would embrace a child without a home whether as an
orphan or having parent(s). These children, housed in Observation Homes
required the Observation Homes to be recognized by the administrator. For
delinquent children it was the Special Schools where such children were to
be housed. Thus, the provisions of the Licensing Act, 1956 would not apply
to Observation Homes and Special Schools with the promulgation of the
Children Act, 1960.
41. With the promulgation of the JJ Act, 1986 law corresponding to the JJ
Act, 1986 stood repeal. Under the JJ Act, 1986 a juvenile, a delinquent
juvenile, a neglected juvenile, a Juvenile Home, an Observation Home and
Special Homes were defined. Whereas Special Homes, as per Section 10 of
the JJ Act, 1986 were for reception of delinquent juveniles and Observation
Homes as per Section 11 were for the temporary reception of juveniles
during the pendency of an enquiry regarding them, a Juvenile Home, as per
Section 9 was a Home for the reception of neglected juveniles. A neglected
juvenile as per Section 2(l) meant a juvenile who, inter-alia, was without a
home or have a parent who was unfit or incapacitated to exercise control
over the juvenile. Thus, because of Section 63 of the JJ Act, 1986 the
corresponding provisions under the Children Act, 1960 ceased to apply.
42. The JJ Act, 2000 replaced the JJ Act, 1986 and we have in the Act, as
per Section 2(d), the definition of a child in need of care and protection.
This child has to be kept in a Children‟s Home.
43. Sub-Section 3 of Section 34, which commences with the words :
´Without prejudice to anything contained in any other law for the time being
in force‟ requires ´All institutions‟ whether State Government runs or those
run by voluntary organizations for children in need of care and protection to
be registered under the Act in such manner as may be prescribed.
44. A child in need of care and protection would include a child who has a
parent but such parent is unfit or incapacitated to exercise control over the
child and would also include a child whose parents have abandoned or
surrendered him. The words „surrendered him‟ would mean that the parent
or parents have left the child for care and protection with somebody else and
W.P.(C) No.9590/2009 Page 21 of 24
which would include an institution. In this context we would be failing if we
do not highlight the definition of „abandoned‟ and „surrendered child‟ as per
clause (a) and (q) of Rule 2 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007. The word „abandoned‟ means an unaccompanied
and deserted child who is declared abandoned by the Committee after due
inquiry and „surrendered child‟ means a child, who in the opinion of the
Committee, is relinquished on account of physical, emotional and social
factors beyond the control of the parent or guardian.
45. The expression ‘recognized‟ and ´registered‟ have not to be confused.
As per Rule 2(m) of the JJ Rules, 2007 read with Rule 70 thereof recognition
has to be obtained by a voluntary organization from the State Government to
run a Children‟s Home, an Observation Home, a Special Home or a Shelter
Home. Registration as per Section 2(n) read with Rule 71 is limited to
institutions providing care service for children in need of care and protection
and this registration has to be as envisaged by sub-Section 3 of Section 34 of
the Act.
46. Thus, under the JJ Act, 2000 two broad category of children : (i)
juveniles in conflict with law; and (ii) child in need of care and protection
are clearly discernable and relatable to the four kinds of institutions
contemplated by the Act; and each would require either a recognition and/or
a registration as contemplated by the different provisions of the Act, and as
noted above.
47. Whereas the Licensing Act, 1956 was a general law relating to
children and women, the JJ Act, 1986 and the JJ Act, 2000 are special
legislations pertaining to two categories of children and thus even if it be
assumed that the Licensing Act, 1956 continues to hold the field, pertaining
to the two categories of children referred to in paragraph 44 above, the JJ
W.P.(C) No.9590/2009 Page 22 of 24
Act, 2000 would prevail. The legislative intent could not be made more
clear other than the use of the words ‘Without prejudice to anything
contained in any other law for the time being in force‟ in the opening
sentence of sub-Section 3 of Section 34 of the JJ Act, 2000.
48. Needless to state the mandate of Section 34(3) of the JJ Act, 2000 is
to obtain registration of institutions run by voluntary organizations for
children in need of care and protection under the Act. The issue of
recognition has got nothing to do with Section 34(3) of the JJ Act, 2000 for
the same pertains to Rule 2(m) read with Rule 70 of JJ Rules, 2007 and
depending upon the nature of the Home, a recognition from the State
Government under Section 8 for an Observation Home, under Section 9 for a
Special Home, under sub-Section 2 of Section 34 for a Children‟s Home and
under Section 37 for a Shelter Home.
49. The institutions established by the petitioner are for orphaned girls
and boys as also for boys and girls who cannot be maintained by their
parents. We see no escape from the fact that these children have been
surrendered for care and upbringing to the institutions established by the
petitioner and thus if not as per sub-clause (iv) of para (d) of Section 2 of the
JJ Act, 2000, as per sub-clause (v) of para (d) of Section 2 of the said Act
these children would be a child in need of care and protection requiring
registration under sub-Section 3 of Section 34 apart from a recognition from
a State Government.
50. The recognition by the State Government is independent of a
registration under sub-Section 3 of Section 34 and we find that the first
respondent is totally confused as to what to do. The application seeking
license to run the institution for a child in need of care and protection would
be an application seeking recognition and the State Government would
W.P.(C) No.9590/2009 Page 23 of 24
decide the same independently with reference to the norms prescribed to be
a recognized institution to house a child in need of care and protection. The
registration under sub-Section 3 of Section 34 would not be a recognition
but a registration and thus the latter has to precede the former.
51. We dispose of the writ petition directing the State Government to treat
application by the petitioner for extension of its license under the Licensing
Act, 1956 to be an application seeking recognition. We would advise the
petitioner to thereafter seek registration under sub-Section 3 of Section 34.
52. There shall be no order as to costs.
W.P.(C) No.9590/2009 Page 24 of 24
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
MARCH 03, 2014
mamta
