September 17, 2018 2:24:17 am
In July 2015, a 12-old-year boy working at an auto repair shop in Govindpuri transit camp was rescued. Like any other “child in need of care and protection (CNCP)”, he was produced before one of the 10 Child Welfare Committees (CWCs) in the city, which sent him to a shelter home as mandated by law.
Over the next 15 days, his mother ran “from pillar to post” to meet him. Despite multiple visits to the CWC, police station and shelter home, she couldn’t get custody of her son. She eventually filed a Habeas Corpus plea — literally ‘produce the body’ — in the Delhi High Court, which united the mother and son, and gave an order indicting the functioning of various stakeholders, especially the CWC — a statutory body that has the same powers as a metropolitan or a judicial magistrate, as per the Juvenile Justice (JJ) Act.
Calling the case a revelation of the CWC’s “poor” functioning, a bench of Justice Kailash Gambhir and P S Teji singled out an instance as “too shocking”: That when the child’s case came up before CWC Kalkaji, the body cited “lack of jurisdiction” and adjourned the matter for a few days to place it before CWC Lajpat Nagar. The HC noted that neither CWC made any effort to reunite the family.
“Is this the way stakeholders are functioning in discharge of their assigned duties under various statutes?” the High Court asked, calling the situation “dismal and pathetic”. It also noted that CWC chairpersons appeared to be “ignorant” about their role and directed them to undergo proper orientation.
The case is indicative of the lacunae in the functioning of CWCs, which dispose of at least 10,000 cases dealing with ‘children in need of care and protection’ in the capital every year.
Following the HC order, a new JJ Act of 2015 was passed by Parliament to “ensure proper care, protection, development, treatment and social integration of children in difficult circumstances by adopting a child-friendly approach, keeping in view the best interest of the child”.
According to the new Act, the CWC’s responsibilities include taking cognizance of and receiving children produced before it, ensuring their rehabilitation and restoration, and taking action for rehabilitation of sexually abused children, among others.
On ground, though, progress has been painfully slow. Officials in the field of child welfare as well as former CWC members told The Indian Express that a mix of limited autonomy, staff crunch and inadequate training contribute to a system that is sometimes unable to do its best for the child.
n Take, for instance, the case of a minor who was sexually assaulted, allegedly by her cousin. According to a special court, the girl had run away from home and approached CWC Kalkaji on her own, saying her uncle and cousin were pressing her to withdraw the police case. She was sent to a shelter home, but on August 31, 2016, the CWC gave custody of the child to the uncle and cousin for three days, noted Additional Sessions Judge Prem Kumar Barthwal in his December 15, 2017 order. The order was sent to the police chief, Delhi Commission for Women (DCW) and the District Child Protection Unit, to ensure the girl’s safety. Incidentally, on February 5, 2018, the same CWC wrote in an order that the accused should “not get” custody of minors.
n In another case from 2017, police had named a girl’s mother as ‘prima facie complicit’ in her sexual assault by her father. But even as the case was under trial in Patiala House Court, the CWC concerned ordered that custody be given to the mother. Over the next few days, the mother left home with the child. Additional Sessions Judge Ruby Alka Gupta, in her August 30, 2018 order, noted that the CWC did not call for any report, nor did it intimate the IO or SHO while passing the custody order. She observed that the CWC needs to be sensitised about the needs of children before releasing them into the care of their parents, especially in cases of incest or abuse involving close relatives. The court also noted that the lack of “caution being exercised” while releasing a child was “disturbing”.
n The CWC has also been pulled up for “arbitrarily” giving compensation orders and not following “principles of natural justice”. An Additional Sessions Judge special court, for example, rebuked the CWC concerned, which had ordered an employer to pay Rs 2.69 lakh to his domestic help. The court noted that the CWC passed its order based only on the girl’s statement and didn’t give her employer a hearing. In response, CWC East said it is a quasi-judicial body and that it had issued the order after taking “support” from the HC order titled ‘Bachpan Bachao vs Union of India’, and the L-G’s Delhi Private Placement Agencies (Regulation) Order, 2014, regarding prevention of exploitation of domestic workers.
A former lawyer, who used to be a CWC member between 2015-17, said one of the major problems is a clash of interests with the Department of Women and Child Development, Delhi. “All shelter homes and observation homes for children — run by government or NGOs — come under the CWC. The department doesn’t like us giving orders against functioning of homes. We depend on the government for salaries and there have been instances when it has been delayed. There is a clash of interest, and we have raised the issue on several platforms,” she claimed.
Another problem is the powers vested with the CWC. “We are a quasi-judicial body, we cannot function like a normal court. We are asked during training to ‘always listen to the child’. But when we pass an order for compensation, it is challenged in superior courts, where the Sessions Judge says the ‘principles of natural justice’ are not followed,” she said.
Another former CWC member (from 2012-2017), who is now a member of the Juvenile Justice Board, said training is a “big concern”. “Training should be a continuous process. How to pass an order is never taught properly; most members are from social activism or diverse backgrounds who have never written an order before. No one is versed in the technicality… when our orders are later challenged, members are rebuked.”
She also pointed out that CWCs cannot legally turn away children citing lack of jurisdiction — but this isn’t always the case. “In August, a JJB in Vishwas Nagar ordered CWC Sanskar Ashram to admit a child, saying he was no longer in conflict with the law. But the CWC refused, saying the crime was committed in the jurisdiction of CWC Mayur Vihar.
The latter, too, cited jurisdictional issues. Eventually, it was found that the actual jurisdiction was CWC Gol Market.
Where is the child’s interest?” she asked. An employee of the Observational Home for Boys, Seva Kutir, confirmed the incident.
Dr Sabrina Sabharwal, a former CWC chairperson, said: “The selection committee has to ensure they select passionate people for effective functioning of child rights system… Police should also take CWCs more seriously.” Another CWC member said an order directing the DCP, Crime Branch, Anti-Human Trafficking Unit, to provide it with a list of minors in brothels has received no response.
Former CWC chairperson Rajmangal Prasad, who conducts training in various states, was part of UNICEF programmes and is a JJ Act expert, said attention needs to be paid to selection of CWC members. According to the Act, no social worker shall be appointed as a CWC member unless he/she has been actively involved in health, education or welfare activities pertaining to children for at least seven years, or is a practicing professional with a degree in psychology, psychiatry, law, social work or sociology of human development.
“During selection, skill test is very important… to check if they will be able to cope with the needs of the job even after training… In Delhi, members are paid Rs 3,500 per sitting — as opposed to Rs 1,500 in other states — and a minimum of 20 sittings are mandated by the law. Yet, we aren’t getting suitable candidates.”
He added: “Being a statutory body, CWC is treated like an orphan. Whatever work is happening is due to the Juvenile Justice Committee under the High Court. Here, too, priority is JJBs, not CWCs.”
Another problem is lack of funds. The Centre’s Integrated Child Protection Scheme (ICPS), where the WCD Ministry contributes about 75% of the funds, is not being implemented, he said. “Delhi is a trafficking and child labour hub, and there are no funds for repatriation out of the ICPS budget.”
Staff crunch is also a worry. The JJ Act says there should be a gap in reappointment of members after completing one term, but Yogesh Kumar, director of NGO Association of Development, said it is not clear how long that gap should be.
Each CWC has one chairperson and four members. Of the 10 CWCs, only five are functioning with full strength, while 17 CWC member positions are vacant. Ever since the terms of several chairpersons and members came to an end on July 1, in-term members have been given additional responsibilities to look after vacant CWCs.
At the Alipur CWC, the post of the woman chairperson is vacant. This, despite its own order, stating, “The committee is functioning with four male members and one post is vacant for female chairperson…”
DCW chief Swati Maliwal flagged some of the issues: “There is no proper training and selection. I have come across orders which make no sense, and lower courts have repeatedly pointed to very serious and grave action on their (CWCs’) part. I think the government should initiate proper training and allocate requisite resources.”
“A simple strategy is to form a software which digitises their records and links them with shelter homes and police. For instance, if a girl is produced before the committee, many times, they restore the child without consulting police…,” she added.
Deputy Chief Minister Manish Sisodia said, “For the past two years, the Delhi government is focussing on improving early childhood care. The ambit of CWCs is legal. We will look into the issue of vacancies.”
In the lurch
Far away from the courts, anxious parents wait for news of their children outside the gates of Ashiana and Phulwari shelter homes, on the premises of CWC Alipur.
Hungry, thirsty and with all his money spent on the commute to Delhi, Muhammad Mustafa, a teacher from UP, waits for his 15-year-old son. The teenager had come to Delhi on September 4 to visit Jama Masjid and Red Fort, but was stopped at New Delhi Railway Station by an NGO, Prayas, as an “unattended child”.
Since he couldn’t convince them that he had come with someone, the child was produced before CWC-9. Due to lack of space in the home concerned, he was transferred to CWC-10, Alipur. When Mustafa received the call from police, he rushed to Delhi with his brother. The CWC told him to bring his Aadhaar card. The next day, they asked for his son’s photograph attested by the village pradhan, along with an identity certificate. Mustafa went back to his village and returned with the documents.
As he waited for the CWC to release his son, he found a place to sleep — on top of his friend’s bus when it was hot, and inside when it rained.
Fatima Begum (50) from Delhi’s Raja Vihar faced an ordeal not too different. Her son was rescued from child labour. When she brought a certificate from her village in UP, employees at the home told her to get a revised one because it didn’t have the child’s date of birth. “They keep changing instructions. After eight days, I have now received a note with a list of things I need to bring. Why wasn’t I told this on the first day?” she said. While Mustafa’s son was released on September 12, the wait for Fatima continues.
What the CWC does
-Directs child welfare officers to conduct social investigations and submit report
-Conducts at least two inspections per month of homes for children in need of care and protection (CNCP)
-Ensures all efforts made to restore abandoned children to their families, following due process
-Takes suo motu cognizance of cases, reaches out to CNCPs
-Coordinates with police, labour dept and other agencies involved
Who is a child in need of care and protection
-A child without a home, and without any means of sustenance
-Who is found working in contravention of labour laws
-Who resides with a person — whether a guardian or not — who has injured, exploited, abused or neglected the child or has violated any other law meant for protection of child
-Who is mentally ill, physically challenged or suffering from terminal or incurable disease and has no one to look after them
-Who has a parent or guardian, but is unfit or incapacitated
-Who is missing or has run away from home, and parents cannot be found
-Who is likely to be abused, vulnerable to drug abuse or trafficking, victim of armed conflict or civil unrest, imminent risk of marriage
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