Orphanages to be registered under JJ Act, 2000


Court :
Delhi High Court

Brief :
The bench comprising of Justice Pradeep Nandrajog and Justice Jayant Nath settled the question regarding the legal provisions required for registration and licensing of orphanages and children's home by clearing that the Juvenile Justice Act, 2000 would be applicable for registration of any children's home or orphanages in the capital. The order was issued on a writ petition filed by the Arya Anathalaya and other sister institutions against the Department of Women and Child Development, seeking court directions to renew their license under the WCIL Act, 1956 without insisting on obtaining registration or recognition/certification under Section 34(3) of theJJ Act, 2000. The Government had initially said that the WCIL Act was implied repealed once the JJ Act had been passed, but then said both acts were applicable on children’s homes. ''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 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. ''

Citation :
Sheela Barse & Anr. Vs. UOI & Ors. AIR 1986 SC 1773 Indian Tobacco Co.Ltd. Vs. The Commercial Tax Officer Bhavanipore & Ors AIR 1975 SC 155 G.P.Nayyar Vs. State (Delhi Administration) AIR 1979 SC 602

* 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 

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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 

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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 

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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 

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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 

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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 

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the Union Territories.    Section 58 of the Children Act, 1960 read as under:-        

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“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 

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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:- 

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“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. 

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(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 

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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 – 

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(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. 

 

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(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: 

 

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 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 

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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 

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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 

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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 

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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. 

 

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      (PRADEEP NANDRAJOG)

                     JUDGE

 

 

            (JAYANT NATH)

            JUDGE 

MARCH 03, 2014 

mamta 

 

Vineet Kumar
on 05 March 2014
Published in Civil Law
Views : 2195


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