X - Juvenile—Rehabilitation and Reintegration vs State of UP and 3 Others

I Introduction II Questions arising for consideration III Submissions of learned counsel at the Bar IV Children and the laws:

A Children and the Constitution B Children and International Law C Children in conflict with law and in need of care and protection: International Law, JJ Act, 2015 and Constitutional Law V Rehabilitative justice under the JJ Act, 2015 read with JJ Rules, 2016 VI Duties of Juvenile Boards/Children’s Court to discharge adjudicatory functions and serve rehabilitative justice:

A JJ Act, 2015 : Duty of JJB/Children’s Court to serve

II. Questions arising for consideration

III. Submissions of learned counsels at the Bar

“41.

The Rules, particularly Rule 3, provide, inter alia, that in all decisions taken within the context of administration of justice, the principle of best interests of a juvenile shall be the primary consideration. What this means is that “the traditional objectives of criminal justice, that is retribution and repression, must give way to rehabilitative and restorative objectives of juvenile justice”.

43.

It is quite clear from the above that the purpose of the Act is to rehabilitate a juvenile in conflict with law with a view to reintegrate him into society. This is by no means an easy task and it is worth researching how successful the implementation of the Act has been in its avowed purpose in this respect.”

“38.

The following directions are necessary: (n) ……..Courts must protect the dignity of children. The children's best interest should be the priority.

41.

It is further submitted that rehabilitation will be the measure of success of the Juvenile Justice (Care and Protection of Children) Act, 2000 Reintegration into society by means of confident and assertive occupations leading to a sense of self-worth will have to be devised. This requires innovative strategies and not any high flown claims to social development.”

“Statement of Objects and Reasons- 5. Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the abovementioned issues and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in conflict with law, rehabilitation and social reintegration measures for such children, adoption of orphan, abandoned and surrendered children, and offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social reintegration of children in difficult circumstance by adopting a child friendly approach keeping in view the best interest of the child in mind.”

“An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.

WHEREAS, the provisions of the Constitution confer powers and impose duties, under clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47, on the State to ensure that all the needs of children are met and that their basic human rights are fully protected;

AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;

AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration 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 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993), and other related international instruments.”

“Section 1(4): Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including —

(i)

apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law;

(ii)

procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.”

“Section 3. General Principles to be followed in the administration of the Act-The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:––

(iv)

Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

(emphasis supplied)

(vii)

Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.

(emphasis supplied)

(xii)

Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.

(emphasis supplied)

(xv)

Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.

(emphasis supplied)

“Section 8- Powers, functions and responsibilities of the Board.: (1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.

(2)

The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children’s Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.

(3)

The functions and responsibilities of the Board shall include’––

(a)

ensuring the informed participation of the child and the parent or guardian, in every step of the process;

(b)

ensuring that the child’s rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;

(emphasis supplied)

(g)

transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;

(i)

conducting inquiry for declaring fit persons regarding care of children in conflict with law;

“Rule 7. Functions of the Board.- (1) The Board shall perform the following additional functions, namely:

(ii)

wherever required issue rehabilitation card in Form 14 to the child in conflict with law to monitor the progress made by the child;

(iii)

wherever required, pass appropriate orders for re-admission or continuation of the child in school where the child has been disallowed from continuing his education in a school on account of the pendency of the inquiry or the child having stayed in a Child Care Institution for any length of time”

“RULE 10 Post-production processes by the Board. (1) On production of the child before the Board, the report containing the social background of the child, circumstances of apprehending the child and offence alleged to have been committed by the child as provided by the officers, individuals, agencies producing the child shall be reviewed by the Board and the Board may pass such orders in relation to the child as it deems fit, including orders under sections 17 and 18 of the Act, namely:

(i)

disposing of the case, if on the consideration of the documents and record submitted at the time of his first appearance, his being in conflict with law appears to be unfounded or where the child is alleged to be involved in petty offences;

(ii)

referring the child to the Committee where it appears to the Board that the child is in need of care and protection;

(iii)

releasing the child in the supervision or custody of fit persons or fit institutions or Probation Officers as the case may be, through an order in Form 3, with a direction to appear or present a child for an inquiry on the next date; and

(iv)

directing the child to be kept in the Child Care Institution, as appropriate, if necessary, pending inquiry as per order in Form 4.

(emphasis supplied)

“S.14 (5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:—

(b)

in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings;”

“RULE 11 Completion of Inquiry.-(2) Before passing an order, the Board shall obtain a social investigation report in Form 6 prepared by the Probation Officer or Child Welfare Officer or social worker as ordered, and take the findings of the report into account.

(3)

All dispositional orders passed by the Board shall necessarily include an individual care plan in Form 7 for the child in conflict with law concerned, prepared by a Probation Officer or Child Welfare Officer or a recognised voluntary organisation on the basis of interaction with the child and his family, where possible.

(5)

Where the Board decides to release the child after advice or admonition or after participation in group counselling or orders him to perform community service, necessary direction may also be issued by the Board to the District Child Protection Unit for arranging such counselling and community service.

(6)

Where the Board decides to release the child in conflict with law on probation and place him under the care of the parent or the guardian or fit person, the person in whose custody the child is released may be required to submit a written undertaking in Form 8 for good behaviour and well-being of the child for a maximum period of three years.

(7)

The Board may order the release of a child in conflict with law on execution of a personal bond without surety in Form 9.

(8)

In the event of placement of the child in a fit facility or special home, the Board shall consider that the fit facility or special home is located nearest to the place of residence of the child’s parent or guardian, except where it is not in the best interest of the child to do so.

(9)

The Board, where it releases a child on probation and places him under the care of parent or guardian or fit person or where the child is released on probation and placed under the care of fit facility, it may also order that the child be placed under the supervision of a Probation Officer who shall submit periodic reports in Form 10 and the period of such supervision shall be maximum of three years.

(10)

Where it appears to the Board that the child has not complied with the probation conditions, it may order the child to be produced before it and may send the child to a special home or place of safety for the remaining period of supervision.

(11)

In no case, the period of stay in the special home or the place of safety shall exceed the maximum period provided in clause (g) of sub-section (1) of section 18 of the Act.”

“Section 18 Orders regarding child found to be in conflict with law-(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,—

(a)

allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;

(b)

direct the child to participate in group counselling and similar activities;

(c)

order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;

(d)

order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;

(e)

direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child’s well-being for any period not exceeding three years;

(f)

direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child’s well-being for any period not exceeding three years;

(g)

direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:

Provided that if the conduct and behaviour of the child has been such that, it would not be in the child’s interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.

(2)

If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to—

(i)

attend school; or

(ii)

attend a vocational training centre; or

(iii)

attend a therapeutic centre; or

(iv)

prohibit the child from visiting, frequenting or appearing at a specified place; or

(v)

undergo a de-addiction programme.

(3)

Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.”

“Section 19- Powers of Children’s Court. (1) After the receipt of preliminary assessment from the Board under section 15, the Children's Court may decide that---

(i)

there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;

(ii)

there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.

(2)

The Children's Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

(3)

The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:

Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

(4)

The Children's Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.

(5)

The reports under sub-section (4) shall be forwarded to the Children's Court for record and follow up, as may be required.

(emphasis supplied)

“S 12 . Bail to a person who is apparently a child alleged to be in conflict with law. (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2)

When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in

VII. Framework of rehabilitative justice for children in

A. JJ Act read with JJ Rules: School education and R & R as primary measures of rehabilitative justice

“Section 39. Process of Rehabilitation and Social Re-integration- 39. (1) The process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care: Provided that all efforts shall be made to keep siblings placed in institutional or non- institutional care, together, unless it is in their best interest not to be kept together.

(2)

For children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed there by the order of the Board.

(3)

The children in need of care and protection who are not placed in families for any reason may be placed in an institution registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the process of rehabilitation and social integration shall be undertaken wherever the child is so placed.

(4)

The Children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes or place of safety on attaining eighteen years of age, may be provided financial support as specified in section 46, to help them to re-integrate into the mainstream of the society.”

“Rule 2(ix) “individual care plan” is a comprehensive development plan for a child based on age and gender specific needs and case history of the child, prepared in consultation with the child, in order to restore the child’s self-esteem, dignity and self-worth and nurture him into a responsible citizen and accordingly the plan shall address the following, including but not limited to, needs of a child, namely:-

(a)

health and nutrition needs, including any special needs;

(b)

emotional and psychological needs;

(c)

educational and training needs;

(d)

leisure, creativity and play;

(e)

protection from all kinds of abuse, neglect and maltreatment;

(f)

restoration and follow up;

(g)

social mainstreaming;

(h)

life skill training.”

VIII. School education and education as constituent element

(A). Interplay of JJ Act, 2015 & RTE Act, 2009

“RTE Act, 2009”).

80.

At this stage it will not be out of context to invoke the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 in light of Pratap Singh (supra). The Beijing Rules, 1985 also emphasise the paramount importance of education in the process of rehabilitation and reintegration of a child in conflict with law. The relevant part of the Beijing Rules, 1985 are extracted hereunder:

81.

The Statement of Objects and Reasons of Right of Children to Free and Compulsory Education Act, 2009 embedded the goal of universal elementary education in the constitutional promise of equality, social justice and democracy for all citizens. In particular the enactment seeks to address the issue of denial of education to children “from disadvantaged groups and weaker sections”. The Statement of Objects and Reasons of RTE Act, 2009 is extracted below:

“Statement of Object and Reasons.—The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution lays down that the State shall provide free and compulsory education to all children up to the age of fourteen years. Over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education.

(emphasis supplied)

2.

Article 21-A, as inserted by the Constitution (Eighty-sixth Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such manner as the State may, by law, determine.

3.

Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is proposed to be enacted which seeks to provide,—

(a)

that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;

(b)

‘compulsory education’ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;

(c)

‘free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;

(d)

the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and

(e)

a system for protection of the right of children and a decentralized grievance redressal mechanism.

4.

The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

82.

The RTE Act, 2009 and JJ Act, 2015 strive to ensure that the right to education is not denied to any category of disadvantaged children specially children in conflict with law and in need of care and protection. There is concordance in the Statement of Objects and Reasons of the RTE Act, 2009 and JJ Act, 2015 in respect of the legislative will to provide inclusive learning to disadvantaged children and effect their rehabilitation and reintegration in the social mainstream through education.

83.

The concord of legislative intendments of RTE Act, 2009 and JJ Act, 2015 is matched by the accord in the relevant statutory schemes of the said enactments.

84.

Chapter II of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “RTE Act, 2009) vests the right of free and compulsory education in all children between the ages of 6 to 14 years. Sections 3 and 4 create the entitlement to free and compulsory education. Section 29 defines the scope of education under the RTE Act, 2009. The provisions are reproduced below:

85.

The breadth of Section 29 of the RTE Act, 2009 does not limit education to the confines of scholastic achievement. Education under section 29 of the RTE Act, 2009 encompasses diverse activities and learnings to ensure holistic and well rounded development of a child’s personality to meet the challenges and seize the opportunities of the real world.

86.

Education contemplated in Section 29 of the RTE Act, 2009 is of an inclusive nature which shuns isolation and privilege. Education under the RTE Act, 2009 imparts educational skills and knowledge to gain employment, inculcates a culture of rational thinking and enquiry, strengthens the body and mind, and cultivates of humanitarian and constitutional values.

87.

The scope of education has exercised the minds of Indian thinkers since the dawn of civilization, and has been expounded in Indian constitutional law since the advent of the Republic. The Supreme Court in Society For Unaided Private Schools of Rajasthan Vs. Union of India^{1414.“32. Article 21 says that “no person shall be deprived of his life … except according} embedded the right to education of a child in his right to live with dignity and other fundamental freedoms by holding:

right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1)(a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.”

88.

After invoking the importance of education in Indian culture, and sacrosanct character of the right of education the Supreme Court propounded that education was essential to the very survival of the Republic in Avinash Mehrotra Vs. Union of India^{1515.to the procedure established by law” whereas Article 19(1)(g) under the chapter} the Supreme Court held:

“28.

Education occupies a sacred place within our Constitution and culture. Article 21-A of the Constitution, adopted in 2002, codified this Court's holding in Unni Krishnan, J.P. v. State of A.P. [(1993) 1 SCC 645] in which we established a right to education. Parliament did not merely affirm that right; the amending Act placed the right to education within the Constitution's set of fundamental rights, the most cherished principles of our society. As the Court observed in Unni Krishnan1: (SCC p. 664, para 8)

“8.

The immortal poet Valluvar whose Tirukkural will surpass all ages and transcend all religions said of education:

‘Learning is excellence of wealth that none destroy; To man nought else affords reality of joy.’

29.

Education today remains liberation—a tool for the betterment of our civil institutions, the protection of our civil liberties, and the path to an informed and questioning citizenry. Then as now, we recognise education's “transcendental importance” in the lives of individuals and in the very survival of our Constitution and Republic.

30.

In the years since the inclusion of Article 21-A, we have clarified that the right to education attaches to the individual as an inalienable human right. We have traced the broad scope of this right in R.D. Upadhyay v. State of A.P. [(2007) 15 SCC 337 : AIR 2006 SC 1946] holding that the State must provide education to all children in all places, even in prisons, to the children of prisoners. We have also affirmed the inviolability of the right to education.

34.

This Court has routinely held that another fundamental right to life encompasses more than a breath and a heartbeat. In reflecting on the meaning of

“personal liberty” in Articles 19 and 21, we have held that

“that ‘personal liberty’ is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberties’ of man….” (Kharak Singh v. State of U.P. [AIR 1963 SC 1295] , AIR p. 1302, para 17.)

Similarly, we must hold that educating a child requires more than a teacher and a blackboard, or a classroom and a book. The right to education requires that a child study in a quality school, and a quality school certainly should pose no threat to a child's safety. We reached a similar conclusion, on the comprehensive guarantees implicit in the right to education, only recently in our opinion in Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1] .”

89.

The importance of creating an inclusive education system was pithily stated in Maharishi Mahesh Yogi Vedic Vishwavidyalaya Vs. State of M.P.^{1616.“Right to freedom” says that all citizens have the right to practise any profession, or}:

“37.

The right to education will be meaningful only and only if all the levels of education reach to all sections of people, otherwise it will fail to achieve the target set out by our Founding Fathers, who intended to make the Indian society an egalitarian society.”

90.

Constitutional law holdings and Indian thought leaders have independently affirmed that the most significant attributes of a successful educational system is its ability to embrace all sections of the society and to bind them in the common quest for betterment of human lives.

91.

Alerting his countrymen to the dangers of exclusionary practices in education S. Radhakrishnan said “An education that brings up a young man in entire indifference to the misery and poverty surrounding him, to the general stringency of life, to the dumb pangs of tortured bodies and the lives submerged in the shadows is essentially a failure^{1717.to carry on any occupation, trade or business which freedom is not absolute but which}.”

92.

The cautionary words of S. Radhakrishnan have been formed a consistent theme of constitutional law discourse on inclusivity in the educational system.

93.

Education under the Indian Constitution and laws is an aggregate of wide-ranging human pursuits which strengthen the human mind and body. Human faculties honed by education on the lines of excellence fulfil the purpose of life through values that are cognisant of the dignity of human lives, and conscious of the responsibility to assuage human suffering. Education also builds knowledge and skills for employability, career progress, technological achievements and economic advancement. The core ideals that animate education policy in India are the unquenchable faith in the power of human effort and the limitless possibilities of deliverance from human errors. Capacity for reform and hope of redemption go hand in hand in Indian educational thought. According to the constitutional law discourse inclusive education provides the rock-solid foundation for advancing individual rights, promoting collective wellbeing and strengthening constitutional values. Inclusive education forms the basis of civilisational progress and economic advancement.

94.

The scope of education under Section 29 of the RTE Act, 2009 is thus not confined to cramming of facts or storing of information. Under the enactment educational endeavours extend to development of physical abilities, cultivating the mind and nurturing humanitarian and constitutional values. Addressing emotional issues or traumas faced by children is part of the educational scheme under the RTE Act, 2009.

95.

RTE Act, 2009 envisages education as the panacea for holistic development of all children. The JJ Act, 2015 contemplates that continuity of school education and the constituent elements of education in the R & R programme are the driving forces to facilitate the reintegration of children in conflict with law or children in need of care and protection.

96.

The right to education under the RTE Act, 2009 and Article 21 A of the Constitution of India is vested in all children without any distinction or discrimination. The RTE Act, 2009 and Article 21A of Constitution of India apply in equal measure to children in conflict with law and children in conflict with law who are also in need of care and protection.

97.

Admission of the child in school is the responsibility of the JJB/Children’s Court since inclusive school education is a most significant part of the process of reintegration and rehabilitation which empowers a child in conflict with law/child in need of care and protection to find their place in the social mainstream. Rehabilitation and reintegration of a child in conflict with law is the foremost aim of an R & R programme/individual child care plan and education is the golden road to that goal.

98.

Education imparted to children through an R & R programme / individual child care plan under Section 39 of the JJ Act, 2015 read with JJ Rules, 2016 is a facet of education for children contemplated in Section 3 read with Section 29 of the RTE Act, 2009. The constituent element of education of an R & R programme/individual child care plan under Section 39 of JJ Act, 2015 read with Rule 2 (ix) JJ Rules, 2016 are fully comprised in Section 3 read with Section 29 of RTE Act, 2009.

99.

Many of the institutions, agencies and individuals charged with a responsibility of implementing the R & R programme are also instrumental in realisation of the right to education of the said child vested under Section 3 read with Section 29 of RTE Act, 2009.

100.

The right to education of a child in conflict with law (including a child in conflict with law and in need of care and protection) vested by virtue of Section 3 read with Section 29 of the RTE Act, 2009 and Article 21A of the Constitution of India can be realised only when the R & R programme/individual child care plan framed for the said child under Section 39 of JJ Act, 2015 read with JJ Rules, 2016 is successfully accomplished. Infact in absence of an R & R programme /individual child care plan under the JJ Act, 2015 read with JJ Rules, 2016, education under the RTE Act, 2009 will be bereft of meaning for a child in conflict with law (including a child in conflict with law and in need of care and protection).

101.

Children in conflict with law cannot be excluded from the purview of the RTE Act, 2009, and deprivation of their right to education under Article 21A of the Constitution of India cannot be countenanced.

102.

An education system that segregates the disadvantaged cannot coexist with a Constitution that espouses equality. An education system that shuns those who need care and protection is not compatible with a Constitution that promotes fraternity. One has to yield to the other.

I. R & R : Children in conflict with law having intersectional disabilities/Multiple enactments : Multiple enactments (i) Juvenile Justice (Care and Protection of Children) Act, 2015 (ii). Right of Children to Free and Compulsory Education Act, 2009 (iii) The Rights of Persons with Disabilities Act, 2016 (iv) Mental Healthcare Act, 2017

II. R & R : Multiple enactments : Statutory linkage of JJ Act,2015, RTE Act, 2009, PwD Act, 2016 and MH Act, 2017

IX. Implementation of rehabilitative justice framework:

“Section 51 Fit Facility: (1 ) The Board or the Committee shall recognise a facility being run by a Governmental organisation or a voluntary or non-governmental organisation registered under any law for the time being in force to be fit to temporarily take the responsibility of a child for a specific purpose after due inquiry regarding the suitability of the facility and the organisation to take care of the child in such manner as may be prescribed.

(emphasis added) (2 ) The Board or the Committee may withdraw the recognition under sub-section(1)for reasons to be recorded in writing.

Rule 27. Fit Facility.- (1) The Board or the Committee shall on an application from any institution or organisation run by Government or non-governmental organisation, recognise the facility as a fit facility provided the manager of that facility is willing temporarily to receive a child for a specific purpose or for group foster care.

(2)

An application in Form 38 for recognition shall be accompanied with a copy each of rules, bye-laws, memorandum of association, list of governing body, office bearers, list of trustees, balance sheet of the preceding three years, statement of past record of social or public service provided by the institution or organisation.

(3)

Any facility for recognition as a fit facility shall:

(i)

meet the basic standards of care and protection to the child;

(ii)

provide basic services to any child placed with it;

(iii)

prevent child placed with it to any form of cruelty or exploitation or neglect or abuse of any kind; and

(iv)

abide by the orders passed by the Board or the Committee.

(4)

The Board or the Committee, after proper inspection and inquiry to ensure that provisions exist in the institution for the care and protection of children with reference to their health, education, boarding and lodging facilities, vocational facilities and rehabilitation as per the rules, and consideration of such other material as may be available, may grant recognition to such institution or organisation as a fit facility in Form 39: Provided that any person associated with such institution or organisation should not have been convicted of an offence or have been involved in any immoral act or in act of child abuse or employment of child labour or in an offence involving moral turpitude. (5) A decision on the application for recognition of an institution or organisation shall be taken by the Board or the Committee within a period of fifteen days from the date of receipt of the application. (6) The recognition to an institution or an organisation as a fit facility shall be initially for a period of three years which may be renewed for a further period of three years in accordance with sub-rule (4) of this rule. (7) The Board or the Committee may, if dissatisfied with the standard of care and protection provided, or conditions prevailing in the facility, or the management of the institution or the organisation recognised under the Act or on an adverse report made by an inspection committee appointed under section 54 of the Act, or for any other reason, at any time, by a reasoned order, withdraw the recognition of the institution or the organisation as a fit facility and from the date specified in the order of the Board or the Committee, the institution or the organisation shall cease to be a fit facility recognized under the Act and the rules. (8) Where the recognition of a fit facility is withdrawn by the Board or the Committee, intimation of the same shall be sent to the Children’s Court, Special Juvenile Police Unit and District Child Protection Unit and the children placed with such an institution or organisation may be placed by the Board or the Committee or the Children’s Court to another fit facility or any other Child Care Institution. (9) A list of fit facilities approved by the Board or the Committee shall be kept in that office and be sent to the Children’s Court, Special Juvenile Police Unit, the District Child Protection Unit and the State Child Protection Society. (10) An institution or organisation shall be recognised as a fit facility for purposes which may include:

(i)

short term care;

(ii)

medical care treatment and specialised treatment;

(iii)

psychiatric and mental health care;

(iv)

de-addiction and rehabilitation;

(v)

education;

(vi)

vocational training and skill development;

(vii)

witness protection; and (viii) group foster care. Section 52 FIT PERSONS -. (1) The Board or the Committee shall, after due verification of credentials, recognise any person fit to temporarily receive a child for care, protection and treatment of such child for a specified period and in the manner as may be prescribed. (2) The Board or Committee, as the case may be, may withdraw the recognition granted under sub-section (1) for reasons to be recorded in writing. RULE 28. Fit Person.- (1) Any individual who is fit to temporarily receive a child for care, protection or treatment, for a period as may be necessary, may be recognised by the Board or the Committee as a fit person. (2) The Board or the Committee may identify a panel of persons on the basis of their credentials, respectability, expertise, professional qualifications, experience of dealing with children and their willingness to receive the child and shall recognise them as fit persons for the purposes of the Act: Provided that such a person should not have been accused of an offence under the Act or have been involved in any immoral act or in act of child abuse or employment of child labour or in an offence involving moral turpitude. (3) The Board or the Committee may also appoint any person as a fit person on need basis for a child or children after verifying the credentials of such person, and wherever possible, after getting police verification done on such a person . (4) The Board or the Committee may, if dissatisfied with the standard of care and protection provided or for any other reason, at any time, by a reasoned order withdraw the recognition of the person as a fit person from the date specified in the order of the Board or the Committee. (5) Where the recognition of a fit person is withdrawn by the Board or the Committee, intimation of the same shall be sent to the Children’s Court, Special Juvenile Police Unit and District Child Protection Unit and the child placed with such a fit person may be placed by the Board or the Committee or the Children’s Court to another fit person or with a fit facility or any Child Care Institution. (6) A list of fit persons recognised by the Board or the Committee shall be kept in the office of the Board and the Committee and the Children’s Court and be sent to the Special Juvenile Police Unit, the District Child Protection Unit and the State Child Protection Society. (7) The Board or the Committee or the Children’s Court may place the child with a fit person in cases wherever required, including where the child cannot be sent to a Child Care Institution due to distance and/ or odd time. (8) The fit person shall: i) have the capacity and willingness to receive the child; and ii) provide basic services for care and protection of the child. (9) The Board or the Committee or the Children’s Court, depending on the need of the child and in consultation with the fit person shall determine the period for which a child shall remain with the fit person. (10) The child shall not be placed with a fit person for a period exceeding thirty days and in such cases where the child requires further care, the Committee may consider the placement of the child in foster care or may consider other rehabilitative alternatives for the child. The Board or the Children’s Court in such cases where the period of placement of the child may exceed thirty days, refer the matter to the Committee for further orders in respect of the child.

“case workers” has to be done in the manner “as may be prescribed.” The phrase “as may be prescribed” in Section 51 of the JJ Act, 2015 requires creation of criteria and inquiry into the satisfaction of such criteria before such recognition is accorded. The phrase “as may be prescribed” contemplates Rules which will assist the JJB/ Children’s Court to identify and recognise “fit facilities/fit institution”, “fit persons”.

145.

Provisions for another category of institutions for post release care namely Foster Care, Group Foster Care, Foster Care givers have also been made in the enactment. The ecosystem of the said post release institutions also has to be activated so that fruits of the enactments are not denied to deserving children.

F. Post release R & R: Eco System and Resources

146.

One of the distinctive features of post release rehabilitation and reintegration programme is the engagement of diverse stakeholders starting from family and social environment of the child. Families of children in conflict with law may be lacking in resources and deficient in other respects to cater to all the needs of the post release R & R programme /individual child care plan. To fill the gap and strengthen the process of rehabilitation and reintegration of the child, relevant stakeholders under the JJ Act, 2015 read with JJ Rules, 2016 have to be activated. Further the supportive ecosystem created thereunder for facilitating the R & R programme/individual child care plan also has to be energised.

147.

The legislature has adopted an all of society and all of government approach to achieve the legislative intent of the JJ Act, 2015. Post release R & R programme/individual child care plan is a highly resourced programme. While enacting the JJ Act, 2015 the legislature has enlisted a variety of stakeholders, eligible institutions and individuals (both private and government), adopted flexible processes and created diverse funding/resourcing avenues for implementation of the R & R programme/individual child care plan.

148.

Section 45 of the JJ Act, 2015 and Rule 24 of the JJ Rules, 2016 also authorise the Government to accept sponsorships:

“Section 45. Sponsorship:(1) The State Government shall make rules for the purpose of undertaking various programmes of sponsorship of children, such as individual to individual sponsorship, group sponsorship or community sponsorship.

(2)

The criteria for sponsorship shall include,—

(i)

where mother is a widow or divorced or abandoned by family;

(ii)

where children are orphan and are living with the extended family;

(iii)

where parents are victims of life threatening disease;

(iv)

where parents are incapacitated due to accident and unable to take care of children both financially and physically.

(3)

The duration of sponsorship shall be such as may be prescribed.

(4)

The sponsorship programme may provide supplementary support to families, to Children’s Homes and to special homes to meet medical, nutritional, educational and other needs of the children, with a view to improving their quality of life.

“Rule 24. Sponsorship.- (1) The State Government shall prepare sponsorship programmes, which may include:

(i)

individual to individual sponsorship;

(ii)

group sponsorship;

(iii)

community sponsorship;

(iv)

support to families through sponsorship; and

(v)

support to Children Homes and Special Homes (2) The sponsorship programme shall be implemented by the District Child Protection Unit which shall provide a panel of persons or families or organisations interested in sponsoring a child.

(3)

The panel will list sponsors according to the area of interest such as education, medical support, nutrition, vocational training etc., and the nature of sponsorship.

(4)

The District Child Protection Unit shall forward the panel to the Board or the Committee or the Children’s Court.

(5)

The Board or the Committee or the Children’s Court may suomotu, or on an application received in that behalf, consider the placement of a child under sponsorship for which purpose it shall verify from the panel whether a sponsor is available to support such child and pass an order for placement of the child under sponsorship in Form 36.

149.

The aforesaid provisions encourage private funding, and diversify mobilization of resources for implementation the JJ Act, 2015 read with JJ Rules, 2016 by validating engagement of multiple stakeholders/contributions from different segments of the society.

150.

The scheme of sponsorship envisaged in the JJ Act, 2015 read with JJ Rules, 2016 seeks to tap into the noble impulses of the society and developing collaborative partnerships with other institutions. Sponsorship is not restricted to monetary contributions. Sponsorship may be composed of other modes like providing of resource persons, books, other relevant materials and support. Sponsorship programmes are liable to be conducted in a structured manner and with clear guidelines under the watch of the State Government.

G. R & R : Post Release -

(i)

Family and social environment of the child: Parents as fit persons and appointment of more than one fit person for implementing post release R & R programme of child

151.

Post-release R&R programme/individual child care plan is grounded in the child’s family and social environment. Family and social institutions are stakeholders in the rehabilitation and reintegration of the child in society. Parents are natural “fit persons” under the JJ Act, 2015 (unless for reasons to be recorded—they are disqualified or held ineligible to be declared “fit persons” for purposes of R & R programme).

152.

The R&R programme/individual child care plan is composed of diverse activities some requiring specialized guidance and expert mentoring. Some of the said activities can only be conducted by experts, and the parents/family will be unable to do so on their own. Families of children in conflict with law are often at the margins of the society and lack resources to implement the R&R programme/individual child care plan without additional support. The scope of an R & R programme/individual child care plan may require more than one “fit person/fit institution” for the child.

153.

The fact that a child is living with their^{2121.“ Section 31. Free education for children with benchmark disabilities.} parents/family after release on bail or otherwise does not preclude the JJB/ Children’s Court to appoint additional “fit persons” or “fit institutions” to ensure the child’s welfare and to implement the R & R programme/individual child care plan.

(ii)

Schools, educational institutions, teachers as “fit institutions/fit facilities”, “fit persons” for post release R & R

154.

Education lies at the heart of an R & R programme/individual child care plan under the JJ Act, 2015. The R & R programme framed under Section 39 of JJ Act, 2015 and under Rule 2(ix) of JJ Rules 2016 is congruent with scope of education guaranteed to a child under Section 3 read with Section 29 of RTE Act.

155.

Since education is the core of an R & R programme/individual child care plan, the suitability of schools and teachers to be nominated as "fit institutions” and “fit persons” respectively will now be examined. Further JJBs/Children’s Courts are obligated to ensure continuity and prevent disruption in the education of a child. Most importantly apart from ensuring education under R & R programme the JJBs/Children’s Courts are also under a legal mandate to pass orders for a child to attend school if the facts and circumstances of a case so require.

156.

An educational institution provides an inclusive and enabling environment for children in conflict with law and facilitates their reintegration in the society. Schools possess the infrastructure and experience required to run an R & R programme. Implementation of the educational content of R & R programme/individual child care plans by schools will prevent isolation, stigmatisation and ostracisation of children in conflict with law. Schools/educational institutions have an inherent capacity to conduct a post release R & R programme/individual child care plan.

157.

Teachers have most of the requisite qualifications, and experience to implement the educational component of post release R & R programme /individual child care plan as “fit persons”. Teachers perform multiple roles in nation building like educators, counsellors, mentors and guides. Teachers can hand hold the child through the post release R & R programme/individual child care plan. Teachers possess an intrinsic credibility to execute the educational content of a post release R & R programme/individual child care plan.

158.

Teachers of educational institutions have the highest standing in the society to mentor a child under the post release R & R programme/individual child care plan. Educational institutions are most eminently suited to host the educational component of the R & R programme post release. Children can be confided with full confidence to undergo the post release R & R programme in schools and under the supervision of their teachers who have been identified and designated as aforesaid. Schools can be nominated as “fit facilities”/”fit institutions”, under the JJ Act, 2015 read with JJ Rules, 2016 while teachers can be nominated as “fit persons” under the JJ Act, 2015 read with JJ Rules, 2016 after due enquiry and as per law to implement the educational content of an R & R programme/individual child care plan.

159.

R & R programme / individual child care plan for a child post release can comprise of multifarious activities. At times one educational institution /fit institution may not possess all the requisite facilities to run the whole programme by itself. Various activities in the R & R programme / individual child care plan may be spread over several educational institutions and teachers as per their respective capacities and expertise.

160.

An educational institution may conduct a single activity under the R & R programme/individual child care plan which it can support with its existing resources and be designated as a “fit institutions”/fit facility”, “group foster care centre” for the said activity. Subsequently institutional capacity can be expanded to incorporate more activities. Likewise teachers can also be declared

“fit persons” for respective activities according to their expertise.

161.

Other hybrid models to implement the R & R programme / individual child care plans may also be examined. The activity under the individual care plan may be conducted after school hours in a school designated as “fit institutions”/fit facility”, by nominated “fit persons” from the pool of retired teachers and other qualified persons.

162.

Sponsorships not only by monetary means but also by providing other resources including human resources can also be employed as per the statute for creating requisite infrastructure in educational institutions and other institutions for implementing the post release (or even pre release).

(iii). Schools as “fit institutions” : Precautions

163.

However, schools cannot be appointed as “fit institutions” and teachers as “fit persons” in a mechanical fashion. The appointment of schools as “fit institutions” and teachers as “fit persons” to implement the educational component of the R & R programme/individual child care plan has to be preceded with due diligence, relevant enquiries and adoption of necessary precautions. Heinous nature of the offence and mental capacity of the juvenile is an important consideration in any such inquiry. Psychological and other needs of the child shall also be considered in by the JJB/Children’s Court. Overall impact of R & R programme/individual child care plan on the schools, concerns of other stakeholders, securing the interests of all children, available resources and protection of the child’s identity are some of the suggested criteria which may need to be factored in before nominating an educational institution as a “fit institution”. Necessary measures have to be taken to ensure that lives of children and protective environment of the school are not disrupted. Alternative institutions and methods of education can be adopted in case after enquiry it is found that regular school education is not feasible.

164.

The State Government has to develop a balanced, composite and equitable policy to implement the right to education under the RTE Act, 2009 which encompasses the educational content in the R&R programme/individual child care plan under the JJ Act, 2015, for children in conflict with law and also those who are facing enquiries but enlarged on bail. Hence it is imperative that the State Government frames Rules under the JJ Act, 2015 for nominating schools as “fit institution and “fit persons” by incorporating the necessary checks and balances which reconcile various competing demands.

(iv). Other “fit institutions” / “fit facilities”, “group foster care”, “fit persons”, “care workers”

165.

Apart from schools and teachers there are other institutions, entities and community groups which can come within the ambit of

“fit facilities/fit institutions”, “fit persons” and “group foster care” or

“care workers”. These classes of resources available in the society have to be harnessed and channelised for implementation of R&R programme/individual child care plan. These institutions include retired teachers, professors, civil servants, service personnel, professionals, and bodies of aforesaid classes in the society or any other organizations which conform to the provisions of JJ Act, 2015 read with JJ Rules, 2016.

166.

The State Government may create the criteria for various social groups and entities and individuals who can qualify as “fit facilities/fit institutions”, “fit persons” and “group foster care” or

“foster care giver” under the JJ Act, 2015, and also identify them after due enquiry. The criteria and list of such fit facilities and institutions on a district wise basis may then be sent to the Board or Committee for recognition after a scrutiny of the credentials of such institutions and persons in light of the provisions of the JJ Act, 2015 read with JJ Rules, 2016 and this judgement.

(v). Social Reintegration and duties of schools and community groups and other non-governmental organizations

167.

The onus of participating in rehabilitation activities is certainly on the child, but the obligation of reintegration in the society rests with educational institutions and other stakeholders. Reintegration of a child in conflict with law (including children those in conflict with law with intersectional disabilities) cannot be achieved without active contribution and support of various, schools/educational institutions and other social or community institutions/entities. Schools and educational institutions in particular need to be sensitized to the responsibilities they owe to children in conflict with law and even incentivised to discharge these obligations.

168.

Participation of schools and educational institutions in the R & R programme/individual child care plans in line with the provisions of the JJ Act, 2015 read with JJ Rules, 2016, RTE Act, 2009 and other sister enactments (as discussed earlier) is the first and most critical step towards reintegration of child in conflict with law. The social attitudes towards reintegration of children in conflict with law will be shaped in the manner in which educational institutions and other social institutions discharge their duties towards this class of children.

169.

Schools and teachers can be incentivised to upgrade infrastructure and update skills to effectively perform their functions as “fit institutions” and “fit persons” respectively. The constitutional imperative of Article 21A and the compulsory mandate of the RTE Act, 2009 and JJ Act, 2015 enjoin that the education system has to embrace children in conflict with law and those in need of care and protection. The State has to take appropriate steps to bring the said children within the fold of the education system. Children in conflict with law and those in need of care and protection cannot be ousted from the educational mainstream if they have to be reintegrated into the national mainstream.

X. Stand of the State Government-Affidavit of the Additional

Chief Secretary, Department of Women and Child Development, Government of UP

[Affidavits of State Government on Various Issues]

(A). Stand of State Government on institutions existing in the State for post release R & R

170.

While framing the R & R programme/individual child care plan this Court had directed the State Government to file an affidavit disclosing the existing facilities to implement the post release R & R programme/individual child care plan and the eco system of “fit institutions”, “fit persons”, “foster care”, “group foster care” under the JJ Act, 2015 in the State of UP.

171.

The affidavit dated 24.03.2026 filed on behalf of the Government of U.P. asserts that in the entire State of U.P., the following fit facilities/fit institutions”, “fit persons” and “group foster care” or “foster care giver” have been identified:

I. Three fit persons- one in Aligarh and two in Lalitpur

II. Three fit facilities – One in Lalitpur, two in Varanasi

III. 14 foster care families – 1-1 in Ghaziabad, Gonda, Gorakhpur, Moradabad, Hardoi, Two in Varanasi and Seven in Lucknow.

172.

From the affidavit of the State it is evident that “fit facilities/fit institutions”, “fit persons” and “group foster care” or “foster care institutions” for implementing post release R & R programme are practically non existent in the State. The State has a far greater requirement of “fit institutions” and “fit facilities” than are currently existing.

173.

The affidavit also asserts that no “fit facilities/fit institutions”,

“fit persons” and “group foster care” or “foster care giver” are identified in the districts of Kasganj and Mainpuri. However, the department has issued a direction for identifying fit facilities/fit institutions”, “fit persons” and “group foster care” or “foster care giver” in every district of the State of UP. Advertisements in this regard have also been appended in this affidavit. The Government Order dated 01.08.2017 providing the procedure for fit facilities/fit institutions”, “fit persons” and “group foster care” or “foster care giver” in every district of the State has also been brought in the record.

174.

By letter dated 10.10.2023 in Mission Vatsalya Scheme, the State Government directed all District Magistrate to take necessary action regarding the identification of fit facilities/fit institutions”, “fit persons” and “group foster care” or “foster care giver” in each district.

175.

Actual identification and engagement of “fit facilities/fit institutions” or “group foster care” and of “fit persons”, “group foster care givers” cannot be neglected. Lack of requisite numbers of

“fit facilities/fit institutions”, “fit persons”, “group foster care”,

“institutions”, “group foster care givers”, “care workers” for post release implementation of R & R /individual child care plan is obstructing implementation of the post release R & R programme and undermining the beneficent purpose of the JJ Act, 2015 read with JJ Rules, 2016.

(B)

Stand of the State Government on nomination of schools/teachers as

“fit institutions/fit persons” to implement the education content of R & R programme/individual child care plan

176.

Furthermore this Court by orders dated 29.01.2026 and 12.02.2026 had also asked the State Government to clarify its stand on the feasibility of nominating schools as “fit institutions” and teachers therein as “fit persons” after due consideration of relevant factors to implement the educational component of the R & R programme framed by the JJB/CC post release of the child.

177.

The affidavit filed on behalf of the State Government does not disclose any opposition to nominating schools as fit institutions and teachers therein as fit persons. However, the State Government in the affidavit has asserted that status of “fit facilities/fit institutions”, and

“fit persons” can be granted only to those facilities that are residential in nature as such facilities required 24x7 care for children. The aforesaid stand of the State Government in the affidavit is not in consonance with the scheme of the JJ Act, 2015 read with JJ Rules, 2016 which has been interpreted in the preceding part of the judgement. Post release R & R programme is grounded in the family and social environment of the child. Insistence on exclusive residential facilities as a precondition for “fit institution” will bar access to education for children undergoing post release R & R/individual child care plan. The stand of the State Government in restricting the scope of “fit facilities/fit institutions”, “fit persons” for implementation of post release R & R programme is accordingly rejected.

178.

However, the redeeming feature in the affidavit filed by the State Government is the unequivocable assertion that the Basic Education and Secondary Education Departments, which run day schools in the State are willing to play a supportive role in aspects related to the education of the said class of children.

179.

In this wake the day schools run by the Basic Education and Secondary Education Departments can be declared as “fit facilities” and the teachers therein can be declared as “fit persons” by the JJB/CC after due consideration of relevant criteria to implement the educational component of the R&R programme post release of the child on bail and after enquiry.

180.

It is equally heartening to note the submission made on behalf of the State by Shri Anoop Trivedi, learned Additional Advocate General, that the State considers itself the guardian of all children in the State. The State is equally conscious of its obligations as parens patriae to provide education to all children without discrimination or distinction.

181.

The learned Additional Advocate General categorically states that the State is committed to the education and holistic development of children who are in conflict with law as well and other children in need of care and protection under the JJ Act, 2015.

182.

Learned Additional Advocate General also contends that State will ensure that children in conflict with law and children in need of care and protection are not denied their rights to education comprised under the RTE Act and the R&R programme/individual child care plan framed under the JJ Act, 2015.

(C). Stand of State Government regarding lack of budget allocation

183.

The affidavit of the State Government asserts that there is no financial provision for fit persons or fit facilities which are to be identified under the JJ Act, 2015 read with JJ Rules, 2016. The lack of financial allocation is a matter of budgetary detail, and cannot be made the justification for frustrating the enactment itself or denying rights of children vested under the JJ Act, 2015 and the RTE Act, 2009. It is the responsibility of the appropriate Governments to provide the necessary finances or resources to ensure effectuation of the rights of children to education under the R&R programme framed under the JJ Act, 2015, which is concomitant with the right to education conferred upon the aforesaid class of children under the RTE Act, 2009 and the fundamental right entrenched under Article 21A of the Constitution of India.

184.

At this stage the Court would like to express its concern or rather distress at the non allocation of financial resources for implementation of of post release R & R programme framed under the JJ Act, 2015. As seen in the earlier part of the narrative post release R& R programme for the child in conflict with law or the child released on bail during the pendency of the enquiry is most critical element of the scheme of the JJ Act, 2015 and the right of education of such child. Faithful implementation of the legislative mandate of any enactment is the cornerstone of rule of law and constitutional order. The State cannot evade its statutory duty and constitutional obligations to effectuate the right of education of a child in conflict with law (or facing an enquiry under the JJ Act), which is embedded in the R&R programme. In any case admitting children in regular day schools would not entail any additional financial burden upon the State Government. Furthermore the JJ Act, 2015 contemplates diversification of resource pools and funding sources. The legitimacy accorded to sponsorship by the statute requires engagement and even partnerships with non government entities as well. Creation of the ecosystems under the JJ Act, 2015 is an imperative requirement for implementing the post release R & R programme.

185.

The Court will be failing in its duty if it does not notice some of the exemplary and innovative measures taken out by the State Government for realizing the rights of children in conflict with law. The State Government has accepted the need for a nuanced approach to the education of children in conflict with law by creating a proper pedagogical framework and also devising specialized curriculum for training of teachers and caregivers to children residing in child care institutions.

(D). Stand of State Government/Affidavit of the State regarding Rules for recognition of “fit institutions/fit persons” to implement the education component of R & R

186.

The rule-making power under the JJ Act, 2015 is vested under Section 110 of JJ Act, 2015. The relevant provision is extracted hereunder:

“110.

Power to make rules—

(xx)

manner in which a quarterly report may be submitted by the Committee to the District Magistrate for review of pendency of cases under sub-section (4) of section 36;

(xxiv)

procedure for cancelling or withholding registration of an institution that fails to provide rehabilitation and re-integration services under sub-section (7) of section 41;

(xxxvii)

manner in which a Board or the Committee shall recognise, a facility being run by a Governmental organisation or a voluntary or non-governmental organisation registered under any law for the time being in force, fit to temporarily take the responsibility of a child for a specific purpose after due inquiry regarding the suitability of the facility and the organisation to take care of the child under sub-section (1) of section 51;

(xxxviii) procedure of verification of credentials, for recognising any person fit to temporarily receive a child for care, protection and treatment of such child for a specified period by the Board or the Committee under sub-section (1) of section 52;

(xlii)

appointment of inspection committees for all institutions registered or recognised fit, for the State and district under sub-section (1) of section 54;

187.

The State Government has brought in record various existing rules framed under the relevant provisions of the JJ Act, 2015. However, the said Rules which are brought in the record do not provide for the criteria for recognition of “fit institutions”, “fit persons”, “foster care”, “group foster care” who will be nominated for implementing the educational component of the R & R programme. The State is liable to frame Rules under the JJ Act, 2015 for recognition of “fit institutions”, “fit persons”, “foster care”,

“group foster care” who will bring to fruition the constituent element of education of the R & R programme/individual child care plan and realize the right to education of children in conflict with law and those in need of care and protection.

188.

Rights of children under the constituent elements of education of the R & R programme/individual child care plan cannot remain still born in the absence of Rules. In case implementation of the educational component of R & R programme/individual child care plan is stalled on the footing of non existence of rules, a generation of children will be denied their basic right to education which is fundamental to their reintegration into the society. Executive inertia cannot frustrate legislative purpose or cause a constitutional stasis.

189.

Till such Rules are framed under the JJ Act, 2015, as a provisional measure the JJBs/CCs can appoint non residential/day schools run by the government and teachers therein as “fit institutions” and “fit persons” respectively for implementing the educational content of the post release R & R programme/individual child care plan. Prior to such nomination the JJBs will examine all relevant criteria and make necessary enquiries as stated in the earlier part of this judgment. The State authorities, local administration and educational authorities are liable to provide necessary assistance and inputs to the JJBs for identifying such “fit institutions” and “fit persons” under the JJ Act, 2015 for the aforesaid purposes.

XI. The Road Ahead

XII. Answers to the Questions

XIII. Conclusions

“fit institutions” and the teachers therein as “fit persons” for implementing the constituent educational element of post release R & R programme/individual child care plan.

IX. The JJBs/ Children’s Courts shall identify educational institutions/schools as “fit institutions” and teachers as “fit persons” and other statutory institutions and stakeholders after due enquiry and consideration of relevant factors in light of this judgement for implementing the educational content and other aspects of the R&R programme/individual child care plan respectively. The local educational authorities as well as the State educational authorities shall assist the JJBs /Children’s Courts in identification of “fit institutions” and nomination of teachers who will mentor the child as

“fit persons”.

X. Upon proper enquiry the child shall be enrolled in the aforesaid school nominated as “fit institution” under the mentoring of teachers nominated as “fit persons” for undergoing constituent elements of education of the R & R programme which is concomitant with the right of the children to education under the RTE Act.

XI. Other institutions or educational institutions and teachers and professionals volunteering their services should also be considered for recognition as “fit institutions”/fit persons after due inquiry and satisfaction of relevant criteria to be set up by the State Government. XII. While identifying “fit institutions” and “fit persons”, the JJBs/Children’s Courts shall take appropriate steps to protect the anonymity of the child and prevent disclosure of their^{2222.—(1) Notwithstanding anything contained in the Rights of Children to} identity.

XIII. Post release R & R programme/individual child care plan can be successfully implemented only by activating the statutory ecosystem under the JJ Act, 2015 read with JJ Rules, 2016 of “fit institutions”, “fit persons” “foster care”, “group foster care” which facilitate reintegration of the child in the social mainstream. State Government shall accordingly take appropriate measures including framing Rules for ensuring the compliance of the provisions under the JJ Act, 2015 read with JJ Rules, 2016 for smooth execution of the post release R & R programme/individual child care plan and integration of the child in the social mainstream.

XIV. The State Government shall take appropriate measures to implement the constituent element of education of the R & R programme under the JJ Act, 2015 read with JJ Rules, 2016 for children in conflict with law and those in need of care and protection as a part of the right to education under the RTE Act, 2009 read with Article 21A of Constitution of India.

XIV. Need for R & R programme for the minor appellants

XV. Bail on merits