"Children have been all but forgotten”, SC castigates National and WB Child Rights Commissions for jurisdictional tussle in Jalpaiguri trafficking case
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"Children have been all but forgotten”, SC castigates National and WB Child Rights Commissions for jurisdictional tussle in Jalpaiguri trafficking case

"... institutions set up to protect children a up to protect children have virtually forsaken them in a fight over their so called jurisdictions", the Apex Court observed.

Meera Emmanuel

The Supreme Court on Monday criticised the National and West Bengal Commissions for Protection of Child Rights (CPCR) for losing sight of their primary duty to protect children, in their bid to establish superiority in “jurisdiction” in the Jalpaiguri child-trafficking case.

"This case is a classic example where in the fight between the State Commission and the National Commission the children have been, all but forgotten. We are sorry that this Court has to spend its time resolving such disputes. This Court as well as the two major parties litigating before us definitely have better things to do."

Supreme Court

The observation was made in a dispute between the West Bengal and National Commissions for the Protection of Child Rights. At the very outset, the Bench of Justices Deepak Gupta and Aniruddha Bose made their anguish over the tussle known in unambiguous terms.

"It’s so sad! We start with a lament because institutions set up to protect children a up to protect children have virtually forsaken them in a fight over their so called jurisdictions."
Supreme Court
Justices Deepak Gupta and Aniruddha Bose
Justices Deepak Gupta and Aniruddha Bose

The case prompted the Supreme Court to highlight that the purpose that should guide the functioning of the Child Rights Commissions must be the protection of children.

These commissions exercise extremely important powers. They must function only for the protection and betterment of children. These commissions cannot become sources of power, self-aggrandisement or means of obtaining the trappings of power like official cars, bungalows etc. The people who are appointed to such commissions must in a true sense be friends of the children, willing to spend their time and energy to help children rather than pushing their own personal or political interest.

Factual Background

The dispute dated back to 2017, over reports that an orphanage in Jalpaiguri was indulging in large-scale child trafficking. In March 2017, the National Commission decided to initiate an inquiry. To that end, it visited the orphanage and thereafter sought further information from various authorities, including the ADGP, CID, West Bengal.

With no information forthcoming from any of the authorities, the National Commission took to issuing summons to the ADGP. The ADGP responded by challenging the National Commission’s jurisdiction over the matter, citing an inquiry that had already been initiated in the matter by the State Commission. The Calcutta High Court eventually stayed the National Commission’s inquiry, prompting the matter to reach the Supreme Court.

National and State Commissions ought to work harmoniously

The Supreme Court was strongly critical over the cross-fighting between the two Commissions, observing that their respective powers ought not to be viewed as “water tight compartments”. Rather, the Bench observed,

These two institutions are in the nature of siblings. The goal which they both set out to achieve is the same, viz., protecting children from all sorts of abuse, exploitation etc.

We see no reason why there should be any disharmony and lack of coordination between these two institutions. This non­cooperation and lack of coordination can only occur when the persons manning the institutions put their own interests over the interest of the children. It is only when those in­charge of such commissions give themselves so much importance that they forget that they are the creation of statute, the only purpose of which is to protect children.”

Pertinently, the High Court had stayed the National Commission’s inquiry in view of Section 13 (2) of the CPCR Act and on finding prima facie that it would have no jurisdiction over the issue, since the State Commission had already taken cognisance.

Section 13 (2) of the the CPCR Act states,

The [National] Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force."

The Supreme Court, however, clarified that in such cases, “there is no ouster of jurisdiction” as such. The focus must remain on how to ensure that an inquiry is conducted in a spirit of comity and not as adversaries, the Bench noted.

There is no ouster of jurisdiction like in the case of courts. The purpose of Section 13(2) is to ensure that one Commission carries out the inquiry … We have no doubt in our mind that both the Commissions are expected to function in a spirit of comity and in concert with each other and not as adversaries.

The Court proceeded to clarify,

Section 13(2) is that if the State Commission has already started an inquiry, the National Commission should naturally refrain from inquiring into the matter. This, however, does not mean that the National Commission cannot go into the other larger questions which may have led to the specific incidents of violation of child rights which need to be inquired into....

… both the Commissions have to work for the best interest of the children in a spirit of cooperation. Unfortunately, in this case, there has been no cooperation rather mudslinging at each other.

Manner in which case has been dealt with “leaves much to be desired”

On examining the way events played out, the Court eventually observed that the clash of egos between the National and State Commissions had dominated the case at hand.

Although the State Commission took cognisance over the issue first in January 2017, it thereafter took no action to resolve the problem. The Court pointed out that it was only after the National Commission visited the orphanage that the State Commission “felt it necessary to itself visit Jalpaiguri and take stock of the situation.”

The Court, however, clarified,

We make it clear that in every case a personal visit is not required but the manner in which this case has been dealt with leaves much to be desired.

As regards the files presented to the Court by the State Commission, the Bench remarked that “After going through the file, all that we can say is that the file is not maintained like an official file.”

In fact, the Court eventually observed that the report of the State Commission was more focused on allegations against members of the National Commission.

The report virtually does not deal with the issue related to trafficking of the children.”

Children cannot be made subject of a media war

The National Commission was also pulled up for the manner in which it dealt with the issue.

Coming to the role of the National Commission, we somehow feel that the National Commission was also more interested in settling scores with the State Commission or with the officials of the State Government rather than ameliorating the plight of the children.

The Bench also castigated the National Commission for having allowed media persons to accompany them on their visit to the orphanage, thereby compromising the privacy of the child inmates.

We would like to make it clear that no person(s), including members of the Commissions whether it be the National Commission or the State Commission, are permitted to take media with them when they visit any of the homes set up under the JJ Act or under any other law."

The privacy of the children is of the highest importance. In this fight between two bodies, the children cannot be made subject matter of a media war. We sincerely hope that nothing like this will happen in future.”
Supreme Court

Police should cooperate when requests are made by Child Protection Commissions

The Court proceeded to observe that the police should generally cooperate with requests for information by Child Protection Commissions, when possible.

"Police officials should realise that when the Commissions constituted under the CPCR Act ask for some relevant information, they must respectfully reply to the same and not rake up the dispute of so­ called ‘jurisdiction’. Even the police officials must realise that these Commissions have been constituted for the welfare of the children."

Supreme Court

Having observed thus, the Court recorded its disapproval over the manner in which the West Bengal ADGP, Dr Rajesh Kumar appeared to have evaded requests for information by the National Commission as well as directions to appear before the Supreme Court.

We are constrained to make observations against Dr. Rajesh Kumar even though he is not present before us because we have no doubt in our mind that he is evading accepting notices sent from this Court…

…in our view, Dr. Rajesh Kumar would have been better advised to furnish information to the NCPCR rather than challenging the jurisdiction of the NCPCR.

All the same, the Court also disagreed with the “unnecessarily harsh” language used by the National Commission in directing him to furnish information and in summoning him thereafter. The Bench observed,

“… when a Commission asks for information, the letter should be formulated like a request and not like an order. Even if there is non­compliance of such request, the Commission should send another letter in stronger terms directing the official to provide the requisite information. But there is no need to threaten officials with arrest. This should only be done as a last resort.

Calcutta High Court to monitor further CPCR inquiry into state of orphanages in West Bengal

Amidst disputes of jurisdiction, the Supreme Court noted that the police eventually initiated criminal proceedings in the Jalpaiguri orphanage case. The matter is presently at the stage of trial.

While the Court did not comment on the merits of the sub judice case, it was noted that there were lingering systemic issues at the orphanage that the CPCR should still look into. These include the setting up of proper Child Welfare Committees and the facts that led to the trafficking of orphanage children. The Bench opined,

“In fact, we are of the view that such inquiries are necessary so that such events do not occur in the future. In case, the CWCs had been properly constituted may be this unfortunate situation would not have arisen.”

Therefore, it directed the Commissions to continue looking into such larger issues, not only for the Jalpaiguri case, but for all of West Bengal. However, the Bench added that the inquiry should monitored by the Calcutta High Court through a PIL.

To this end, the Supreme Court has directed the Registrar General of the Calcutta High Court to place the matter before the Chief Justice for constitution of an appropriate Bench, while also adding,

We request the Bench so constituted to deal with the matter as per the urgency involved and if required, to establish a fool proof mechanism so that such occurrences do not take place in future.

[Read the Judgment]

NCPCR v Dr Rajesh Kumar and ors - Supreme Court Judgment.pdf
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