Supreme Court order on children in shelter homes: New standards for human rights monitoring and accountability?

On June 6, there were reports that 35 children in a Chennai children’s institution were infected with Coronavirus and that while those who infected were hospitalized, the remaining were shifted to an adjacent building.

On June 15, 57 girls residing in a state-run institution at Kanpur tested positive for COVID-19. A report by India Today suggests that that the shelter home, built for 100 girls, housed 171 of them, making physical distancing very difficult.

These incidents occurred despite the Supreme Court’s order on April 3, by which it had taken suo motu cognizance of the situation of children. The Court had directed the state governments to take certain preventive measures in institutions housing children, and more fundamentally, to ensure that the system under the Juvenile Justice Act (JJ Act) was functional.

Had this prder been taken seriously and implemented, the incidences in the institutions in Chennai or Kanpur would not have occurred. Unfortunately, the Supreme Court had left it to the government and its agencies to implement its directions, and there were no measures taken for monitoring compliance.

Taking suo motu cognizance of the incidence of COVID-19 in the shelter home in Chennai, the Court passed yet another order on June 11, issuing a fresh set of directions on the same subject. This time. however, it also annexed a format in which information is to be collected and submitted to the Court. The format is a detailed one, asking for the number of children housed before and after the lockdown in various institutions under the JJ Act and functionality of the structures mandated by the law, including the status of disbursement of funds to meet operational expenses.

This is not the first time the Supreme Court has issued directions to advance child protection and to ensure that the law is functional. In Sampurna Behrua v. Union of India, the Court had passed multiple orders to tighten the implementation of the juvenile justice law. In two of these orders, issued in 2015 and 2018, some specific set of directions were issued for timely filling up of vacancies; ensuring that the children’s homes are not overcrowded; social-audits of homes; improving monitoring and compliance with the law; and for setting up child-friendly and vulnerable victim’s friendly courts in all districts.

Similar orders were passed in 2017, in yet another case (Re: Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India). Along the same lines, in 2019, the Court in a different case ordered that special courts be set up to exclusively try cases under the Protection of Children From Sexual Offences (POCSO) Act within a year, in the all those districts where there were more than 100 cases pending,

What is common to all these orders is the Court repeatedly directing the state to ensure that the systems under the JJ Act are functional and that the law is implemented. Unfortunately, none of us know the extent to which these directions have been complied with, because monitoring of compliance has always been a sketchy effort. In the absence of a specific mandate regarding the form and content of the responses or a mechanism to verify the correctness of claims, the states were left to report in ways they deemed fit.

Monitoring of compliance with Supreme Court’s orders has invariably produced better results. Take the case of People’s Union for Civil Liberties (Right to food case). In a series of orders, the Court made a specific set of declarations about the contours of the right to food and took actions to ensure that these orders were implemented. It relied on reports from court-appointed commissioners and state advisors from civil society organizations to monitor and ensure compliance of its orders. Despite shortcomings, it is widely accepted that these efforts at monitoring compliance has yielded better results. In the words of the UN Special Rapporteur for the Right to Food, “This is to this date the most spectacular cases of a court protecting the right to food.”

In this scenario, the June 11 order is important for us. Despite court orders, children’s rights has always received short shrift in implementation. In this case, the Court, by providing a format for reporting, has taken away the ‘discretion’ of what to report from the states. We hope that this sets a precedent on how the Court monitors implementation of child rights hereon.

More importantly, this has laid the foundation for human rights monitoring in the country by courts at all levels. Deepening the idea of a continuing mandamus system, this order provides valuable precedent for the proposition that that the courts can monitor compliance in a more granular fashion, asking for precise data on indicators that help measure compliance. It thus potentially opens up a new dimension to the PIL jurisdiction of the Courts.

The Court, however, must not lose sight of its limited institutional capacity for any thorough empirical analysis of data. This is where it can fall back on the Right to Food case – by opening up that data and sharing it with a wider set of experts. Going forward, the Court can also avail the services of an amicus curiae, academic institutions, and civil society organizations to make better sense of the data and even cross-verify it.

Finally, while the gathering of precise data and information may enable the Court to write a sharp and specific order, citizens, and more so the child citizens, will still have to remain at the mercy of the political will of the state to ensure that these orders turn into reality. That really is the final test!

Will the Court once again be left to lament as it did in Re: Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India, that “the inaction of the States was in the teeth of the directions given by this Court and additionally the States and Union Territories ought to realize that they have to operate in accordance with the provisions of the Constitution of India”?

Enakshi Ganguly is a human rights activist and Honorary Professor, National Law University, Odisha. She can be reached at enakshi.ganguly@gmail.com.

Mahesh Menon is an Assistant Professor, Daksha Fellowship, SAI University and can be reached at mahesh.menon@saiuniversity.edu.in.