IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 33591 of 2008(Y) --------------------------------------- PETITIONER(S): ----------------------- VIDYA, 20 YEARS, D/O.SRI,SABU R/AT.KALATHIPARAMBIL, KUMBALA, KASARAGOD. BY ADVS.MR.P.GOPAKUMARAN NAIR MR.C.S.DIAS MR.N.K.SUBRAMANIAN RESPONDENT(S): ------------------------- 1. GOVERNMENT OF INDIA, REP. BY SECRETARY MINISTRY OF LAW AND JUSTICE SHASHTRI BHAVAN NEW DELHI-110 001. 2. STATE OF KERALA, REP. BY SECRETARY, SOCIAL WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. ADOPTION CO.ORDINATING AGENCY(KERALA) REP. BY ITS SECRETARY, RAJAGIRI PO., KALAMASSERY, ERNAKULAM-683 104. 4. INDIAN COUNCIL OF SOCIAL WELFARE REP. BY ITS SECRETARY, RAJAGIRI PO., KALAMASSERY, ERNAKULAM-683 104. R1 BY ADV.MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR R2 BY GOVT. PLEADER SMT.SUDHADEVI R3 BY AD. MR.K.V.ANIL KUMAR R4 BY ADV. SRI.K.V.ANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON 29/10/2009 DELIVERED THE FOLLOWING: tss V.GIRI, J. --------------------------- W.P.(C) No.33591 of 2008 --------------------------- Dated this the 29th day of October, 2009 JUDGMENT The petitioner claims to be illiterate. She is unmarried. But, due to unfortunate circumstances, she became pregnant from her lover. She realises that she may not be in a position to bring up the child and so she desires to surrender the child to a recognised adoption placement agency, so that the child could be rehabilitated through adoption or foster care. She approached certain adoption placement agencies. But, she has been told that she will have to approach the Child Welfare Committee constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the “JJ Act”} and the Rules framed thereunder. Essentially, her grievance arises from the operation of Rule 33(4) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 {for short “the Central Rules”}, which contemplates a deed of surrender, to be executed in a prescribed form, on a non-judicial stamp paper, in the presence of the Committee. W.P.(C) No.33591 of 2008 :: 2 :: 2. It is her case, that the said statutory prescription, as contained in the aforementioned Rule 33(4) of the Central Rules is inapplicable in the State of Kerala. Further, the Rule is unconstitutional, as it also violates the petitioner's fundamental right guaranteed under Article 21 of the Constitution of India. Reference is made in this regard to the observations made by the Supreme Court in Laxmi Kanth Pandey v. Union of India {AIR 1984 SC 469} and the subsequent judgments on the same point by the Supreme Court, essentially clarifying or modifying, as the case may be, the directions issued in Laxmikanth Pandey's case. The petitioner, therefore, seeks a declaration that Rule 33(4) the Central Rules to be void, illegal and unconstitutional. She further seeks an appropriate direction to the respondents not to insist on her personal appearance before the Child Welfare Committee, for the execution of a document of surrender. 3. The Union Government and the State Government are respondents 1 and 2 in the writ petition. The Adoption Co- W.P.(C) No.33591 of 2008 :: 3 :: ordinating Committee and the Indian Council of Social Welfare are respondents 3 and 4 in the writ petition. 4. Neither the Union Government nor the State Government has filed a counter affidavit in the case. The 4th respondent has filed a counter affidavit wherein it is affirmed that the chances of the petitioner being exploited in case she has to execute of surrender document before the Child Welfare Committee cannot be ruled out. It is contended that Sub-Rule (4) of Rule 33 the Central Rules is obnoxious to the judgment of the Supreme Court in Laxmikanth Pandey's case. It is further averred that the Indian Council of Social Welfare is an independent agency, appointed by the Central Adoption Resource Agency to conduct scrutiny of all applications submitted by the adopted parents to Courts of competent jurisdiction to appoint them as a Legal Guardian/Adopted Parents. The Indian Council of Social Welfare, it is averred, is duly recognised by the Supreme Court and all the other High Courts in the State and competent Courts, for the purpose of scrutinising the documents and filing W.P.(C) No.33591 of 2008 :: 4 :: representations in adoption cases. One of the primary responsibilities and duties of Indian Council of Social Welfare in conducting scrutiny of adoption cases is to verify and ascertain the genuineness and authenticity of surrender documents purportedly created by relinquishing parents. It is affirmed that, if on scrutiny, it is found that the documents of surrender are in accordance with the guidelines of the Apex Court and the Central Adoption Resource Agency, then the 4th respondent would issue a positive scrutiny report recommending the prospective adoptive parents to be placed with the child. It is further contended that the present system being followed in the case of surrender of illegitimate child by its mother is perfectly legal and just. The confidentiality of the process is being maintained and even a remote possibility of leakage of relevant information and consequential exploitation is avoided. Further, in individual cases, where the Central Adoption Resource Agency expresses a doubt, it would always be open to the court in its discretion to order an enquiry into the matter by the Child Welfare Committee or any other independent agency. W.P.(C) No.33591 of 2008 :: 5 :: 5. I heard Mr.C.S.Dias, learned counsel for the petitioner, Mr.Parameswaran Nair, learned Assistant Solicitor General, Smt.Sudha Devi, learned Government Pleader and Mr.Anil Kumar, learned counsel for respondents 3 and 4. 6. There are two aspects, which have been mooted for consideration. The first question is whether the impugned rule viz., Rule 33(4) the Central Rules is applicable to the State of Kerala and the second is whether the said Rule is unconstitutional being violative of Article 21 of the Constitution of India. The applicability of the Central Rules as a set of statutory rules to the State of Kerala has, as such, arisen for consideration. I consider it appropriate to consider the said contention urged by the learned counsel for the petitioner in the first instance, and if I am to find that the Central rules are not applicable in the State of Kerala, then it may not be necessary to consider whether Rule 33 (4) of the Central Rules as such is unconstitutional and invalid. This court would consider the constitutional validity of any statutory provision only when it is necessary to do so. If the W.P.(C) No.33591 of 2008 :: 6 :: impugned rule has no applicability to the State of Kerala, then obviously it has no legal efficacy, within the State and consequently, it would be unnecessary to consider whether the Rule as such is unconstitutional or not. 7. The Juvenile Justice (Care and Protection of Children) Act, 2000 is an Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection by providing for proper care, protection and treatment by catering to their development needs and by adopting the child-friendly approach in the adjudication and disposition of matters in the “best interest of children and for their ultimate rehabilitation”. Reference is made in this regard to Article 15(3), 39(e), (f), 45 and 47 of the Constitution. 8. Section 2(d) Act refers to the child who needs care and protection as follows: (i) Who is found without any home or settled place or abode and without any ostensible means of subsistence. (ii) who resides with a person (whether a guardian of the child or not) and such person - W.P.(C) No.33591 of 2008 :: 7 :: (a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or (b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person. (iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after, (iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child. (v) who does not having parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable inquiry. (vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts, (vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking, (viii) who is being or is likely to be abused for unconscionable gains, (ix) who is victim of any armed conflict, civil commotion or natural calamity;” W.P.(C) No.33591 of 2008 :: 8 :: 9. Sections 2(h), 2(i) and 2(j) defines fit institution, fit person and guardian: 2(h) “fit institution” means a governmental or a registered non-governmental organisation or a voluntary organisation prepared to own the responsibility of a child and such organisation is found fit by the competent authority 2(i) “fit person” means a person, being a social worker or any other person, who is prepared to own the responsibility of a child and is found fit by the competent authority to receive and take care of the child; 2(j) “guardian”, in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognised by the competent authority as a guardian in course of proceedings before that authority.” 10. A 'juvenile' or 'child' is defined in Section 2(k) of the Act as to mean a person, who has not completed eighteenth year of age. 11. Chapter III of the Act deals with the general subject titled “Child in Need of Care and Protection”. As per Section 29(1) of the Act, the State Government may, within one W.P.(C) No.33591 of 2008 :: 9 :: year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, constitute for every district, one or more Child Welfare Committees for exercising the powers and discharge the duties conferred on such Committees in relation to child in need of care and protection under the Act. The powers of the Child Welfare Committee {hereinafter referred to as 'the Committee'}, are conferred under Section 31 of the Act, which reads as follows: “(1) The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights. (2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.” 12. As per Section 32 of the Act, any child, in need of care and protection may be produced before the Committee by any one of the following persons. “(i) any police officer or special juvenile police unit or a designated police officer; W.P.(C) No.33591 of 2008 :: 10 :: (ii) any public servant; (iii) childline, a registered voluntary organisation or by such other voluntary organisation or an agency as may be recognised by the State Government; (iv) any social worker or a public spirited citizen, or (v) by the child himself” 13. As per Sub-section (2) of Section 32, the State Government is to make Rules consistent with the Act to provide for the manner of making a report to the Committee and the manner of sending and entrusting the child/children home, pending enquiry. 14. It is appropriate, at this juncture, to refer to Section 68 of the Act, which provides that the State Government may, by notification in the official gazette, make rules to carry out the purpose of this Act. Section 68(1) of the Act is relevant and it reads as follows: “The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.” 15. The proviso to Section 68(1) is a fairly unique provision. While Section 68(1) specifically confers power on the State Government to make rules to carry out the purposes of the W.P.(C) No.33591 of 2008 :: 11 :: Act, at first blush the Central Government is also contemporaneously conferred with the power to make rules in respect of all or any of the matters with respect to which the State Government may make rules under the Section. But, such model rues shall apply to the State only until the rules in respect of that matter is made by the State Government. A guideline is also mentioned in this regard in the proviso where it is stated that the State Government may, while making such rules (under Section 68(1) and 68(2) of the Act) as far as practical, conform to such model rules. 16. Central Rules have been framed under Section 68 of the Act. Rule 96 of the Central Rules is relevant and is extracted hereunder: “Application of these rules:- It is hereby declared that until the new rules conforming to these rules are framed by the State Government concerned under Section 68 of the Act, these rules shall mutatis mutandis apply in that State.” W.P.(C) No.33591 of 2008 :: 12 :: 17. The Central Rules, therefore, declare that the said Rules would apply in a State until rules are framed by the concerned State Government under Section 68 of the Act. Rule 96 of the Central Rules is broadly worded and there is one aspect of the said rule which requires to be specifically mentioned and I will do so, at a later stage. 18. Learned counsel for the petitioner Mr.C.S.Dias submits that the State of Kerala has exercised its rule making power under Section 68(1) and (2) of the Act and it is, therefore, that the Kerala Juvenile Justice (Care and Protection of Children) Rules, 2003 have been framed by the State Government. He contends that once the State Government exercises its rule making power under Section 68 of the Act, then obviously the model rules, if any, framed by the Central Government would not apply in the concerned State. At any rate, the proviso to Section 68(1) makes it clear that if the primary rule making authority has already framed rule regarding any aspect, which is comprehended by the provisions of the Act, then the rule, if any, framed by the W.P.(C) No.33591 of 2008 :: 13 :: Central Government regarding the same aspect would not apply in the concerned State. 19. I find considerable force in this submission. I have already extracted Section 68 of the Act. Section 68(1) makes it clear that the primary rule making authority under the JJ Act is the State Government. The proviso to Section 68(1) of the Act further makes it clear that the rule making power of the Central Government is essentially to make model rules and even where such model rules have been made, they shall apply to a State until such time as the State Government may make rules on the same subject matter. Where therefore on a subject matter, comprehended by Sections 68(1) and 68(2) of the Act, the State Government has already made rules, a model rule framed by the Central Government on the same subject matter, obviously would not have application to the State; since the State has already exercised its rule making authority. It is also relevant in this context to take note of the fact that it is only by Amendment Act 33/06 that a proviso has been inserted to Section 68(1) of the W.P.(C) No.33591 of 2008 :: 14 :: Act. At the same time, Section 68(1) has remained in tact. Thus, the legislature did not contemplate a contemporaneous conferment of rule making power on the State Government and the Central Government with regard to the same subject matter. The proviso to Section 68(1) brought about by Act 33/06 makes it clear that the rule making power of the Central Government would essentially be to make model rules lending guidance as it were to the State Government when they exercise their rule making power. Obviously, the power under the proviso to Section 68(1) of the Act is not contemplated as available or required to be exercised, as the case may be, in a case where the concerned State has already framed the rule concerning the same subject matter. 20. If that be so, it is quite clear that where a subject matter is covered by the Rules framed by the Kerala Government, then obviously the Rules framed by the Central Government, would have no application to the State concerned. If, therefore, the Kerala Rules comprehensively cover each one of W.P.(C) No.33591 of 2008 :: 15 :: the aspects required to be prescribed under the Act, then it could be a case where the Central Rules have no application whatsoever, to the State of Kerala. 21. It is not necessary to consider this larger question as to whether any one of the provisions in the Central Rules have any application in the State of Kerala. The question is whether the Kerala Rules provide for the procedure to be adopted, when any child in need of care and protection is produced before a committee. 22. Rule 37(6)(c) of the Kerala Rules is relevant in this context and is extracted hereunder: “37(6) The procedure for Adoption shall be:- (c) When the child proposed to be given on adoption is a relinquished child, the Board shall satisfy itself that the relinquishment deed was taken properly and the child has been voluntarily surrendered by the biological parent/parents/unmarried mother. The Board may also in cases which are doubtful, direct the scrutinizing agency to enquiry whether the child has been voluntarily surrendered by the biological parents/parent/unmarried mother or whether such W.P.(C) No.33591 of 2008 :: 16 :: relinquishment has been by fraudulent means. But unless the Board so directs,the scrutinizing agency shall not make any attempt to trace the biological parents/parent/unmarried mother of the child.” 23. A perusal of Rule 32 would show that any child in need of care and protection should be produced by any one of the persons mentioned therein and the Committee or any Police officer or special juvenile police unit or the designated police shall hold an enquiry in the prescribed manner and the committee may, on its own, or on the representation of any person mentioned in Section 32(1), pass an order to send the child to the Children's Home. There is, therefore, a well laid down procedure, in the matter of production of a child in need of care and protection before the Child Welfare Committee. Rule 37 of the Kerala Rules has imbibed the spirit of the plenary statute. 24. As stated above, the petitioner essentially challenges the applicability and the validity of Rule 33(4)(c) of the Central Rules, which provides that if the surrender of a child in need of care is inevitable, then a deed of surrender in Form No.15 W.P.(C) No.33591 of 2008 :: 17 :: shall be executed on a non-judicial stamp paper in the presence of the Committee. 'Surrendered child' is defined as a child who has been declared by the Committee, after due enquiry as a child, who is (i) born as a consequence of non-consensual relationship; (ii) born of an unwed mother or out of wedlock; (iii) a child in whose case one of the biological parents is dead and the living parent is incapacitated to take care; (iv) a child where the parents or guardians are compelled to relinquish him due to physical, emotional and social factors beyond their control. The Kerala Rules contemplates production of the child before the committee and an enquiry. It is also significant to point out that the said rules do not make it mandatory for a deed of surrender as such, to be executed in the presence of the Committee. Form No.15 appended to the Rules provide for a deed to be executed by the person surrendering the child obviously in most of the cases, this would be one of the parents of the child. In the present case, it is the unwed mother of the child. The implementation of Rule 33(4)(c) of the Central Rules mean that W.P.(C) No.33591 of 2008 :: 18 :: the child will have to be produced by the unwed mother, who will, in turn, have to execute a deed of surrender in the presence of the Committee. 25. As stated above, several contentions have been raised against the validity of the said provision and I would have considered the same, but for the fact that if the primary contention regarding non-applicability of the Rules in question forming part of the Central Rules to the State of Kerala is answered in favour of the petitioner, then this court would not be required to consider the question regarding the validity and constitutionality of the provision. 26. Answer to the question whether Rule 33(4)(c) of the Central Rules, which is impugned, applies to the State of Kerala, would depend upon whether the Kerala Rules comprehensively cover the same stage, in the matter of rehabilitation of a child in need of care and protection. A child in need of care and protection has been defined under Section 2(d) of the Act and obviously the said definition is wide enough to W.P.(C) No.33591 of 2008 :: 19 :: comprehend a 'surrendered child' within the meaning of the Central Rules. 27. A conspectus of the aforementioned Rules would, therefore, show that the Kerala Rules provide for a procedure to be adopted, while producing a child in need of care and protection, before the Child Welfare Committee and the nature of the enquiry to be conducted and the steps that have to be taken thereafter by the Committee. In other words, Rule 33(4)(c) of the Central Rules deals essentially with a step, in the procedure, that is comprehensively provided for by the State Rules. Consequently, it has to be concluded that the impugned rule operates in an area which is already occupied comprehensively by a provision in the State Rules. As a sequiter, it has to be held that the impugned rule 33(4)(c) of the Central Rules has no application to the State of Kerala. 28. In view of the aforementioned conclusion, I do not think it necessary to consider the contention that the impugned Rule, even otherwise, is invalid or unconstitutional. W.P.(C) No.33591 of 2008 :: 20 :: Accordingly, the writ petition is allowed. It is declared that Rule 33(4)(c) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 has no application to the State of Kerala. The respondents are directed not to insist for the personal appearance of the petitioner before the Child Welfare Committee, constituted under the Act or insist on her personal appearance for executing a document of surrender of the child, as contemplated by Rule 33(4)(c) of the Central Rules, if the child is sought to be surrendered before the Committee. Sd/- (V.GIRI) Judge sk/ //true copy//