Case Note & Summary
The Public Interest Litigation was filed by Forum for Fairness in Education, an NGO, seeking enforcement of the Commissions for Protection of Child Rights Act, 2005 in Maharashtra. The petitioner highlighted that the State Government had failed to constitute the State Commission for Protection of Child Rights after the term of the previous Commission expired on 2 December 2011, leaving the Commission without a valid constitution for over five years. The petition also raised issues regarding non-compliance with the Right to Information Act, 2005, irregular exercise of powers by the Secretary of the State Commission, non-creation of a helpline for children, and non-appointment of Special Public Prosecutors with expertise in child-related matters. The State Government filed an affidavit contending that the Commission was conducting activities and that the Principal Secretary of the Women and Child Development Department had been appointed as Incharge Chairman to carry on day-to-day business. The Court examined the scheme of the Act, emphasizing the wide functions and powers of the State Commission under Sections 13, 14, and 15, including inquiry into child rights violations, inspection of juvenile homes, and suo motu cognizance. It noted that Section 17 mandates the constitution of the Commission with a Chairperson of eminence and six Members possessing diverse expertise. The Court found that the State Government had initiated a process for appointment in October 2015, but had to revoke it because advertisements were published in newspapers with no circulation. It observed that the Secretary, appointed under Section 21, could not exercise the powers of the Commission as per Rule 5 of the 2010 Rules, and that such unauthorized exercise of power needed to be stopped. Given the prolonged absence of a regularly constituted Commission, which also exercises functions under the Protection of Children from Sexual Offences Act, 2012, the Court directed the State Government to start a fresh process forthwith. The advertisements must be published in all local editions of Loksatta, Times of India, Sakal, and Lokmat across Maharashtra to ensure wide publicity. The Court stressed that the entire process, including the constitution of a Selection Committee, must be expedited. The Secretary was to be informed of the limits of his authority. The judgment disposed of the PIL with these directions to ensure the effective implementation of child rights in the State.
Headnote
A) Child Rights - Constitution of State Commission - Mandatory requirement under Section 17 of the Commissions for Protection of Child Rights Act, 2005 - State Commission must consist of a Chairperson of eminence and six Members with specified qualifications - The State Government failed to constitute the Commission after the term expired on 2 December 2011, resulting in a gap of over five years, and the initial process was revoked due to inadequate circulation of advertisements - Held that the State Government must complete the appointment process expeditiously by publishing advertisements in all local editions of widely circulated newspapers and appointing a Selection Committee (Paras 7-11). B) Child Rights - Powers of Secretary of State Commission - Section 21 and Rule 5 of the Commissions for Protection of Child Rights Rules, 2010 - The Secretary cannot exercise the powers of the State Commission; such exercise is without legal authority - Held that the Secretary must be informed that passing orders on behalf of the Commission is impermissible (Paras 9). C) Child Rights - Functions of State Commission - Sections 13, 14, 15 and 24 of the Commissions for Protection of Child Rights Act, 2005 and Section 44 of the Protection of Children from Sexual Offences Act, 2012 - The State Commission has wide functions including inquiry into child rights violations and recommending measures - The non-constitution of the Commission hampers the implementation of these statutory functions and the State Government's reliance on an Incharge Chairman is not a substitute - Held that the State Government should take immediate steps to constitute the Commission to ensure child rights are protected (Paras 5-9).
Issue of Consideration
Whether there has been a failure to constitute the State Commission in accordance with Section 17 of the Commissions for Protection of Child Rights Act, 2005; whether the Secretary can exercise the powers of the State Commission; and the requirement for the State Government to expedite the process of appointment
Final Decision
The High Court directed the State Government to immediately initiate a fresh process for constitution of the State Commission by publishing advertisements in widely circulated newspapers (Loksatta, Times of India, Sakal, and Lokmat) in all their local editions across Maharashtra, and to expedite the appointment by constituting a Selection Committee. It was clarified that the Secretary cannot exercise the powers of the State Commission. The Court found that the earlier process was revoked due to inadequate circulation of the advertisements.
Law Points
- State Commission for Protection of Child Rights must be constituted with a Chairperson and six Members as per Section 17 of the Commissions for Protection of Child Rights Act
- 2005
- Secretary cannot exercise the powers of the State Commission
- State Government must expeditiously constitute the State Commission to perform functions under the Act and other laws like Protection of Children from Sexual Offences Act
- 2012
- advertisements for appointment must be published in widely circulated newspapers across the state
