REENA BANERJEE & ANR. Vs. GOVT. OF NCT OF DELHI & ORS.

Juvenile Justice (Care and Protection of Children) Act, 2000

Tags Interpretation

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 11938 of 2016, Judgment Date: Dec 08, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11938/2016
(Arising out of S.L.P.(Civil) No.39321/2012)

Reena Banerjee & Anr. ….Appellants

Vs.

Govt. of NCT of Delhi & Ors. ….Respondents

J U D G M E N T

A.M.KHANWILKAR,J.

Leave granted.

2. This appeal arises from the judgment of the High Court of Delhi at
New Delhi in W.P.(c) No.8229/2011 dated 7th September 2012.

3. The appellants filed an intervention application in the High Court,
in a disposed of suo moto Writ Petition (Civil) No. 5621/2012. The
reliefs claimed in the application read thus:

“ a. For an order calling for the records of the deaths that have taken
place in such homes and also for information pertaining to the intake of
juveniles and those released since 2004-08.

b. For an order directing the authorities to conduct an impartial
inquiry by constituting an independent committee as per the provisions of
the Acts regarding the deaths that have taken place in observation homes
and submitting findings to this Hon’ble Court.

c. For an order directing strong action against the duty bearers, the
concerned minister and the agencies working in the area of child rights who
have failed to discharge their duties towards the children and prosecute
the officials who are responsible for the deaths in various children homes.

d. For an order issuing directions to the authorities to ensure all
necessary infrastructure and legal entitlements are provided in the homes
under the Juvenile Justice regarding the requirements for appropriate
staffing, food, medical care and hygiene.

e. For an order directing the Respondents to ward compensation to the
parents/guardians of those juveniles who have died in various Children
Homes due to lapse or negligence of Home Authorities.

f. For an order constituting permanent committee consisting of
representatives of persons working on child rights and institutional care
to supervise and monitor the functioning of the child-care institutions
within juvenile justice administration system and to make periodic reports.

g. For an order requiring the Delhi Commission for Protection of
Child Rights to produce all inquiry reports and findings with respect to
Asha Kiran.

h. For an order directing the C.B.I. to take over the
investigation and prosecution with respect to the allegations as set out in
this petition.

i. Pass such other order or orders as this Hon’ble Court may deem fit in
the facts and circumstances of the case.”

4. This intervention application, however, was directed to be delinked
from the disposed of suo moto Writ Petition and to be registered as a fresh
Writ Petition. Accordingly, the application was registered as W.P.(Civil)
No.8229/2011. The principal issue argued before the High Court was about
the pitiable and pathetic condition of Asha Kiran Home (the sole Delhi
Government run Home) for differently abled men, women and children. Asha
Kiran Home comprises of six institutions within a complex of four buildings
for mentally retarded children and adults. The appellants highlighted the
issues such as inadequate medical treatment, medical services and access to
Doctors, skewed ratio of staff to look after the inmates, overcrowding,
poor distribution and consumption of dietary, clothing, bedding and other
items and also about the abuses of various kinds to the mentally challenged
persons residing in the said Home, in particular the female residents. The
appellants essentially relied on the media reports to buttress their plea
about the pathetic condition and the cruel treatment meted out at the hands
of staff members in Asha Kiran. When the matter progressed before the High
Court, the management of Asha Kiran agreed to consider the suggestions
given by the appellants and also to chalk out a holistic action plea to
remedy the deficiencies. They said that they were not treating the
proceedings as an adversarial litigation. The High Court, therefore,
directed the parties to convene a joint meeting and submit a proposal about
the reforms required in Asha Kiran, if any. The Government of Delhi,
accordingly, submitted a report about the action already taken and proposed
to be taken thereat. The High Court in the impugned decision adverted to
the contents of the said report, which reads thus:

“6. Mr. S.D. Salwan, learned Standing Counsel appearing for the Govt. of
NCT of Delhi, has placed on record the Report on action taken/proposed to
be taken, which are as under:

The existing Administrator has been phased out and the process of
appointment of a new Administrator has been initiated. The Government is
appointing Dr. V.N. Agarwal, former Medical Superintendent of Dr.Ambedkar
Hospital. He is MBBS, M.B.B.A, M.B.A, Health Care Administration from FMS,
Delhi University and has done a post graduate Certificate course in
Hospital Administration. Dr. Agarwal, himself being a medical doctor and
having held administrative position of one of the largest Government
hospitals would be totally competent to work on improvement of essential
services, plight of inmates, and maintenance of infrastructure and day to
day administrative work of Asha Kiran Home. The Administrator with a
background of a medico shall be dedicated to reduce vulnerability of
inmates; prevention of untimely deaths; and running of an effective medical
team at the institution and organize value added medical services from the
competent government hospitals. One of the key purpose is to reduce deaths
and increase life span of the existing inmates of Asha Kiran.

The Government has approved formation of a strong Governing Council
comprising of eminent citizens and experts (with core competencies in
techniques of holistic shelter and rehabilitation, gender, Human Rights and
Socio-Economic Empowerment of the most marginalized sections) for the
holistic and integrated development and improvement of management and
monitoring of the Asha Kiran institution, as well as prompt and expeditious
implementation of all policies and recommendations of Government appointed
Committee and various other statutory institutions, such as NHRC, NCPCR,
DCPCR etc. The process of setting up of the said Governing Council will
take at least 2 weeks.

Ms. Sreerupa Mitra Chaudhury, a prominent rehabilitation social worker; a
Member, Central Social Welfare Board; Chairperson, Committee for Review of
National Policy for Empowerment of Women; Chairperson, Institute for Gender
Justice, Ex-National Advisor, National Legal Services Authority; Ex-Member,
Delhi Legal Services Authority; Ex-Chief Coordinator, Rape Crisis
Intervention Centre of Delhi Police, Founder of Sudinalay Shelter Homes for
Homeless and Destitute Citizens Living with Mental Disabilities and
HIV/AIDS is being nominated as the Chairperson of the said Governing
Council. She is a senior and respected representative of the civil society
who has dedicated her life for the rescue, rehabilitation, shelter and
welfare of homeless citizens, particularly, living with acute forms of
mental disabilities. While selecting the Chairperson of the Governing
Council, adequate care has been taken to choose a person of subject
knowledge, integrity, dedication, commitment and selfless humanitarian
approach whose exposure of work has ranged from Civil Society to State and
Central Government in various acclaimed capacity. The person who has
direct, hands-on experience of rescue, shelter and rehabilitation of
abandoned/most marginalised, poorest of the poor sections of citizens
living with various forms of mental disabilities as well as vast experience
of formulation of policy initiatives at the highest level. In several
related matters, the Hon’ble Supreme Court and High Courts have appointed
her as advisor and member of monitoring committees, technical committees,
steering committees and empowered committees to monitor government policies
and programs.

The Governing Council will be fully empowered to take decisions for
improvement of the Asha Kiran Home in every manner and taking all issues
pertaining to the welfare and upkeep of residents; their protection against
any forms of assault/or any coercion while they are at this home, their
health, habitat, education, living conditions, medical care and treatment
and personal grooming and hygiene will be given maximum consideration.

The Governing Council under the Chairperson, will take utmost care to de-
congest the home; to rehabilitate and restore the residents to their homes
of families, or create opportunities of foster care and mainstreaming in
the society or communities; will uphold the national and international
policies and UN covenants pertaining the status of persons living with all
forms of mental disabilities; to nurture the environment of love, care and
affection for this section; and to re-affirm the concepts of dignity and
human rights; to initiate all such measures which will ameliorate the
existing pain and congestion; the typical sense alienation and the symptoms
of marginalization; the said Governing Council will gather fresh energies,
resources and friends and volunteers from the civil society and try to
amalgamate all those to achieve a vision of an integrated and holistic
rehabilitation shelter home for the most needy and marginalized. It will
also initiate policy level dialogues and interdepartmental cooperation
modules to converge benefits of various schemes of government and non-
governmental organizations; re-write the policy documents, rule books and
manuals to cope up with the challenges of a modern and contemporary world
class institution. Efforts will be made to prepare individual care and
support sheet with micro level interventions, to acquire dignity for each
one of the resident. The Governing Council will review the Budget and
analyze the present-day requirements and accordingly place before the
government for the rationalization. It will explore setting up of a
Resident Welfare Fund to augment and take care of the employment
opportunities for the residents.

The Governing Council shall be a decision-making body and its decisions
shall be considered the ultimate and binding by the government for
improvement of the essential services as well as the plight of the inmates.
The Chairperson shall be competent to direct/guide/control the
implementation of policies and proposals and shall be a face and a voice of
the so far neglected institution. The Administrator and the
Superintendents shall be responsible to assist the Governing Council and
the Chairperson to spearhead the proposed developmental activities.

The Government has approved proposed development of a Terms of Reference
for the functioning of the Governing Council, which shall be read with a
mandate and a vision document.

The department had already proposed appointment of 94 House Aunties and
appointments shall be made at the earliest. After the appointments, proper
training will be imparted through the Panel of Experts whereby the newly
inducted House Aunties shall be sensitized on issues pertaining to health,
hygiene and medical care. The Governing Council will promptly act to train
the staff members with the help of existing governmental and non-
governmental training institutions. Special attention will be given to
integrate the voluntary groups in training programs.

The government has already commissioned the activity of a new Asha Kiran
Building and the DSIIDC empanelled Architect, Mr. Prabhat, involved in
Half Way Home construction have been taken on board to assist in
formulation of a scientific construction plan, with national and
international rehabilitative standards. With regard to infrastructural
development, it is proposed to shift 100 residents to a new location, i.e.
Nirmal Chaya. The complex of Asha Kiran will undergo radical changes.
Four new multistory cottages, having 3 floors, will be constructed. Each
cottage will house 100 residents thereby catering to 400 residents. Mr.
Prabath, is very well versed and acquainted with the requirement of the
residents of Asha Kiran will design the new cottages, in consultation with
the Governing Council as well as the government appointed committee to
ensure all necessary inputs are made available for the benefits of the
home. It would be pertinent to state that earlier sanction has been given
to more than 15 times of Civil and other Works. The sanctioned amount is
about Rs. 5,50,00,000/-. This would need further revision as additional
floors are being added in the four new cottages. Several rounds of
presentations and meetings have already taken place in the last one year,
to create an integrated and holistic space for cluster homes and apartments
for the beneficiaries of Asha Kiran.

The list submitted by Applicants contains names of private psychiatrists.
Since, Dr. Nimesh Desai (Director, IHBAS, the statutory regulatory
institution for all forms of mental disabilities) and Ms. Sreerupa Mitra
Chaudhury ( a mental health activist and expert) are already part of the
Government appointed committee, some more psychiatrists on board, is
unnecessary inclusion.

The women and child health specialists from nearby Government hospitals are
visiting the institution on regular basis; therefore, adding names of some
more is not required.

The government has instructed the Governing Council to constitute an
Advisory Expert Group Panel for regular advice, academic assistance,
technical and knowledge support and for creation of voluntary training
opportunities at the institution and to make them part of a new action plan
that shall be formulated soon by the Governing Council. The matter will be
referred to the Advisory panel of experts, which would also include the
first four persons suggested by the petitioners, viz. Ms. Radhika Alkazi,
Merry Barua, G. Shyamala and Shanti Aulak. The Advisory panel of experts
will provide technical advice and shall be knowledge partners of the
Governing Council. The Governing Council shall be authorized to expand or
empanel more and more experts of proven expertise from various fields to
add value.

Segregation of border line and mild cases from moderate severe and profound
category cases shall be done on war footing. Efforts will be made to
absorb the Border and Mild category cases in the main stream by sending
them to regular schools, NGO Institutions and incase of adults, they will
be employed as ‘peer mentor’ to work upon the other residents. Remuneration
would be given to such “peer mentors” at par with the policy under NREGA or
any such scheme. Bank accounts of such mild to moderate residents will be
opened wherein their salary shall be deposited, for their use and benefit.

The Government is strengthening staff members by providing special
training, workshops and sensitizing them with all issues pertaining to the
different categories of residents (4 categories).

The Government will prepare a curriculum or co-opt an already existing
curriculum to train the House Aunties and Staff of Asha Kiran and for this,
the Advisory Panel’s advise and technical input, in-house training and also
developing administrative acumen shall be taken. With is exercise, the
house aunties as well as the other staff will get sensitized to every
aspect of care to be provided to the residents. The advisory Panel will
develop the curriculum/content for the technical course proposed for
professional qualification of all house aunties and other staff of Asha
Kiran home. The ‘Sahyogi’ program of the National Trust, suitably
modified by the Advisory Panel, will be implemented for the new as well as
existing house aunties.

The department is contemplating a revised salary structure with guarantee
of minimum wages to the personnels employed at Asha Kiran the unpaid dues
of the Staff shall be settled within 4-6 weeks.

The neighbouring government hospitals are being attached to Asha KIran for
providing ongoing medical care in case the medical care centre situated
within the complex is unable to cater to the ailment. The team of
psychiatrists, pediatricians, gynecologists and general physicians from
these hospitals will pay regular and routine duties for the care of the
residents. The entire health record will be digitalized for easy reference
in case of any emergency.

The Department is contemplating engagement of special educators for
occasional training and consultation.

With regard to inspection/supervision, an inspection committee constituted
under the Section 35 of the J.J.Act as well as the committee under the
DCPCR and NCPCR are at liberty to perform the statutory obligations and
their reports shall be taken by the department of social welfare as well as
the staff of Asha Kiran in the right direction. The Government has also
requested the Govt. appointed Committee and will call upon the Governing
Council to undertake/conduct surprise visits to the institution on odd
hours and record the activities and statements of inmates.

For proper surveillance and prevention of any untoward incident, CCTV
system is being installed at important places.

26 new toilets are under construction in the home and they shall be made
functional by 30.08.2012. The requirement of the additional toilets was
considered by the department in June-July 2011 and the same have been duly
implemented. In so far as renovation of existing infrastructure is
concerned, including toilets, the process was initiated in December 2010
and an amount of Rs. 2.50 crores has been spent.

The government is contemplating to make Asha Kiran Home an autonomous body
with a highly effective Governing Council. The appointment of the
governing council at this stage by the government with Ms. Sreerupa Mitra
Chaudhury as the Chairperson is a step in the right direction.

The chairperson, backed by the Governing Council and the Advisory Groups
shall take decisions related to amendments in policy of admission of new
cases; and re-location of the existing or new residents depending on their
merit, criterion, requirements etc.; as well as restoration, re-
integration, mainstreaming and rehabilitation. A policy will be developed
to assist the homeless, people of the street and the poorest of the poor
who have no income. Consultative meetings and inter-departmental dialogues
shall be held to make space for the poor and the most deserving. Maximum
focus will be laid on the access to the most marginalized. In this
connection, fresh intake modalities and rule books shall be amended.”

5. After adverting to the commitment made by the State Government in the
aforesaid report, the High Court opined that the proposed action would go a
long way in improving the condition of Asha Kiran Home. On that basis, the
High Court disposed of the matter by expressing a hope that the Authorities
concerned will implement the proposed action within assured time frame. As
regards the suggestions given by the appellants in respect of the proposed
action, the High Court clarified that the Government Authorities may
consider the same.

6. The appellants, however, have approached this Court by way of present
appeal under Article 136 of the Constitution of India. The principal
grievance of the appellants is that the High Court ought not to have
mechanically accepted the suggestions given by the State Government in
toto; and more particularly because the past experience shows that the
Authorities had never fulfilled their commitments made before the High
Court in previous Writ Petitions. Further, there was an imminent need to
drastically improve the condition of Asha Kiran for mentally challenged
persons, keeping in mind the suggestions given by the appellants before the
High Court. The High Court ought to have examined the suggestions presented
in writing by the appellants. Besides the appellants, by way of rejoinder
affidavit filed in this Court, have disputed the correctness of the factual
position about the condition of Asha Kiran Home.

7. The respondents 1 to 7 (State Government) have filed affidavit in
this Court on 19th April, 2014, disclosing the factual information about
the action taken in furtherance of the proposal submitted to the Delhi High
Court and assured to take measures to provide better facilities to the
inmates and of improving the condition of Asha Kiran Home. The
respondents 1 to 7 then filed additional affidavit sworn in August 2015,
giving information about the action taken for improving the conditions in
Asha Kiran Home and also having provided better facilities to the inmates.
The said affidavit also explains the aspects noted in the report submitted
by the Senior Advocate on 26th August 2015, regarding the present status in
Asha Kiran Home for mentally challenged persons. The additional affidavit,
inter alia highlights the extent of improvisation of infrastructure, the
living conditions of the inmates in the Home including about the programmes
undertaken for providing social security to the inmates. It is stated that
the new activities introduced by the Management have expanded the
opportunities and exposure to the inmates in relation to new trades and
training programmes. The affidavit also deals with the issues noted by this
Court in its order dated 10th February 2015 and 26th March 2015, in
particular. The thrust of the latest affidavit of the respondents is that
the living conditions of the inmates in the Home has considerably improved
including of providing new facilities and opportunities to them. Similarly,
the medical care and health structure as well as exposure to games and
sports has been strengthened. It is stated that the activities undertaken
by the Home under the guidance and supervision of the Governing Council has
been acclaimed even by the media. Further more, Asha Kiran has become the
first Government Institution in the welfare sector in Delhi, to be awarded
ISO 9001: 2008 for Quality Management in September 2014. The new
initiatives taken by the Governing Council have been appreciated by one and
all. Significantly, the factual position stated in this affidavit has not
been countered.

8. Considering the factual position stated in this latest additional
affidavit and which has not been controverted, it must follow that the
issues agitated by the appellants before the Delhi High Court have been
substantially redressed. In case there is still any subsisting deficiency
or shortcoming or a possibility of further improvisation, it is always open
to the appellants to give their suggestions to the Governing Council. The
appellants are free to do so. There is no reason why the Governing
Council will not consider those suggestions and act upon the same in right
earnest, if the same are reasonable and achievable. This proceeding should
come to an end on this note.

9. However, this Court vide order dated 26th March 2015 had observed
that the pitiable condition as obtained in Asha Kiran, in relation to which
the matter had travelled to the Delhi High Court may be true in respect of
Homes in other parts of the country. The Court, therefore, issued notice to
all the State Governments and Union Territories and directed them to file
their response about the ground reality prevailing in their respective
State with particular reference to the State obligations enunciated in The
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (hereinafter referred to as the 1995 Act). In
response to the notice, in all 18 affidavits have been filed by different
States/Union Territories giving particulars about the prevailing position
in their respective State/Union Territory.

10. Having given our anxious consideration to those affidavits, we are of
the view that analyzing the affidavit of each State/Union Territory would
be a cumbersome exercise, if not entail in entering upon a roving enquiry.
Be that as it may, we are of the view that a comprehensive mechanism and
dispensation is predicated in the 1995 Act and the Rules framed thereunder.
Besides the 1995 Act, even the Mental Health Act, 1987 (hereinafter
referred to as the 1987 Act) postulates a dispensation mandating the
appropriate Government to establish institutions for the care of mentally
challenged persons and maintenance and management thereof with a view to
create an equal opportunity and social security to them. For that, an
organizational structure has been provided for the Central Government and
Union Territories on the one hand and the respective State Governments on
the other. The Authorities so created have been fastened with a duty to
ensure that the Homes are maintained properly; and the inmates as well as
outdoor patients are looked after properly and also to create equal
opportunity and social security in the matter of education and employment
of such persons. To wit, Section 3 of the 1995 Act mandates that the
Central Government shall constitute a body to be known as Central
Coordination Committee to exercise the powers conferred on it and to
perform the functions assigned to it under the Act. The functions of the
said Committee are delineated in Section 8 of the Act, which not only
require it to develop a national policy to address issues faced by the
persons with disabilities but also to review and coordinate the activities
of all the Departments of Government and other Governmental and non-
Governmental Organisations which are dealing with matters relating to
persons with disabilities. The Central Coordination Committee is made
responsible to oversee and monitor the functioning of the Central Executive
Committee constituted by the Central Government under Section 9 and to
perform the functions assigned to it under the Act. On similar pattern,
under Chapter III, the State Coordination Committee is constituted by the
State Government to exercise the powers conferred on it and to perform the
functions assigned to it under the Act. The functions of the State
Coordination Committee are more or less identical to the functions of the
Central Coordination Committee which, however is confined to review and
monitoring the situation within the State. Section 19 of the Act mandates
that the State Government shall constitute a committee to be known as the
State Executive Committee to perform the functions assigned to it under the
Act. The functions of the State Executive Committee are similar to that of
the Central Executive Committee but operate only within that State and in
respect of Homes established by the State Government or permitted by the
State Government for the benefit of persons with disabilities. Besides
creating the vertical organizational structure at the Centre and State
level respectively, the 1995 Act also delineates the functions of the
respective Authority. As regards the Apex Coordination Committee - be it at
the Central or State level - the Committee is expected to serve as the
focal point on disability matters and facilitate the continuous evaluation
of a comprehensive policy towards solving the problems faced by persons
with disabilities. Besides this general obligation, the specific functions
of the Central Coordination Committee are as follows:

“8. Functions of the Central Co-ordination Committee:-

(1) . . . . . . . . . . . .

(2) In particular and without prejudice to the generality of the
foregoing, the Central Co-ordination Committee may perform all or any of
the following functions, namely:-

(a) review and coordinate the activities of all the Departments of
Government and other Governmental and non-Governmental Organizations which
are dealing with matters relating to persons with disabilities;

(b) develop a national policy to address issues faced by persons with
disabilities;

(c) advise the Central Government on the formulation of policies,
programmes, legislation and projects with respect to disability;

(d) take up the cause of persons with disabilities with the concerned
authorities and the international organizations with a view to provide for
schemes and projects for the disabled in the national plans and other
programmers and policies evolved by the international agencies;

(e) review in consultation with the donor agencies their funding policies
from the perspective of their impact on persons with disabilities;

(f) take such other steps ensure barrier-free environment in public places,
work-places, public utilities, schools and other institutions;

(g) monitor and evaluate the impact of policies and programmes designed for
achieving equality and full participation of persons with disabilities;

(h) to perform such other functions as may be prescribed by the Central
Government.”

11. The functions of the State Coordination Committee are also to serve
as the State focal point on disability matters and to facilitate the
continuous evaluation of a comprehensive policy towards solving the
problems faced by persons with disabilities. Besides this general
obligation, the State Coordination Committee is expected to discharge the
following functions :

“18. Functions of the State Co-ordination Committee –

. . . . . . . . . . . . . . . .

(2) In particular and without prejudice to the generality of the foregoing
function the State Co-ordination Committee may, within the State perform
all or any of the following functions, namely:-

(b) develop a State policy to address issues faced by persons with
disabilities;

(c) advise the State Government on the formulation of policies, programmes,
legislation and projects with respect to disability;

(d) review in consultation with the donor agencies, their funding policies
from the perspective of their impact on persons with disabilities;

(e) take such other steps to ensure barrier-free environment in public
places, work places, public utilities, schools and other institutions;

(f) monitor and evaluate the impact of policies and programmes designed for
achieving equality and full participation of persons with disabilities;

(g) to perform such other functions as may be prescribed by the State
Government.”

12. The functions of the Central Executive Committee in terms of Section
10 of 1995 Act, is to carry out the decisions of the Central Coordination
Committee as its Executive Body; and also to perform such other functions
as may be delegated to it by the Central Coordination Committee. Section 12
of the Act enables the Central Executive Committee to associate with itself
any person in such manner for such purposes as may be prescribed by the
Central Government, whose assistance or advice it may desire to obtain in
performing any of its functions under the Act. A person associated with the
Central Executive Committee shall have the right to take part in the
discussions of the Central Executive Committee relevant to that purpose,
but shall not have a right to vote at a meeting of the said committee, and
shall not be a member for any other purpose. Similar dispensation is
predicated in respect of State Executive Committee, which has to function
as the Executive Body of the State Coordination Committee and is
responsible to carry out the decisions of the State Coordination Committee
and to perform such other functions as may be delegated to it by the State
Coordination Committee. Even the State Executive Committee can associate
any person whose assistance or advice may be required in performing any of
the functions of the State Executive Committee, in terms of Section 22 of
the 1995 Act.

13. Besides the dispensation provided in the 1995 Act for the
implementation of the avowed objectives of the said Act, we find that the
1987 Act also provides for a comprehensive dispensation to fulfill the
objectives of that Act. Under the latter Act, the Central Authority for
Mental Health Services is established by the Central Government and the
State Authority for Mental Health Services is established by the concerned
State Government. The expression “Mental Health Services” has been defined
in the Explanation to Section 3 of 1987 Act. The functions of this
Authority have been delineated in Sub-section (3) of Section 3 of the Act
reads thus:-

“ 3. Central Authority For Mental Health Services. –

(1)………………………………………..

(2)………………………………………..

(3) The Authority established under sub-section (1) shall –

(a) be in charge of regulation, development, direction and co-ordination
with respect to Mental Health Services under the Central Government and all
other matters which, under this Act, are the concern of the Central
Government or any officer or authority subordinate to the Central
Government.

(b) supervise the psychiatric hospitals and psychiatric nursing homes and
other Mental Health Service Agencies (including places in which mentally
ill persons may be kept or detained) under the control of the Central
Government;

(d) discharge such other functions with respect to matters relating to
mental health as the Central Government may require.

Explanation.- For the purposes of this section and section 4, "Mental
Health Services" include, in addition to psychiatric hospitals and
psychiatric nursing homes, observation wards, day-care centers, in patient
treatment in general hospitals, ambulatory treatment facilities and other
facilities, convalescent homes and half-way-homes for mentally ill
persons.”

As regards the State Authority, Section 4 of the 1987 Act reads thus:

“4. State Authority For Mental Health Services. –

(1) . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . .

(3) The Authority established under sub-section (1) shall -

(a) be in charge of regulation, development and co-ordination with respect
to Mental Health Services under the State Government and all other matters
which, under this Act, the concern of the state Government or any officer
or authority subordinate to the State Government;

(b) supervise the psychiatric hospitals and psychiatric nursing homes and
other Mental health Service Agencies (including places in which mentally
ill persons may be kept or detained under the control of the State
Government :

(d) discharge such other functions with respect to matters relating to
mental health as the State Government may require.”

14. Section 5 of the 1987 Act obligates the Central Government or the
State Government as the case may be, to establish or maintain psychiatric
hospitals and psychiatric nursing homes for the admission, treatment and
care of mentally ill persons at such places as it thinks fit within the
limits of its jurisdiction. Section 5 reads thus:

“5. Establishment or maintenance of psychiatric hospitals and psychiatric
nursing homes. – (1) The Central Government may, in any part of India, or
the state government may, within the limits of its jurisdiction,
established or maintain psychiatric hospitals or psychiatric nursing homes
for the admission, treatment and care of mentally ill persons at such
places as it thinks fit; and separate psychiatric hospitals and psychiatric
nursing homes may be established or maintained for, -

(a) those who are under the age of sixteen years;

(b) those who are addicted to alcohol or other drugs which lead to
behavioural changes in a persons ;

(d) those belonging to such other class or category of persons as may be
prescribed .

(2) Where a psychiatric hospital or psychiatric nursing home is established
or maintained by the Central Government, any reference in this Act to the
State Government shall, in relation to such hospital or nursing home, be
construed as a reference to the Central Government.”

15. Section 10 of the 1987 Act postulates that every psychiatric hospital
and psychiatric nursing home shall be maintained in such manner and subject
to such conditions as may be prescribed. The manner and conditions of
maintaining psychiatric hospital and psychiatric nursing home has been
spelt out in Rule 20 framed under the said Act. The same reads thus:

“20. Manner and conditions of maintaining psychiatric hospital or
psychiatric nursing homes.- Every psychiatric hospital or nursing home
shall be maintained subject to the condition that,-

(A) such hospital or nursing home is located only in an area approved by
the local authority;

(B) such hospital or nursing home is located in a building constructed with
the approval of the local authority;

(C) the building, where such hospital or nursing home is situated, has
sufficient ventilation and is free from any pollution which may be
detrimental to the patients admitted in such hospital or nursing home;

(D) such hospital or nursing home has enough beds to accommodate the
patients;

(E) the nurses and other staff employed in such hospital or nursing home
are duly qualified and competent to handle the work assigned to them;

(F) the supervising officer-in-charge of such hospital or nursing home is a
person duly qualified having a post-graduate qualification in psychiatry
recognized by the Medical Council of India.”

16. Section 13 of the 1987 Act envisages that an Inspecting Officer may,
at any time, enter and inspect any psychiatric hospital or psychiatric
nursing home and require the production of any records, which are required
to be kept in accordance with the Rules made in this behalf, for
inspection.

17. Suffice it to observe that the 1995 Act as well as 1987 Act make
ample provision for not only establishment of Homes for the admission,
treatment and care of mentally ill persons but also about the maintenance
and conditions and facilities to be provided to the inmates, to ensure that
the Homes are properly equipped and are being run in accordance with the
statutory scheme. Authorities for monitoring and supervision are also in
place (Central Coordination Committee at the top of the pyramid in so far
as Homes established by the Central Government or permitted to be
established by it). Similarly, for the Homes established by the State
Government or permitted to be established by it, the State Coordination
Committee is at the top of the pyramid of the organizational structure
within the State. The provisions in the 1987 or 1995 Act and Rules framed
thereunder, clearly articulate the manner of providing proper conditions in
Hospitals/Homes established under the concerned enactment and also for its
maintenance.

18. In that, Chapter V of 1987 Act provides for inspection, discharge,
leave of absence and removal of mentally ill persons. Chapter VII
stipulates the liability to meet the cost of maintenance of mentally ill
persons detained in psychiatric hospital or psychiatric nursing home.
Chapter VIII mandates that mentally ill persons to be treated with dignity
and protection of their human rights. Chapter IX of 1987 Act provides for
penalties and procedure. Section 82 provides for penalty for establishment
or maintenance of psychiatric hospital or psychiatric nursing home in
contravention of Chapter III. Section 85 is a general provision for
punishment of other offences. Section 94 is a Rule making power of the
Central Government and State Government. Amongst others, it is open to make
Rules with regard to the following matters:

“94. Power of Central Government and State Government to make rules. –

(1) The Central Government may, by notification, make rules providing for
the qualifications of persons who may be appointed as Mental Health
Authority under section 3 and the terms and conditions subject to which
they may be appointed under that section and all other matters relating to
such authority.

(2) Subject to the provisions of sub-section (1), the State Government,
with the previous approval of the Central Government may, by notification,
make rules for carrying out the provisions of this Act:

Provided that the first rules shall be made by the Central Government by
notification.

(3) In particular, and without prejudice to the generality of the foregoing
power, rules made under sub-section (2) may provide for all or any of the
following maters, namely:-

(a) the qualifications of persons who may be appointed as Mental Health
Authority and the terms and conditions subject to which they may be
appointed under section 4 and all other matters relating to such authority;

(b) the class or category of persons for whom separate psychiatric
hospitals and psychiatric nursing homes may be established and maintained
under clause (d) of sub-section (1) of section 5;

(d) . . . . . . . . . . . . . . . . . . . . . . .

(e) . . . . . . . . . . . . . . . . . . . . . . .

(f) the minimum facilities referred to in the proviso to sub-section (5) of
section 9 including, –

(i) psychiatrist-patient ratio;

(ii) other medical or para-medical staff;

(iii) space requirement;

(iv) treatment facilities; and

(iv). equipment:

(g) the manner in which and the conditions subject to which a psychiatric
hospital or psychiatric nursing home shall be maintained under section 10;

(h) . . . . . . . . . . . . . . . . . ..

(i) the manner in which records shall be maintained under sub-section (1)
of section 13.

(j) the facilities to be provided under section 14 of the treatment of a
mentally ill person as an out-patient;

(k). . . . . . . . . . . . . . . . . . .

(l) the qualification of persons who may be appointed as Visitors and the
terms and conditions on which they may be appointed, under section 37 and
their functions;

(m) . . . . . . . . . . . . . . . . . .

(n) any other matter which is required to be, or may be, prescribed.”

19. We have already adverted to Rule 20 of the Rules of 1990 providing
for the manner of maintenance of psychiatric hospital and psychiatric
nursing home. Besides that provision, it may be useful to refer to Chapter
V of the same Rules of 1990, providing for minimum facilities for treatment
of patients in the psychiatric hospital and psychiatric nursing home.

20. Reverting to the 1995 Act, there are ample provisions in this Act to
ensure proper functioning of the Homes accommodating mentally challenged
persons. This Act, no doubt, deals with the aspirations of persons
inflicted with disability generally. The expression “disability” is defined
in Section 2(i) which includes mental retardation and mental illness. The
regime for proper maintenance and upkeep of the Homes established under
this Act for mentally challenged persons, would apply proprio vigore. The
appropriate Government is not only required to establish such Homes but
also to create an environment to impart education to the inmates as
predicated in Chapter V of the said Act and also opportunities of
employment for the inmates in terms of Chapter VI. Chapter VII of the 1995
Act deals with affirmative action and Chapter VIII stipulates measures for
non-discrimination. Chapter IX of the Act obligates the appropriate
Government and Local Authorities to promote and sponsor research on matters
referred to therein. Chapter XI provides for establishment of an
institution for persons with severe disabilities by the appropriate
Government. The Chief Commissioner and the Commissioners For Persons with
Disabilities are required to be appointed for overseeing the stated matters
including regarding the conditions of nursing Homes for mentally ill
persons.

21. As the attention of this Court was invited to issues concerning
institutions established under the 1995 Act in different states, we would
first deal with such institutions. The concerned States/Union Territories
have filed affidavit disclosing the conditions prevailing in the Homes
established under the 1995 Act within their jurisdiction. All those
affidavits be placed before the Central Coordination Committee established
under the 1995 Act. Similarly, the affidavit of the State concerned be
placed before the State Coordination Committee of the concerned State. The
said Authorities have ample power to monitor and evaluate the
implementation of the programmes including to review and coordinate with
the appropriate Government on matters relevant for improvisation of the
conditions of the Home within the State or for introducing welfare measures
for the inmates therein. Section 8 of 1995 Act obligates the Central
Coordination Committee to review and coordinate the activities of all the
Departments of the Government and other Governmental and non-Governmental
Organizations which are dealing with matters relating to persons with
disabilities. The Central Coordination Committee also discharges an
advisory role including to develop a national policy to address issues
faced by persons with disabilities. It has to advise the Central Government
on the formulation of policies, programmes, legislation and projects with
respect to disability. As the factual position stated in the affidavits
filed by the respective State/Union Territory before this Court will become
available to the Central Coordination Committee, it will be in a better
position to formulate a comprehensive national policy on matters relevant
to address the issues. It may develop a national policy or modify the
existing national policy, programmes or schemes, as may be required. That
in turn can be implemented at the micro level. The recommendations to be
made by the Central Coordination Committee at the micro level must ideally
focus on zone wise necessity of the four regions of the country and in
particular State wise requirements. Further, on identifying issues about
non-implementation or non-compliance, the concerned State Coordination
Committee can be directed by the Central Coordination Committee in exercise
of its power under Section 23 of the 1995 Act. Section 23 of the 1995 Act
reads thus:

“23. Power to give directions. – In the performance of its functions under
this Act,-

(a) the Central Co-ordination Committee shall be bound by such directions
in writing, as the Central Government may give to it; and (b) the State Co-
ordination Committee shall be bound by such directions in writing, as the
Central Co-ordination Committee or the State Government may give to it:

Provided that where a direction given by the State Government is
inconsistent with any direction given by the Central Co-ordination
Committee, the matter shall be referred to the Central Government for its
decision”.

Thus, direction issued by the Central Coordination Committee would be
binding on the concerned State Coordination Committee. In case, direction
given by the State Government to the concerned State Coordination Committee
is in any manner inconsistent with the direction given by the Central
Coordination Committee, that matter must be referred to the Central
Government for its decision, as mandated by the proviso to Clause (b) of
Section 23 of the 1995 Act. This exercise be completed within a reasonable
time but not later than six months.

22. In addition, the Secretary of the concerned Department of the
respective State/Union Territory must place the affidavit filed in this
Court before the State Coordination Committee of the concerned State, who
in turn must undertake similar exercise of evaluation of the conditions of
the local Homes and take remedial measures within a reasonable time but not
later than six months. The direction so issued by the State Coordination
Committee to the local institution/Home established under the 1995 Act must
be forwarded contemporaneously to the Central Coordination Committee for
information so that even the Central Coordination Committee would be
abreast of that development, which can be reckoned by it while issuing
direction to the concerned State Coordination Committee.

23. From the legislative scheme of 1995 Act, it is amply clear that the
State Coordination Committee is primarily responsible for ensuring
compliance of the mandate regarding the infrastructure and other facilities
to be provided in the Homes established under the 1995 Act and also for
overseeing that the same are properly maintained from time to time and
comply with the policies and programmes designed for achieving equality and
full participation of persons with disabilities. The provisions of the 1995
Act provide for checks and balances for which hierarchy of Authorities have
been created to ensure that persons with disabilities are provided with
opportunity of full participation and equality in the region. That being
the obligation of the State, must be implemented through these
Authorities.

24. Besides the State Coordination Committee in the concerned State is
made primarily responsible for ensuring that institutions which fulfill all
the criteria alone are established and properly maintained as per the
specified norms, the Central Coordination Committee is also equally
responsible to ensure that the policies and programmes designed for
achieving full participation of persons with disabilities is taken to its
logical end by all the duty holders without any exception. It is for that
reason, the Central Coordination Committee is fastened with the function of
review and coordination of activities of all the Departments of the
Government and other Governmental and non-Governmental Organisations which
are dealing with matters relating to persons with disabilities; and
including bestowed with the power to issue directions in terms of Section
23 of the Act - which are binding on the State Coordination Committee.
Failure to comply with such directions must be taken serious note of by the
concerned State Government.

25. Further, the Secretary of the Union of India, Ministry of Health and
Social Welfare shall be personally responsible for monitoring and
overseeing the progress and action taken by the Central Coordination
Committee in respect of establishments registered under the 1995 Act and
under the control of the Central Government.

26. The Authorities may explore the possibility of using IT Technology
for capturing and retrieving real time information about the conditions of
concerned institution, which will facilitate the Authority to closely
monitor the conditions of the concerned hospital/Home and the facilities
made available to the inmates.

27. In our opinion, six months time frame given to the Central
Coordination Committee and the concerned State Coordination Committee is
sufficient to enable them to take necessary remedial measures and ensure
that deficiencies in the respective institutions established under the 1995
Act are cured within such period. In addition to the issues that have come
on record in the form of affidavit of the concerned State and also other
material which has come on record in the present proceedings or any
further inputs to be received by the Committee(s) and including after
conducting inspection of the institution(s), the concerned
Committee/Authority must take sufficient measures to remedy the
deficiencies within the time frame of not later than six months.

28. The Chairperson of the State Coordination Committee shall submit
compliance report not later than eight months from today in the Registry of
this Court after providing advance copy thereof to the Central Coordination
Committee. The Central Coordination Committee shall then submit State/Union
Territory wise report with its comments, if any, within ten months in the
Registry of this Court.

29. In so far as hospitals and nursing homes established under the 1987
Act, similar procedure can be followed. All the affidavits/materials filed
in this proceedings be made available to the Central Authority for Mental
Health Services. The affidavit of the concerned State be additionally
forwarded to the respective State Authority for Mental Health Services. The
Central Authority for Mental Health Services shall cause to inspect and
evaluate the conditions of the psychiatric hospital and psychiatric nursing
home and other Mental Health Service Agencies under the control of the
Central Government. Similarly, the concerned State Authority for Mental
Health Services shall cause to inspect and evaluate the conditions of the
psychiatric hospitals and psychiatric nursing homes and other Mental Health
Service Agencies under the control of the State Government. The respective
Authorities shall issue necessary directions to the institution(s) under
its jurisdiction and ensure its implementation not later than six months
from today. A compliance report in this behalf be filed by the Central
Authority for Mental Health Service and the State Authority for Mental
Health Service of the concerned State, as the case may be, in the Registry
of this Court not later than eight months from today.

30. We make it clear that the Secretary of the concerned Department of
the respective State/Union Territory shall be personally responsible for
monitoring and overseeing the progress and action taken by the State
Authority for Mental Health Service within its State. Similarly, the
Secretary of the Union of India of Health and Social Welfare shall be
personally responsible for monitoring and overseeing the progress made by
the Central Authority for Mental Health Services and compliance of the
directions in relation to the establishments under the control of the
Central Government.

31. The Appeal is disposed of in the above terms with no order as to
costs.

…………………………………CJI.
(T.S. Thakur)

……………………………………J.
(A.M. Khanwilkar)

New Delhi,
Dated: December 08, 2016

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