Full Text
IN THE SUPREME COURT OF INDIA
(Arising out of S.L.P.(Civil) No.39321/2012)
Reena Banerjee & Anr. ….Appellants
Vs.
Govt. of NCT of Delhi & Ors. ….Respondents
JUDGMENT
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: Page 2 “ 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. Page 3 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 Page 4 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:
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 Page 12 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 Page 13 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 Page 14 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 Page 15 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 Page 16 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 Page 17 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 Page 18 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:
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 – Page 20 (1)................ (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:- (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 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 Page 21 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 Page 22 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:-
(c) advise the State Government on all matters relating to mental health; and
(d) discharge such other functions with respect to matters relating to mental health as the State Government may require.” Page 24
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:
Page 25
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:
Page 26
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 Page 27 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:
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 Page 30 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 Page 31 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, Page 32 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:
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. Page 34 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 Page 35 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. Page 36
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 Page 37 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 Page 38 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 Page 39 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