W.P.(C) No.33591 of 2008 :: 2 v. Union of India{AIR 1984 SC 469} and the subsequent judgments on thesame

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 CentralRules is inapplicable in the State of Kerala. Further, the Rule isunconstitutional, as it also violates the petitioner's fundamentalright guaranteed under Article 21 of the Constitution of India.Reference is made in this regard to the observations made by theSupreme Court in Laxmi Kanth Pandey v. Union of India{AIR 1984 SC 469} and the subsequent judgments on thesame point by the Supreme Court, essentially clarifying ormodifying, as the case may be, the directions issued inLaxmikanth Pandey's case. The petitioner, therefore, seeks adeclaration that Rule 33(4) the Central Rules to be void, illegaland unconstitutional. She further seeks an appropriate directionto the respondents not to insist on her personal appearancebefore the Child Welfare Committee, for the execution of adocument of surrender.3. The Union Government and the State Governmentare 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 arerespondents 3 and 4 in the writ petition.4. Neither the Union Government nor the StateGovernment has filed a counter affidavit in the case. The 4threspondent has filed a counter affidavit wherein it is affirmed thatthe chances of the petitioner being exploited in case she has toexecute of surrender document before the Child WelfareCommittee cannot be ruled out. It is contended that Sub-Rule (4)of Rule 33 the Central Rules is obnoxious to the judgment of theSupreme Court in Laxmikanth Pandey's case. It is furtheraverred that the Indian Council of Social Welfare is anindependent agency, appointed by the Central Adoption ResourceAgency to conduct scrutiny of all applications submitted by theadopted parents to Courts of competent jurisdiction to appointthem as a Legal Guardian/Adopted Parents. The Indian Councilof Social Welfare, it is averred, is duly recognised by the SupremeCourt and all the other High Courts in the State and competentCourts, for the purpose of scrutinising the documents and filing W.P.(C) No.33591 of 2008 :: 4 :: representations in adoption cases. One of the primaryresponsibilities and duties of Indian Council of Social Welfare inconducting scrutiny of adoption cases is to verify and ascertainthe genuineness and authenticity of surrender documentspurportedly created by relinquishing parents. It is affirmed that,if on scrutiny, it is found that the documents of surrender are inaccordance with the guidelines of the Apex Court and the CentralAdoption Resource Agency, then the 4th respondent would issue apositive scrutiny report recommending the prospective adoptiveparents to be placed with the child. It is further contended thatthe present system being followed in the case of surrender ofillegitimate child by its mother is perfectly legal and just. Theconfidentiality of the process is being maintained and even aremote possibility of leakage of relevant information andconsequential exploitation is avoided. Further, in individualcases, where the Central Adoption Resource Agency expressesa doubt, it would always be open to the court in its discretionto order an enquiry into the matter by the Child WelfareCommittee or any other independent agency. W.P.(C) No.33591 of 2008 :: 5 :: 5. I heard Mr.C.S.Dias, learned counsel for thepetitioner, Mr.Parameswaran Nair, learned Assistant SolicitorGeneral, Smt.Sudha Devi, learned Government Pleader andMr.Anil Kumar, learned counsel for respondents 3 and 4.6. There are two aspects, which have been mootedfor consideration. The first question is whether the impugnedrule viz., Rule 33(4) the Central Rules is applicable to the State ofKerala and the second is whether the said Rule isunconstitutional being violative of Article 21 of the Constitution ofIndia. The applicability of the Central Rules as a set of statutoryrules to the State of Kerala has, as such, arisen for consideration.I consider it appropriate to consider the said contention urged bythe learned counsel for the petitioner in the first instance, and if Iam to find that the Central rules are not applicable in the State ofKerala, 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 anystatutory 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, thenobviously it has no legal efficacy, within the State andconsequently, it would be unnecessary to consider whether theRule as such is unconstitutional or not. 7. The Juvenile Justice (Care and Protection ofChildren) Act, 2000 is an Act to consolidate and amend the lawrelating to juveniles in conflict with law and children in need ofcare and protection by providing for proper care, protection andtreatment by catering to their development needs and byadopting the child-friendly approach in the adjudication anddisposition of matters in the “best interest of children and for theirultimate rehabilitation”. Reference is made in this regard toArticle 15(3), 39(e), (f), 45 and 47 of the Constitution.8. Section 2(d) Act refers to the child who needscare and protection as follows:(i)Who is found without any home or settled place orabode and without any ostensible means ofsubsistence.(ii)who resides with a person (whether a guardian ofthe child or not) and such person - W.P.(C) No.33591 of 2008 :: 7 :: (a)has threatened to kill or injure the childand there is a reasonable likelihood ofthe threat being carried out, or(b)has killed, abused or neglected someother child or children and there is areasonable likelihood of the child inquestion being killed, abused orneglected by that person.(iii)who is mentally or physically challenged or illchildren or children suffering from terminaldiseases or incurable diseases having no one tosupport or look after,(iv) who has a parent or guardian and such parent orguardian is unfit or incapacitated to exercisecontrol over the child.(v)who does not having parent and no one is willingto take care of or whose parents have abandonedhim or who is missing and run away child andwhose parents cannot be found after reasonableinquiry.(vi)who is being or is likely to be grossly abused,tortured or exploited for the purpose of sexualabuse or illegal acts,(vii)who is found vulnerable and is likely to beinducted into drug abuse or trafficking,(viii)who is being or is likely to be abused forunconscionable gains,(ix)who is victim of any armed conflict, civilcommotion 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 aregistered non-governmental organisation or avoluntary organisation prepared to own theresponsibility of a child and such organisation isfound fit by the competent authority2(i)“fit person” means a person, being a socialworker or any other person, who is prepared toown the responsibility of a child and is found fitby the competent authority to receive and takecare of the child;2(j)“guardian”, in relation to a child, means hisnatural guardian or any other person having theactual charge or control over the child andrecognised by the competent authority as aguardian in course of proceedings before thatauthority.”10. A 'juvenile' or 'child' is defined in Section 2(k) ofthe Act as to mean a person, who has not completed eighteenthyear of age.11. Chapter III of the Act deals with the generalsubject titled “Child in Need of Care and Protection”. As perSection 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 WelfareCommittees for exercising the powers and discharge the dutiesconferred on such Committees in relation to child in need of careand protection under the Act. The powers of the Child WelfareCommittee {hereinafter referred to as 'the Committee'}, areconferred under Section 31 of the Act, which reads as follows:“(1)The Committee shall have the final authority to dispose ofcases for the care, protection, treatment, development andrehabilitation of the children as well as to provide fortheir basic needs and protection of human rights.(2)Where a Committee has been constituted for any area,such Committee shall, notwithstanding anythingcontained in any other law for the time being in force, butsave as otherwise expressly provided in this Act, have thepower to deal exclusively with all proceedings under thisAct relating to children in need of care and protection.”12. As per Section 32 of the Act, any child, in needof care and protection may be produced before the Committee byany one of the following persons.“(i) any police officer or special juvenile police unit or adesignated police officer; W.P.(C) No.33591 of 2008 :: 10 :: (ii)any public servant;(iii)childline, a registered voluntary organisation or bysuch other voluntary organisation or an agency as maybe 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 StateGovernment is to make Rules consistent with the Act to providefor the manner of making a report to the Committee and themanner of sending and entrusting the child/children home,pending enquiry.14. It is appropriate, at this juncture, to refer toSection 68 of the Act, which provides that the State Governmentmay, by notification in the official gazette, make rules to carry outthe purpose of this Act. Section 68(1) of the Act is relevant andit reads as follows:“The State Government may, by notification in theOfficial Gazette, make rules to carry out the purposes ofthis Act.”15. The proviso to Section 68(1) is a fairly uniqueprovision. While Section 68(1) specifically confers power on theState 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 alsocontemporaneously conferred with the power to make rules inrespect of all or any of the matters with respect to which theState Government may make rules under the Section. But, suchmodel rues shall apply to the State only until the rules in respectof that matter is made by the State Government. A guideline isalso mentioned in this regard in the proviso where it is stated thatthe State Government may, while making such rules (underSection 68(1) and 68(2) of the Act) as far as practical, conform tosuch model rules.16. Central Rules have been framed under Section68 of the Act. Rule 96 of the Central Rules is relevant and isextracted hereunder:“Application of these rules:- It is herebydeclared that until the new rules conforming tothese rules are framed by the State Governmentconcerned under Section 68 of the Act, theserules shall mutatis mutandis apply in thatState.” W.P.(C) No.33591 of 2008 :: 12 :: 17. The Central Rules, therefore, declare that thesaid Rules would apply in a State until rules are framed by theconcerned State Government under Section 68 of the Act. Rule96 of the Central Rules is broadly worded and there is one aspectof the said rule which requires to be specifically mentioned and Iwill do so, at a later stage.18. Learned counsel for the petitioner Mr.C.S.Diassubmits that the State of Kerala has exercised its rule makingpower 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. Hecontends that once the State Government exercises its rulemaking power under Section 68 of the Act, then obviously themodel rules, if any, framed by the Central Government would notapply in the concerned State. At any rate, the proviso to Section68(1) makes it clear that if the primary rule making authority hasalready framed rule regarding any aspect, which is comprehendedby 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 applyin the concerned State.19. I find considerable force in this submission. Ihave already extracted Section 68 of the Act. Section 68(1) makesit clear that the primary rule making authority under the JJ Act isthe State Government. The proviso to Section 68(1) of the Actfurther makes it clear that the rule making power of the CentralGovernment is essentially to make model rules and even wheresuch model rules have been made, they shall apply to a Stateuntil such time as the State Government may make rules on thesame subject matter. Where therefore on a subject matter,comprehended by Sections 68(1) and 68(2) of the Act, the StateGovernment has already made rules, a model rule framed by theCentral Government on the same subject matter, obviously wouldnot have application to the State; since the State has alreadyexercised its rule making authority. It is also relevant in thiscontext to take note of the fact that it is only by Amendment Act33/06 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 contemporaneousconferment of rule making power on the State Government andthe Central Government with regard to the same subject matter.The proviso to Section 68(1) brought about by Act 33/06 makes itclear that the rule making power of the Central Governmentwould essentially be to make model rules lending guidance as itwere to the State Government when they exercise their rulemaking power. Obviously, the power under the proviso to Section68(1) of the Act is not contemplated as available or required to beexercised, as the case may be, in a case where the concernedState has already framed the rule concerning the same subjectmatter.20. If that be so, it is quite clear that where asubject matter is covered by the Rules framed by the KeralaGovernment, then obviously the Rules framed by the CentralGovernment, 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 couldbe a case where the Central Rules have no applicationwhatsoever, to the State of Kerala.21. It is not necessary to consider this largerquestion as to whether any one of the provisions in the CentralRules have any application in the State of Kerala. The question iswhether the Kerala Rules provide for the procedure to beadopted, when any child in need of care and protection isproduced before a committee. 22. Rule 37(6)(c) of the Kerala Rules is relevant inthis context and is extracted hereunder:“37(6) The procedure for Adoption shall be:-(c)When the child proposed to be givenon adoption is a relinquished child, the Boardshall satisfy itself that the relinquishment deedwas taken properly and the child has beenvoluntarily surrendered by the biologicalparent/parents/unmarried mother. The Boardmay also in cases which are doubtful, direct thescrutinizing agency to enquiry whether the childhas been voluntarily surrendered by the biologicalparents/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 scrutinizingagency shall not make any attempt to trace thebiological parents/parent/unmarried mother of thechild.”23. A perusal of Rule 32 would show that any childin need of care and protection should be produced by any one ofthe persons mentioned therein and the Committee or any Policeofficer or special juvenile police unit or the designated police shallhold an enquiry in the prescribed manner and the committeemay, on its own, or on the representation of any personmentioned in Section 32(1), pass an order to send the child to theChildren's Home. There is, therefore, a well laid down procedure,in the matter of production of a child in need of care andprotection before the Child Welfare Committee. Rule 37 of theKerala Rules has imbibed the spirit of the plenary statute.24. As stated above, the petitioner essentiallychallenges the applicability and the validity of Rule 33(4)(c) of theCentral Rules, which provides that if the surrender of a child inneed 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 presenceof the Committee. 'Surrendered child' is defined as a child whohas 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 inwhose case one of the biological parents is dead and the livingparent is incapacitated to take care; (iv) a child where theparents or guardians are compelled to relinquish him due tophysical, emotional and social factors beyond their control. TheKerala Rules contemplates production of the child before thecommittee and an enquiry. It is also significant to point out thatthe said rules do not make it mandatory for a deed of surrenderas such, to be executed in the presence of the Committee. FormNo.15 appended to the Rules provide for a deed to be executedby the person surrendering the child obviously in most of thecases, this would be one of the parents of the child. In thepresent case, it is the unwed mother of the child. Theimplementation 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 ofthe Committee. 25. As stated above, several contentions have beenraised against the validity of the said provision and I would haveconsidered the same, but for the fact that if the primarycontention regarding non-applicability of the Rules in questionforming part of the Central Rules to the State of Kerala isanswered in favour of the petitioner, then this court would not berequired to consider the question regarding the validity andconstitutionality of the provision.26. Answer to the question whether Rule 33(4)(c) ofthe Central Rules, which is impugned, applies to the State ofKerala, would depend upon whether the Kerala Rulescomprehensively cover the same stage, in the matter ofrehabilitation of a child in need of care and protection. A child inneed 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 theCentral Rules.27. A conspectus of the aforementioned Rules would,therefore, show that the Kerala Rules provide for a procedure tobe adopted, while producing a child in need of care andprotection, before the Child Welfare Committee and the nature ofthe enquiry to be conducted and the steps that have to be takenthereafter by the Committee. In other words, Rule 33(4)(c) ofthe 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 ruleoperates in an area which is already occupied comprehensively bya provision in the State Rules. As a sequiter, it has to be heldthat the impugned rule 33(4)(c) of the Central Rules has noapplication to the State of Kerala.28. In view of the aforementioned conclusion, I donot think it necessary to consider the contention that theimpugned Rule, even otherwise, is invalid or unconstitutional. W.P.(C) No.33591 of 2008 :: 20 :: Accordingly, the writ petition is allowed. It isdeclared that Rule 33(4)(c) of the Juvenile Justice (Care andProtection of Children) Rules, 2007 has no application to the Stateof Kerala. The respondents are directed not to insist for thepersonal appearance of the petitioner before the Child WelfareCommittee, constituted under the Act or insist on her personalappearance for executing a document of surrender of the child, ascontemplated by Rule 33(4)(c) of the Central Rules, if the child issought to be surrendered before the Committee. Sd/- (V.GIRI) Judgesk/ //true copy//