Wednesday, February 27, 2019

BHRC requested for remedial measures for State’s 110 social welfare institutions

Hon’ble Justice Mandhata Singh
Acting Chairperson
Bihar Human Rights Commission (BHRC)
9, Bailey Road,

Date: 27/02/2019

Subject- Seeking recommendations for systemic and structural reforms, civil remedial measures and legal steps for humanizing State’s 110 social welfare institutions


With reference to the 96 page long “Report on Social Audit of the Institutions under Social Welfare Department, Government of Bihar” run or supported by the Department of Social Welfare, Government of Bihar submitted by Tata Institute of Social Sciences (TISS), Mumbai submitted to the Department, this is to submit that it has been almost one year since the acceptance of the report but the condition of 110 social welfare institutions across 38 districts in Bihar including 21 specialised adoption agency, 21 short stay homes for women, 5 old age homes, 13 rehabilitation centres for destitute, 27 children homes, 8 open shelters, 11 observation homes, 1 Uttar Raksha Grih, 1 special home and 2 homes for children with mental retardation remains dreary, bleak and depressing. 
I am enclosing/attaching some parts of the report which are in public domain to draw your attention towards the dire need for systemic and structural reforms and civil remedial measures for humanizing these welfare institutions and for the protection of their inmates to make ‘Dignity’, ‘Freedom’ and ‘Empathy’, the central aspects of the functioning of these institutions. The 30 pages out of the 96 page long TISS report are available at the website of State Government’s Department of Social Welfare at this url:

It has been submitted in the report that “….the purpose of the audit was to help in effective planning to improve the quality of services and care and enhance the levels of accountability….” It is evident from the report that it dealt with unsettling questions regarding the functioning of these institutions and their pattern of interaction with their managing heads and the State. According to Shri Atul Prasad, Principal Secretary, Department of Social Welfare, Government of Bihar, “….the report also reminds us of certain grave concerns that we cannot afford to ignore or deny anymore….” He wrote, “The decision to conduct the social audit of these institutions was prompted by “….a series of incidents that came to light, at different points, all in quick succession….” He hoped to “….build on this report and develop our institutions into safe and caring spaces, facilitating individual’s growth and exit from the cycle of vulnerability”. But there is nothing in public domain to suggest that inmates of these social welfare institutions have exited from the admitted “cycle of vulnerability”.

I submit that pages 52-55 of the 96 page long TISS report deals with “Grave Concerns: Institutions 
Requiring Immediate Attention” lists down the names of institutions along with the nature of abuse reported to be carried out at these institutions which amounts to moral degradation of humanity in violation of Juvenile Justice Act. The following institutions are crying for Commission’s urgent attention:
1.      Serious physical violence and sexual abuse by residents of the Boys’ Children Home in Motihari run by ‘Nirdesh’, NGO. The older boys were clubbed in for accommodation with the younger boys. Boys from both the groups reported sexual abuse and violence.
2.      The Boys’ Children Home in Bhagalpur being run by ‘Rupam Pragati Samaj Samiti’, NGO was also a site of grave abuse. The complaint box which has letters written by residents provides written record of physical and verbal abuse by RTO, Ms Rekha.
3.      The Munger Boys’ Children Home run by ‘Panaah’ was being run from a building meant for Observation Homes. It was also run from the same premises as the Observation Home in Munger and had the same barrack like infrastructure. The boys were forced work for the Superintendent and on refusal were beaten up. One of the older boys suffering from hearing and speech impairment had a 3 inch long scar on his cheek due to assault by the Superintendent.  A 7 years old boy, suffering from hearing and speech impairment was deprived of his hearing aid.
4.      The Boys’ Children Home in Gaya run by ‘DORD’, NGO always kept the boys locked up. It is being run in a custodial and exploitative manner.
5.      In the Government run Observation Home in Araria, boys are facing brutal violence from the security guard appointed by the Bihar Police. Superintendent of the Observation Home was aware of the goings but he expressed his helplessness.
6.      The residents of Short-Stay Home in Kaimur run by ‘Gram Swaraj Sewa Sansthan’ reported to be facing sexual abuse by the security guard who manages the day to day affairs of this Home.
7.      Sewa Kutir, Gaya run by ‘Metta Buddha Trust’ is a site of painful conditions of the residents who are suffering from mental illnesses.
8.      Kaushal Kutir run by Don Bosco Tech Society is a site of physical and verbal abuse against bith men and women. People were brought here on the pretext of work and made to stay for long.
9.      Three specialized adoption agencies-Patna’s Nari Gunjan, Madhubani’s ‘RVESK’ and Kaimur’s ‘Gyan Bharti’ are running in a manner which is life threatening to residents including infants and young children. The children were found hungry and living in unhygienic conditions.
10.  Residents of Short Stay Home in Patna run by ‘IKARD’ reported violence. Girls not being allowed to contact their families. Two staffers were reported to be physically and verbally abusive. One of the girls committed suicide; another lost her mental balance due to the trauma she suffered over there.
11.  Short Stay Home in Motihari run by ‘Sakhi’ NGO is a site of physical violence against mentally ill women and girls. The counselor was indulging in violence. Girls not being given sanitary pad regularly.             
12.  Short Stay Home in Munger run by ‘Novelty Welfare Society’ NGO denied clothes. Their bathrooms did not have latches from inside. A mentally ill woman was found lockd up.
13.  At Short Stay Home in Madhepura run by ‘Mahila Chetna Vias Mandal’ NGO, women/girls were denied cots and mattresses. They were sleeping on the floor. One girl was reportedly brought forcibly and was neither allowed to leave nor call her family.
14.   ‘Sewa Kutir’, Muzaffarpur run by ‘Om Sai Foundation’ is a site of physical violence and abuse against its residents. They were brought on the pretext of giving work. The documents of this NGO were not made available to the audit team.      
I submit that the concerned authorities under the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Protection of Children from Sexual Offences (POCSO) Act, 2012 are yet to take required action with regard to offences committed by the above mentioned welfare institutions.
I submit that despite its limitations the TISS report is quite useful in indicating the malaise that afflicts these institutions but a comprehensive assessment of all these 110 institutions can only be done by a public institution like Department of Social Welfare. The Commission may ask the Department to submit a report to the Commission as to how many Shelter Homes in the State are being were and are run by NGOs, which were granted recognition by the State Government and who are given financial assistance by the Government and the audit reports. It may also be asked to submit a report on the particulars in respect of the Government run Shelter Homes in the State.
The Commission may ask the resident editors of all newspapers, news channels and news sites to submit their content analysis of relevant reportage with regard to these 110 institutions and instruct relevant reporters to make written and oral submissions before you. 
The Commission may ask the District Magistrates to make written and oral submissions with regard to these 110 institutions. 
I submit that the TISS team members who conducted the social audit and prepared the report may be asked to submit their assessment of the current situation in comparison to what they found during their social audit work in order to reach conclusions about improvement, if any. The team members comprised of seven members namely, Ms. Sunita Biswas, Mr. Apurva, Vivek, Mr. Nilesh Kamble, Mr. Asif Iqbal, Mr. Prem Narayan Jat and Mr. Qayum Masumi besides Mr. Mohd Tarique. 

In view of the above, the Commission is under logical compulsion to make the public institutions accountable and to make such recommendations as it deems fit to improve these institutions into world class public institutions so that they become safe, caring spaces providing relief to residents suffering from structural deprivation and ensure their exit from the cycle of vulnerability.  

Thanking you in anticipation

Yours faithfully
Gopal Krishna, LLB, PhD
Citizens Forum for Civil Liberties (CFCL)

Smt Vandana Kini, Secretary, BHRC

Tuesday, February 19, 2019

Judgment Delayed, Justice Denied in Patna High Court

Responding to senior advocate Indira Jaising’s reminder on 7 February 2019 about Supreme Court’s previous judgment saying that the judgment should be pronounced within three months after hearing is concluded and is reserved for orders; Justice A K Sikri pronounced the awaited verdict on 14 February, 2019 after the hearing was concluded on November 1, 2018. 

Justice Sikri Bench complied with Supreme Court’s verdict in Anil Rai Vs State of Bihar. But Supreme Court’s order is not being complied in Patna High Court which has not pronounced its verdict in Dr. Rakesh Verma V State of Bihar (2017) even after 10 months of admittedly concluding the arguments. Single Judge Bench of Justice Ahsanuddin Amanullah passed an order on 2nd April, 2018 saying, “Learned counsel for the parties have been heard. Arguments concluded. The matters be listed under the heading ‘For Orders’ on 9th April, 2018”. The matter was listed “For Orders” on 9 April, and 4 September of 2018. It was listed “For Admission” on 20 April, 2018. The matter was listed “For Orders” on 23 April, 2018 but it was adjourned. 
To make matters worse, on 4th September, 2018, the registry of the Patna High Court listed this very case “For Orders” before the single judge bench of Justice Mohit Kumar Shah, a different Bench. Fortunately, Justice Shah passed an order saying, “It appears from the records that the present batch of cases has been assigned by the Hon’ble The Chief Justice to a particular Bench. In such view of the matter, let the aforesaid cases be listed before the same Bench”. This order was passed after it was pointed out by the counsel for the parties that “the present batch of writ petitions was being heard by another Bench.” On earlier two occasions too, this case got listed before the single Judge Bench of Justice Dr. Anil Kumar Upadhyay, a different Bench. Justice Upadhyay too had passed an order on 15 November, 2017 saying, “Considering the fact that the matters were earlier listed and heard by another Bench at length on different dates, let these cases go out of my Board, to be listed before the same Bench after taking permission of Hon’ble the Chief Justice” after it was pointed out by the Counsel for the petitioners that “these matters were earlier heard by a Bench of this court on various dates at length.”
Now the matter is listed “For Orders” on 20 February 2019. Prior to this it was listed “For Orders” on 16 January, 23 January, 6 February and 13 February of this year.
The petitioners have filed the case against the Government of Bihar on the subject of the retirement age of 65 years for teaching employees of Universities. As per the petitioners retirement age stands extended to 65 years and they cannot be forced to retire on or after that date prior to attaining the age of 65 years. These writ petitions were filed in the Patna at High Court on 3rd October, 2017 challenging the order of the Bihar Government.
It is evident that this Bench of Patna High has not paid required attention towards the verdict in the case of Anil Rai Vs State of Bihar, wherein the Division Bench of Supreme Court comprising of Justices K T Thomas and R P Sethi observed “….as the pronouncement of judgement is a part of justice dispensation system, it has to be without delay.”
The Supreme Court enumerated remedial measure saying, “(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned.” The inaction by Patna High Court after the judgment was reserved in Rakesh Verma v State of Bihar and some 14 other cases shows that Supreme Court’s instructions have not been complied with so far.
The Supreme Court enumerated remedial measure saying, “(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.” There is no clarity about compliance with this instruction by the Patna High Court.
The Supreme Court enumerated remedial measure saying, “(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.” With regard to the pending matter before the Bench of Justice Ahsanuddin Amanullah in Patna High Court, it is not known as to whether “the concerned Chief Justice” drew “the attention of the Bench concerned to the pending matter” because such communication from the Chief Justice to the Bench of Justice Amanullah was required to “be conveyed as confidential and in a sealed cover.”
The Supreme Court enumerated remedial measure saying, “(iv) Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.” As per Supreme Court’s instructions, on several occasions the petitioner mentioned the matter with the prayer for early judgment but to no avail. Such application was supposed to “be listed before the Bench concerned within two days excluding the intervening holidays” despite this case has not been listed before the concerned Bench of Justice Amanullah within two days by the registry.
All the petitioners are senior citizens who have been denied salaries etc. This has compelled them to live a inhuman life. They are unable to fulfill their moral, financial liabilities to their families specially their old parents and dependent children regarding their medicines and other necessary expenses. The continued delay in the pronouncement of the order has made them miserable because of denial of their fundamental right to life and livelihood.
The delay in judgment has already denied justice to 8 out of 21 petitioners who have attained the age of 65 years besides them 6 more petitioners attained the age of 65 years in January, 2019. The petitioners include 21 university teachers like Dr. Asad Hasan, Dr. Raj Kumar Mazumdar, Dr. Ram Shrestha Roy, Dr. Ashutosh Kumar Sinha, Dr. Ram Prakash Chandra Verma, Dr. Prem Kant Jha, Dr. Ram Naresh Kunwar, Dr. Raj Kumar Madhukar, Dr. Shashi Bhushan Singh, Dr. Rakesh Verma and Dr. Usha Singh.
It is noteworthy that Justice Amanulah Bench of Patna High Court has passed an interim order in this very case dated October 18, 2017 saying, “Learned counsel for the U.G.C. has filed a counter affidavit which is the downloaded net copy of the original. He has assured the Court that on the reopening, the main copy shall be filed in the Court. In the meantime, let the copy produced be kept on record. In view of the fact that the petitioners have been issued notice as to why action be not taken against them for having continued beyond the age of 62, the Court deems it appropriate to direct that until further orders, no coercive action shall be taken against them.” It also observed “It is further indicated that as the matters are urgent and have been heard for quite sometime, it is only fair that they be heard with a view for their final disposal, without any further indulgence”. It is eminently clear that Justice Ahsanuddin Amanullah has given partial relief to the petitioners. But disregarding his order coercive actions are being taken against some of the petitioners. The concerned officials who have denied the fundamental rights of the petitioners continue to enjoy indulgence. Given the fact that High Court has taken the submission of UGC on record, it is germane to note that the UGC’s communication on enhancement in the age of superannuation from 62 to 65 years for teaching positions is unambiguous. 
After 10 months of non-compliance with Supreme Court’s judgment by the Patna High Court, can these 21 petitioners, the university teachers expect pronouncement of the long awaited verdict before the expiry of one year of the conclusion of the arguments on 2nd April, 2019? The counsels of the petitioners do not seem to have seem to have covered themselves with glory either. Amidst the burden of pending cases before the bench of  Justice Amanulah, it is their duty to ensure compliance by making written submissions as per Supreme Court's instructions in Anil Rai case where it has been made amply clear that "Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.” There is nothing on record to show that the counsels of these 21 university teachers have done so. 
Supreme Court in the case of Anil Rai Vs State of Bihar observed, “….once the entire process of participation in justice delivery system is over and only thing to be done is the pronouncement of judgement, no excuse can be found to further delay for adjudication of rights of parties, particularly when it affects any rights conferred by the Constitution under Part III.” 
Is inertia of judicial institutions due to paucity of sufficient judge power excusable and compatible with the letter and spirit of Constitution? At present, The fact remains Patna High Court has 27 judges against the sanctioned strength of 53 as on February 17, 2019 unlike Supreme Court which has 28 judges against the sanctioned strength of 31 judges.  
As of February 2018, there were some 1,45,110 cases pending in the Patna High Court in the absence of sufficient strength of judges. The number of pending cases have increased further despite the hard work of judges who are working even on Saturday to clear the backlog. The delay by Justice Amanulah Bench could be because of the enormity of pending cases or due to the passivity of concerned counsels in the case but public institutions like High Courts remain legitimate in the eyes of citizens, "we the people" only as long as they do not get structurally coerced to become complicit in creating a situation where Judgment Delayed is Justice Denied. 

Dr Gopal Krishna

The author is a public policy and law researcher, Convener, Citizens Forum for Civil Liberties (CFCL) and editor of ToxicsWatch Journal,