The bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta, said if the court said something in the matter, it would be accused of "judicial activism".
The Supreme Court on Tuesday described the report of National Commission for Protection of Child Rights on the status of children in shelter homes across India as 'frightening'. The top court added that it was 'helpless' as any direction to the authorities in the matter would be termed as 'judicial activism'.
Referring to the National Commission for Protection of Child Rights' (NCPCR) social audit report on shelter homes, a bench headed by Justice Madan B Lokur said that out of the 2,874 children homes, only 54 have received positive reviews from the body, set up under the Juvenile Justice (Care and Protection of Children) Act.
As per the report, out of 185 shelter homes which were audited, only 19 have records of children residing there.
The bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta, said if the court said something in the matter, it would be accused of "judicial activism", even though the authorities were "not interested" in doing their work and only "passing the buck" and blaming each other for the situation prevailing in these child shelters.
If the authorities had functioned properly, recent incidents like the one in Muzaffarpur in Bihar where several girls were allegedly raped and sexually abused in a shelter home would not have happened, it said.
"It is very clear from this (NCPCR) report that nobody is interested. The court is helpless. If we do something, then it will be said that it is judicial activism," the bench said, adding "judicial activism has to be given up".
Advocate Aparna Bhat, assisting the court as an amicus curiae in the matter, said that directions from the top court was not judicial activism, as the welfare of children living in shelter homes was important.
"Have you seen the report of NCPCR? It is frightening," the bench told her.
The court noted that as per NCPCR's report, out of 210 special adoption centres audited, only eight received positive reviews while only 16 per cent of the 172 observation homes had all the records of the children living there.
The joint secretary of the Ministry of Women and Child Development (MWCD) said that NCPCR's report was "very shocking" and monitoring by the authorities at all levels must be done to prevent such a situation.
She said the secretary of MWCD has written letters to chief secretaries of all states and union territories to conduct an inspection of childcare institutions and such homes and submit a report by September 15.
She also said that a meeting of all states and union territories has been called on September 18 on the issue.
The officer said that after the secretary's letter, states like Uttar Pradesh and Gujarat have given reports on monitoring of child shelters.
During the hearing, when she said the court should tell the government what needs to be done, the bench reacted by saying, "If we tell you, we will be accused of judicial activism. You are the Government of India. You tell us what is to be done".
The bench also took exception that during the social audit conducted by the NCPCR, the team have not spoken to the children living in these child care institutions.
The amicus also told the court that it appears that the institutions set up under the Juvenile Justice Act have failed to discharge their duties and the system was such that everybody could blame others for the problems.
"Who is to correct these flaws? Is the court supposed to do it," the bench asked.
The amicus said that historically, the courts have addressed the grievances and have made a significant contribution.
"Also significant criticism," the bench said.
The MWCD joint secretary said the court should give time till September 18 when the meeting would take place.
The bench posted the matter for hearing on September 20 and asked the MWCD to place before it the minutes of the meeting.
The amicus told the bench that an oversight committee should be set up at the national and state levels to monitor the functioning of child care institutions.
The bench asked the amicus to prepare the draft terms of reference for the committee in consultation with the joint secretary of the MWCD so that if the need arose, the panel could be constituted.
It said that the issue has been kept open and the court would await the outcome of the meeting.
The bench made it clear that states have to take this matter seriously and take remedial measures to deal with the issue.
During the hearing, the Centre told the court that there were six establishments functioning as per provisions of the Juvenile Justice Act which were supposed to look into the issues of implementation of the law.
When the Centre said it has to rely on the data provided by the states, the bench observed, "It is very easy to blame somebody else. It is difficult to take responsibility".
The Centre's counsel, however, said the government was not shying away from its responsibilities and would apprise the court about the steps taken by them as well as the shortcomings.
"The Supreme Court can pass directions. We have the overall responsibility so far as implementation in concerned," the Centre said.
The amicus said urgent steps were required to be taken to support these children as it was an "emergency" now and there were flaws in the system which needed to be sorted out.
(With PTI inputs)
