Subhas Chandra Pattanayak
Had there been not a Chief Minister like Naveen Patnaik, had there been not a Child Development Minister like Pramila Mallik, had there been not a Cabinet like the incumbents in Orissa, Buddhia Singh, the darling child of this splendid soil, who, at the age of around four, has earned the epithet – The Wonder Boy – by establishing himself as the best youngest marathon runner of the world, would have been enjoying the best possible support from the State Government in pursuit of newer records. But, instead of getting encouragement, the wonder boy is facing the nastiest barbs the Minister in charge of child development has been contriving. The Chief Minister and other members of his Cabinet are silent.
It is a shame. But it is true.
Her initial attempts to bridle Buddhia having failed, her obnoxious uttering against Buddhia’s source of inspiration Biranchi Das having taken up for penal action, her quarrelsome conduct having attracted scanning eyes, Ms. Mallik has tried to look like legal by using an apparatus under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter called the Act). Under the Rules framed by Orissa for implementation of this Act, called the Juvenile Justice (Care and Protection of Children) Orissa Rules, 2002 (hereinafter called the Rules), she has constituted a Child Welfare Committee (hereinafter called the Committee) for Khurda District with magisterial powers. Ms. Mallik has wanted us to believe that the ban she has imposed on Buddhia’s run is as per recommendations of this Committee. And, she has threatened to send every body to Jail whosoever contravenes the orders of this Committee.
Ms. Mallik’s negative activism in the matter of Buddhia has generated litigations and meretricious tears of PROFESSIONAL human-rightists have eclipsed thinking process of many.
Without any prejudice to any litigation pending in any court having Buddhia at the crux, let me look at the legality of subjecting Buddhia to the jurisdiction of the Committee and the resultant proceedings therein that has been used by the Minister to bridle the marathon wonder.
As I read the Law, I find Buddhia does not come within the purview of the Act. Following ratification of the resolution of the General Assembly of the United Nations 1989 Convention on the Rights of the Child on the 11th December, 1992, Government of India framed the Act in 2000, after eight years of the said ratification. Govt. of Orissa framed the Rules two years thereafter. The Act made it clear that its application shall be limited to two types of children: (1) Juveniles in conflict with Law and (2) Children in need of care and protection. Buddhia does not belong to either of the types. He is never in conflict with Law. On the other hand, he is well protected and taken proper care of by his foster father and mentor Biranchi Das. Not only physically nurtured in the best possible manner, he has been admitted into the best available public school in Bhubaneswar, the Buxi Jagabandhu Bidyadhar English Medium School. So the Act is never applicable to him.
When Buddhia was perishing in abysmal poverty in a Bhubaneswar slum, the Act was not invoked; when deprived by death of father he was sold away to a rag-trader by the helpless mother, the Act was not invoked; when the rag-trader had engaged the four year old boy in the tortuous work of rag-picking, the Act was not invoked: but when he has been rescued by Biranchi Das, when he has been adopted as a son by Biranchi Das, when he has been made to occupy a new domain in the world of sports by Biranchi Das, when he has become so stable that he has surpassed all the Ministers of Orissa in popularity contest because of Biranchi Das, when he has become so charismatic that thousands of people irrespective of caste, class, gender and age are seen thronging the roads to have a glimpse of him, their hero, because of Biranchi Das, when he has taken admission in the best of public school for his education because of Biranchi Das, when a well known technical education Institute that enjoys a deemed to be university status has appointed the mother of Buddhia so that she shall no more be financially crippled and therefore, both in paternal home and in the foster home Buddhia has become well stable and well protected and when he has become cult figure to whom the definition of “Child in need of care and protection” can never apply, the lady Minister, out of envy and inferiority complex, as discussed earlier in these pages, has used her powers to fetter the boy by misuse of the Act.
It is agonizing that when the Act is not applicable to Buddhia, the Committee constituted by the Minister has mentally tortured Buddhia by arresting him through armed and uniformed police of the State in the guise of magisterial power.
Use of uniform by police while dealing with a child being prohibited under the Laws, I had wanted to know from the Police Authorities as to how the police forgot this prohibition in regard to Buddhia. I was told that Section 42 of the Rules, which stipulates that “while dealing with juvenile/child under the provisions of the Act or these Rules, the police officer shall wear plain clothes and not the police uniform”, also says that “at the time of arrest” the police can use uniform.
Under whose orders they arrested the boy?
Under orders of the Committee in which magisterial powers are vested, I was told.
I saw the warrant of arrest issued by the Committee u/s 31 read with sec.54(i)of the Act and 87 of Cr.P.C. requiring the S.P. “for causing arrest of the child and for production of the child before the special medical board—–at 11 AM of 5 May 2006”. The orders of the Committee being judicial and therefore being beyond my scope, I am not dealing with it.
But what I want to share with fellow citizens on whom the Constitution has bestowed upon a duty to remain vigilant in respect of working of the Laws, is that, this COMMITTEE IS NOT LEGALLY CONSTITUTED.
Chapter III of the Rules under Clause 24 has provided for constitution of the Committee. It is stipulated here that including the Chairman there shall be four members in the Committee. But the Committee has five members as per Notification No. 8629/WCD, dtd.23.3.2005. Where from the fifth member came and under which law he or she is functioning is not specified. This makes it clear that a person, in contravention of the Rules, has been vitiating the decisions of the Committee with his or her illegal participation.
As per the Notification stated supra, the Committee is constituted with (1) Sri Rabi Sankar Mishra, Rtd. District Judge – Chairman; (2) Mrs. Adaramani Baral, Rtd. Reader: Member; (3) Mrs. Swarnaprava Das, Bhubaneswar: Member; (4) Dr. S.S. Mahapatra, Rtd. Doctor: Member and (5) Sri Priyabrata Mohanty, SIKO, Begunia: Member. If legitimacy is considered seriatim, the last one is bereft of it.
Now the details in respect to other members of the Committee including the Chairman thereof:
(a) Sub-Clause (1) (a) of Clause 24 of the Rules says: A retired Judge or retired Deputy Secretary / Under secretary to the Government having experience in Social Welfare who shall be the Chairperson of the Committee. Rabi Sankar Mishra is recruited to the Committee and made Chairman thereof under this Sub-Clause. He is a retired Judge. But that cannot be the whole. The legal stipulation is that he must be having “experience in Social Welfare”. The notification is silent on this vital aspect. As the Secretary of the concerned department was not available, I had met the dealing Under Secretary in his Secretariat chamber. He as well as the dealing assistant had no information on records about what experience Sri Mishra has in the area of Social Welfare. When I wanted to ascertain it from Sri Mishra himself, he avoided. So there is nothing on available records to show that Sri Mishra has experience in Social welfare before being appointed as the Member-cum-Chairman of the Committee. This experience being the unavoidable qualification for chairmanship of the Committee, his appointment is not in consonance with Sub-Clause (1) (a).
(b) Sub-Clause (1) (b) says: A representative from an Academic Body, with the background of Child Psychology, Education, Sociology or Home Science can be a member. Seriatim, Mrs. Adaramani Baral is recruited under this Sub-Clause. She is a retired teacher in Oriya. She does not belong to any of the stipulated disciplines behind her background. All the four subjects stipulated under the Sub-Clause are child related. Hence she is not qualified to be a member in the Committee. Moreover, she has not been elected by any Academic Body to work as its REPRESENTATIVE in the Committee as required under the Sub-Clause. Therefore, her membership in the Committee is absolutely illegal.
(c) Sub-Clause (1) ( c ) says: A representative of reputed Non-Governmental Organizations working in the area of Child Welfare can be the third member. Mrs. Swarnaprava Das, Bhubaneswar is the third member in the Committee. The key qualification for this membership is that she must have been sent to the Committee by “reputed Non-Governmental Organizations” as THEIR REPRESENTATIVE. There is no record available with the Government that can show that REPUTED NON-GOVERNMENTAL ORGANIZATIONS have elected her to work in the Committee as their REPRESENTATIVE. Hence, her membership in the Committee is also illegal.
(d) Sub-Clause (1) (d) says: A teacher or a doctor or a senior retired public servant who has been involved in the work concerning Child Welfare, can be a member. Dr. S.S.Mohapatra, the forth member attracts this provision. How far he has been involved in the work concerning Child welfare has neither been ascertained by the Government nor has been specifically kept in official records.
From the above position it is clear that three of the members of the five-member Committee have no qualification for membership in the Committee and hence they are illegally appointed. The first member-cum-chairman as well as the forth member might be professionally qualified but EXPERIENCE IN SOCIAL WELFARE and INVOLVEMENT IN WORK CONCERNING CHILD WELFARE being prerequisites in their respective cases, their appointment to the Committee sans the same on records is not in consonance with the Rules.
Hence the Committee is a Committee that is illegally constituted.
When the constitution of the Committee is illegal, how could its decisions or recommendations be legal?
Even as this question needs cogitation, it is clear that Rules are raped in the official chamber of the Child Development Minister, who has exceeded her briefs to destabilize Buddhia’s self confidence and to harass him and his mentor.