When a child loses the emotional, psychological and material support of family, it is imperative that the State appoints someone to look after his / her best interests, including ensuring access to justice through appropriate legal representation.
The Directive Principles of State Policy enshrined in Part IV of Constitution of India cast obligations on the State to provide children with facilities to enable them to develop in a healthy manner, in conditions of freedom and dignity and at the same time protect them against exploitation and moral and material abandonment. The UN Convention on the Rights of the Child 1989 reiterates the same and mandates the signatories to provide appropriate legal assistance to children. The right to legal aid is also recognised under the Juvenile Justice Act 2015 (‘JJ Act’) and unders.40 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
When a child is abandoned, the Child Welfare Committee (CWC) is entrusted with its care and protection. The CWC in turn appoints a ‘guardian’ to ensure that the rights of the child are protected. Under the JJ Act, a ‘guardian’ appointed by the CWC is capable of acting on behalf of the child, even during legal proceedings before any authority. However, this power to appoint an individual to represent the child during legal proceedings does not lie solely with the CWC. S. 15 of the Delhi High Court’s ‘Guidelines for Recording of evidence of vulnerable witnesses in criminal matters’, provides that a ‘Court’ may also appoint a guardian ad litem’ for a minor who is a victim of, or a witness to a crime. A ‘Guardian ad litem’ is responsible for protecting a child’s interests during legal proceedings. The Delhi High Court also provides guidelines for Appointment and Duties of ‘guardian ad litem’, for which his / her background, including familiarity with the judicial process, social service programs and child development, must be considered. Preference is generally given to the parents if they are deemed qualified.
The ‘guardian ad litem’ can be a member of bar / practicing advocate, but cannot be a witness in the case involving the child. It is the duty of such a person to attend all depositions, hearings, and trial proceedings in which the vulnerable witness participates, make recommendations to the court regarding his / her welfare, explain to him / her meaning of the proceedings.
The authority for the CWC to appoint a guardian in the absence of a competent natural guardian was asserted in the case of Lavanya Anirudh Verma Vs. State of NCT of Delhi. iProbono sought to challenge the Order of the Additional Sessions Judge (ASJ) dismissing applications on behalf of a minor girl on the ground that the petitioner had no locus standi to sign a vakalatnama as he was not the appointed Guardian.
The child, at the age of 12, had been abandoned by her mother, sexually and physically abused by her father and then placed under the custody of ‘Samarpan Home for Girls’ by the order of the CWC. Samarpan’s Director was appointed as her Guardian, making her eligible to appoint lawyers, sign vakalatnamas and take all other requisite steps.
Along with other observations, the ASJ expressed its doubt whether anyone other than a natural guardian, as per the Guardian and Wards Act, 1890, could assume these powers.
The High Court, while setting aside the impugned order, observed that the ASJ failed to notice the implication of the deletion of the words “before that authority” from the definition of “Guardian” in the JJ Act. This change enabled the guardian to represent the child for all legal proceedings and not just before the CWC. It was also noted that if the ASJ considered the appointment unsatisfactory, it was his / the court’s duty to then appoint a ‘guardian ad litem’.
This judgment clarified that even a shelter home can fulfil a guardian’s responsibility. Furthermore, it solidifies a child’s right to proper legal assistance and representation, which courts and CWCs must ensure. These provisions are not discretionary and should be read in a manner to ensure that the underlying purpose is achieved.
Section 2(31) of the JJ Act
UN Model Law on Justice in Matters involving Child Victims and Witnesses of Crime published by UN Office on Drugs and Crime, Vienna, UN, New York 2009.
Arsheeran Bahmeech Vs. State (2015) 224 DLT (CN 13)
The article was written by Iti Pandey, iProbono’s Program Officer.