COMMENTS ON THE GOA COMMISSION FOR PROTECTION OF CHILD RIGHTS RULES, 2010 UNDER THE COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005

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1 COMMENTS ON THE GOA COMMISSION FOR PROTECTION OF CHILD RIGHTS RULES, 2010 UNDER THE COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005 Prepared by Centre for Child and the Law National Law School of India University Nagarbhavi, Bangalore Tel/fax: and Work done under CCL project on JUSTICE TO CHILDREN THROUGH INDEPENDENT HUMAN RIGHTS INSTITUTIONS Supported by UNICEF India Country Office, New Delhi 14 February 2011

2 INTRODUCTION The Centre for Child and the Law of the National Law School of India is a specialized research centre working in the area of child rights for the past fourteen years. The main thrust of the Centre is on Juvenile Justice, Universalisation of Quality Equitable School Education and Child Labour. The Centre engages in direct field intervention, research as well as teaching in order to impact policy, law and practice on issues concerning children. The mission of the Centre is to institutionalize a culture of respect for child rights in India. Since the last year, our Centre has been working on a project, Justice to Children through Independent Human Rights Institutions in partnership with the UNICEF India Country Office. This two year project aims to work closely with the National Commission for Protection of Child Rights, the State Commissions on Protection of Children s Rights, various human rights institutions, the central and state Governments, judicial and quasi-judicial bodies and non-governmental organizations. With the Right of Children to Free and Compulsory Education Act, 2009 coming into force from 1 April 2010, the work with the Children s State Commissions have assumed greater significance. The project specifically aims to ensure that Commissions function effectively at the national and state level, enables an effective interface between various human rights institutions, judiciary, quasi-judicial and statutory bodies for children, build knowledge and skills among stakeholders, i.e. NGOs, networks and children so that they can access these institutions in case of child rights violations. The specific activities under this project are to; Undertake research on the Commission for Protection of Child Rights Act, 2005, delegated legislation and international standards so as to suggest provisions for the state rules; Support the state Governments to formulate rules and establish State Commissions in a transparent and democratic manner; Research on Children s Courts i.e. Courts to try offences committed against children, as prescribed under the Commission for Protection of Child Rights Act, 2005 and suggest measures to be undertaken in this regard; Conduct a National Judicial Colloquium to discuss steps needed to establish children s courts in the country; Conduct administrative law research and research on role and functioning of various human rights institutions with regards to protection and promotion of children s rights; Undertake research on monitoring of the Right of Children to Free and Compulsory Education Act, 2009;

3 Publication of manuals and handbooks Provide online socio-legal technical research support to the State Commissions on handling child rights violations so that they can effectively fulfill their mandate and Establish an e-group for NGOs who are engaging with these institutions on behalf of children. As part of our Project we are working with States that have already set up Child Rights Commissions. We at the Centre have undertaken extensive research and have compiled a document offering suggestions on the state rules to be framed. This is based on extensive research undertaken at the Centre. This includes comparative analysis of existing state rules (Orissa, Assam, Karnataka, Sikkim and Delhi), international standards and other legislations on human rights institutions, the Commission for Protection of Child Rights Act, 2005 and the National Commission for Protection of Child Rights Rules, For further clarifications, please contact Centre for Child and the Law, National Law School of India University, Bangalore. SUGGESTED AMENDMENTS TO THE GOA COMMISSION FOR PROTECTION OF CHILD RIGHTS RULES, 2010 Sl.No Goa Commission for Protection of Child Rights Rules, Secretary. The Secretary of the Commission appointed under sub-section (1) of section 21 shall have a minimum tenure of three years Powers and Duties of the Secretary.- The Secretary shall- (x) take up all such matters with the Department of Women and Child Development for release of grants, creation of posts, revision of scales, procurement of vehicles, appointment of staff, laying of annual and audit report in the Legislative Suggested Amendments Secretary. The Secretary of the Commission appointed under sub-section (1) of section 21 shall have a (omitted) tenure of three years. 4. Powers and Duties of the Secretary.- The Secretary shall- (x) take up all such matters in consultation with the Commission with the Department of Women and Child Development for release of grants, creation of posts, revision of scales, procurement of vehicles, appointment of staff, laying of annual and Rationale The Secretary should have a defined tenure at the Commission. Accordingly the term minimum should be omitted. As per Section 11 of The Commission for Protection of Child Rights Act, 2005, the role of the Secretary is to ensure efficient performance of the functions of the Commission, its day-to-day management and administration of affairs of the Commission. It is therefore imperative that the Secretary consults the Commission with

4 Sl.No Goa Commission for Protection of Child Rights Rules, 2010 Assembly, re-appropriation of funds, and any other matter requiring the approval of the Government; Suggested Amendments audit report in the Legislative Assembly, reappropriation of funds, and any other matter requiring the approval of the Government; Rationale regards to these administrative matters before taking them up on behalf of the Commission with the Department of Women and Child Development Salaries and allowances of the Chairperson and members.- (1) The Chairperson of the Commission shall be paid consolidated salary of Rs 15,000/- per month and every other honorary member shall be paid honorarium of Rs 800/- per sitting per day. No travelling and dearness allowance shall be paid to the Chairperson and Members, separately. (2) The Members shall be paid only in the event they attend meeting of the Commission or any other official work, function/programme of the Commission 5. Salaries and Allowances of the Chairperson and Members.- (1) Save as otherwise provided in section 20, the Chairperson shall be paid salary equivalent to the salary of the Chief Secretary to the State Government and every other Member shall be paid salary equivalent to that of a Secretary to the State Government Provided that where the Chairperson or any other Member is a retired Government servant, Semi-Government body, public sector undertaking or recognized research institution, the salary payable together with the pension or pensionary value of the terminal benefits, or both, received by him shall not exceed to the last pay drawn. (2) Deleted This Rule has been modified to include the equivalent rank in the State. It has been replicated from Rule 7(1) of the Central Rules, Besides, the Commission is meant to function as a full time body and Members are therefore not to be paid honorariums but salaries. This rule should be revised to reflect this understanding. Clause (2) is contrary to the understanding that the Commission is meant to function as a full time body. Section 7(2)(b) of the Commission on Protection of Child Rights

5 Sl.No Goa Commission for Protection of Child Rights Rules, 2010 subject to certification by Secretary. Suggested Amendments Rationale Act, 2005 makes it clear that Chairperson and Members can be removed if they engage in paid employment outside of their duties of office. The Members cannot therefore be paid only if the attend meetings. They have to be paid a salary. (3) The Chairperson shall be paid telephone allowance of Rs 500/-per month with STD facility and mobile phone allowance of Rs 1000/- per month or actual call charges, whichever is less. Every member shall be paid mobile phone allowance of Rs 500/- or actual call charges, whichever is less, per month Term of office of Chairperson and Members:- (1) (5) The appointment/salary, Allowances, etc of the Secretary, other officers and employees of the Commission.- (1) (2) (3) The Chairperson and Members shall be paid telephone allowance appropriate to their pay at the rates admissible to officers of the equivalent level of the State Government 6. Term of office of Chairperson and Members:- (1) (5) (6) The State Commission for Protection of Child Rights shall function full time as an independent and autonomous body. 7. The appointment/salary, Allowances, etc of the Secretary, other officers and employees of the Commission.- (1) (2) The Chairperson and Members should be entitled to telephone allowance in accordance with their status. This sub-rule reinforces the provisions under Section 7(2)(b) of the Act.

6 Sl.No Goa Commission for Protection of Child Rights Rules, 2010 (3) The appointment of staff for the office of the Commission shall be made by the Government on deputation basis and they shall be governed by general rules of deputation. Suggested Amendments (3) The appointment of staff for the office of the Commission shall be made by the Government in consultation with the Commission on deputation or contract on the basis of merit. Rationale The Commission should be given an opportunity to participate in the appointment process and express its views on the suitability of the candidates. The government should also advertise and invite for applications to posts which will require knowledge of or experience in child rights. Such appointments can be made on contract basis. The appointments should not be restricted to deputations only. Further, in order to advance transparency, the appointment process should be fair and based on merit. In case the Secretary is holding the post as additional charge, the Secretary shall be eligible for a fixed as monthly remuneration as may be determined by the Government Additional Functions of the Commission :- (a) (h) Deleted 9. Additional Functions of the Commission :- (a) (h) (i) refer cases and issues of national and inter-state importance to the National Commission for the Protection of Child Rights as and when required; (j) make visits,conduct public hearings or The Secretary of a statutory institution of this nature is expected to function full time. This clause should accordingly be omitted to reflect this understanding. This clause will enable the Commission to exercise its jurisdiction in an appropriate and effective way. This clause will enable the Commission to

7 Sl.No Goa Commission for Protection of Child Rights Rules, 2010 Suggested Amendments Rationale meetings in the districts at regular intervals. reach out to all parts of the State and enhance its accessibility Procedure for transaction of business of Commission:- (1)-(9) 9. Procedure for transaction of business of Commission:- (1) (9) (10) The Commission may invite, if it is considered necessary, for such purposes and on such conditions as may be prescribed, any person with expert knowledge in a particular subject to be present at the meeting to assist the Commission in arriving at a decision but such person shall not be entitled to vote. (11) Every expert, if he is not in service of the Central or State Government or in an institution funded by the Central or State Government, shall be paid a sitting fee Rs. 500 (Rupees five hundred only) for attendance of each day of the meeting of the Commission subject to a maximum of Rs.1500 (Rupees one thousand five hundred only) per month. (12) Every expert, if he is not in service of the Central or State Government or in an This sub rule is based on similar rule contained in legislation relating to human rights institution. This sub rule is based on similar rule contained in legislation relating to human rights institutions. This sub rule is based on similar rule contained in legislation relating to human

8 Sl.No Goa Commission for Protection of Child Rights Rules, 2010 Suggested Amendments institution funded by the Central or State Government, attending a meeting of the Commission shall be paid, in addition to the sitting fee payable under sub-rule (10), travel allowance and daily allowance at the rates admissible to the First Grade Officer under the rules and orders made by the State Government from time to time. rights institutions. Rationale (13) The principles of independence, accessibility, co-operation, operational efficiency, and accountability shall guide the functioning of the Commission. This sub-rule is in keeping with international standards on the functioning of human rights institutions. (14) Notwithstanding anything contained in sub-rule (1) Secretary shall convene an extraordinary meeting on the requisition made to the Secretary in writing for the purpose by majority of the members of the Commission. Extraordinary meetings are called upon for urgent matters. The secretary should be able to convene these meetings when there is a demand from majority of the members from the Commission to address crisis situations. This is based on similar rule contained in legislation relating to human rights institution Financial powers:- (2) There shall be a three member (15) The Commission shall meet at regular intervals for the purposes of disposing complaints. 16. Financial powers:- (2) There shall be a three member This Rule has been included to ensure that the Commission sits regularly to dispose of cases, apart from the regular meetings. The Commission has been vested with financial powers under Section 28(2) of the Act and therefore the Commission should

9 Sl.No Goa Commission for Protection of Child Rights Rules, 2010 committee comprising of the Chairperson, Secretary and any one member as duly authorized by the Government to exercise the powers relating to financial transaction of the Commission except in cases which require prior approval of the Government. Suggested Amendments committee comprising of the Chairperson, Secretary and any one member as duly authorized by the Commission to exercise the powers relating to financial transaction of the Commission except in cases which require prior approval of the Government. Rationale have the power to vest a Member with such power and not the Government. SUGGESTED ADDITIONS TO THE GOA COMMISSION FOR PROTECTION OF CHILD RIGHTS RULES, 2010 S. No Suggested Additions Rationale/Explanation 1. Eligibility for Appointment as Chairperson and Members (1) Any person who has at least ten years experience in the areas stated in clause (b) of sub-section (2) of section 17 of the Act may be appointed as Chairperson or Member of the Commission. Rule 3 qualifies the phrase eminence, ability, integrity, standing and experience stated in Section 17(2) (b) of the Act. (2) No person having any past record of violation of human rights or child rights shall be eligible for appointment as Chairperson or Member of the Commission. (3) No person having been convicted and sentenced to imprisonment for an offence which in the opinion of the State Government involves moral turpitude, shall be eligible for appointment as Chairperson or Member of the Commission. (4) No person having been removed or dismissed from service of the Central Government or State Government or a body or corporation owned or controlled by the Central Government or a State Government shall be eligible for appointment as This sub-rule qualifies the term integrity and standing and has been replicated from Rule 3 of the Central Rules, This sub-rule qualifies the term integrity and standing and has been modified to be included in the eligibility clause. It has been replicated from Section 7(2) (f) of the Act. This sub- rule qualifies the term integrity, standing and has been replicated from legislations relating to other human rights institutions.

10 Chairperson or Member of the Commission. (5) The Chairperson or Member shall not be a Member of Parliament or be a member of Legislature of any State or shall not hold any office of trust or profit (other than his office as Chairperson or Member) or be connected with any political party or carry on any business or practice any profession and accordingly, before he enters upon his office, a person appointed as the Chairperson or Member shall: This sub- rule seeks to reinforce the prohibition on engaging in any employment outside the duties of office as per Section 7(2)(b) of the Act. (a) if he is a Member of the Parliament or of the Legislature of any State, resign such membership; or (b) if he holds any office of trust or profit, resign from such office; or (c) if he is connected with any political party, sever his connection with it; or (d) if he is carrying on any business, sever his connection (short of divesting himself of ownership) with the conduct and management of such business; or (e) if he is practicing any profession, suspend practice of such profession. (6) A person who has held an office of Chairperson or Member for two terms, in any capacity shall not be eligible for reappointment as Chairperson or, as the case may be, as Member. 2. Selection Committee.- (1)The Chairperson and the Members of the Commission shall be appointed on the recommendation of a three Member Selection Committee constituted by the State Government under the Chairmanship of the Minister-in-charge of Women and Child, nominee of the Chief Justice of the High This sub-rule has been modified to be included in the eligibility clause. It has been replicated from the proviso to Rule 6(3) of the Central Rules, A high powered selection committee will ensure that able and experienced persons are appointed to the Commission in a transparent manner. In order to ensure an independent and pluralistic representation of persons within the Commission, it is recommended that the Selection Committee consist of the three arms of the government

11 Court of the State, and nominee of the Governor. (2)For the purposes of selection of the Chairperson and Members of the Commission for Protection of Child Rights, the State Government shall invite applications from qualified candidates from the public through an advertisement in at least two leading national and vernacular dailies and shall prepare a short list from the applications so received on the basis of the eligibility criteria stated in sub-clause (b) of sub-section (2) of section 17 of the Act and Rule 3. The short listed candidates shall be selected on merit through an interview by the Selection Committee. Such selected candidates shall be recommended by the Selection Committee to the State Government for appointment. (3) The selection procedure shall be fair and transparent. (3) The Selection Committee shall also prepare a wait list of two persons for each of the posts. The wait list shall be valid for three months. legislature, executive, and judiciary. Further, this sub-rule is in accordance with Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly resolution 48/134 of 20 December 1993, General Comment No.2 (2002), The role of independent human rights institutions in the promotion and protection of the rights of the child, Committee on the Rights of the Child, CRC/GC/2002/2, 15 November 2002, Commonwealth Secretariat, National Human Rights Institutions Best Practice, ( NHRI Best Practices) and ICHRP & OHCHR, Assessing the Effectiveness of National Human Rights Institutions, If there is a sudden and immediate vacancy within three months from the appointment of chairperson or members of the Commission, it would be advisable to call upon candidates from the waiting list instead of calling for applications from fresh candidates again. Calling for applications will be a time consuming process. 3. Removal from Office (1) The Chairperson and Members shall be removed from office in accordance with section 7 of the Act on the basis of a report by an Inquiry Committee. The removal process has been specified in keeping with the suggestion on the appointment process. A body of a similar stature should undertake an inquiry before recommending removal of the Chairperson or members. (2) The State Government shall constitute a three member Inquiry Committee comprising of the Secretary, Department of Women and Child Development, nominee of the Chief Justice

12 of the High Court and nominee of the Governor of the State for this purpose. 4. Dearness Allowance The Chairperson and every other Member shall receive dearness allowance appropriate to their pay at the rates admissible to officers of the equivalent level of the State Government. 5. Compensatory (City) Allowance The Chairperson and every other Member shall receive Compensatory (City) allowance appropriate to their pay at the rates admissible to officers of the State Government of the equivalent level. 6. Leave The Chairperson and every other Member shall be entitled to leave as follows:- a. Earned leave, half pay leave and commuted leave as admissible to State Government servants in accordance with the State Civil Services (Leave) Rules, as amended from time to time. b. Extraordinary leave as admissible to the temporary State Government servants under the State Civil Services (Leave) Rules, as amended from time to time. Leave Sanctioning Authority (1) The State Government shall be the authority competent to sanction leave to the Chairperson. (2) The Chairperson shall be the authority competent to sanction replicated from Rule 8 of the Central Rules, replicated from Rule 9 of the Central Rules, replicated from Rule 10 of the Central Rules, replicated from Rule 11 of the Central Rules, 2006.

13 leave to every Member and the secretary (3) The Secretary shall be the authority competent to sanction leave to any officer or other employee of the Commission. 8. Traveling Allowance (1) The Chairperson and every other Member shall be entitled to draw travelling allowances and daily allowances at the rates appropriate to their pay admissible to equivalent post of the State Government. (2) The Chairperson and every other Member shall be his own controlling officer in respect of his bills relating to traveling allowances and daily allowances. 9. Residential Accommodation (1) The Chairperson and every other Member shall be entitled to the use of an official residence as may be determined by the Government of the State. (2) If the Chairperson or a Member is not provided with or does not avail himself of the accommodation provided under sub-rule (1), he shall be paid every month house rent allowance at the rates admissible to officers of an equivalent rank in the State Government. 10. Facility for Conveyance. The Chairperson and every other Member shall be entitled to the facilities of staff car for journeys for official and private purpose in accordance with the staff car rules of the State Government, as amended from time to time. 11. Facility for Medical Treatment. The Chairperson and every other Member shall be entitled to the medical treatment and hospital facilities as applicable to State Government servants of equivalent rank as provided in the State Government Contributory Health Scheme Rules, or as may be determined by the State Government. replicated from Rule 12 of the Central Rules, replicated from Rule 13 of the Central Rules, replicated from Rule 14 of the Central Rules, replicated from Rule 15 of the Central Rules, 2006.

14 12. Residuary Provisions The condition of service of Chairperson and the other Members of which no express provision has been made in these rules shall be such as may be determined by the State Government. 13. Notice of Meetings (1) At least seven clear days notice of all meetings of the Commission shall be given to each member, but an extraordinary meeting may be called for on a twenty-four hour notice. (2) The notice shall state the venue, date, time and the agenda for the meeting. 14 Steps after Inquiry a. The Commission is required to send a copy of its inquiry report with its recommendation to the Government or concerned authority. The Government or the concerned authority within a period of one month or such further time as the Commission may allow, forward its comments on the report. b. The Commission is required to publish its inquiry report together with the comments of the Government and the action taken or proposed to be taken by the Government on the recommendations of the Commissions in official Gazette replicated from Rule 16 of the Central Rules, These sub rules have been derived from similar rules contained in legislation relating to human rights institutions. This sub rule has been extracted from the rules under the Goa Children s Act, 2003 (Rule 14). Goa has the history of having a child rights commission even before the Commission for Protection of Child Rights Act, 2005 (hereinafter referred to as the CPCR Act) prescribed for it. The Goa State Commission for Children Rules, 2004 were made under the Goa Children s Act, Subsequently, in 2005, the central legislation was enacted. This sub rule is a progressive provision and also in compliance with the CPCR Act and hence can be added to the Goa CPCR Rules, 2010.

15 c. The Commission is required to provide a copy of the inquiry report to the complainant or his representatives