When a child loses the emotional, psychological and material support of family, it is imperative that the State appoints someone who can 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 facilities so as to enable them to develop in a healthy manner, and in conditions of freedom and dignity, while protecting them against exploitation, and from moral and material abandonment. The UN Convention on the Rights of Children reiterates the same, and includes provision of appropriate legal assistance as an obligated right of a child. The right to legal aid is also legislatively recognised under Juvenile Justice Act 2015 (‘JJ Act’) and under Section 40 of the Protection of Children from Sexual Offences Act, 2012.

When a child is abandoned, the Child Welfare Committee (CWC) is entrusted with the care and protection of the child and they can appoint a ‘guardian’ to ensure the same. As per the definition under JJ Act, a ‘guardian[1] appointed by the CWC is capable of acting on behalf of the child, even during legal proceedings before any authority. However, this power of appointment of an individual to represent the child during legal proceedings does not solely lie with the CWC. As per Section 15 of the Delhi High Court’s ‘Guidelines for Recording of evidence of vulnerable witnesses in criminal matters’, a ‘Court’ may also appoint a guardian ad litem’ for a minor who is a victim of, or a witness to a crime. ‘Guardian ad litem’ protects a child’s interests during proceedings affecting his or her interests[2]. High Court of Delhi has also provided guidelines for Appointment and Duties of ‘guardian ad litem’[3], for which his / her background, including familiarity with the judicial process, social service programs, and child development, must be considered. Preference will be given to the parents of the child, if 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 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, etc.

iProbono’s Intervention:

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.[4] iProbono sought to challenge order of the Additional Sessions Judge (ASJ) dismissing applications on behalf of a minor girl on the ground that the petitioner, not being the guardian, had no locus standi to sign a vakalatnama.

The minor, 12, abandoned by mother, sexually and physically abused by father, was placed under the custody of “Samarpan Home for Girls” by the order of the CWC. Its 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 necessarily 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 all courts of law are obligated to ensure. It must be understood that these provisions are not discretionary, and must be read in a manner to ensure that the underlying purpose is achieved.

[1] Section 2(31) of the JJ Act

[2] 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

[3] ArsheeranBahmeech Vs. State (2015) 224 DLT (CN 13)

[4] CRL.M.C. 301/2017

Iti Pandey – Program Analyst, India, iProbono

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