1.1 Introduction
The term āchildren with disabilities ā or āspecial needsā is generally used to refer to children up to the age of 18 years, who have ālong-term physical, mental, intellectual, or sensory impairments, which in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with othersā.1 Such children are generally marginalized and are often disowned by their families. Some are orphans and have nobody to look after them. Such children often languish in government institutions , which are very often poorly equipped, lack basic infrastructure , are badly managed, and are exploitative. In a scenario where these institutions lack basic facilities, obtaining special care for the development of mentally challenged children is a pipe dream. They face discrimination in the form of systemic apathy, lack of adequate policies and legislation; they are effectively barred from realizing their rights to healthcare, education , and even protection and survival. They are less likely to attend school , access medical services, or receive proper nutrition. Their disabilities also place them at a higher risk of physical abuse or sexual abuse . Currently, in India, we do not have a comprehensive law, policy, or scheme to address rehabilitation and reintegration of victims of child sexual abuse in institutions.
Intellectual disability (ID) (formerly called mental retardation) is the most common developmental disability . IDs can be mild or severe.2 Children with more severe forms typically require more support in their day-to-day work. Children with milder IDs can gain some independent skills , especially in communities with good teaching and support .3 This book is a narrative of the journey of access to justice and empowerment of such intellectually disabled children who were abused in a state aided shelter home.
1.2 The High Court Intervention
On August 24, 2010, Mumbai Mirror4 reported the death of five intellectually disabled orphan children. The deaths were a result of the malnutrition , neglect, and abuse they endured at a government recognized and aided home in Thane district, in Maharashtra. Eighteen children (13 boys, 5 girls) were found living in an unsanitary environment, disheveled, emaciated, and thoroughly neglected. Further investigation also revealed a history of physical abuse and sexual assault. They were locked up in a dingy room, where they ate, slept, and defecated in the same living area. They hadnāt received any medical attention despite their evidently failing health .5
A division bench of the Mumbai High Court of Hon. Chief Justice Mohit Shah and Hon. Justice D. Y. Chandrachud took suo moto cognizance of the matter6 and filed PIL .7 Dr. Asha Bajpai, Professor of Law at the Tata Institute of Social Sciences (TISS) , was appointed as the amicus curiae by the High Court.8 The Court stated that:
The issues which have been raised in the present case, would have to be dealt with by taking immediate action to protract the welfare of children involved, as well as by issuing systemic directions to the State Government. The facts which have been stated in the judgment earlier are adequate to support an inference that the provisions of the Juvenile Justice Act and Rules have remained only on paper and that there has been a total failure of the implementing machinery prescribed under the Act. It appears that it is only when newspaper articles are published and the court is constrained to take suomoto cognizance that the authorities have responded by taking certain measures.9
A FIR10 was filed by the CWC .11 At the request of the Court, Asha Bajpai, the amicus curiae,12 along with a counselor, Naina Athale, visited the children. The children were in a state of extreme trauma and shock. They required counseling and medical and psychiatric help, as directed by the Court. The fact that such a violation of child rights could take place in a city like Mumbai urged the Court to review other MDC ās Homes in the state and prepare an exhaustive report. Therefore, a SCCP was constituted.13 Additionally, Divisional Committees were formed to study the 23 homes in the state where intellectually challenged children resided.14 The Divisional Committees consisted of child rights experts, civil society organizations, academicians, medical doctors, and social workers. (List of Divisional Committees) (Annexure 1).
Three research tools were developed to assess the living conditions in the MDC Homes15 in Maharashtra. These exhaustive tools were designed to enable the Divisional Committees to understand the quality of administration and care in the various `homes from the perspective of the observing Divisional teams, the DWCD officer of the district, and the Superintendent of the Home. The tools included notes and pointers to the teams regarding documentation and cross verification. Specific instructions as to what emergency actions were to be taken if malnourishment or child sexual abuse were found were also included (Annexure 2). The Divisional teams went around the 23 homes in Maharashtra and presented the report to the Mumbai High Court .
1.3 Major Findings from the Status Report of the Intellectually Disabled Homes for Children in MaharashtraāA Collective Failure
Children with intellectual and other developmental disabilities in institutions are generally vulnerable targets for sexual abuse and physical assault. Sexual assault by persons who are their ācaretakersā is a serious breach of trust for MDC. The children see these institutions as a āplace of refugeā. They put complete faith and trust in the āBabasā, āPappaās and āMummyāsā, only to receive abuse , starvation , and even death in return. What the research teams saw in majority of the intellectually disabled homes was an abdication of responsibility and dereliction of duty by the office bearers, including the State, the Department of Women and Child Development , the CWC, the Inspection Authorities, the State Advisory Boards and other caretakers of the most vulnerable and marginalized section of our society, our MDC. It was a collective failure of the structures and system.
The findings that emerged from the state-wise study conducted are as follows:
- At the time of the study in 2011, as many as 20 districts out of the 35 districts in the state did not have any MDC Homes. More significantly, there was an ad hoc, haphazard distribution of homes across districts in the state. Some districts had a concentration of Homes, while several districts in the state did not have a single MDC Home. The study revealed that several MDC homes did not meet the criteria required to set up the institution in the first place. Only one MDC Home in the entire state of Maharashtra had received a full government grant.16
- Twenty-seven percentage of the persons in MDC Homes in Maharashtra could not be classified as āchildrenā since they were over the age of 18. In fact, in one MDC Home in an eastern suburb in Mumbai, nearly 80% of the people living in the institution were over 18 years of age. Yet, they lived in shelter homes designated for children. This indicated that once a child was sent to an MDC Home, there was no plan for a corresponding exit process at the age of 18. Interestingly, CWC orders for some children clearly said that children have been sent to the Home āfor lifeā. This was a reflection of the general perception that such children ācannot do anythingā, and once sent to a home, would remain there for the rest of their lives.
- Thirty-nine percentage of the total number of children living in MDC Homes had one or both parents alive. Options for non-institutional care services could have been explored for such children.
- A majority of the children (59%) displayed the skills required to care for themselvesāthey could eat, bathe, brush their tee...