The Supreme Court on Tuesday said it is "frightening" to read the data collected by the National Commission for Protection of Child Rights (NCPCR), according to which out of 2,874 children's homes surveyed till now, only 54 have received "positive reviews".
A bench of Justice Madan B. Lokur, Justice S. Abdul Nazeer and Justice Deepak Gupta also said that court is "helpless" since "if we do anything we will be accused of judicial activism".
"What do we do? We are helpless... Apart from judicial activism, tell us what's to be done," asked the bench, while saying it has to face "criticism" for "judicial activism" if it makes any observation.
At the Independence Day celebration in the Supreme Court, Law Minister Ravi Shankar Prasad had made certain statements about separation of powers between judiciary and the executive while maintaining that the governance should be left to the government and courts should not do it.
During the hearing, the bench asked advocate R. Bala Subramanian, appearing for the Centre, if he has seen the social audit report of NCPCR and whether it shocked him or not.
"Have you seen the report of NCPCR? It's frightening. What are you doing about it?" asked the bench asked Subramanian.
When the counsel told the court that the Centre has to rely on state government for data and there are six committees under Juvenile Justice Act to deal with offences related to children, the bench told him: "It's very easy to blame someone else but difficult to take responsibility."
The court had earlier proposed setting up national-level and state-level committees for better monitoring and oversight of these children's homes.
But the Subramanian told the court that the existing mechanisms are adequate and that there is no need for one more committee and that strengthening of the existing institutions is required.
At this, Justice Lokur shot back saying: "Who will do that? Obviously we can't do anything because if we do something, we will be accused of judicial activism."
"If nothing is wrong or working, whose job is to make it right? They don't want to do anything so what do we do? We are criticised for our activism," Justice Lokur added.
Amicus curiae Aparna Bhat, assisting the court on issue relating to conditions on child care institutions in the country, asked him to "ignore the criticism".
The bench then replied that it has been repeatedly being reminded about the "separation of powers recently".
Taking the report of NCPCR on record, the bench asked why the social audit is not done by talking to children and remarked: "I don't know what kind of social audit is this."
As per the NCPCR latest data of child care institutes, out of 2874 children's home studies till now, only 54 institutions have received positive reviews from all six committees.
Similarly, out of 185 shelter homes audited till now, only 19 institutions have all 14 records of a child that they are supposed to maintain.
With regard to Special Adoption Agencies, 203 have been audited and only eight have received positive reviews from the six committees, the data collected up to July 31, 2018 revealed.
The social audit by NCPCR will be completed by October, the report said.
The Joint Secretary of Women and Child Ministry, present in court, told the court that it could consider setting up of Central and state-level committee, as suggested by the bench.
The official said a letter has been issued to the Chief Secretaries of all the states and Union Territories to conduct inspection of all the childcare homes in states with the help of inspection committee and District Magistrate and the report will be submitted by September 15.
Thereafter, a meeting will be held on September 18 with all the states' and Union Territories' representatives.
The bench then sought the minutes of the meeting and posted the matter for hearing on September 20.
It also asked amicus to prepare the terms of reference for the proposed committee and asked all states to respond to it.
Earlier, the bench had said it wanted a committees be set up at the Central level and in each states and Union Territories. These can be headed by a retired apex court or high court judges to monitor the incidents that come to light such as the ones in Muzaffarpur in Bihar and Deoria in Uttar Pradesh.
The court is hearing a PIL filed on the basis of a 2007 newspaper report on sexual abuse of children in orphanages and childcare institutes.