Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
SHEELA BARSE
Vs.
RESPONDENT:
SECRETARY, CHILDREN AID SOCIETY & OTHERS
DATE OF JUDGMENT20/12/1986
BENCH:
BHAGWATI, P.N. (CJ)
BENCH:
BHAGWATI, P.N. (CJ)
PATHAK, R.S.
CITATION:
1987 AIR 656 1987 SCR (1) 870
1987 SCC (3) 50 JT 1987 (1) 58
1986 SCALE (2)1234
CITATOR INFO :
RF 1990 SC1480 (52)
ACT:
Bombay Children’s Act, 1948: Children--Citizens of
future era--Problem child--A negative factor--Provisions of
Childrens Act to be properly translated into action--Child
Welfare Officer/Superintendent of Observation Home/Presiding
Officer of Juvenile Court--Should be duly motivated and
approach oriented.
Constitution of India, 1950, Articles 12, 21 &
24--Children’s Aid Society, Bombay undoubtedly an instru-
mentality of the State--Necessity to act in a manner satis-
fying requirements of Articles 21 & 24 and Directive Princi-
ples of State Policy.
HEADNOTE:
The respondent--a society registered under the Societies
Registration Act, 1860 is also a Public Trust under the
Bombay Public Trusts Act of 1950. It has set-up many Obser-
vation Homes under the provisions of the Bombay Children’s
Act 1948.
The appellant, in a letter 10 the High Court, made
certain grievances about the working of the New Observation
Home managed by the respondent at Mankhurd. The High Court
treated the aforesaid letter as a writ petition and disposed
it of by giving certain directions.
Aggrieved by the decision of the High Court, the appel-
lant filed the present appeal by special leave contending
that the High Court failed to consider (i) that children
while staying in the Observation Homes are forced to work
without remuneration and are engaged in hazardous employ-
ment; (ii) that the shortfall in follow up action in the
Observation Homes has not been properly considered by the
High Court and the directions given by the High Court are
inadequate; and (iii) that the Society should have been
treated as a State and not as a voluntary organisation
within the meaning of Arts. 21 and 24 of the Constitution.
Disposing of the appeal,
HELD: 1.1 Children are the citizens of the future era. On
the
871
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
proper bringing up of the children and giving them the
proper training to turn out to be good citizens depends the
future of the country. In recent years, this proposition has
been well realised. Every society must, therefore, devote
full attention to ensure that children are properly cared
for and brought up in a proper atmosphere where they could
receive adequate training, education and guidance in order
that they may be able to have their rightful place in the
society when they grow up. [875D; 877C]
1.2 The Children’s Act 1948 has made elaborate provi-
sions to cover all the rights of the child and if these
provisions are properly translated into action and the
authorities created under the Act become cognizant of their
role, duties and obligation in the performance of the statu-
tory mechanism created under the Act and they are properly
motivated to meet the situations that arise in handling the
problems, the situation would certainly be very much eased.
[875F-G]
1.3 The Child Welfare Officer (Probation) as also the
Superintendent of the Observation Home must be duly motivat-
ed. They must have the working knowledge in psychology and
have a sense of keen observation. On their good functioning
would depend the efficacy of the scheme. [876C-D]
1.4 The Juvenile Court has to be manned by a Judicial
Officer with some special training. Creation of a court with
usual Judicial Officer and labelling it as Juvenile Court
does not serve the requirement of the statute. If that were
so, the statute has no necessity of providing a Juvenile
Court. The statutory scheme contemplates a judicial officer
of a different type with a more sensitive approach-oriented
outlook. Without these any Judicial Officer would, indeed
not be competent to handle the special problem of children.
[876G-H]
2. Children in Observation Homes should not be made to
stay long and as along as they are there, they should be
kept occupied and the occupation should be congental and
intended to bring about adaptability in life aimed at bring-
ing about a self-confidence and picking of humane virtues.
However, for employment in Children’s home, the children
would not be given any remuneration. [876E]
3. The Children Aid Society should have been treated as
a State within the meaning of Art. 12 and it is undoubtedly
an instrumentality of the State on the basis of the test
laid down by the Supreme Court. The Society has, therefore,
to regulate its activities not only in accordance
872
with the statutory requirements but also act in a manner
satisfying the requirements of the constitutional provisions
in Article 21 and 24 as also the Directive Principles of
State Policy. The State of Maharashtra is therefore directed
to take prompt action to strictly enforce the law, act up to
the requirements of the constitutional obligations and the
directions given by the High Court as also by the Supreme
Court in this judgment. [877D-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 300
of 1985.
From the Judgment and Order dated 4.2.85 of the Bombay
High Court in Crl. Writ Petition No. 487 of 1984.
Govind Mukhoty, P.H. Parekh and Ms. L. Krishnamurthy for
the Appellant.
A.B. Rohatgi, S.B. Bhasme, R. Karanjawala, Mrs. Karanja-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
wala and M.N. Shroff for the Respondents.
The following Judgments were delivered:
BHAGWATI, CJ. In this appeal by special leave the appel-
lant who is a freelance journalist by profession and a
Member of the Maharashtra State Legal Aid and Advice Commit-
tee, seeks to challenge the judgment of the Bombay High
Court delivered on 4th February, 1985 on a writ petition
filed by her.
In the writ petition she made grievance about the work-
ing of the New Observation Home located at Mankhurd which is
maintained and managed by the Children’s Aid Society, Bom-
bay. According to her, the Children’s Aid Society, is regis-
tered under the Societies Registration Act 1860, and has
also been treated as a Public Trust under the Bombay Public
Trusts Act of 1950. The Society was rounded on 1st May,
1926. The Chief Minister of Maharashtra State is the ex-
officio President and the Minister for Social Welfare is the
Vice-President of the Governing Council of the Society. The
said Society receives grants from the State. It has set up a
Remand Home at Umerkhadi within Bombay area and it is now
run as an Observation Home under the provisions of the
Bombay Children’s Act, 1948 (hereinafter referred to as ’the
Act’). The Society runs three observation homes--one at
Umerkhadi established in 1927, the second at Mankhurd estab-
lished in 1960 and the third, the New Observation Home also
at Mankhurd.
873
The appellant’s letter of 22nd August, 1984 was treated as a
writ petition by the High Court wherein the grievances made
by the petitioner were of four types as set out by the High
Court in paragraph 23 of its judgment:
(1) Delay in repatriation or restoration of children
to their parents in respect of whom orders for repatriation
were made by the Juvenile Court;
(2) Non-application of mind in the matter of taking
children into custody and directing production before the
Juvenile Court;
(3) Absence of proper follow-up action after admission
of the children in the Observation Homes, in particular,
grievance was made that the Child Welfare Officers were not
performing their duties and such failure led to continued
detention of children without any justification; and
(4) Detention in such circumstances was illegal and
the condition very often resulted in harassment to the
children so detained.
The Society appeared before the High Court and filed
counter affidavits denying allegations of facts raised in
the writ petition and both parties produced documents. The
High Court went into the matter at considerable length,
found some of the allegations to be without any justifica-
tion and yet others were accepted. In paragraphs 44 and 45
of the impugned judgment, the High Court colated its direc-
tions and recommended thus:
"(A) (i)A copy of the repatriation order passed by the
Juvenile Court should always be sent to the Juvenile Aid
Police Unit as it is now sent to the Observation Home. The
order should specify that the police should implement that
order within a week. What should be done by the police and
the Observation Home in case the order is not implemented is
mentioned in paragraph 27 of this judgment;
(ii) The possibility of detailing sufficient number of
personnel in the police department for the work con-
874
nected with the Bombay Children Act should be speedily
considered (Paragraph 28);
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
(iii) The Government should immediately review the resolu-
tion dated 2nd September, 1965 issued by the Education and
Social Welfare Department, which fixes the allowances for
escort duties done by voluntary organisations (paragraph
29);
(iv) It is also recommended that the Government should
consider the constitution of an Escort Service which can
consist of police personnel, youth volunteers and Government
servants (latter part of paragraph 29);
(v) The observation homes and the JAPU should not wait for a
sufficient number of children being ready for being escorted
before implementing the orders passed by the Juvenile Court
(Paragraph 30).
(B) (i)The Magistrate presiding over the Juvenile
Court should insist, in the case of local children, that the
police must trace the parents of the children within a
maximum period of 48 hours and take steps to restore them to
their parents (paragraphs 32 and 33)
(ii) Any tendency, if there is one, on the part of the
personnel of JAPU of fulfilling the quota for a month should
be firmly put down; (paragraph 32);
In this Court, the appellant has maintained that the
High Court failed to, consider several of the contentions
advanced by her at the hearing of the writ petition, namely,
(1) children while staying in the Observation Homes are
forced to work without remuneration and are engaged in
hazardous employment. There were instances where Observation
Homes assigned the work to private entrepreneurs with a view
to making financial gains for the Society. In support of
this circumstance, reliance was placed upon an affidavit on
behalf of the respondent filed in the High Court. The appel-
lant next contended, relying on the balance-sheet of the
Society forming part of the annual report, it has been
contended before the High Court that the Society was making
a profit of about Rupees four lakhs a year by engaging
children into it to discharge various types of labour with-
out making any payment to
875
them. According to the appellant, the shortfall in follow-up
action has not been properly considered by the High Court
and the directions given by it are inadequate. In giving the
directions, the High Court lost sight of mandatory provi-
sions of the Children’s Act as also the provisions in Arti-
cles 21 and 24 of the Constitution and the provisions con-
tained in the Directive Principles of the State Policy. It
is the submission of the appellant that Respondent No. 1
Society should have been treated as a State and not as a
voluntary organisation. In view of the materials placed on
the record about the constitution and manning of the Society
as also funding thereof, according to the appellant, the
Court should have appreciated the position that it was the
protector of the helpless children living within its juris-
diction and such care and attention and provisions of ameni-
ties as were necessary for their proper upkeep and bringing
up should have been ensured by the judgment of the High
Court. She also contended that the directions of the High
Court in the matter of illegal detention of children was not
adequate.
Children are the citizens of the future era. On the
proper bringing up of children and giving them the proper
training to turn out to be good citizens depends the future
of the country. In recent years, this position has been well
realised. In 1959, the Declaration of all the rights of the
child adopted by the General Assembly of the United Nations
and in Article 24 of the International Covenant on Civil and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
Political Rights 1966. The importance of the child has been,
appropriately recognised. India as a party to these Interna-
tional Charters having rectified the Declarations, it is an
obligation of the Government of India as also the State
machinery to implement the same in the proper way. The
Children’s Act, 1948 has made elaborate provisions to cover
this and if these provisions are properly translated into
action and the authorities created under the Act become
cognizant of their role, duties and obligation in the per-
formance of the statutory mechanism created under the Act
and they are properly motivated to meet the situations that
arise in handling the problems, the situation would certain-
ly be very much eased.
The problem is such that it does not brooke delay. There
is no unanimity of the problem also though there may be a
pattern, every individual case is likely to pose a situation
very often peculiar to itself. A set pattern would not meet
the situation, and yield the desired results. What is,
therefore, necessary is to appropriately train all the
functionaries under the statute, create in them the neces-
sary bias and motivate them adequately to arise to the
demand of every situation.
876
We appreciate that this is a difficult job but an intricate
situation requiring delicate handling with full understand-
ing of the problem would definitely require appropriate
manning of the machinery. More than a mite of the grievances
made by the appellant could not have been there if there had
been competent handling of the situation. It is very much
necessary, therefore, that officers at the different level
called upon to perform statutory duties by exercising powers
conferred under the Statute have to be given the proper
training and only when they had the requisite capacity in
them should they be called upon to handle the situation.
Gerontocracy in silence manner indicated that like a
young plant a child takes roots in the environment where it
is placed. Howsoever good the breed be if the sapling is
placed on a wrong setting or an unwarranted place, there
would not be the desired growth. Same is the situation with
the humane child. The Child Welfare Officer (Probation) as
also the Superintendent of the Observation Home must be duly
motivated. They must have the working knowledge in psycholo-
gy and have a sense of keen observation on their good func-
tioning would depend the efficacy of the scheme.
We are not inclined to agree with the contention ad-
vanced by the appellant that for employment in children’s
home, the children would be given remuneration. Children in
Observation Homes should not be made to stay long and as
long as they are there, they should be kept occupied and the
occupation should be congenial and intended to bring about
adaptability in life aimed at bringing about a selfconfi-
dence and picking of humane virtues.
We are not inclined to agree with the supervision over
the Homes. Indeed, without this aspect being assured, the
conditions of these Homes could not improve. Dedicated
workers have to be found out, proper training to them has to
be imparted and such people alone should be introduced into
the children homes.
The Juvenile Court has to be manned by a Judicial Offi-
cer with some special training. Creation of a Court with
usual Judicial Officer and labelling it as Juvenile Court
does not serve the requirement of the statute. If that were
so, the statute have no necessity of providing a Juvenile
Court. The statutory scheme contemplates a judicial officer
of a different type with a more sensitive approach-oriented
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
outlook. Without these any Judicial Officer would, indeed,
not be competent to handle the special problem of children.
877
In recent years, children and their problems have been
receiving attention both of the Government as also of the
society but we must say that the problems are of such enor-
mous magnitude that all that has been done till now is not
sufficient. If there be no proper growth of children of
today, the future of the country will be dark. It is the
obligation of every generation to bring up children who will
be citizens of tomorrow in a proper way. Today’s children
will be the leaders of tomorrow who will hold the country’s
banner high and maintain the prestige of the Nation. If a
child goes wrong for want of proper attention, training and
guidance, it will indeed be a deficiency of the society and
of the Government of the day. A problem child is indeed a
negative factor. Every society must, therefore, devote full
attention to ensure that children are properly cared for and
brought up in a proper atmosphere where they could receive
adequate training, education and guidance in order that they
may be able to have their rightful place in the society when
they grow up.
We agree with the appellant that the respondent-Society
should have been treated as a State within the meaning of
Article 12 as it is undoubtedly an instrumentality of the
State on the basis of the test laid down by this Court. The
respondent-Society has, therefore, to regulate its activi-
ties not only in accordance with the statutory requirements
but also act in a manner satisfying the requirements of the
Constitutional provisions in Articles 21 and 24 as also the
Directive Principles of the State Policy.
We would direct the State of Maharashtra to take prompt
action to strictly enforce the law, act up to the require-
ments of the constitutional obligations and proceed to
implement the directions given by the High Court as also by
us in this judgment. We direct that the State of Maharashtra
shall pay to the appellant costs fixed at Rs.5000.
Before we part with this case, we may refer to a griev-
ance made by the appellant in regard to some of the observa-
tions made by the High Court relating to her stand in the
writ petition. The appellant pointed out that these observa-
tions were disparaging and the High Court ought not to have
made the same. We may point out even at the cost of reitera-
tion that the appellant is a social worker and a freelance
journalist and she brought the matter before the High Court
being genuinely aggrieved on account of non-implementation
of the statute and being moved by the condition of the
children in the New Observation Home. The appellant brought
the writ petition before the High Court in larger public
interest and for the purpose of securing im-
878
plementation of the law. We do not think that the observa-
tion made by the High Court against her were justified. In
fact, the High Court accepted most of the complaints made by
her and proceeded to give relief by way of directions and
recommendations. The High Court should have borne in mind
that the appellant was not a lawyer and was not acquainted
with the procedure followed in the Court. There was, there-
fore, no need to make those observations. We would, there-
fore, direct that the observations criticising the appellant
may be deleted.
PATHAK, J. On the basis of the earlier authorities of
this Court by which this Bench of two Judges must be bound,
it appears that we must treat the Children’s Aid Society as
falling within the expression "the State" within the meaning
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
of Article 12 of the Constitution. Having said that, I agree
with the order proposed by the learned Chief Justice.
M.L.A.
879