Sheela Barse & ANR Vs. Union of
India & Ors [1986] INSC 159 (5 August 1986)
BHAGWATI, P.N. (CJ) BHAGWATI, P.N. (CJ) MISRA
RANGNATH
CITATION: 1986 AIR 1773 1986 SCR (3) 443 1986
SCC (3) 596 JT 1986 53 1986 SCALE (2)184
CITATOR INFO:
RF 1988 SC1531 (87) E 1988 SC2211 (8) RF 1992
SC1701 (35,48,53)
ACT:
Constitution of India, 1950, Art. 144,-Scope
of-Duty of the Subordinate Courts/Judicial authorities to comply with the
directions of the apex Court explained.
Constitution of India, Art 39(f)-Legislation,
enactment and enforcement of Children's Acts-Constitutional obligation of
State-States to enforce Children's Acls- District Judges to visit jails and see
that child prisoners are accorded the benefit of Jail Manual.
Children Acts-Children-legislation for
benefit of- Enactment and enforcement by States-Necessity of.
HEADNOTE:
The petitioner filed the present petition
under Article 32 of the Constitution for release of children below the age of
16 years detained in jails within different States of the country, production
of complete information of children in jails and existence of juvenile Courts,
homes and schools in the country. The petitioner also asked for a direction to
the State Legal Aid Boards to appoint duty counsel to ensure availability of legal
protection for children as and when they are involved in criminal cases. The
Supreme Court while directing the State Legal Aid and Advice Board in each
State or any other Legal Aid organisation existing in the State concerned, to
send two lawyers to each jail within the State once a week for the purpose of
providing legal assistance to children below the age of 16 years who are
confined in the jails, called for information from the District Judges about
the children below the age of 16 years detained in various jails. However
several District Judges did not comply with the direction within the time
granted.
While showing concern and surprise that a
direction given by the apex Court has not been properly carried out by the
District Judges who are an effective instrumentality in the hierarchy of the
judicial system, the Court, 444 ^
HELD: (1) Every defaulting District Judge who
had not submit ted his report shall unfailingly comply with the direction and
furnish the report by August 31, 1986 through his High Court, and the Registrar
of every High Court shall ensure that compliance of the present direction is
made. It is surprising that the High Courts have remained aloof and indifferent
and have never endeavored to ensure submission of the reports by the District
Judges within the time indicated in the order of this Court. [447G-H] (2)(I)
Enough the Children's Acts are on the statute book, in some States the Act has
not been brought into force. This piece of legislation is for the fulfillment
of a constitutional obligation and is a beneficial statute. There is hardly any
justification for not enforcing the statute.
Ordinarily it is a matter for the State
Government to decide as to when a particular statute should be brought into
force but in the present setting, it is appropriate that without delay every
State should ensure that the Act is brought into force and administered in
accordance with the provisions contained therein. [448B-E] (2)(II) Such of the
States where the Act exists but has not been brought into force should indicate
by filing a proper affidavit as to why the Act is not being brought into force
in case the Act is still not in force. [448E] (3)(I) The safeguards which are
provided in Jail Manuals prevalent in different States should be strictly complied
with and the prisoners should have the full benefit of the provisions contained
in the Manual. It is also the obligation of the High Court to ensure that all
persons in judicial custody within its jurisdiction are assured of acceptable
living conditions. [448F; 449A] (3)(II) Every District and Session Judge should
visit the district jail at least once in two months, and in the course of his
visit, he should take particular care about child prisoners, both convicts and
under trials and as and when he sees any infraction in regard to the children
in the prison he should draw the attention of the Administration as also of his
High Court. [448G-H]
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 1451 of 1985 Under Article 32 of the Constitution of India.
S.B. Bhasme, Harbans Lal, A.S. Bhasme, Badri
Das Sharma, 445 C.V. Subba Rao, R. Kumar, D.N. Mukharji, R. Mukherji, Tapash A
Roy, Dilip Sinha and J.R. Das for the Respondents.
The order of the Court was delivered by
BHAGWATI, CJ. This application under Article 32 of the Constitution has asked
for release of children below the age of 16 years detained in jails within
different States of the country, production of complete information of children
in jails, information as to the existence of juvenile courts homes and schools
and for a direction that the District Judges should visit jails or sub-jails
within their jurisdiction to ensure that children are properly looked after
when in custody as also for a direction to the State Legal Aid Boards to
appoint duty counsel to ensure availability of legal protection for children as
and when they are involved in criminal cases and are proceeded against. The
Union of India and all the States and Union Territories have been impleaded as
respondents.
On September 24, 1985, notice was directed to
all the respondents. A few of the respondent States filed counter affidavits in
response to the notice. The matter was adjourned on March 31, 1986. to April
15, 1986, to enable the respondents who had not yet filed their affidavits to
file such affidavits. On April 15, 1986, after hearing counsel who appeared for
the parties this Court pointed out:
" ....It is an elementary requirement of
any civilised society and it had been so provided in various statutes concerning
children that children should not be confined to jail because incarceration in
jail has a dehumanising effect and it is harmful to the growth and development
of children. But even so the facts placed before us, which include the survey
made by the Home Ministry and the Social Welfare Department show that a large
number of children below the age of 16 years are confined in jails in various
parts of the country ." This Court directed the District Judges in the
country to nominate the Chief Judicial Magistrate or any other Judicial
Magistrate to visit the District Jail and Sub-Jail in their districts for the
proposes of ascertaining how many children below the age of 16 years are
confined in jail, what are the offences in respect of which they are charged, how
many of them have been in detention-whether in the same jail or previously 446
in any other jail-before being brought to the jail in question, whether they
have been produced before the children's court and, if so, when and how many
times and whether any legal assistance is provided to them. The Court also
directed that "each District Judge will give ut most priority to this
direction and the Superintendent to each jail in the district will provide full
assistance to the District Judge or the Chief Judicial Magistrate or the
Judicial Magistrate, in this behalf who will be entitled to inspect the
registers of the jail visited by him as also any other document/documents which
he may want to inspect and will also interview the children if he finds it
necessary to do so for the purpose of gathering the correct information in case
of any doubt. The District Judge, Chief Judicial Magistrate or the Judicial
Magistrate, as the case may be, will submit report to this court within 10
weeks from today.
It will also be stated in the report as to
whether there are any children's home, Remand Home or observation Homes for
children within his district and if there are, he will inspect such children
homes, remand homes and observation homes for the purpose of ascertaining as to
what are the conditions in which children are kept there and whether facilities
for education or vocational training exist. Such reports will be submitted by
each District Judge through the Registrars of the respective High Courts to the
Registrar of this Court. Each State Government will also file affidavit stating
as to how many children homes, remand homes and observation homes for children
are in existence in the respective State and how many inmates are kept in such
children homes, remand homes or observation homes. The would also direct the
State Legal Aid & Advice Board in each State or any other Legal Aid
organisation existing in the State concerned, to send two lawyers to each jail
within the State once in a week for the purpose of providing legal assistance
to children below the age of 16 years who are confined in the jails." The
writ petition was adjourned to July 17, 1986.
On April 24, 1986 the Court again made the
following order:
"We have adjourned the writ petition to
17.7.1986 for hearing and final disposal but we feel that it would be desirable
to take it up when the Bench sits in vacation. We would direct that the matter
may be placed for final disposal before a Bench of this Court on 24.6.1986. We
have granted two months' time to the District Judges to make their reports vide
our order dated 15.4.1986. Fresh intimation to this effect may be sent to the
District Judges through the Registrars of the High Courts. We may re- 447
iterate that as soon as the reports are received copies A thereof may be
supplied to the Advocates during the vacation itself .. " The writ
petition was thereafter listed on July 12, 1986, during the long vacation for
hearing. The Court found that though reports from several District Judges had
come in response to the earlier direction, yet several District Judges had not
sent their reports. The Court observed:
"It is a little surprising that though
we gave directions long back directing the District Judges/Chief Judicial
Magistrates to send their reports of inspection of not only the District Jails
but also Sub-Jails in the districts on or before 10.6.86 (24.6.86), the reports
have not yet come in respect of several Districts and particularly in respect
of sub-jails in the Districts. We propose to give directions for expediting
submission of these reports at the next hearing of the writ petition. We are
very keen that the High Courts should be requested to monitor the submission of
these reports and we have therefore requested the counsel appearing in the case
to make constructive suggestions in that behalf.
Six further weeks have passed beyond the time
indicated if the order dated April 15, 1986, and even till this day analysis
shows that several District Judges have not complied with the direction. This
Court had intended that the report of the District Judges would be sent to the
Registry of this Court through the Registrars of the respective High Courts.
This obviously meant that the Registrars of the High Courts were to ensure
compliance. We are both concerned and surprised that a direction given by the
apex Court has not been properly carried out by the District Judges who are an
effective instrumentality in the hierarchy of the judicial system. Failure to
submit the reports within the time set by the Court has required adjournment of
the hearing of the writ petition on more than one occasion. We are equally
surprised that the High Courts have remained aloof and indifferent and have
never endeavoured to ensure submission of the reports by the District Judges within
the time indicated in the order of this Court. We direct that every defaulting
District Judge who has not yet submitted his report shall unfailingly comply
with the direction and furnish the report by August 31, 1986, through his High
Court and the Registrar of every High Court shall ensure that compliance with
the present direction is made.
448 Article 39(f) of the Constitution
provides that the State shall direct its policy towards securing that children
are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment. Every State
excepting Nagaland has a Children's Act. It is a fact some of the Acts have
been in existence prior to inclusion of the aforesaid clause in Article 39 by
the amendment of 1976.
Though the Acts are on the statute hook. in
some States the Act has not yet been brought into force. This piece of
legislation is for the fulfilment of a constitutional obligation and is a
beneficial statute. Obviously the State Legislatures have enacted the law on
being satisfied that the same is necessary in the interest of the society,
particularly of children. There is hardly any justification for not enforcing
the statute. For instance, in the case of Orissa though the Act is of 1982, for
four years it has not been brought into force. Ordinarily it is a matter for
the State Government to decide as to when a particular statute should be
brought into force but in the present setting we think that it is appropriate
that without delay every State should ensure that the Act is brought into force
and administered in accordance with the provisions contained therein. Such of
the States where the Act exists but has not been brought into force should
indicate by filing a proper affidavit by August 31, 1986, as to why the Act is
not being brought into force in case by then the Act is still not in force.
Under the Jail Manuals prevalent in different
States every jail has a nominated committee of visitors and invariably the
District and Sessions Judge happens to be one of the visitors. The purpose of
having visitors is to ensure that the provisions in the Manual are strictly
complied with so far as the convicts and the under-trials prisoners detained in
jail are concerned. Being in jail results in curtailment of freedom. lt is,
therefore, necessary that the safeguards which are provided in the Manual
should be strictly complied with and the prisoners should have the full benefit
of the provisions contained in the Manual. We direct that every District and
Sessions Judge should visit the District Jail at least once in two months and
in course of his visit he should take particular care about child prisoners,
both convicts and undertrials and as and when he sees any infraction in regard
to the children in the prison he should draw the attention of the
Administration as also of his High Court. We hope and trust that as and when
such reports are received in the High Court the same would he looked into 449
and effective action would be taken thereupon. It is hardly necessary A to
point out that it is the obligation of the High Court to ensure that all
persons in judicial custody within its jurisdiction are assured of acceptable
living conditions.
The Court had made a direction to the State
Legal Aid Boards to provide the facility of lawyer's service in regard to
under-trial children. No report has yet been received from any Board as regards
action taken in this direction.
The State Boards will now furnish the
information also by August 31, 1986.
Certain other directions have been given
earlier by this Court. All such directions shall be complied with and returns
shall be furnished to this Court also by August 31, 1986. We hope and trust
that there would be strict compliance with these directions now made and there
would be no occasion for any further direction to be made for the self same
purpose. The writ application shall be placed for directions on September 8,
1986.
The petitioner, we must record, has
undertaken real social service in bringing this matter before the Court. She
has stated to us that she intends visiting different parts of the country with
a view to gathering further information relevant to the matter and verifying
the correctness of statements of facts made in the counter affidavits filed by
the respondent States. We are of the view that the petitioner should have
access to information and should be permitted to visit jails, children's homes,
remand homes, observation homes, Borstal schools and all institutions connected
with housing of delinquent or destitute children.
We would like to point out that this is not
an adversary litigation and the petitioner need not be looked upon as an
adversary. She has in fact volunteered to do what the State should have done.
We expect that each State would extend to her every assistance she needs during
her visit as aforesaid. We direct that the Union Government-respondent no.
1-shall deposit a sum of rupees ten thousand for the time being within two
weeks in the Registry of this Court which the petitioner can withdraw to meet
her expenses.
We would like to make it clear that the
information which the petitioner collects by visiting the children's
institutions in different States as indicated above is intended to be placed
before this Court and utilised in this case and not intended for publications
otherwise.
S.R.
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