Sheela Barse Vs. Secretary, Children
Aid Society & Ors [1986] INSC 279 (20 December 1986)
BHAGWATI, P.N. (CJ) 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 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]
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- 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);
(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 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 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 of Article 12 of the
Constitution. Having said that, I agree with the order proposed by the learned
Chief Justice.
M.L.A.
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