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PETITIONER:

SHEELA BARSE & ANR.

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT05/08/1986

BENCH:

BHAGWATI, P.N. (CJ)

BENCH:

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

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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 fulfilment 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]

JUDGMENT:

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.

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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.

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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

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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

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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.

450