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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

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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-

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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);

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(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

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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

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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

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of Article 12 of the Constitution. Having said that, I agree

with the order proposed by the learned Chief Justice.

M.L.A.

879