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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