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Rights of The Children Living in Observation Homes

sheela Barse v. Secretary childen’s Aid  Socirty, AIR 1987  SC 656: 1986 (2) Scale 1234: (1987) 3 SSC 50: (1987) 1 SCR 870

Facts:In a writ petition in the Bombay High Court, Sheela Barse, a freelance journalist and a Member of the Maharashtra State Legal Aid and Advice Committee, made grievance about the improper working of New Observation Home located at Mankhurd which is maintained and managed by the Children’s Aid Society, Bombay. According to her, the Children’s Aid Society, is registered under the Societies Registration Act, 1860, and has also been treated as a Public Trust under the Bombay Public Trusts Act of 1950. The Chief Minister of the State of Maharashtra 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 (‘the Act’). The Society runs three Observation Homes.

The Society appeared before the High Court and denied the allegations of facts raised in the writ petition. The High Court found some of the allegations to be without any justification and yet others were accepted. The High Court accordingly disposed of the writ petition with certain directions.

She then preferred an appeal to the Supreme Court by special leave challenging the judgment of the Bombay High Court delivered in the aforesaid writ petition filed by her on the ground that the High Court had failed to consider several of the contentions advanced by her at the hearing of the writ petition, namely, 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.

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 provisions of the Children’s Act as also the provisions in Articles 21 and 24 of the Constitution and the provisions contained in the Directive Principles of the State Policy. The appellant submitted that the Society should have been treated as a State and not as a voluntary organisation. According to the appellant, in view of the constitution and manning of the Society as also funding thereof, the Court should have appreciated the position that it was the protector of the helpless children living within its jurisdiction and such care and attention and provisions of amenities 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.
Issues:
(1) Whether Children’s Aid Society falls within the expression of “the State” within the meaning of Article 12 of the Constitution?
(2) Legal validity of employment of children in the Observation Homes without any remuneration?

Judgment: 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 International Charters having ratified the Declarations, it is an obligation on 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 performance 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 certainly 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 necessary bias and motivate them adequately to arise to the demand of every situation. That this is a difficult job but an intricate situation requiring delicate handling with full understanding of the problem would definitely require appropriate manning of the machinery. It is very much necessary, therefore, that officers at the different levels called upon to perform statutory duties by exercising powers conferred under the statute have to be given proper training and only when they had the requisite capacity in them should they be called upon to handle the situation.

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 human 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 psychology and a sense of keen observation on their good functioning would depend the efficacy of the scheme. In recent years, children and their problems have been receiving attention both of the government as also of the society but the problems are of such enormous 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.

In the present case, the contention advanced by the appellant that for employment in Children’s Home, the children would be given remuneration cannot be agreed upon. 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 self-confidence and picking of humane virtues.

However, for improving the conditions of the Homes 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’s Homes. 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.

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. The respondent-Society has, therefore, to regulate its activities 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. The State of Maharashtra is directed to take prompt action to strictly enforce the law, act up to the requirements of the constitutional obligations and proceed to implement the directions given by the High Court as also in this judgment. The State of Maharashtra is also directed to pay to the appellant costs fixed at `5000. It is also directed that the observations of the High Court criticising the appellant may be deleted.

Held: The Children’s Aid Society falls within the expression “the State” within the meaning of Article 12 of the Constitution.
The employment of children in the Observation Homes without remuneration is not illegal.

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