Holding

The Children’s Aid Society is an instrumentality of the State under Article 12 and must operate its observation homes in compliance with Articles 21, 24 and the Directive Principles, without forcing children to work without remuneration.

Summary

Sheela Barse, a freelance journalist, filed a writ petition challenging the operation of observation homes run by the Children’s Aid Society, Bombay, alleging that children were forced to work without pay, faced hazardous conditions, and suffered delays in repatriation. The Bombay High Court issued directions to improve follow‑up, repatriation, and oversight. On appeal, the Supreme Court examined whether the Society is a State instrumentality under Article 12, whether children can be compelled to work without remuneration, and whether the High Court’s directions were adequate. The Court held that the Society is indeed an instrumentality of the State and must comply with Articles 21 and 24 and the Directive Principles, but rejected the contention that children should receive remuneration for work in the homes. It affirmed the High Court’s directions, ordered the Maharashtra government to enforce the law strictly, and awarded costs to the appellant.

Issues considered

Whether the Children’s Aid Society, Bombay, qualifies as a State within the meaning of Article 12 of the Constitution.
Whether children residing in observation homes can be compelled to work without remuneration.
Whether the Bombay High Court erred in its directions concerning repatriation, follow‑up action, and detention of children.
Whether the Society must adhere to constitutional provisions under Articles 21, 24 and the Directive Principles in operating observation homes.

Legislation cited

Bombay Children’s Act, 1948
Bombay Public Trusts Act, 1950
Constitution of Indias. Article 12, s. Article 21, s. Article 24
Societies Registration Act, 1860

Subjects

child welfareobservation homechild laborstate instrumentalityArticle 12Article 21Article 24Bombay Children Actpublic trustconstitutional lawjuvenile justice

Judgment

SHEELA BARSE
A v.
SECRETARY, CHILDREN AID SOCIETY & OTHERS

DECEMBER 20, 1986

B [P.N. BHAGWATI, CJ, AND R.S. PATHAK, J.)

Bombay Childern's Act, 1948: Children-Citizens of future era-
Frob/em 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.
c
Constitution of India, 1950, Articles 12, 21 & 24-Children's Aid
Society, Bombay undoubtedly an instrumentality of the State-
Necessity to act in a manner satisfying requirements of Articles 21 & 24
and Directive Principles of State Policy.
D
The respondent-a society registered under the Societies Regis-
tration Act, 111641 is also a Public Trust under the Bombay Pub6c Trusts
Act of 1950. It has set-up many Observation Homes under the provi-
sions of the Bombay Children's Act 1948.
J •
E The appellant, in a letter lo the High Court, made certain grie- -"I
vances about the working of the New Observation Home managed by
the respondent al Mankburd. 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 appellant filed
F the present appeal by special leave contending that the High Court
failed to consider (i) that children while staying in the Observation
Homes art forced to work withoot remuneration and are engaged in
hazardous employment; (ii) that the shortfall in fOUow up actloo in the
Observation Homes bas not been properly considered by the High
Court and the directions given by the High Court are inadequate; and
G (iii) that the Society should have been treated as a Stale and not as a
voluntary organisation withiu the meaning of Aris. 21 and 24 of the
Constitution.

Disposing of the appeal,

H HELD: I. I Children are the citizens of the future era. On the

870
SHEELA BARSE v. CHILDREN AID SOCIETY 871

proper bringing lip of the children and giving them the proper training io
turn out to be good citizens depends the future of the country. In recent A
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
-f may be able to have their rightful place in the society when they grow B
up. [87SD; 877C]
... 1.2 The Children's Act 1948 bas made elaborate provisions to
cover all the rights of the child and if these ,provisions are properly
translated into action and the authorities created llDder the Act become
cognizant of their role, duties and obligation in the performance of the
·~· statutory mechanism created llDder the Act and they are properly t
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 (Probatiiln) as als.. the Superinten•
dent of the Observation Home must be duly motivated, They must have D
the working knowledge in psychology and have a sense of keen observ;t•
lion. On their good functioning would depend the efficacy of the
scheme. [876C-D]

I .'4 The Juvenile Court has to be manned by a Judicial Officer
with some special traifiing. Creation of a court with tisual Judicial E
Officer and labelling it as Juvenile Court does not serve the. require•
ment of the statute. tr that were so, the statute has no necessity of
providing a Juvenile Court. The statutory scheme contemplates a judl•
r cial officer of a different type with a more sensitive approach-oriented
outlook. Without these any Jiidlcial Officer Would, indeed not be com-
petent to handle the special problem of children. [876G-H] F

i. Children in Observation Homes should ilot be made to stay
long and as along as they are there, they sbould be kept occupied and
the occupation should be congenial and intended to bring about adapta-
bility in life aimed at bringing about a self~nfidence and picking of
humane virtues. However, for employment in Children's home, the G
. 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 Clliirt. The
Society has, therefore, t9 regulate its activities not only in accordance H
872 SUPREME COURT REPORTS (1987] 1 S.C.R.

with the statutory requirements but also act in a manner satisfying the
A 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 tile direc-
tions given hy the High Court as also hy the Supreme Court in tliis
B judgment. [8770-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.
c
Govind Mukhoty, P.H. Parekh and Ms. L. Krishnamurthy for
the Appellant.

A.B. Rohatgi, S.B. Bhasme, R. Karanjawala, Mrs. Karanjawala
o and M.N. Shroff for the Respondents.
The following Judgments were delivered:

BHAGWATI, CJ. In this appeal by special leave the appellant -.I
who is a freelance journalist by profession and a Member of the
E Maharashtra State Legal Aid and Advice Committee, 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 working of the
New Observation Home located at Mankhurd which L maintained and
F managed by the Children's Aid Society, Bombay. According to her,
the Children's Aid Society, is registered under tlie Societies Registra-
tion Act 1860, and has also been treated as a Public Trust under the
Bombay Public Trusts Act of 1950. The Society was founded on !st
May, 1926. The Chief Minister of Maharashtra State is the ex-officio
President and the Minister for Social Welfare is the Vice-President of
G 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 refetTed to
as 'the Act'). The Society runs three observation homes-one at
Umerkhadi established in 1927, the second at Mankhurd established in
H 1960 and the third, the New Observation Home also at Mankhurd.
0

SHEELA BARSE v. CHILDREN AID SOCIETY [BHAGWATI, CJ.] 873

The appellant's letter of 22nd August, 1984 was treated as a writ peti-
tion by the High Court wherein the grievances made by the petitioner A
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 ordets for rep<1;triation were B
made by the Juvenile Court;

(2) Non-application of mind m the matter of taking
children into custody and directing production before
the Juvenile Court;

(3) Absence of proper follow-up action after admission of C
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 justifica-
tioo; and D

(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 E

- affidavits denying allegations of facts raised in the writ petition and
both parties produced documents. The High Court went into the mat-
ter at considerable length, found some of the allegations to be without
any justification and yet others were accepted. In paragraphs 44 and 45
of the impugned judgment, the High Court colated its directions and
recommended thus: .,
F
"(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 ord.er should specify that the police
should implement that order within a week. What G
-+ should be done by the poli"ce 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- H
•
874 SUPREME COURT REPORTS [1987] 1 S.C.R.

A nected with the Bombay Children Act should be
speedily considered (Paragraph 28);

(iii) The .Government should immediately review
the resolution dated 2nd September, 1965 issued by
the Education and Social Welfare Department, _..,.
B 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 volun-
teers and Government servants (latter part of
c 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
D 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 with- ~- '
in a maximum period of 48 hours and take steps to re-
E store 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, (I) children while staying in the
Observation Homes are forced to work without remuneration and are
engaged in hazardous employment. There were instances where Obser-
vation Homes assigned the work to private entrepreneurs with a view
G to making financial gains for the Society. In support of this circums-
tance, reliance was placed upon an affidavit on behalf of the respon-
dent filed in the High Court. The appellant 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 mak-
ing a profit of about Rupees four lakhs a year by engaging children into
H it to discharge various types of labour without making any payment to
SHEELA BARSE v. CHILDREN AID SOCIETY (BHAGWATI, CJ.] 875

them. According to the appellant, the shortfall in follow-up action has
not been properly considered by the High Court and the directions. A
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 provi·
sions in Articles 21 and 24 of the Constitution and the provisions con·
tained in the Directive Principles of the State Policy. It is the submis-
·+ sion of the appellant that Respondent No. 1 Society should have been B
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 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 judg- C
ment 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.
' the citizens of the future era. On the proper bring-
Children are 0
ing up of children and giving them the proper training to tum 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 appro- E
priately recognised. India as a party to these International Charters
having rectified the Declarations, it is an obligation of the Govern-
ment 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 F
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 o'rtainly be very much eased.

The problem is such that it does not brooke delay. There is no G
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. H
876 SUPREME COURT REPORTS [1987] 1 S.C.R.

A We appreciate 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. 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
B 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
C 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 ari
unwarranted place, there would not be the desired growth. Same is the
situation with the humane child. The Child Welfare Officer (Proba-
tion) as also the Superintendent of the Observation Home must be
duly motivated. They must have the working knowledge in psychology
D and have a sense of keen observation on their good functioning would
depend the efficacy of the scheme.

We are not inclined to agree with the contention advanced by the
appellant that for employment in children's home,. the children would
be given remuneration. Children in Observation Homes should not be
E 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 self-
cpnfidence and picking of humane virtues.

We are not inclined to agree with the superv1s10n over the
F 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 Officer with
G 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
H handle the special problem of children.
/

SHEELA BARSE v. CHILDREN AID SOCIETY [BHAGWATI, CJ.I 877
• Jr
In recent years, children and their problems have been receiving
attention both of the Government as also of the society but we must A'
say that 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 B
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 atten-
tion, 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 nega-
tive 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 c
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 D
undoubtedly an instrumentality of the State on the basis of the test laid
down by this Court. The respondent-Society has, therefore, to regu-
late its activities not- only in accordance with the statutory require-
ments but also act in a manner satisfying the requirements of the
Constitutional provisions in Articles 21 and 24 as·aJso the Directive
Principles of the State Policy. E

We would direct the State of Maharashtra to take prompt action
to strictly enforce the Jaw, act up to the requirements of the constitu-
tional 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. F

Before we part with this case, we may refer to a grievance made
by the appellant in regard to some of the observations made by the
High Court relating to her stand in the writ petition. The appellant
pointed out that these observations were disparaging and the High
Court ought not to have made the same. We may point out even at the G
cost of reiteration 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 Observa-
tion Home. The appellant brought the writ petition before the High
Court in larger public interest and for the purpose of securing im- H
878 SUPREME COURT REPORTS [1987] 1 S.C.R.

A plementation of the law. We do not think that the observation made by ~
the High Court against her were justified. In fact, the High Court
acceptetl 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,
B therefore, no need to make those observations. We would, therefore, -t.
direct that the observations criticising the appellant may be deleted.

I'ATHAK, J. On the basis of the earlier authorities of this Court
by which this Bench of two Judgei; must be bound, it appears that we _
1
must treat the Children's Aid Society as falling within the expression I
c "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.