Holding

The Supreme Court held that District Judges and High Courts must obey its directions, and that all States must immediately enforce the Children Acts, ensure jail‑manual protections for child prisoners, and provide legal aid as ordered.

Summary

The petitioner filed a writ under Article 32 seeking release of children under 16 detained in jails, full information on child inmates, and directions for legal aid and inspection of juvenile facilities. The Supreme Court ordered each District Judge, through the High Court, to inspect jails, report on child prisoners, and ensure compliance with jail manuals, while directing State Legal Aid Boards to provide duty counsel weekly. Several District Judges failed to submit the required reports, prompting the Court to reprimand both the judges and the High Courts for not enforcing its earlier directions. The Court also observed that many States had not brought their Children Acts into force and directed them to do so without delay, or file affidavits explaining the delay. Further, the Court mandated that District and Sessions Judges visit district jails at least once every two months to monitor the treatment of child inmates. The judgment set a final compliance deadline of 31 August 1986 for all reports, affidavits, and legal‑aid information, and ordered a sum to be deposited for the petitioner’s investigative expenses.

Issues considered

Whether District Judges are bound to comply with Supreme Court directions to inspect jails and submit reports on child prisoners.
Whether High Courts have a duty to ensure compliance of subordinate courts with Supreme Court orders.
Whether States must promptly bring into force their respective Children Acts and report on any delay.
Whether prison authorities must strictly adhere to jail manual safeguards for child inmates.
Whether State Legal Aid Boards must provide duty counsel for children below 16 years in criminal proceedings.

Subjects

Child prisonersJuvenile justiceArticle 32District Judge complianceHigh Court oversightChildren ActLegal aidJail manual

Judgment

A

SHEELA BARSE & ANR.
V,
UNION OF INDIA & ORS.
B
AUGUST 5, 1986

. [P.N. BHAGWATI, C.J. ANDRANGANATH MISRA, J.]

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.
c

Constitution of India, Art 39(f)-Legislation, enactment and en-
forcement of Children's Acts-Constitutional obligation of State-
States to enforce Children's Acts-District Judges to visit jails and see
that child prisoners are accorded the benefit of Jail Manual. D

Children Acts-Children-Legislation for benefit of-Enactment
and enforcement by States-Necessity of.

The petitioner filed the present petition under Article 32 of the
Constitution for release of children below the age of 16 years detained in E
j jails within different States of the country, production of complete in-
. formation 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 availabil-
ity of legal protection for children as and when they are involved in

r
I
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
F

for information from the Dis.trict Judges about the children below the
age of 16 years detained in yarious jails. However several District G
Judges did not comply with the direction within the time granted.

While showing concern and surprise that a direction given by the
apex Court bas not been properly carried out by the District Judges
who are an effective instrumentality in the hierarchy of the judicial
system, the Court, H
443
444 SUPREME COURT REPORTS [1986] 3 S.C.R.

A HELD: (1) Every defaulting District Judge who had not submit-
ted his report shall nnfailingly comply with the direction and furnish
the report by August 31, 1986 through his High Court, and the Re-
gistrar 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 endeavoured to ensure submission
B of the reports by the District Judges within the time indicated in the
order of this Court. [447G-H]

(2)(1) Though the Children's Acts are on the statute book, in
some States the Act has not beeu brought into force. This piece of
legislation is for the fulfilment of a constitutional obligation and is a
c beneficial statute. There is hardly any justification for not enforcing the
statnte. 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 &dministered in accord-
ance with the provisions contained therein. [448B-E]
D
(2)(11) 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]

E (3)(1) The safeguards which are provided in Jail Manuals preva-
lent in different States should be strictly complied with and the prison-
ers should have the full benefit of the provisions contained in the Man-
ual. It is also the obligation of the High Court to ensure that all persons
in judicial custody within its jurisdiction are assured of acceptable liv-
ing conditions. [448F; 449A]
F
(3)(11) Every District and Session Judge should visit the district
"
l! 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
G his High Court. [448G-H]
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 1451of1985
Under Article 32 of the Constitution of India.

H S.B. Bhasme, Harbans Lal, A.S. Bhasme, Badri Das Sharma,
S. BARSE v. U.0.1. [BHAGWATI, CJ.[ 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

BHAGWA TI, CJ. This application under Article 32 of the Con- B
stitution 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 exist-
ence 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 th_at children are properly looked after when in custody as also
for a direction to the State Legal Aid Boards to appoint duty counsel c
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.
D
On September 24, 1985, notice was directed to all the respon-
dents. A few of the respondent States filed counter affidavits in re-
sponse 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:
E
" .... It is an elementary requirement of any civilised soci-
ety and it had been so provided in various statutes concern-
ing children that children should not be confined to jail
because incarceration in jail has a dehumanising effect and

r 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
F

country."

This Court directed the District Judges in the country to nominate the G
Chief Judicial Magistrate or any other Judicial Magistrate to visit the
District Jail and Sub-Jail in their districts for the pruposes of ascertain-
ing 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
H
446 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 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
B
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
c 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
D facilities for education or vocational training exist. Such reports will be
submitted by each District Judge through the Registrars of the respec-
tive High Courts to the Registrar of this Court. Each State Govern-
ment 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
E homes. remand homes or observation homes. Vve would also direct the
State Lepl 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.
F
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 desir-
able to take it up when the Bench sits in vacation. We
G would direct that the matter may be placed for final dis-
posal 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 intima-
tion to this effect may be sent to the District Judges
through the Registrars of the High Courts. We may re-
H
S. BARSE v. U.0.1. [BHAGWATI, CJ.I 447

iterate that as soon as the reports are received copies A
thereof may be supplied to the Advocates during the vaca-
tion itself ..... "

The writ petition was thereafter listed on July 12, 1986, during the long
vacation for hearing. The Court found that though reports from sev-
B
eral 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 Magis-

- trates 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
c
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 D
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 E
intended that the report of the District Judges would be sent to the
Registry of this Court tbrough 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 F
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 G
that every defaulting District Judge who has not yet submitted his
report shall unfailingly comply with the direction and furnish the re-
port by August 31, 1986, through his High Court and the Registrar of
every High Court shall ensure that compliance with the present direc-
tion is made.
H
448 SUPREME COURT REPORTS [ 19861 3 S.C. R.

A Article 39(f) of the Constitution provides that the State shall
direct its policy towards securing that children are given opportunities
t-
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
B
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
~
c
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 s'?ciety, 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
D
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.
E
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
..,
F
having visitors is to ensure that the provisions in the Manual are
strictly complied with so far as the convicts and the under-trials prison-
ers detained in jail are concerned. Being in jail results in curtailment of
freedom. It is, therefore, necessary that the safeguards which are pro-
vided in the Manual should be strictly complied with and the prisoners
.
(

~
I
should have the full benefit of the provisions contained in the Manuol.
We direct that every District and Sessions Judge should visit the Dis-
trict Jail at least once in two months and in course of his visit he should
G take particular care about child prisoners, both co'lvicts 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 Administrntion 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 be looked into
H
S. BARSE v. U.0.1. [BHAGWATI, CJ.J 449

and effective action would be taken thereupon. It is hardly nece~sary 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 accept-
able living conditons.

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.
B
No report has yet been received from any Board as regards action
taken in this direction. The State Boards will now furnish the informa-
tion also by August 31, 1986.

-- Certai..1 other directions have been given earlier by this Court.
All such directions shall be complied with and returns shall be fu:-
nished to this Court also by August 31, 1986. We hope and trust that
c
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
self same purpose. The writ application shall be placed for directions on
September 8, 1986.
D
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 E

l have access to information and should be permitted to visit jails,
children's homes, remand homes, observation homes, borstal schools

J~
0

' 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 adversaty.
She has in fact volunteered to do what the State should have done. We F
expect that each State would extend to her every assistance she needs
during her visit as aforesaid. We direct that the Union Govemment-
respoildent 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.
G
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 publication otherwise.

S.R.