Criminal Appeal No 300 of 1985
From the Judgment and Order dated 4285 of the Bombay High Court in Crl
Writ Petition No 487 of 1984
Govind Mukhoty PH Parekh and Ms L Krishnamurthy for the Appellant
AB Rohatgi SB Bhasme R Karanjawala Mrs Karanja wala and MN 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  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 iA 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 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 iThe 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 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 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 Rs5000
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 of Article 12 of the Constitution
Having said that I agree with the order proposed by the learned Chief Justice


Summary:
The respondent a society registered under the 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 articles 21 and 24 of the Constitution
Disposing of the appeal HELD 11 Children are the citizens of the future era
On the 871 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 12 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 13 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 14 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 article 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