# SHEELA BARSE v. UNION OF INDIA & ORS

- **Citation:** [1988] Supp. 2 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1988-08-29
- **Case number:** Criminal Misc. Petition No. 3128 of 1988
- **Bench:** Ranganath Misra, M.N. Yenkatachal!Ah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheela-barse-v-union-of-india-ors-10006
- **Pages:** 25

## Headnote

Constitution of IndJa, Art 32'._Public Interest Litigation-Withdrawal of Petition by petitioner-in-person not allowed-No litigant can
be permitted to impose any condition for his participation in the
proceedings-Petitioner may be allowed to withdraw himself from the
proceedings-Information relating to the case gathered by the petitioner
during pendency of the proceedings-Petitioner not entitled to use such
mformation after withdrawal/deletion of his name from
the
case.
A
B
c
Contempt of Courts Act, 197 I-Sec. 2(c)-Delay in final disposal
D
of public interest litigation-Criticism of-High lighting public accountability of courts-Whether contempt of court.
The p_etitioner had filed a Writ Petition (Criminal) No. 1451 of
1985 in· the Supreme Court praying that the respondents-States be
directed: (a) to release all children detained in the jails in the resE
pondent-States; (b) to furnish complete information respecting all
children detained in the States and the circumstances and the legal
facts of such detention and the number of available juvenile courts and
children homes; ( c) to appoint district judges of the districts to visit
.jails, sub-jails and lock~ups to identify and release children in such
illegal detention; (d) to requisition immediately necessary buildings and
F
provide infrastructure and make immediate interim arrangements for
'places of housing' of children facing trial before juvenile courts. The
petition also sought directions to the respective States, Legal Aid
Boards, District Legal Aid Committees through the appointment of
'duty-counsel' to ensure protection of the rights of the children etc.
The said petition was treated as a public interest litigation and in
regard to most of the areas covered by the aforesaid prayers, orders were
made from time to time oy this Court.
However, being dissatisfied with the progress of the case, the
G
petitiOner preferred a Misc. PethJon for leave to withdraw the main
H
-
~
.
I
643
644
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A
public interest litigation on the grounds: (I) that the Supreme Court has
become "dysfunctional" in relation to, and in the context of, the gravity of the violations of the rights of children and the urgenc)'. of the
requisite remedial steps and that though the proceedings were listed for
final disposal in the month of November, 1986 however, owing to unjustified adjournments obtained by the respondents and owing further,
B
to the functional deficiencies of the procedure of this court the proceedings have not yet been finally disposed of; (2) that the Court has not
been able to exact prompt compliance with its own orders and directions, issued from time to time, from the respondents; (3) that the
applicant is disabled from conducting proceedings with "dignity" as
certain happenings in Court had the effect of casting and tended to cast
a slur on her integrity and dignity: and (4) that the proceedings were
C
brought as a "voluntary action" and that applicant is entitled to sustain
her right to be the "petitioner-in-person" in a public interest litigation
and that the proceedings cannot be proceeded with after delinking her
from the proceedings.
D
Dismissing the criminal miscellaneous petition,
HELD: (I) The permission to' withdraw the main petition is
refused and it is directed that the applicant he deleted from the array of
parties in this proceeding. The proceedings shall now be proceeded with
a direction to the Supreme Court Legal Aid Committee to prosecute the
E petition together with the aid and assistance of such persons or agencies
as the Court may permit or direct from time to time. [667B-C]
l(ii) The order dated 5.8.1986 and 13.8.1986 forbidding the applicant from using the ihformation collected by her during her visits to
jails and other custodial institutions cannot be modified during the
IF
pendency of the proceedings as the information was gathered for
purposes of the case and pursuant to the directions of this Court. [6670]
G
2(i) The "r

## Text

_Characters 0–39,833 of 60,287. This is a partial read: ask again with offset=39833 for what follows._

SHEELA BARSE
v.
UNION OF INDIA & ORS.
AUGUST 29, 1988
.
[RANGANATH MISRA AND M.N. YENKATACHAL!AH, JJ.]
Constitution of IndJa, Art 32'._Public Interest Litigation-Withdrawal of Petition by petitioner-in-person not allowed-No litigant can
be permitted to impose any condition for his participation in the
proceedings-Petitioner may be allowed to withdraw himself from the
proceedings-Information relating to the case gathered by the petitioner
during pendency of the proceedings-Petitioner not entitled to use such
mformation after withdrawal/deletion of his name from
the
case.
A
B
c
Contempt of Courts Act, 197 I-Sec. 2(c)-Delay in final disposal
D
of public interest litigation-Criticism of-High lighting public accountability of courts-Whether contempt of court.
The p_etitioner had filed a Writ Petition (Criminal) No. 1451 of
1985 in· the Supreme Court praying that the respondents-States be
directed: (a) to release all children detained in the jails in the resE
pondent-States; (b) to furnish complete information respecting all
children detained in the States and the circumstances and the legal
facts of such detention and the number of available juvenile courts and
children homes; ( c) to appoint district judges of the districts to visit
.jails, sub-jails and lock~ups to identify and release children in such
illegal detention; (d) to requisition immediately necessary buildings and
F
provide infrastructure and make immediate interim arrangements for
'places of housing' of children facing trial before juvenile courts. The
petition also sought directions to the respective States, Legal Aid
Boards, District Legal Aid Committees through the appointment of
'duty-counsel' to ensure protection of the rights of the children etc.
The said petition was treated as a public interest litigation and in
regard to most of the areas covered by the aforesaid prayers, orders were
made from time to time oy this Court.
However, being dissatisfied with the progress of the case, the
G
petitiOner preferred a Misc. PethJon for leave to withdraw the main
H
-
~
.
I
643
644
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A
public interest litigation on the grounds: (I) that the Supreme Court has
become "dysfunctional" in relation to, and in the context of, the gravity of the violations of the rights of children and the urgenc)'. of the
requisite remedial steps and that though the proceedings were listed for
final disposal in the month of November, 1986 however, owing to unjustified adjournments obtained by the respondents and owing further,
B
to the functional deficiencies of the procedure of this court the proceedings have not yet been finally disposed of; (2) that the Court has not
been able to exact prompt compliance with its own orders and directions, issued from time to time, from the respondents; (3) that the
applicant is disabled from conducting proceedings with "dignity" as
certain happenings in Court had the effect of casting and tended to cast
a slur on her integrity and dignity: and (4) that the proceedings were
C
brought as a "voluntary action" and that applicant is entitled to sustain
her right to be the "petitioner-in-person" in a public interest litigation
and that the proceedings cannot be proceeded with after delinking her
from the proceedings.
D
Dismissing the criminal miscellaneous petition,
HELD: (I) The permission to' withdraw the main petition is
refused and it is directed that the applicant he deleted from the array of
parties in this proceeding. The proceedings shall now be proceeded with
a direction to the Supreme Court Legal Aid Committee to prosecute the
E petition together with the aid and assistance of such persons or agencies
as the Court may permit or direct from time to time. [667B-C]
l(ii) The order dated 5.8.1986 and 13.8.1986 forbidding the applicant from using the ihformation collected by her during her visits to
jails and other custodial institutions cannot be modified during the
IF
pendency of the proceedings as the information was gathered for
purposes of the case and pursuant to the directions of this Court. [6670]
G
2(i) The "rights" of those who bring the action on behalf of the
others must necessarily be subordinate to the ''interests'' of those for
whose benefit the action is brought. [652C]
2(ii) In a public interest litigation, unlike traditional disputeresolution-mechanism, there is no determination or adjudication of individ!lal rights. While in the ordinary conventional adjudications the
party-structure is merely bi-polar and the controversy pertains to the
determination of the legal-consequences of past events and the remedy
H
is essentially linked to and limited hy the logic of the array of the
SHEELA BARSE v. U.0.1.
645
parties, in a public interest action the proceedings cut across and transcend these traditional forms and inhibitions. The compulsions for the
judicial innovation of the technique of a public interest action is the
constitutional promise of a social and economic transformation to
usher-in an egalitarian social-order and a welfare-State; Effective solutions bi'the problems peculiar to this transformation are not available in
the traditional-judicial-system. The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public
interest by prevention of violation of the rights, constitutional or statut- ·
ory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert-and
quite often not even aware of-those rights. The technique of public
interest litigation serves to provide an effective remedy to enforce these
group-rights and interests. In order that these public causes are
brought before the courts, the procedural techniques judicially
innovated specially for the public interest action recognises the concomitant need to lower the locus-standi-thresholds so as to enable
public-minded citizens or social-action-groups to act as conduits bet·
ween these classes of persons of inherence and the forum for the assertion and enforcement of their rights. The dispute is not comparable to
one between private-parties with the result there is no recognition of the
status of a.Dominus-Litis for any individual or group of individuals to
determine the course of destination of the proceedings, except to the
extent recognised and permitted by the court. [65 IE-H; 652A-C]
2(iii) What corresponds to the stage of final disposal in an ordinary litigation is only a stage in the proceedings. There is no formal,
declared termination of the proceedings. The lowering of locus-standi·
threshold does not involve the recognition or creation of any vestedrights on the part of those who initiate tile proceedings, analogus to
A
B
c
0
E
Dominus-Litis. [652H; 653A]
F
3; Unduly harsh and coercive measures against the states and the
authorities might themselves become counter-productive. In the matter
of affirmative-action the willing cooperation of the authorities must, as
far as possible, be explored. If the proceedings are allowed to be
diverted at every stage into puniti~e-proceedings for non-compliance,
G
the main concern and purposes of the proceedings might tend to be
over-shadowed by its incidental ramifications. The coercive action
would, of course, have to be initiated if persuasion fails. [660C-D]
In the instant case, the Court's orders dated 15.4.86, 12. 7.86,
5.8.86, I3.8.86 and 21.11.86, show that certain important and farH
646
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
A reaching actions were Initiated and appropriate directions were is.§ned to
the States and authorities concerned. The first ground, therefore, does
not justify the withdrawal of this public interest litigation. If the Court
acknowledges any such status of a Dominus-Litis to a person who brings
a public interest litigation, it will render the proceedings in public
interest litigations vulnerable to and susceptible of a new dimension
B
which might, in conceivable cases, be us_ed by persons for personal-ends
resulting in prejudice to the public-weal. [653F-G; 662H; 6b3A-B1
4(i) The concept of public accountability of the judicial system is,
indeed, a matter of vital public-concern for debate and evaluation at a
different plane. But, for that reason courts of law, in their actual dayto-day judicial work, cannot allow the incantations and professions of
G:
these principles to enable parties to judicial-adjudications to constitute
themselves the overseers of the judicial performance and accountability
in the individual-case in which they are immediately concerned and
permit temselves comments and criticism of the judicial-work in the
particular case. [66IF, G-H; 662AJ
ID
4(ii) While comments and criticisms of judicial-functioning, on
matters of principle, are healthy aids for introspection and improvement, the criticism of the functioning of the Court in the course of and
in relation to a particular proc~eding by the parties to it borders on a
conduct intended or tending to impair the dignity, authority and the
IE:
functional-disposition of the court. It is, therefore, thought important
to maintain respect and digl)ity of the courts and its officers whose task
is to uphold and enforce the law because without such respect, public
faith in the administration of justice would be undermined and the law
itself would fall into disrespect. l662B-C]
F
4(iii) This is not to deny the broader right to criticise the systemic
inadequacies in the larger public interest. It is the privileged right of the
Indian citizen to believe what he considers to be true and to speak-out
his mind, though not, perhaps, always with the best of testes; and speak
perhaps, with greater courage then care for exactitude. Judiciary is not
exempt from such criticism. Judicial institutions are, and should be
G
made, of stronger stuff intended to endure and thrive even in such
hardy climate. [662F-G]
H
In the instant case, there is no justification to the resort to this
freedom and privilege to criticise the proceedings during their pendency .
by persons who are parties and participants therein. [662G-H]
SHEELA BARSE v. U.0.1.
647
S(i) Even the humblest citizen or the land, irrespective of his station in life, is entitled to present his case with dignity and is entitled to
be heard with courtesy and sympathy, Courts are meant for, and are
sustained by, the people and no litigant can be allowed to be looked
upon as a supplicant or an importuner. [663C-D]
·
A
S(ii) The parties who seek justice at the hands of the court are
B
nejther its subordinates or subsidiaries. But the notion of an equal
participation, in its practical applications, presents difficulties and can·
not be stretched to the point where the court could share the responsibility, and the powers that go with it, of regulating the proceedings of
the court with any of the parties before it. In the existing system, the
parties who seek recourse to courts have to submit themselves to the
jurisdiction and discipline of the court. Their conduct, in relation to the C
proceediQgs, is liable to be regulated by the court. This is not a matter
of expression or assertion of any superiority but is merely a necessity
and a functional-imperative. [666B-C]
In the instant case, keeping in view the facts and circumstances of D
the case, the second ground of withdrawal is wholly insubstantial and
proceeds on what appear to be certain subjective susceptibilities of the
applicant which, to the extent they are irreconcilable with the discipline of the court, cannot be countenanced. [666D]
6(i) The contention; that applicant is entitled to sustain her right E
to be the "petitioner-in-person" in a public interest litigation and that
the proceedings cannot be proceeded with after de-linking her from the
proceedings cannot be accepted. Any recognition of any such vested
right in the persons who initiate such proceedings is to introduce a new
and potentially harmful element in the judicial administration of this
form of public law remedy. That apart, what is implicit in the assertion p
of the applicant is the appropriation to herself of the right and wisdom
to determine the course the proceedings are to or should take and its
pattern. This cannot be recognised. [666E-G]
6(ii) No litigant can be permitted to stipulate conditions with the
court for the continuance of his or her.participation. [667A]
G
7. The initiation of a public interest litigation o_r proceedings for
issue of a writ of Habeas Corpus on the basis of letters reflects and
symbolises the Court's anxiety to relax the rigour of formal pleadings.
However, ;n proceedings which are already initiated and are pending it
would he inappropriate for a party to the proceedings to address letters · H
648
SUPREME COURT REPORTS
(1988] Supp. 2 S.C.R.
A · directly to the Judges. What is sought to be brought to the notice of the
Court should, as far as possible, be filed io the Registry for being placed
before the appropriate bench or submitted in the open court. There
might be extra-ordinary circumstances when a party is compelled ·to
resort to the expedience of a letter or a telegram. Even in such a case, it
would be appropriate to . address them to the Registry to be placed.
B
before the appropriate bench. The difficulties arising out of such directcommunications are too Obviom to require any elaborate dticUssiou. 1664E-GJ
c
ORIGINAL JURISDICTION: Criminal Misc. Petition No.
3128 of 1988.
IN
Writ Petition (Criminal) No. 1451of1985.
I
(Under Article 32 of the Constitution of India.)
0
Petitioner-in,person.
P.A. Chaudhary, S.B. Bhasme, V.C. Mahajan, Tapash Ray,
Swaraj Kausal, Probir Choudhary, K. Ram Kumar, K. Ram Mohan,
K.R. Nambiar, A.S. Bhasme, C.V.S. Rao, Girish Chandra, Kailash
Vasdev, J.R. Dass, D.K. Sinha, A.V. Rangam, T.V. Ratna, A. Subba
E
Rao, Ranjan Mukherji, D.N. Mukherfee, R.S. Sodhi, T. Sharma, M.
Veerappa, A.S. Nambiar, P.K. Manohar, Mrs. ·H. Wahi, Dalveer
Bhandari, Mahabir Singh, P.R. Ramasesh, A.K. Sanghi, Ms. Kamini
Jaiswal, D.K. Sinha, J.R. Das, Ms. A. Subhashini, R.B. Misra, S.K.
Bhattarcharya, Mrs. Urmila Kapoor, and Ms. S. Janani for the
Respondents.
The Order of the Court was delivered by
VENKATACHALIAH, J. This Miscellaneous Petition for leave
to withdraw the main public interest litigation is filed under circumstances which can only be characterised as somewhat unfortunate. The
G
main petition is brought to highlight the gross violations of the 9onstitutional and statutory rights of a large number of children in the
country who are suffering custodial restraints in various parts of the
country and for the protection and enforcement of their rights.
Jt mignt clear some possible misconceptions if it is clarified what
H
this order is tiot abouL Th~applicant is not, by the force of this order, .
SHEELA BARSE v. U.0.1. (VENKATACHALIAH, J.]
649
denied the right or the opportunity of instituting any public interest
A
litigation nor is the right of a public-minded citizen to bring an action
for the enforcement of fundamental rights of a disabled segment of the
citizenry disputed. The question agitated relates, on the contrary, to
the aspect whether a public-minded person who brings such an action
is entitled, as of right, to withdraw the proceedings from the court.
Applieantasserts that this Court cannot refuse leave for withdrawal.
B
The proceedings, it is contended, are the result of a "voluntary action
of a citizen" and that, as a corollary, the proceedings cannot be continued except with applicant's participation. The applicant relies on
what she calls "a citizen's right to be a petitioner-in-person in a public
interest litigation". As stemming from this premise, appl.icant
contends that not only that leave for withdrawal cannot be refused but C
also that the main petition cannot be continued by any other citizen or
organisation.
2. No elaborate arguments are, indeed, necessary to decide a
question such as this; but out of deference to the applicant's submission tlfat the -propositions she propounds in this behalf be considered D
b:y the court, we proceed to do so.
3. Applicant, on certain perceptions and assessment of her own,
both as to the effectiveness and utility of the continuance of the proceedings as well as the manner of their conduct in and by this court,
which according to her, has not been conducive either to their efficacy
E
or to her participation iherein with "dignity" seeks leave to withdraw
the main petition itself. Figuratively, this is a 'walk-out' of the court.
The prayer, if granted, would frustrate.the important issues the main
petition has served to high"light.in the matter of the status and enforcement of the laws e.nacted for the ·protection "llnd welfare of the children
in the country. The proceedings espouse the cause of a large number of F
suffering children who, on account of the traditional inertia against
reform, t.he bureaucratic and official apathy, insensitivity to and lack
of human consideration for the lot of the suffering children and the
lack of proper perceptions of the values and idealogy of the legislation
concerning children even on the part of law enforcing agencies, are
being denied the protection of their constitutional and statutory rights.
G
4. It is not necessary to go into all the averments in the present
application. The board reasons on which the applicant has persuaded
herself to make this somewhat extraordinary request are recognisable
in three areas:
H
A
B
c
I)
F
G
I-l
650
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
The first is that this court has become "dysfunctional" in relation
to, and in the context of, the gravity of the violations of the rights of
children and the urgency of the requisite remedial steps and that
though the proceedings were listed for final disposal in the month of
·November, 1986, however, owing to unjustified adjournments
obtained by the respondents and owing further, to the functional
deficiencies of the procedure of this court the proceedings have not yet
been finally disposed of. It is also averred that the court has not been
able to exact prompt complainance with its own orders and directions,
issued from time to time, frem-the respondents.
The second area is that the applicant is disabled from conductive
proceedings with "dignity" as certain happenings in court had the
effect of casting and tended to cast a slur on her integrity and dignity.
The third-this pertains to the claim that no body else can go on
with this litigation-is that the proceedings were initiated as a result of
the voluntary action on the part of a citizen and that that citizen is
entitled to withdraw them. The applicant claims that she as representing "other conscientious citizens, social workers and activists is duty
bound to sustain the citizen's right to be petitioners-in-person" and
that, therefore, the petition cannot be continued against the wishes
and without the participation of the applicant.
5. The applicant's stand on these points are put across, according to the· learned counsel for respondents, in over assertive tone of
great severity but of questionable propriety. But we should not allow
_ourselves to be influenced by this. The applicant's references- to the
manner of conduct of the proceedings are certainly unflattering-to· the
Court. But the cgncern of this Court for and its achievements in the
field of public interest litigation are open to the public-assessment; and
the assessments even of those immersed in an individual experience
and where objectivity might, episodically, be clouded should also
serve some purpose-of introspection. Though the language employed
in relation to the Court is not conspicuous for its moderation, we may
yet examine objectively the justifiability, if any, for such strong expressions of remonstrance.
6. In regard to the first area, applicant's grievance' had better be
set out from her own application:
"The petitioner submits that . with such an overwhelming confirmation and reconfirmation of the fact of
SHEELA BARSE v. U.0.1. [VENKATACHALIAH, J.)
651
imprisonment of children by the State, the GOI, hundreds
of DJs as also the reaffirmation of Hussainara Khatoon in
one of the orders ih this petition by this Court, were sound
grounds for delivering final judgment in this case in
November, 1986."
"The then Chief justice of India who was presiding
Judge of the Bench ..... fixed· 9.12.1986 as the date for
delivering final judgment, and 2.12.1986 for confirming
that date."
"The petitioner states that she obeyed the Court's
order and arranged the Court's hundreds of files. But the
CJ absented himself from the Court for 3 days to attend an
International Judges' meet he had initiated and convened."
"The petitioner states that on 13.12.1986, an hour
and ·half after opening of the Court, the then CJ informed
the petitioner that he would not be in Court that afternoon
hence there can be no final hearing as scheduled. The
petitioner understands that the CJ had to inaugurate some
chambers and the date had been fixed in advance."
The grievance is that the final disposal of the main petition was
not expeditiously done. In a public interest litigation, unlike traditional
dispute-resolution-mechanism, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party-structure is merely bi-polar and the controversy pertains to the determination of the legal-consequences of p~st events and
the remedy is essentially linked to and limited by the logic of the array
of the parties, in a public interest action the proceedings cut across and
transcend these tradiiional forms and inhibitions. The compulsions for
the judicial innovation of the technique of a public interest action is
the constitutional promise of a social and economic transformation to
usher-in an egalitarian social-order and a welfare-State. Effective solutions to the problems peculiar to this transformation are not available
in the traditional-judicial-system. The proceedings in a public interest
litigation are, therefore, intended to vindicate and effectuate the
public interest by prevention of violation of the rights, constitutional
or statutory, of sizeable segments of the society, which owing to
poverty, ignorance, social and economic disadvantages cannot themselves assert-and quite often not even aware of-those rights. The
technique of public interest litigation serves to provide an effective
A
B
c
D
E
F
G
H
652
SUPREME COURT REPORTS
[ 1988] Supp. 2 S.C.R.
A
remedy to enforce these group-rights and interests. In order that these
public-causes are brought before the Courts, the procedural techniques judicially innovated specially for the of public interest action
recognises the concomitant need to lower the Locus-standi-thresholds
so as to enable public-minded citizens or social-action-groups to act as
B
c
conduits between these classes of persons of inherence and the forum
for the assertion and enforcement of their rights. The dispute is not
comparable to one between private-parties with the result there is no
recognition of the status of a Dominus-Litis for any individual or group
of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The
"rights" of those who bring the action on behalf of the others must
necessarily by subordinate to the "interests" of those for whose benefit
the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of governmental-action
in relation to the constitutional or statutory rights of segments of
society and in certain circumstances the conduct of governmentalpolicies. Necessarily, both the party structure and the matters in con0
troversy are sprawling and amorphous, to be defined and adjusted or
re-ad justed as the case may be, ad-hoc, according as the exigencies of
the emerging situations. The proceedings do not partake of predetermined private law litigation models but are exo_geneously
determined by variations of the theme.
i::
Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is.
The pattern of relief need not necessarily be derived logically from the
rights asserted or found. More importantly, the court is not merely a
passive, disinterested umpire or onlooker, but has a more dynamic and
positive role with the responsibility for the organisation of the proF
ceedings, moulding of the relief and-this is important-also supervising the implementation thereof. The Court is entitled to, and often
does seek the assistance of expert-panels, Commissioners, Advisorycommittees, Amici etc. This wide range of the responsibilities necessarily implies correspondingly higher measure of control over the
parties, the subject-matter and the procedure. Indeed as the relief is
G
positive and implies affirmative-action the decision are not "one-shot"
determinations but have on-going implications. Remedy is both
imposed, negotiated or quasi-negotiated.
Therefore, what corresponds to the stage of final disposal in an
ordinary litigation is only a stage in the proceedings. There is no forH
ma!, declared termination of the proceedings. The lowering of locus-
SHEELA BARSE v. U.0.1. [VENKATACHALIAH, J.]
653
standi-threshold does not involve the recognition or creation of any
vested~rights on the part of those who initiate the proceedings, analoglis to Dominus-Litis.
7. The theme, implicit in the applicants hyper-articulated grievance, is that this Court has not shown adequate-concern for justice in
this case. Is this justified? The record of the proceedings show that
even by November, 1986, directions of far-reaching effect had been
issued and very significant exercises had been initiated. The grievance,
in the ultimate analysis, is really in the area of non-compliance by the
several States and its authorities with the orders and directions issued
by the Court from time to time in the proceedings.
In order to appreciate the position, perhaps, it would be relevant
to refer to the prayers made in the main petition and the orders passed
from time to time even prior to a month of November, 1986. The
prayer in the m'ain petition was that this Court should pass order directing the Respondent-States: (a) to release all children detained in the
'jails in the respondent States; (b) to furnish complete information
respecting alJ children detained in the States and the circumstances and
the legal facts of such detention and the number of available juvenile
courts and children homes; ( c) to appoint district judges of the districts
to visit jails, sub-jails and lock-ups to identify and release children in
such illegal detention; (d) to requisition immediately necessary buildings and provide infrastructure and make immediate interim arrangements for "places of housing" of children facing trial before juvenile
courts. The petition also seeks directions to the respective States,
Legal Aid Boards, District Legal Aid Committees through the
appointment of 'duty-counsel' to ensure protection of the rights.of the
chiJdren etc.
A
B
c
D
E
F
8. In regard to most of the areas covered by these prayers,
orders were made from time to time by this Court. The Court's orders
dated 15.4.1986, 12.7.1986, 5~8.1986, 13.8.1986, 21.11.1986, show that
certain important and far-reaching actions were initiated and
appropriate directions were issued to the States and authorities concerned. The following are some of the excerpts of the orders made by
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this Court:
"This Writ Petition discloses a disturbing state of affairs with regard to children below the age of 15 years in
jail. It is an elementary requirement of any civilised society
and it has been so provided in various statutes concerning
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children that children should not be confined in jail
because incarceration in jail has a dehumanising effect and
it is harmful to the growth and development of children
"
" ...... We would, therefore, direct 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 his District for the purpose 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 detentionWhether in the same jail or previously 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.
Each district Judge will give utmost priority to this
direction ...... "
" .... We would also direct the State Legal Aid & Advise
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 jails. If there are any other
persons confined in jails who are there merely because they
are suffering from some handicap (physical or otherwise)
they should be released immediately and placed in
appropriate home or place where they can receive suitable
medical assistance or other educational training."
[Vide order dated 15.4.1986]
"Meanwhile, there are a few matters which need our
urgent directions. It seems that there are a number of
children who are mentally or physically handicapped and
there are also children who are abandoned or destitute and
who have no one of take care of them. They are lodged in
various jails in different states ..... "
" .... The State Governments must take care of these men-
SHEELA BARSE v. U.0.I. IVENKATAO!AL!AH, J.]
655
tally or physically handicapped children ap.d remove them A
to. a Home where they can be properly looked after and so
far as the·mentally handicapped children. are concerned,
they can be given proper medical treatment and physically
handicapped children may be given not only medical treat,
ment but also vocational training to enable them to earn
their livelihood. Those children who are abandoned or lost
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and are presently kept in jails must also be removed by the
State Governments to appropriate places where they can
be looked after and rehabilitated .... "
" .... We would also ask the Director Generai, All India
Radio and the Director General, Doordarshan to give
publicity requesting non-governmental social service
organisations to offer their services for the purpose of
accepting these children with a view to taking care of them
and providing for their rehabilitation in accordance with a
hand-out to be sent by the Registrar of this Court."
"There are two girls in the Julp,aiguri District Jail who have
been kept in that jail in "safe custody" One of them is
Parbati Dass, aged 8, who has been det,ained in jail since
12.11.84 and the other is Sabita Sah, aged 10, who has been
detained in jail since 20.8.85 .... "
" .... We would accordingly direct that Parbati Dass and
Sabita Shah should be transferred immediately to the
Home in Raiketpara as recommended by the District Judge,
Jalpaiguri."
[Vide ord~r dated 12.7.1986]
"This Court directed the District Judges in the country to
nominate the Chief Judicial Magistrate or any other Judic
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cial Magistrate to visit the District Jail and Sub-Jail in their
districts for the purpos~ of ascertaining how many children
below the age of 16 years are confined in jail, what are the
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offences in respect of which they are charged, how many of
them have been in detention-whether in the same jail or
previously 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
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Court also directed that
each District Judge will give
utmost priority to this direction and the Superintendent of
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 .... "
"Six further weeks have passed beyond the time indicated
in 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
reports 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.''
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SHEELA BARSE v. U.0.1. [VENKATACHALIAH. J.]
657
" .. , . 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
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she needs during 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
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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
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case and not intended for publication otherwise."
[Vide order dated 5th August, 1986]
"If a child is a national asset, it is the duty of the State to
look after the child with a view to ensuring full developE
ment of its personality. That is why all statutes dealing with
children provide that a child shall not be kept in jail. Even
apart from this statutory prescription, it is elementary that
a jail is hardly a place where a child should be kept. There
can be no doubt that incarceration in jail would have the
effect of dwarfing the development of the child, exposing
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him to beneful influences, coarsening his conscience and
alienating him from the society. It is a matter of regret that
despite statutory provisions and frequent exhortations by
social scientists, there are still a large number of children in
different jails in the country as is now evident from the
reports of the survey made by the District Judges pursuant G
to our order dated 15th April, 1986. Even where children
are accused of offences, they must not be kpet in jails. It is
no answer on the part of the State to say that it has not got
enough number of remand homes or observation homes or
other places whj:re children can be kept and that is why
they are lodged in jails. It is also no answer on the part of H
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the State to urge that the ward in the jail where the children
are kept is separate from the ward in which the other prisoners are detained. It is the atmosphere of the jail which
has a highly injurious effect on the mind of the child,
estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him
in jail. We would therefore like once again to impress upon
the State Governments that they must set up necessary
remand homes and observation homes where children
accused of an offence can be lodged pending investigation
and trial. On no account should the children be kept in jail
and if a State Government has not got sufficient accommodation in its remand homes or observation homes, the
children should be released on bail instead of being subjected to incarceration in jail."
" .... It is absolutely essential, and this is something which
we wish to impress upon the State Governments with all
the earnestness ·at our command, that they must set up
Juvenile Courts, one in each district, and there must be a
special cadre of Magistrates who must be suitably trained
for dealing with cases against children. They may also do
other criminal work, if the work of the Juvenile Court is
not sufficient to engage them fully, but they must have
proper and adequate training for dealing with cases against
juveniles, because these cases require a different type of
procedure and qualitatively a different kind of approach."
"We would also direct that where a complaint is filed or
first information report is lodged against a chiid below the
age of 16 years for an offence punishable with imprisonment of not more tban 7 years, the investigation shall be
completed within a period of three months from the date of
filing of the complaint or lodging of the First Information
Report and if the investigation is not completed within this
time, the case against the child must be treated as closed. If
within three months, the chargesheet is filed against the
child in case of an offence punishable with imprisonment of
not more than 7 years, the case must be tried and disposed
SHEELA BARSE v. U.0.1. [VENKATACHALIAH, J.]
659
of Within a further period of 6 months at the outside and A
this period should be inclusive of the time taken up in
committal proceedings, if any ..... "
" .... We would direct every State Government to give
.effect to this principle or norm laid down by us in so far as
any future cases are concerned, but so far as concerns B
pending cases relating to offences punishable with impri- ·
sonment of not more than 7 years, we would direct every
State Government to complete the investigation within a
period of 3 months from today if the investigation has not
already .resulted in filillg of chargesheet and if a chargesheet has been filed, the trial shall be completed within a C
period of 6 months from today and if it is not, the prosecution shall be quashed."
[Vide order dated 13th August, 1986]
"In regard to Sub-Jails, no reports have been received in
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respect of such jails of 14 districts of Maharashtra. Though
this matter was listed on 14.11.1986 for final disposal, an
adjournment became imperative in view of the failure of
compliance with the directions in the manner indicated
above and the matter is adjourned till 2.12.1986.