12 March 2020 12:06 PM GMT
Sheela Barse is a veteran activist and journalist, and is often credited with introducing the concept of child rights in India. She played a major role in enactment of a uniform Juvenile Justice law in the 1980s, and led several public interest litigation cases before the Supreme Court of India. She has also been instrumental in framing policies against human trafficking, child sexual...
Sheela Barse is a veteran activist and journalist, and is often credited with introducing the concept of child rights in India. She played a major role in enactment of a uniform Juvenile Justice law in the 1980s, and led several public interest litigation cases before the Supreme Court of India. She has also been instrumental in framing policies against human trafficking, child sexual abuse, and child labour. Sheela Barse speaks about her life with JGLS Faculty Anurag Bhaskar (for Live Law).
Anurag : Ms. Barse, you have spent around five decades of your life fighting for several human rights and child rights issues through your journalism, field activism, successive public interest litigation cases, advocacy and policy framing. What made you step "into the arena of public expression and action"? Did any particular moment decide the course of your life?
Sheela: The reality that one saw ... it contradicted the heritage literature. The society has been unequal, and we need to keep making efforts to make it egalitarian. We need to speak for the downtrodden sections of society. Our children are the most vulnerable segment of society. We need to respect their dignity. We need to make a better future for them.
Anurag : During my undergraduate legal education, I had read numerous cases filed by you before the Supreme Court and High Courts. You took up the cause of child victims of flesh trade, the rights of children in custodial institutions, children in police lock-ups, tribal children's undernutrition and deaths, women prisoners being abused in imprisonment, mental health of prisoners, etc. While working as a journalist, how did you manage court litigation ? Were you supported by a team ?
Sheela: I worked absolutely solo. At that time, challenging power was generally not a goal of young people and certainly discouraged by their parents... I used to work as a freelancer to finance the cases which I filed before the courts.
Anurag : In a number of cases, the investigation was done by yourself. The work done by you led the Supreme Court to rule in favor of providing free legal aid to under-trial prisoners, identification and release of children detained in jails, and to look into improper working of the Observation Home at Mumbai managed by the Children's Aid Society, etc. How did your investigative journalism complement the work that you did in courts? Can you describe some incidents for the readers?
Anurag : How did you manage collecting information when there was no internet or the right to information law?
Anurag : In response to a petition filed by you (Sheela Barse vs. Union of India, (1986) 2 SCALE 230), the Supreme Court suggested to the Union Government to enact juvenile legislation uniformly applicable throughout the country, replacing the existing practice of each state having its own Children Act. Were there any differences between what you were advocating and the enacted Juvenile Justice Act 1986 ?
Sheela: I had filed a petition seeking 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 existence of juvenile courts homes and schools, etc. There was no uniformity in the law governing children. Different states had different set of laws and procedures. A child free under Children Act of a state may have been imprisoned under the Children Act of another state. I therefore mentioned it verbally in my petition before Chief Justice Bhagwati that Prime Minister Rajiv Gandhi had agreed on principle regarding the enactment of a uniform law dealing with children. Chief Justice Bhagwati noted it as a suggestion in his order. However, it was difficult to convince the government. But, I made my best efforts. I procured, from different libraries in Mumbai and of the Supreme Court, the copies of 21 Children Acts in force in different states. I tabulated the differences in those Acts and prepared analytical chart. Though photocopying had arrived at that time, but it was too expensive, so I cut a stencil for cyclostyle and made copies of my analytical chart for submitting to a number of people. When I submitted it to Justice DA Desai (then Chairman of the Law Commission of India), he endorsed it verbally and pointed out that the Government of India needs to make an official reference to him. But, then Law Minister Hansraj Bharadwaj opposed me. He was of the view that that the subject matter of such a legislation fell in the State List of the Constitution. But, in an earlier meeting with the Prime Minister Rajiv Gandhi, I had questioned about India's image on international forums, if the country continued to keep its children in jails. I pushed for a non-custodial system, to which Rajiv Gandhi agreed. Juvenile Justice Act 1986 was enacted, but the Act failed to keep children in non-custodial homes in the true way of a home.
[Anurag's note : Prof. Ved Kumari has narrated in her article "Juvenile Justice Bill 2014 – A Regressive Step" (2014), "... when the official statistics showed that there were still 1400 children in various prisons in India in 1983, Sheela Barse filed a public interest legislation. The Supreme Court recognized that differential provisions contained in various Children Acts in force in different states resulted in discrimination against children and it suggested that Parliament should enact a uniform legislation. It also directed release of all children from prisons". Thereafter, the Parliament enacted the Juvenile Justice Act 1986 by exercising its power to make law for the whole of India to fulfill international obligations. Later, the Act of 1986 was replaced by Justice Justice Act 2000 "bearing in mind the standards prescribed in the Convention on the Rights of the Child". Currently, Justice Justice Act 2015 is in force.]
Anurag : What are your views on the current version of the Juvenile Justice law (Act of 2015)?
Sheela: Many prejudices against juveniles continue. Unfortunately, class bias has been the core of our juvenile justice system. All juveniles must be kept out of jails.
Sheela: I absolutely object to the word 'pedophilia'. It is child sexual abuse. I investigated everything : post office records, bank records, traced boys who had left him, and even bought law book for the prosecutor. I had devised the procedure for deposition by child victims of sexual abuse.
Anurag : Having worked against child sexual abuse for decades together, do you think India's amended POCSO Act (which now provides for death penalty for anyone convicted of raping children under the age of 12) is a suitable answer to the menace of child sexual abuse? If not, what do you think is an appropriate response?
Anurag : As mentioned before, you took up the cause of persons suffering from mental disorders locked in prisons. The Mental Health Care Act 2017 is a welcome move which recognizes the rights of the persons suffering from mental disorders. However, the stigma or lack of awareness regarding mental health still prevails in our society. How do you think the Government can address that?
Sheela: The whole issue of mental health issues has not been explored properly by the medical professionals themselves. The terminology is not clear for medical states like depression and dementia. It is the responsibility of mental health professionals to inform people, create an environment, and push the government in this regard.
Sheela: Female children face different living conditions. Due to cultural backwards, they are forced to have a subjugated life since their birth. Therefore, we need extra efforts to undo the damage done to their lives. This was the idea behind pushing for separate programmes for them. Separate policies for their education have been helpful. We need to focus more on them, especially on dalit girls who face multilayered forms of discrimination.
Anurag : Late Professor NR Madhav Menon was a close friend of yours. He was instrumental in the establishment of National Law University culture. How do you view today's education in Indian law schools? Do you think that the National Law Universities are fulfilling their original objective of strengthening the Bar and the Bench, which Professor Menon had envisaged ?
Sheela: Prof. N R Madhav Menon who knew me from 1982 understood the need to connect black letter law with ground realities. He used to invite me to whichever Institute he was associated with, and accept my perspectives even if they contradicted his. When Prof. Menon invited me to NLSIU Bangalore for the first time to speak to the Faculty, the premises was not ready completely and admissions had not started. He and I sat on the podium. He said he was introducing child labour in the syllabus at NLSIU. I asked him : "Though the students will learn letter of law, but will they understand the reality of the child worker?" Prof. Menon instantly announced that he will allot 25% marks for field study. To continue that kind of mingling, you also need persons who have done in-depth field work. The law schools should focus on this aspect. Professor Menon's dream still remains incomplete.
Anurag : Your journey from a freelance journalist to one of the most renowned child rights and human rights activist in India has been exhilarating. Is there anything you regret not doing in your life?
Sheela: Oh Anurag, my writings won me love of greats of Hindi literature – Dharmaveer Bharati and Harivanshrai Bachchan. Both invited me home. Bachchans (Harivanshrai and Teji) invited me to their Delhi home for a month and asked me to travel to Chitrakoot (in Madhya Pradesh) with them. But I could not go. I was so excessively hassled – earning money for living, responding to those who landed up at my door. Only Sharad Joshi kept regularly in touch on phone but he died early. I regret not being in regular touch with all these people. However, apart from a number of awards and appreciations, I value few gestures by others a lot. For instance, the great constitutional scholar HM Seervai held back publication of his three volumes of 'Constitutional Law of India' so that he can include his criticism of the Supreme Court for the way it had treated me in a case.
[Anurag's note : In Volume 1 of his 'Constitutional Law of India', HM Seervai has commented at length on the cases filed by Sheela Barse. In particular, Seervai has been harshly critical of the way Justice Rangnath Misra and Justice Venkatachaliah treated her. In the petition filed by Sheela Barse for the release of children under 16 from jails, a bench of Chief Justice PN Bhagwati and Justice Rangnath Misra had ordered the release of children and had set a deadline. Bhagwati CJ had observed in his order, "The petitioner, we must record, has undertaken real social service in bringing the matter before the Court… She has in fact volunteered to do what the State should have done". After Chief Justice Bhagwati's retirement, the matter was heard by Justices Rangnath Misra and MN Venkatachaliah. The respondents state authorities were defaulting in filing their affidavits, and therefore the matter was adjourned frequently, while the children were still detained illegally in jails. When Ms. Barse kept on asking for a firm date for final hearing, the two judges made adverse remarks against her ("… The case can go on even without you…") and removed her as the petitioner. She was replaced with the Supreme Court Legal Aid Committee. Seervai has noted that "stronger and harsher criticism" is required for the conduct of the judges. He further commented: "[Her] credentials should have been enough for Misra and Venkatachaliah JJ to treat Ms. Barse with courtesy and consideration, instead of with contumely and insult. The two judges should not have forgotten the well deserved tribute paid to her by Bhagwati…". The most critical comments made by Seervai were: "In my submission the judgments delivered by Misra and Venkatachaliah JJ. on 29 August 1988 and on 17 March 1989 must make laymen, lawyers and judges bow their heads in shame. Consider the conduct of the two judges in respect of admittedly illegal detention of 1400 under trial and convicted juveniles : 25 adjournments …in nearly 3 years,… and yet the two judges refused Sheela Barse's request to fix a firm date for final hearing and hear the petition on that date… Then there was the blunder of Misra J when he told Sheela Barse that the court had given her a "privilege" when she filed her Article 32 petition and added "we are withdrawing that privilege"… The two judges removed Sheela Barse, who had spent nearly 3 years and undertaken 25 journeys from Bombay to Delhi and back, in order to secure the release of under trial and convicted juveniles as early as possible, and put in her place the Supreme Court Legal Aid Society, which ex hypothesis, would know little or nothing about laws relating to undertrial and convicted juveniles and would not be expected to show the zeal and devotion with which Sheela Barse had pursued the cause of children for nearly 3 years…".]
Anurag: How are you spending time these days?
Sheela: I stay alone at my house in Pune. I have been working on a petition to be filed before the Supreme Court. After that, I am looking forward to deliver some talks at a law school to earn some money for living.
Anurag: You are brimming with varied experiences in life. If you were to give some advice to the youth of today, especially those engaged in the legal profession and journalism, what would it be?
Sheela: There is a whole universe beyond one's self-interest. Be a harbinger of Justice for those who yearn for it. Be aware of the apathy of the feudal society and class biases in courts. Your profession is an opportunity to restore the dignity of citizens, who feel vulnerable and oppressed.
[Anurag Bhaskar teaches at Jindal Global Law School, Sonipat. He is thankful to Priyanka Preet (student, RMLNLU) and Kumar Shanu (a Patna based lawyer) for their inputs in finalizing some of the questions.]