# GAURAV JAIN v. UNION OF INDIA AND ORS

- **Citation:** [1997] Supp. 2 S.C.R. 105
- **Court:** Supreme Court of India
- **Decided:** 1997-07-09
- **Bench:** K. Ramaswamy, D.P. Wadhwa
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gaurav-jain-v-union-of-india-and-ors-16100
- **Pages:** 55

## Headnote

B
Constitution of India, 1950 -
Anicles 14, 15, 21, 23, 24, 32, 38, 39(f) and 46:
Public Interest Litigation-Petition filed for rehabilitaiioll of childrell of c
Prostitutes-Held, such childre11 have right to equality of opporlllnity, dignity,
care, protectioll alld rehabilitation, to be pmt of the mainstream of social life
without ally stigma-Mahajall Committee Reporl workable at National
level-Suggestions in Mahajan Committee Reporl regarding child development and care centres requires to be examined--<:Jiildren of prostitutes alld D
even child prostitutes to be treated as 'lleglected juveniles' as defined ill
Juvenile Justice Act-No stigma to be attached to such childre11-To be
rescued from redlight areas and temporarily shifted to Juvenile
Homes-17iereafter to be rehabilitated-Establishillg Juvenile Homes--Of-
·ficers in charge of Juvenile Homes to protect the children ill Juvenile E
Homes---Ma11dat01y obligation of State-Constituting Juvenile Welfare
Board-Rescue and rehabilitation operatioll to be kept under Depanment of
Women and Child Development under UlliOll Ministry of Humall Resources--NGOs to be associated with the rehabilitation work-Unioll Minister of
Welfare to constitute a Committee withill one month for evolving suitable
schemes and to submit reporl within three months thereafte1~State GovemF
ments to implement the Schemes--Pennanent Committee of Secretaries to be
constituted to review the progress of the implementation of the Schemes-Periodical progress reporl to be submitted to Supreme Cowt-Juve11ile Justice
Act, 1986.
A1ticle 142 :
Directions unde~Difference of opinion between the Judges in the
Divisioll Bench of Supreme Cowt-One of the Judges issuing directions
regarding rescue and rehabilitation of Prostitutes for efficacious enforcement
G
of their fundamental rights-Juvenile Justice Act, 1986--lmmoral Traffic H
105
106
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A (Prevention) Ac~ 1956.
B
c
D
Articles 32 and 226 :
Public Interest Litigation-Nature scope, ambit and power of Court to
grant reliefs.
Articles 32, 142 and 145(5)-PIL-Enforcement of fimdamental rights
and human rights of the poor-Invocation of Art. 142 by a Single Member of
a Bench of Supreme Court when there is difference of opinion among the
Judges in the Benc~ontrary opinions expressed by each Member of the two
Judge Bench.
Juvenile Justice Act, 1986 :
S.2( 1)--'Neglected Juvenile'-Definition-Interpretation of.
Words & Phrases :
'Brothel'-"Prostitution ''-'A huse ', 'Sexual abuse'-'Public Place'-
Meaning of in the context of Immoral Traffic (Prevention) Act, 1956 and
Juvenile Justice Act, 1986.
Labourers working on Sala/ Hydro Project v. State of Jammu & KashE mir & Ors., [19113) 2 SCC 181; Dr. Upendra Baxi & Ors. (II) v .. State of U.P.
& Ors., [1986) 4 SCC 106; Vincent Panikurlangara v. Union of India & Ors.,
[1987) 2 SCC 165; Rural Litigation and Entitlement Kendra v. State of U.P.,
[1989) Supp.1SCC504; M.C. Mehta &Anr. v. Union of India & Ors., [1987)
1 SCC 395; Bandhua Mukti Morcha v. Union of India & Ors., [1984) 3 SCC
F
161 and Santhal Pargana Antyodaya Ashram v. State of Bihar & Ors., [1987)
Supp. SCC 141, Relied on.
Madhu Kishwar & Ors. v. State of Bihar & Ors., [1996) 5 SCC 125 and
Gaurav Jain v. Union of India & Ors., [1990) Supp. SCC 709, referred to.
G
ORIGINAL JURISDICTION: Writ Petition (C) No. 824of1988.
WITH
Writ Petition (Crl.) No. 745-754 of 1990.
H
Under Article 32 of the Constitution of India.
(1
<
/
GAURAVJAINv. U.0.I.
107
V.C. Mahajan, Ms. Abha Jain, R. Venkataramani, Mrs. Niranjan A
Singh, Mrs. Sushma Suri, C.V.S. Rao, M. Veerappa, Mrs. Monjula Kulkarni, Prem Malhotra, Ajay Siwach, Aruneshwar Gupta, Ranjan Mukherjee,
Mrs. H. Wahi, Ms. Nandini Mukherjee, S.M. Jadhav, M.N. Shroff, S.
Bhowmick, S.K. Agnihotri, D.M. Nargolkar, V. Krishnamurthy, R.
Sasiprabhu, Mrs. M. Karanjawala, Shri Narain, Ashok Mathur, R.B. Misra, B
Ms. S. Janani, B.V. Desai, Ms. Anu Sawhney, B.B. Singh, Shakil Ahmad
Syed, Vishal Jeet, R.C. Verma, T

## Text

_Characters 0–39,634 of 131,424. This is a partial read: ask again with offset=39634 for what follows._

GAURAV JAIN
A
v.
UNION OF INDIA AND ORS.
JULY 9, 1997
(K. RAMASWAMY AND D.P. WADHWA, JJ.]
B
Constitution of India, 1950 -
Anicles 14, 15, 21, 23, 24, 32, 38, 39(f) and 46:
Public Interest Litigation-Petition filed for rehabilitaiioll of childrell of c
Prostitutes-Held, such childre11 have right to equality of opporlllnity, dignity,
care, protectioll alld rehabilitation, to be pmt of the mainstream of social life
without ally stigma-Mahajall Committee Reporl workable at National
level-Suggestions in Mahajan Committee Reporl regarding child development and care centres requires to be examined--<:Jiildren of prostitutes alld D
even child prostitutes to be treated as 'lleglected juveniles' as defined ill
Juvenile Justice Act-No stigma to be attached to such childre11-To be
rescued from redlight areas and temporarily shifted to Juvenile
Homes-17iereafter to be rehabilitated-Establishillg Juvenile Homes--Of-
·ficers in charge of Juvenile Homes to protect the children ill Juvenile E
Homes---Ma11dat01y obligation of State-Constituting Juvenile Welfare
Board-Rescue and rehabilitation operatioll to be kept under Depanment of
Women and Child Development under UlliOll Ministry of Humall Resources--NGOs to be associated with the rehabilitation work-Unioll Minister of
Welfare to constitute a Committee withill one month for evolving suitable
schemes and to submit reporl within three months thereafte1~State GovemF
ments to implement the Schemes--Pennanent Committee of Secretaries to be
constituted to review the progress of the implementation of the Schemes-Periodical progress reporl to be submitted to Supreme Cowt-Juve11ile Justice
Act, 1986.
A1ticle 142 :
Directions unde~Difference of opinion between the Judges in the
Divisioll Bench of Supreme Cowt-One of the Judges issuing directions
regarding rescue and rehabilitation of Prostitutes for efficacious enforcement
G
of their fundamental rights-Juvenile Justice Act, 1986--lmmoral Traffic H
105
106
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A (Prevention) Ac~ 1956.
B
c
D
Articles 32 and 226 :
Public Interest Litigation-Nature scope, ambit and power of Court to
grant reliefs.
Articles 32, 142 and 145(5)-PIL-Enforcement of fimdamental rights
and human rights of the poor-Invocation of Art. 142 by a Single Member of
a Bench of Supreme Court when there is difference of opinion among the
Judges in the Benc~ontrary opinions expressed by each Member of the two
Judge Bench.
Juvenile Justice Act, 1986 :
S.2( 1)--'Neglected Juvenile'-Definition-Interpretation of.
Words & Phrases :
'Brothel'-"Prostitution ''-'A huse ', 'Sexual abuse'-'Public Place'-
Meaning of in the context of Immoral Traffic (Prevention) Act, 1956 and
Juvenile Justice Act, 1986.
Labourers working on Sala/ Hydro Project v. State of Jammu & KashE mir & Ors., [19113) 2 SCC 181; Dr. Upendra Baxi & Ors. (II) v .. State of U.P.
& Ors., [1986) 4 SCC 106; Vincent Panikurlangara v. Union of India & Ors.,
[1987) 2 SCC 165; Rural Litigation and Entitlement Kendra v. State of U.P.,
[1989) Supp.1SCC504; M.C. Mehta &Anr. v. Union of India & Ors., [1987)
1 SCC 395; Bandhua Mukti Morcha v. Union of India & Ors., [1984) 3 SCC
F
161 and Santhal Pargana Antyodaya Ashram v. State of Bihar & Ors., [1987)
Supp. SCC 141, Relied on.
Madhu Kishwar & Ors. v. State of Bihar & Ors., [1996) 5 SCC 125 and
Gaurav Jain v. Union of India & Ors., [1990) Supp. SCC 709, referred to.
G
ORIGINAL JURISDICTION: Writ Petition (C) No. 824of1988.
WITH
Writ Petition (Crl.) No. 745-754 of 1990.
H
Under Article 32 of the Constitution of India.
(1
<
/
GAURAVJAINv. U.0.I.
107
V.C. Mahajan, Ms. Abha Jain, R. Venkataramani, Mrs. Niranjan A
Singh, Mrs. Sushma Suri, C.V.S. Rao, M. Veerappa, Mrs. Monjula Kulkarni, Prem Malhotra, Ajay Siwach, Aruneshwar Gupta, Ranjan Mukherjee,
Mrs. H. Wahi, Ms. Nandini Mukherjee, S.M. Jadhav, M.N. Shroff, S.
Bhowmick, S.K. Agnihotri, D.M. Nargolkar, V. Krishnamurthy, R.
Sasiprabhu, Mrs. M. Karanjawala, Shri Narain, Ashok Mathur, R.B. Misra, B
Ms. S. Janani, B.V. Desai, Ms. Anu Sawhney, B.B. Singh, Shakil Ahmad
Syed, Vishal Jeet, R.C. Verma, Tara Chandra Sharma, B.V. Bairam Das
and Ms. A. Subhashini for the appearing parties.
The following Orders of the Court were delivered :
"Frailty, thy name is woman", was the ignominy heaped upon women
of Victorian Era by William Shakespeare in his great work 'Hamlet'. The
history of sociology has, however, estab~hed the contrary, i.e., 'fortitude',
thy name is woman; 'caress', thy name is woman; 'self-sacrifice', thy name
c
is woman; tenacity and successful pursuit, their apathetical is women. D
Indira Gandhi, Margaret Thatcher, Srimovo Bhandarnaike and Golda Meir
are few illustrious women having proved successful in democratic governance of the respective democratic States. Amidst them, still, a class of
women is trapped as victims of circumstances, unfounded social sanctions,
handicaps and coercive forms in the flesh trade, optimised as 'prostitutes'.
(for short, 'fallen women'). Seeking their redemptions, a few enlightened E
segments are tapping the doors of this Court under Article 32 of the
Constitution, through a public spirited advocate. Gaurav Jain who filed, on
their behalf, the main writ petitions claiming that right to be free citizens;
right not to be trapped again; readjusted by economic empowerment, social
justice and self- sustenance thereby with equality of status, dignity of F
person in truth and reality and social integration in the mainstream are
their magna carta. An article "A Red light trap; Society gives no chance to
prostitutes' offspring" in 'India Today' dated July 11, 1988 is founded as
source material and has done yeoman's service to ignite the sensitivity of
Gaurav to seek improvement of the plight of the unfortunate fallen women
and their progeny. Though Gaurav had asked for establishing separate G
educational institutions for the children of the fallen women, this Court
after hearing all the State Governments and Union Territories which were
then represented through their respective standing counsel, observed on
November 15, 1989 in Gaurav Jain v. Union of India & Ors., [1990) Supp.
sec 709, that "segregating children of prostitutes by locating separate
schools and providing separate hostels" would not be in the interest of the H
108
SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.
A children and the society at large. This Court directed that they "should be
segregated from their mothers and be allowed to mingle with others and
become a part of the society". Accepting the suggestion from the Bar and
rejecting the limited prayer of the petitioner, this Court had ordered that
"Children of prostitutes should, however, not be permitted to leave in
B
inferno and the undesirable surroundings of prostitute homes". This was
felt particularly so in the case of young girls whose body and mind are likely
to be abused with growing age for being admitted into the profession of
their mothers. While this Court did not accept the plea for separate hostels
for children of prostitutes, it felt that "accommodation in hostels and other
reformatory homes should be adequately available to help segregation of
C these children from their mothers living in prostitute homes as soon as they
are identified". In that view, instead of disposing of the writ petition with
a set of directions, this Court constituted a Committee comprising S/Shri
V.C. Mahajan, R.K. Jain, Senior Advocates and others including M.N.
Shroff, Advocate, as its Convenor, and other individuals named in the
Order; the Court directed the Committee to submit its report giving
D suggestions for appropriate action. Accordingly, the report was submitted.
Arguments were heard and judgment was reserved but could not be
delivered. Resultantly, it was released from judgment. We have re-heard
the counsel on both sides. The primary question in this case is : what are
the rights of the children of fallen women, the modules to segregate them
from their mothers and others so as to give them protection, care and
E rehabilitation in the mainstream of the national life? And as a facet of it,
what should be the scheme to be evolved to eradicate prostitution, i.e., the
source itself; and what succour and sustenance can be provided to the
fallen victims of flesh trade? These are primary questions we angulate for
consideration in this public interest litigation.
F
The Preamble, an integral part of the Constitution, pledges to secure
'socio-economic justice' to all its citizens with stated liberties, 'equality of
status and of opportunity', assuring 'fraternity' and 'dignity' of the individual in a united and integrated Bharat. The fallen women too are part
of citizenry. Prostitution in society has not been an unknown phenomenon;
G it is of ancient origin and has its manifestation in various forms with varied
degrees unfounded on so-called social sanctions etc. The victims of the trap
are the poor, illiterate and ignorant sections of the society and are the
target group in the flesh trade; rich communities exploit them and harvest
at their misery and ignominy in an organised gangsterism, in particular,
H with police nexus. It is of grave social concern, increasingly realised by
1
'
GAURAV JAIN v. U.O.I.
109
enlightend public spirited· sections of the society to prevent gender ex- A
ploitation of girl children. The prostitute has always been an object and
was never seen as complete human being with dignity of person; as if she
had no needs and aspirations of her own, individually or collectively. Their
problems are compounded by coercion laid around them and torturous
treatment meted out to them. When they make attempts either to resist the B
prostitution or to relieve themselves from the trap, they succumb to the
violent treatment and resultantly many a one settle for prostitution. Prostitute is equally a human being. Despite that trap, she is confronted with
the problems to bear and rear the children. The limitations of trade
confront them in bringing up their childrrn, be it male or female. Their
children are equally subjected to inhuman treatment by managers of C
brothels and are subjected to discrimination, social isolation; they are
deprived of their right to live normal life for no fault of their own. In
recent times, however, there has been a growing body of opinion, by certain
enlightened sections of the society advocating the need to no longer treat
the fallen women as criminals or as an object of shocking sexual abuse; D
they are victims of circumstances and hence should be treated as human
beings like others, so as to bring them into the mainstream of the social
order without any attached stigma. Equally, they realise the need to keep
their children away from the red light area, particularly girl children and
have them inducted into respectable and meaningful avocations and/or
self-employment schemes. In no circumstances, they should continue to be E
in the trap of flesh trade for commercial exploitation. They need to be
treated with humanity and compassion so as to integrate them into the
social mainstream. If given equal opportunity, they would be able to play
their own part for peaceful rehabilitation, live a life with happiness purposefu!ly, with meaningful right to life, culturally, socially and economically F
with equality of status and dignity of person. These constitutional and
human rights to the victims of fallen track of flesh trade, need care and
consideration of the society. This case calls upon to resolve that human
problem with caress and purposeful guidelines, lend help to ameliorate
their socio-economic conditions, eradicate social stigma and to make available to them equal opportunities for the social order.
G
Equally, the right of the child is the concern of the society so that
fallen women surpass trafficking of her person from exploitation; contribute to bring up her children; live a life with dignity; and not to continue
in the foul social environment. Equally, the children have the right to H
J
J
110
SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.
A equality of opportunity, dignity and care, protection and rehabilitation by
the society with both hands open to bring them into the mainstream of
social life without pre-stigma affixed on them for no fault of her/his. The
Convention on the Right of the Child, the Fundamental Rights in Part III
of the Constitution, Universal Declaration of Human Rights, the Directive
B Principles of the State Policy are equally made available and made meaningful instruments and means to ameliorate their conditions - social, educational, economical and cultural, and to bring them into the social stream
by giving the same opportunities as had by other children. Thus, this case
calls for a careful and meaningful consideration with diverse perspectives,
to decide the problems in the light of constitutional and human rights and
C directions given to the executive to effectuate them on administrative side
effectively so that those rights become real and meaningful to them.
Let us, therefore, first consider the rights of the fallen women and
their children given by the Constitution and the Directive Principles, the
D Human Rights and the Convention on the Right of Child, before considering the social ignominy attached to them and before looking for the remedy
to relieve them from the agony and make them equal participants in normal
social order. Article 14 provides for equality in general. Article 21 guarantees right to life and liberty. Article 15 prohibits discrimination on the
grounds of religious race, caste, sex or place of birth, or of any of them.
E Article 15(3) provides for special protective discrimination in favour of
woman and child relieving them from the moribund of formal equality. It
states that "nothing in this article shall prevent the State from making any
special provision for women and children". Article 16(1) covers equality of
opportunity in matters of public employment. Article 23 prohibits traffic in
p
human beings and forced labour and makes it punishable under Suppression of Immoral Traffic in Women and Girls Act, 1956 which is renamed
in 1990 as the Immoral Traffic (Prohibition) Act (for short, the 'ITP Act').
Article 24 prohibits employment of children in any hazardous employment
or in any factory or mine unsuited to their age.
G
Article 38 enjoins the State to secure and protect, as effectively as it
may, a social order in which justice - social, economic and political, shall
inform all the institutions of national life. It enjoins, by appropriate
statutory or administrative actions, that the State should minimise the
inequalities in status and provide facilities and opportunities to make equal
H results. Article 39(t) provides that the children should be given oppor-
GAURAVJAINv. U.0.1.
111
tunities and facilities to develop in a healthy manner and conditions of A
freedom and dignity; and that childhood and youth are protected against
exploitation and against moral and material abandonment. Article 46
directs .the State to promote the educational and economic interests of the
women and weaker sections of the people and that it shall protect them
from social injustice and all forms of exploitation. Article 45 makes B
provision for free and compulsory education for children, which is now well
settled as a fundamental right to the children upto the age of 14 years; it
also mandates that facilities and opportunities for higher educational
avenues be provided to them. The social justice and economic empowerment are firmly held as fundamental rights of every citizen.
Article 1 of the Universal Declaration of Human Rights provides that
all human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another
c
in a spirit of brotherhood. Article 2 provides that everyone, which includes
fallen women and their children, is entitled to all the rights and freedoms D
set forth in the Declaration without any distinction of any kind such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status. Article 3 provides that everyone has
the right to life, liberty and security of person. Article 4 enjoins that no one
shall be held in slavery or servitude; slavery and the slave trade shall be E
prohibited in all their forms. The fallen victims in the flesh trade is no less
than a slave trade. Article 5 provides that no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. The
fallen/trapped victims of flesh trade are subjected. to cruel, inhuman and
degrading treatment which are obnoxious, abominable and an affront to
Article 5 of the Universal Declaration and Article 21 of the Indian F
Constitution.
Equally, Article 6 declares that everyone has the right to recognition
everywhere as a person before the law. The victims of flesh trade are G
equally entitled before the law to the recognition as equal citizens with
equal status and dignity in the society. Article 7 postulates that all are equal
before the law and are entitled, without discrimination, to equal protection
of the law. So, denial of equality of the rights and opportunities and of
dignity and of the right to equal protection against any discrimination of
fallen women is violation of the Universal Declaration under Article 7 and H
112
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
.
.
A Article 14 of the Indian Constitution.
Article 8 of the Universal Declaration provides that everyone has the
right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted by the Constitution or the law. The
B Supreme Court of India, which is the sentinel in the qui vive, is enjoined
to protect equally the rights of the poor, the deprived, the degraded women
and children trapped in the flesh trade, kept in inhumane and degrading
conditions, and to grant them the constitutional right to freedoms, protection, rehabilitation and treatment by the social engineering, in law, Constitution and appropriate administrative measures so as to enable them to
C work hand-in-hand to live life with dignity and without any stigma due to
. their past conduct tagged to them by social conditions, unfounded customs
and circumstances which have become blot on the victims and their
children. They too are entitled to full equality, fair and adequate facilities
and opportunities to develop their personality with fully grown potentiality,
D to improve their excellence in every walk of life. Article 51-A of the
Constitution enjoins duty on every citizen to deveJop the scientific temper,
humanism and the spirit of inquiry - reform and to strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement.
E
F
Preamble to the Declaration of the Right of the Child adopted by
the UNO on November 20, 1959, provides that the child by reason of his
or her physical or mental immaturity, needs special safeguards and care
including her appropriate legal protection before as well as after birth.
Recalling the provisions of Declaration on Social and Legal Principles
relating to Protection and Welfare of the Children with Special Reference
to Foster or Placement and Adoption Nationally and Internationally; the
General Assembly Resolution 41/85 of December 3, 1986; the United
Nations adopted Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules) dated November 29, 1985. India is a
signatory to the Declaration and has the same and effectively participated
G in bringing the Declaration in force. Article 3( 1) postulates that in all
actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interest of the child shall be the primary consideration.
Article 3(2) enjoins to ensure the child such protection and.care as is
H necessary for his or her well- being, taking . into account the rights and
.•
GA URA V JAIN v .• U.0.1.
113
duties of his or her parents, legal gu~rdi~s, or other individuals legally and A
all the appropriate measures in that behalf shall be taken by the State.
Article 3(3) postulates that the State shall ensure the availability of institutional services and facilities responsible for the care or protection of
children, shall conform With th~ standards established by competent
authorities, particularly in. the areas of safety, health, in the number and B
suitability of their self as well as competent supervision. Article 4 obligates
by appropriate legislative, administrative or other measures, implementation of the rights recognised in the Convention. The State has undertaken
to implement economic, social and cultural rights, such measures to the
maximum extent of the available resources and where needed within the
framework of international co-operation.
Article 6 postulates that State Parties recognise that every child has
the inherent right to life which is already granted by Article 21 of the
Constitution of India which has been interpreted expansively by this Court
c
to make the right to life meaningful, socially, culturally, economically, even D
to the deprived segments of the society with dignity of person and in pursuit
of happiness. Article 6(2) enjoins to ensure development of the child and
Article 7(2) postulates that the State shall ensure implementation of these
rights in accordance with law and their obligations. Article 9(3) envisages
that the State shall respect the right of the child who is separated from her
parents to maintain personal relations and contact with her parents on E
regular basis. Article 14(2) provides that the State shall respect the rights
and duties of the parents, and when applicable, legal guardians, to provide
direction to the child in the exercise of his or ·her right in a manner
consistent with the evolving capacities of the child. Article 17(2)( e) enjoins
the State to encourage the development of appropriate guidelines for the F
protection of the child from information and material injurious to his or
her well-being bearing in ·in.ind the provisions of Articles 13 and 18. Article
18(1) provides that the State shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the
upbringing and development of the child. Parents and State have the
primary responsibility for the upbringing and development of the child. The G
best interests of the child will be their basic concern. Sub-para (2) postulates that for promoting the rights set forth in this Convention, parents,
legal guardian or the State in the performance of their child-rearing
responsibilities, shall ensure the development of institutions, facilities and
services for the care of children.
H
114
SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.
A
Article 19(1) provides that the State Parties shall take all appropriate·
legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, mal-treatment or exploitation including sexual
abuse, while in the care of parents, legal guardians or any other person
who has the care of the child. Equally, sub-para {2) of Article 19 postulates
B protective measures, as may be appropriate, should include effective procedure for the establishment of social programmes to provide necessary
support for the child and for those who have the care of the child as well
as for other forms of prevention etc. Article 20 which is material for the
purpose postulates as under :
c
D
E
"l. A child temporarily or permanently deprived of his or her family
environment, or in whose own best interest cannot be allowed to
remain in that environment, shall be entitled to special protection
and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure
alternative care for such a child.
3. Such care could include, inter alia, foster placement, Kafala or
Islamic Law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due
regard shall be paid to the desirability of continuity in a child's
upbringing and to the child's ethic, religious, cultural and linguistic
background."
Article 28 recognises the right of the child to education and with a
view to achieving this right progressively and on the basis of equal opporF tunity, the State shall in particular : (a) make primary education compulsory and available free to all; {b) encourage the development of different
forms of secondary education, including general and vocational education,
make them available· and accessible to every child and take appropriate
measures such as the introduction of free education and offering financial
G assistan<;e in case of need; { c) make higher education accessible to all on
the basis of capacity by every appropriate means; { d) make educational and
vocational information and guidance available and accessible to all
children; and ( e) take measures to encourage regular attendance at schools
and the ~eduction of drop-out rates. Article 29 envisages that the State
Parties a~ee that the education of the child shall be directed to : (a) the
H development of the child's personality, talents and mental and physical
·-
.....
GAVRA V JAIN v. U.0.1.
115
abilities to their fullest potential; (b) the development of respect for human A
rights and fundamental freedoms and for the principles enshrined in the
Charter of the United Nations; ( c) the development of respect for the
child's parents, his or her own cultural identity, languages and values, for
the national values of the country in which the child is living, the country
from which he or she may originate, and for civilizations different from his
or her own; ( d) the preparation of the child for responsible life in a free B
society, in the spirit of understanding, peace, tolerance, equality of sexes,
and friendship among all peoples, ethnic, national and religious groups and
persons of indigenous origin; and ( e) the development of respect for the
natural environment.
Article 32 recognises the right of the child to be protected from C
economic exploitation and from performing any work that is likely to be
hazardous or to interfere with the child's education or to be harmful to the
child's health or physical, mental, spiritual, moral or social development.
Articles 34, 36. and 37(a) are equally relevant and read as under :
"34. State Parties undertake to protect the child from all forms of
sexual exploitation and sexual abuse. For these purposes, States
Parties shall in particular take all appropriate national, bilateral
and multilateral measures to prevent:
D
(a) the inducement or coercion of a child to engage in any unlawful E
sexual activity;
(b) the exploitative use of children in prostitution or other unlawful
sexual pract~ces;
( c) the exploitative use of children in pornographic performances F
and materials.
36. States parties shall protect the child against all other forms of
exploitation prejudicial to any aspects of the child's welfare.
37. State Parties shall ensure that :
(a) No child shall be subjected to torture or other cruel, inhuman
or degrading treatment or punishment. Neither capital punishment
G
nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age;"
H
116
SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
A
Article 8 of the Declaration on the Right to Development provides
that the State shall undertake at the national level, all necessary measures
for the realisation of the right to development and shall ensure, inter alia,
equality of opportunity for all in their access to basic resources, education,
health services, food, housing, employment and the fair distribution of
income. Effective measures should be undertaken to ensure that women
B have an active role in the development process. Appropriate economic and
social reforms should be carried out with a view to eradicating all social
injuries.
The Convention on the Elimination of All Forms of Discrimination
C Against Women, 1979 enjoins by Article 1, prohibition of discrimination of
women. Article 5 enjoins to modify social and patterns of conduct of men
and women with a view to achieving elimination of prejudices and customary and all other practices which are based on the idea of the inferiority
or the superiority of the sexes or on stereotyped roles for men and women.
D Article 12 prescribes discrimination against women in the field of health
care in order to ensure on the basis of equality of men and women, access
to health care services, including those related to family planning. Article
13 prescribes_ discrimination and directs that the State Parties shall
eliminate discrimination against women in other areas of economic and
social life in order to ensure on the basis of equality of men and women,
1
E the same rights, in particular, the right to family benefits, the right to
participate in recreational activities, sports and all aspects of cultural life.
Article 16( d) enjoins the State to ensure on the basis of equality of men
and women, the same rights and responsibility as parties, irrespective of
their marital status, in matters relating to their children; in all cases the
p
interests of the children shall be paramount, In Madhu Kishwar & Ors. v.
State of Bihar & Ors., (1996] 5 SCC 125, this Court considered the
provisions of the Convention on the Elimination of All Forms of Discriminaticin Against Women, 1979 (CEDAW) and held the same to be
integral scheme of the Fundamental Rights and the Directive Principles
Article 2(e) of CEDAW enjoins the State Parties breathe life into the dry
G bones of the Constitution, International Conventions and the Protection oi'
Human Rights Act, to prevent gender-based discrimination and to effec ..
tuate right to life including empowerment of economic, social and cultural
rights. Article 2(f) read with Articles 3, 14 and 15 of the CEDAW em·
bodies concomitant right to development as an ·integral ~cheme of the
H Indian Constitution and the Human Rights Act. Section 12 of the Protec-
·~
GAVRA V JAIN v. U.0.1.
117
tion of Human Rights Act charges the National Commission with duty to A
ensure proper implementation as well as prevention of violation of human
rights and fundamental freedoms.
Human Rights are derived from the dignity and worth inherent in
the human person. Human rights and fundamental freedom have been B
reiterated by the Universal Declaration of Human Rights. Democracy,
development and respect for human rights and fundamental freedoms are
interdependent and have mutual reinforcement. The human rights for
women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in C
political, social, economic and cultural life are concomitants for national
development, social and family stability and growth-cultural, social and
economical. All forms of discrimination on ground of gender is violative of
fundamental freedoms and human rights. It would, therefore, be imperative
to take all steps to prohibit prostitution. Eradication of prostitution in any D
form is integral to social weal and glory of womenhood. Right of the child
to development hinges upon elimination of prostitution. Success lies upon
effective measures to eradicate root and branch of prostitution.
Section 2(a) of the Immoral Traffic (Prevention) Act 1956 (for short,
the 'ITP Act') defines 'brothel' tu mean any house, room conveyance or E
place or any portion of any house, room conveyance or place which is used
for purpose of sexual exploitation or abuse, for the gain of another person
or for the mutual gain of two or more prostitutes. The essential ingredient,
therefore, is a place being used for the purpose of sexual exploitation or
abuse. The phrase 'for the purpose or indicates that the place being used F
for the purpose of the prostitution may be a brothel provided a person uses
the place and ask for girls, where the person is shown girls to select from
and where one does engage or offer her body for promiscuous sexual
intercourse for hire. In order to establish prostitution, evidence of more
than one customer is not always necessary. All that is essential to prove is G
that a girl/lady should be a person offering her body for promiscuous sexual
intercourse for hire. Sexual intercourse is not an essential ingredient. The
inference of prostitution would be drawn from diverse circumstances established in a case. Sexuality has got to be established but that does not
require the evidence of more than one customer and no evidence of actual
intercourse should be adduced or proved. I~ is not necessary that there H
118
SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.
A should be repeated visits by persons to the place for the purpose of
prostitution. A single instance coupled with the surrounding circumstances
may be sufficient to establish that the place is being used as a brothel and
the person alleged was so keeping it. The prosecution has to prove 01ily
that in a premises a female indulges in the act of offering her body :for
B promiscuous sexual intercourse for hire. On proof thereof, it becomeil a
brothel.
The Juvenile Justices Act, 1986 (for short, the 'JJ Act') was enacted
to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of such
C matters relating to disposition of delinquent juveniles. The pre-existing law
was found inadequate to tie over social knowledge, instrument, delinquency
or improvement of the child. The Act sought to achieve a uniform legal
framework for juvenile justice in the country as a whole so as to ensure
that no child, in any circumstance, is lodged in jail and police lock-up. This
D is being ensured by establishing Juvenile Welfare Boards and Juvenile
courts to deal adequately with the subject. The object of the Act, therefore,
is to provide specialised approach towards the delinquent or neglected
juvenile to prevent recurrence of juvenile delinquency in its full range
keeping in view the developmental needs of the child found in the situation
of social maladjustment. That aim is secured by establishing observation
E homes, juvenile houses, juvenile homes or neglected juvenile and special
homes for delinquent or neglected juveniles. The JJ Act is consistent with
the right of the child to development; the established norms and standards
for the administration of juvenile justice and special mode of investigation,
prosecution, adjudication and disposition of the juvenile. The JJ Act
p
provides for care, treatment and rehabilitation by developing appropriate
linkage and co-operation between formal system of juvenile justice and
voluntary agencies engaged in the welfare of the neglected or socially
mal-adjusted children; it specifically defines the areas of the responsibilities
etc. Section 2( a) defines 'begging'. Section 2(b) defines 'Board' to mean a
Juvenile Welfare Board constituted under Section 4. Terms 'Broth.el',
G 'prostitute', 'prostitution' and 'public place' have been adopted as defined
in ITP Act, 'Competent authority' or 'Juvenile court' as the case may be,
is defined under Section 2( d). Section 2(f) defines 'fit person' or 'fit
institution' to mean any person or institution (not being a police station or
jail) found fit by the competent authority to receive and take care of a
H juvenile entrusted to his or its care and protection on the terms and
..
•
GAVRA V JAIN v. U.O.I.
119
conditions specified by the competent authority. 'Guardian' in relation to A
a juvenile has been defined under Section 2(g). 'Juvenile' has been defined
under Section 2(h) to mean a boy who has not attained the age of sixteen
years or a girl who has not attained the age of eighteen years. 'Juvenile
Court' and 'Juvenile Home' have been defined in Section 2(i) and 20)
respectively. 'Neglected juvenile' which is more relevant for the purpose of B
this case, has been defined in Section 2(1) to mean a juvenile who (i) is
found begging; or (ii) is found without having any home or settled place of
abode and without any ostensible means of subsistence and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise
control over the juvenile; or (iv) lives in a brothel or with a prostitute or
frequently goes to any place used for the purpose of prostitution, or is C
found to associate with any prostitution or any other person who leads an
immoral, drunken or depraved life; (v) who is being or is likely to be abused
or exploited for immoral or illegal purposes or unconscionable gain.
'Prostitution' means the sexual exploitation or abuse of persons for commercial purposes and the expression 'prostitute' shall be construed as it is D
defined under Section 2(f) of ITP Act. After the amendment to the ITP
Act 'prostitution' means sexual exploitation or abuse of person for commercial purpose .
Therefore, prostitution is not confined, as in the ITP Act, to offering
of the body to a person for promiscuous sexual intercourse. Normally, the E
word 'prostitution' means an act of promiscuous sexual intercourse for hire
or offer or agreement to perform an act of sexual intercourse or any
unlawful sexual act for hire as was the connotation of the Act. It has been
brought within its frame, by amendment, the act of a female and exploitation of her person by an act or process of exploitation for commercial F
purpose making use of or working up for exploitation of the person of the
women taking unjust and unlawful advantage of trapped women for one's
benefit or sexual intercourse. The word 'abuse' has a very wide meaning
everything which is contrary to good order established by usage amounts
to abuse. Physical or mental mal-treatment also is an abuse. An injury to G
genital organs in an attempt of sexual intercourse also amounts to sexual
abuse. Any injury to private parts of a girl constitutes abuse under the JJ
Act. 'Public place' means any place intended for use by, or accessible to
the public and includes any public conveyance. It is not necessary that it
must be public property. Even if it is a private property, it is sufficient that
the place is accessible to the public. It must be a place to which the public, H
120
SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.
A iii fact, resorts or frequents.
The Probation Officer is kept in-charge for enforcement of the
provisions of the Act. Section 4 of the JJ 'Act deals with 'Juvenile Welfare
Boards' under Chapter III titled 'Competent Authority and Institutions for
B Juvenile'. It postulates that the State Government by official notification
may constitute for any area specified in the notification, one or more
Juvenile Welfare Boards for exercising the powers and discharging the
duties conferred or imposed on such Board in relation to neglected
juveniles under the JJ Act. The powers of the Juvenile Courts, defined in
Section 5, have been reiterated in Section 7. Section 9 deals with 'Juvenile
C homes'. It enjoins the State Government to establish and maintain as many
juvenile homes as may be necessary for the reception of neglected juveniles
under the JJ Act.