The supreme court had the occasion to discuss the right of prostitutes and their children when a petition was filed before the court to segregate the children of prostitutes from them and to provide them better educational facility.
Rights of Prostitutes
The court discussed the right of prostitutes and their children given as under the Constitution and the Directive Principles, the Human Rights and the Convention on the Right of Child.
Rights under Constitution
- 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.
- Article 15(3) provides for special protective discrimination in favour of woman and child relieving them from the moribund of formal equality.
- Article 16(1) covers equality of opportunity in matters of public employment.
- Article 23 prohibits traffic in 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.
- Article 24 prohibits employment of children in any hazardous employment or in any factory or mine unsuited to their age.
- 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 results.
- Article 39(f) provides that the children should be given opportunities and facilities to develop in a healthy manner and conditions of 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 provision for free of exploitation. Article 45 makes 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.
Universal Declaration of Human Rights
- 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 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 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 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 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 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 the right to equal protection against any discrimination of fallen women is violation of the Universal Declaration under Article 7 and 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.
Declaration of the Right of the Child
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.
India is a signatory to the Declaration and has the same and effectively participated 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 necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally and 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 the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their self as well as competent supervision.
- Article 4 obligates by appropriate legislative, administrative or other measures, implementation of the right recognised in the Convention.
- 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 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 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.
- Article 32 recognises the right of the child to be protected from 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) provides that 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: (a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c) the exploitative use of children in pornographic performances and materials.
The Convention on the Elimination of All Forms of Discrimination Against Women, 1979
The Convention on the Elimination of All Forms of Discrimination 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.
- 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, the same rights, in particular, the right to family benefits, the right to participate in recreational activities, sports and all aspects of cultural life.
Gaurav Jain V. Union of India; (1997) 8 SCC 114