September 30, 2022

Gaurav Jain v. Union of India, I-II- An Analysis

Gaurav Jain case is considered an important case when Supreme court tried to make proper provision for the rehabilitation and care of Prostitutes and their children.

Gaurav Jain v. Union of India[1],1990- Ist Case

Gaurav Jain, who was a lawyer, had filed a petition to the Supreme Court for the separate educational institutions for the children of the fallen women. The writ petition claimed 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 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 was 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.

The Court after hearing all the State Governments and Union Territories which were then represented through their respective standing counsel, observed on November 15, 1989, that “segregating children of prostitutes by locating separate schools and providing separate hostels” would not be in the interest of the 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, the Court had ordered that “Children of prostitutes should, however, not be permitted to leave in 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 the 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 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, Court constituted a Committee and directed the Committee to submit its report giving suggestions for appropriate action.

A scene from ‘Gangubai Kathiawadi’

Gaurav Jain v. Union of India, 1997- II Case

The committee submitted its report and the court again re-heard the counsel of both sides.

Question before the court

The primary question in this case was:

  • “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 rehabilitation in the mainstream of the national life?
  • And as 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?”

On rights of Prostitutes

The court after discussing the rights under fundamental rights, directive Principles, and International Convention said that,

“The 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 administrate measures so as to enable them to work hand-in hand to live 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 to improve their excellence in every walk of life. Article 51-A of the Constitution enjoins duty on every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform and to strive toward excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”

On Module for eradication of prostitution

The court stated-

“There would be transition from the liberation from the prostitution to start with fresh lease of life. This period should be taken care of by providing behavioural corrections by constant interaction, counselling, cajoling and coercion as the last resort for assurance of social acceptability inculcating faith in them.

An avenue to earn sufficient income for rehabilitation rekindles their resolve to start with fresh lease of life, without which their craving to shed off the past and to start with a new lease of life would remain a distant dream and a futile attempt. Therefore, the rubicon has to be bridged between the past and the hope to make them realise their desire as normal citizenry, by providing opportunity and facilities. Provision of opportunities and facilities is input of the constitutional guarantee to the disadvantaged, deprived and denied people.

The directive principles of the Constitution, in particular Articles 38, 39, and all relevant related Articles enjoin the State to provide them as impregnable in built right to life guaranteed by Article 21 and equality of opportunities with protective discrimination guaranteed in Article 14 the genus and its species, Articles 15 and 16 and the Preamble, the arch of the Constitution by legislative and administrative measures. Therefore, it is the duty of the State and all voluntary non-government organisations and public spirited persons to come in to their air to retrieve them from prostitution, rehabilitate them with a helping hand to lead a life with dignity of person, self-employment through provisions of education, financial support, developed marketing facilities as some of major avenues in this behalf. Marriage is another object to give them real status in society.

Acceptance by the family is also another important input to rekindle the faith of self-respect and self-confidence. Housing, legal aid, free counselling assistance and all other similar aids and services are meaningful measures to ensure that unfortunate fallen women do not again fall into the trap of red light area contaminated with foul atmosphere.

CDCC by VC Mahajan Committee

VC Mahajan suggested Child Development and Care Centres (for short, the `CDCC’) in Annexure IV to the Report. It states how the management needs to be done of juveniles. A scheme for Children of Prostitutes & Children Associating with Prostitutes and Prostitution) Various factors have led to the perpetuation of prostitution which in turn has given rise to a large nature of work, status, income, etc. often leave the children wanting in attention and care for their overall development. However, it is not enough to perceive them as more victims of neglect. Their cause has to be taken up to prevent them from taking to prostitution or its promotion and curbing their proneness to delinquency. It is believed that children’s energies Development and Care Centres are envisaged to provide Localised services through which the larger interests of these children can be attended to.

The committee given a comprehensive procedure to take care of delinquent juveniles. The supreme court stated that-

“We are of the view that the suggestions require earnest examination to give force and content to them. The rescue and rehabilitation of the child prostitutes and children should be kept under the nodal Department, namely, Department of Women and Child Development under the Ministry of Welfare and Human Resource, Government of India. It would devise suitable schemes for proper and effective implementation. The institutional care, thus, would function as an effective rehabilitation of fallen women even if they have crossed the age prescribed under the JJ Act. They should not be left to themselves, but should be rehabilitated through self-employment schemes or such measures as are indicated hereinbefore.

The juvenile homes should be used only for a short stay to relieve the child prostitutes and neglected juveniles from the trauma they would have suffered ; they need to be rehabilitated in the appropriate manner. The details are required to be worked out by meaningful procedure and programmes.

In the light of the directions already given by this Court from time to the Central Government, State Governments and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child prostitutes and the neglected juveniles as indicated hereinabove ; they should take measures to provide them adequate safety, protection and rehabilitation in the juvenile homes manned by qualified trained social workers or homes run by NGOs with the aid and financial assistance given by Government of India or State Government concerned.

A nodal Committee with the public spirited NGOs, in particular women organisations/woman members should be involved in the management. Adequate encouragement may be given to them; the needed funds should be provided and timely payments disbursed so that the scheme would be implemented effectively and fruitfully.”

Constitution of the committee

The supreme court further directed to the Minister of Welfare, Government of India to constitute a committee within one month, consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above.

The court directed the Committee to finalise the report within three months thereafter. As soon as the report is submitted. the same may be communicated to all the State Governments and the concerned Ministries for their examination.

Within two months from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision.

The court allowed the petitioner to further approach the court if the problem does not solve accurately.

Reference

Gaurav Jain V. Union of India; (1997) 8 SCC 114


[1] [1990 Supp. SCC 709]