Case Analysis: Gaurav Jain V. Union of India

Case Number

Writ Petition (Civil) No. 824 of 1988, Writ Petition (Crl.) Nos. 745-54 of 1950.

Equivalent Citations

(1997) 8 SCC 114, AIR 1997 SC 3021, 1997 (4) SCALE 657

Bench

K. Ramaswamy and D. P. Wadhwa, JJ.

Date of Judgment

July 9, 1997.

Relevant Act/ Section

Articles 14, 15(3), 16(1), 21, 23, 24, 38, 39(f), 45 and 46 of the Constitution of India
The Immoral Traffic (Prevention) Act, 1956
Juvenile Justice Act, 1986 (amended and now known as the Juvenile Justice (Care and Protection of Children) Act, 2015)
UDHR 1948
CEDAW 1979

Facts and Procedural History

In this case, a Public Interest Litigation (PIL) was filed in the Supreme Court of India by the Petitioner, who was an advocate. He had filed the petition after reading an article “A Red Light Trap: Society gives no chance to prostitutes’ offspring” published on July 11, 1988, in a magazine named ‘India Today’. In the petition, he had prayed for issuing an appropriate writ directing the setting up of distinct educational facilities for the children of prostitutes (referred to as “fallen women” by the Court throughout the judgment), up to sixteen years of age so as to prevent them from getting involved in the depraved and unethical way of life.

However, the Court passed an order on November 15, 1989. According to the order, the Apex Court was of the view that setting up different educational institutes and hostels would isolate the prostitutes’ children, which would be against the well-being of these children as well as the society in general. Though the Court did not approve the plea for separate hostels and schools, it stated that to help the separation of prostitutes’ children from their mothers, the availability of sufficient accommodation in reformatory homes and hostels was needed.

The Supreme Court set up a committee of four advocates and three social workers to look into the matter and suggest appropriate actions. The Committee, with Shri V. C. Mahajan as its chairman, probed into the working of government agencies. The report of the Committee is as given below:-

The focus was on both, recognized red light areas as well as areas that were not recognized.
According to the report, it was due to poverty that families were sending their children for prostitution.
It stated that destitution, social intolerance, family customs, poor health, desolation, and lack of alternate livelihood sources were the main reasons due to which the women were not willing to give up prostitution.
It also stressed the role of NGOs in the reestablishment and education of the children of prostitutes.

Issues Before the Court

The main issues listed by the Court after the report are:-

What are the rights of the prostitutes’ children and what should be the course of action to separate the children from their mother and other such people so as to provide them safety and ensure their rehabilitation in the nation’s mainstream?
What strategy should be formulated to eliminate prostitution?

Ratio of the Case

In most cases, the victims of prostitution are the underprivileged and illiterate segment of society who are targeted by the rich and influential sections. This is a form of discrimination and hence, violative of one’s human rights. The children of the prostitutes also have the right to equality, dignity, equal opportunities, protection, and care, and deserve to be a part of the social mainstream. Moreover, it is the society that is responsible for the sufferings of these women and thus the society is responsible for the elimination of women trafficking and rescuing the victims. It is the duty of the State to ensure that the victims are rescued, rehabilitated, and economically empowered.

Decision of the Court

The Court gave comprehensive directions regarding the rescue and reestablishment of prostitutes and their children in society. These directions include:-

It stated that the women involved in prostitution were not offenders, rather they should be viewed as victims of their unfavorable socio-economic conditions. It emphasized making the women economically independent through self-employment and vocational training.
The Court directed the setting up of juvenile homes for the children to ensure their rehabilitation and safety.
It directed for the composition of a committee to study the issue and formulate schemes for the upliftment of the victims.

However, the second justice, Justice Wadhwa dissented with the opinion of Justice Ramaswamy on one issue. He observed that in the present case, the issue raised in the petition was the rehabilitation of the children of prostitutes and not the elimination of prostitution or the rehabilitation of the prostitutes.

After this judgment, a review petition was filed and the petition was transferred to a three-judge bench, which was larger than the bench in the original case. The decision in the review petition overruled the first judgment relating to the directions formulated for the elimination of prostitution. But the guidelines formulated for the prostitutes’ children in the first case were upheld in the review petition also.

This case analysis is written by Muskan Harlalka, a second-year BA LLB (Hons.) student at the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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