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Case Analysis: Gaurav Jain V. Union of India

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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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Voting Rights in India to Non-Resident Indians

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Introduction

Human Rights are the most basic rights and are to be exercised by all human beings irrespective of the place they belong. However, emigrates are denied the most democratic right – the right to vote. The right to vote encourage political participation and enables the citizens to keep a check on the government. Also, the right to vote empowers to influence governmental decisions and policies. The UDHR (Universal Declaration of Human Rights) provides that everyone has the right to take part in governing his country. The ICCPR (International Covenant on Civil and Political Rights) provides that every citizen has the right and the opportunity to participate without any unreasonable restrictions in the conduct of public affairs to vote. The election shall be held by secret ballot guaranteeing the free expression of the voter’s will.

An NRI elector is a person who is a citizen of India and resides outside India due to education or employment but has not acquired citizenship in any other country. He is eligible to be registered as a voter in the constituency of his native place in India. Now, who is eligible to be registered as a voter? A person who has attained 18 years of age on first January of the year in which revision of the electoral roll published finally. 

Voting Rights of NRI

Until 2010, NRIs were not allowed to cast their vote during the general elections if they reside outside India for six months under Section 19 of the Representation of People Act, 1950. To crystallize voting rights for the NRIs, the government brought the Representation of People (Amendment) Act, 2010, and Section 20 (A) was inserted. The section states that if an NRI deemed to an ordinary resident, he is allowed to join the electoral rolls. However, an NRI voter needs to be physically present in the constituency to vote according to this Act.

Background

The Election Commission began to look for options to permit NRIs to vote from abroad after receiving lots of requests including, the Ministry of Overseas Affairs and Naveen Jindal (Industrialist, former Rajya Sabha MP). Three writ petitions from NRIs were filed in the Supreme Court by NRIs in 2013-2014. After the Lok Sabha election in 2014, a 12-member committee established to study primarily three options:- 

  1. Voting by post
  2. Online voting
  3. Voting at an Indian mission abroad

Online Voting was averted by the committee as this could compromise the secrecy of voting. Lack of adequate resources led to the proposal to vote at Indian Mission abroad to shut down. In 2015, the panel recommended NRIs the options for proxy voting and e-postal ballot apart from voting in person. The Ministry of law accepted the advice on proxy voting. 

About the Proxy Voting 

In 2017, the Union Cabinet passed the proposal on the proxy voting right. The government introduced a bill amending the Representation of the People Act, 1950. Lok Sabha passed the Bill; however, approval from Rajya Sabha was still pending when the Bill lapsed due to the dissolution of the 16th Lok Sabha. 

Now, the Election Commission suggested postal voting rights for NRIs where consent of the Parliament was not necessary. The postal voting facility can extend to the NRIs elector by amending the Conduct of Election Rules 1961. Parliaments consent is not necessary for this. 

Current Strength of NRI Voters

In 2015, the UN reported that India has the largest diaspora population of 16 million people. In comparison to the population, registration of NRI voters is very low; according to the Election Commission, approx 1 lakh NRIs registered as voters in India. About 25,000 NRIs only flew to India during the 2019 Lok Sabha Election.

Kerala (89,000) reported a large number of NRI voters. The second-largest registered NRI voters were documented in Andhra Pradesh (7,500), followed by Maharashtra approx 5,500, Karnataka about 4,500, Tamil Nadu (3,200), and 2,500 in Telangana.

Postal Voting on a Pilot Basis

In December 2020, the Ministry of External Affairs and the Election Commission held a meeting where the Election Commission mentioned the countries to the government where the postal voting will introduce on a pilot basis. In this pilot, gulf countries are excluded for now as the commission does not have any facilities against the NRIs residing in the Gulf countries like the UAE, Oman, Kuwait, Saudi Arabia, and Qatar. The postal ballot pilot will carry out at first for voters settled in the United States, Australia, New Zealand, South Africa, France, Japan and Germany. 

Working of Postal Ballot

The Election Commission has presented the process for postal voting for NRI. Interested voters will have to inform the Returning Officer (RO) within five days after the notification for the election. The RO will send the ballot paper electronically on receiving information. In the Indian Mission, an assigned officer will download the ballot paper on behalf of the voters and give it to the NRI electors. The NRI voters can now mark the preference at the mission and give it back with a declarations form attested by the assigned officer in a sealed envelope.

Conclusion

The people residing abroad are also entitled to human rights including, the right to vote, as available to other citizens. Migration cannot be considered a ground to restrict any person to exercise this right. The right to vote instills a sense of responsibility and belongingness towards one’s nation. The Amendment brought in the Representation of People Act ensured the voting rights for NRIs still to enroll and vote a person needs to be physically present. Due to which a few numbers of NRI voters got registered, as a large number of people do not have enough time and money to travel back to India to cast their vote. However, the postal ballot system introduced by the government to ensure that NRIs could exercise their right to vote is a positive step towards ensuring the participation of NRIs in the elections and public affairs of the country. 

This article is written by Gracy Singh, a 2nd-year student pursuing a BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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