Holding

Under Article 142, the Court may direct the Union and States to establish juvenile homes, Child Development and Care Centres and comprehensive schemes for the rescue, rehabilitation and eradication of prostitution, recognizing children of prostitutes as neglected juveniles entitled to protection.

Summary

The Supreme Court entertained a public‑interest writ under Article 32 on behalf of Gaurav Jain, seeking rescue, rehabilitation and education for children of prostitutes and an overall scheme to eradicate prostitution. The Court examined the constitutional guarantees under Articles 14, 15, 21, 23, 24, 38, 39, 46 and international conventions, and interpreted the children of prostitutes as "neglected juveniles" under the Juvenile Justice Act, 1986. It rejected the petitioner's demand for separate schools and hostels, holding that segregation would be counter‑productive, but directed that the children be admitted to regular schools and placed in juvenile homes. Invoking its powers under Article 142, the Court ordered the Union and State governments to set up Child Development and Care Centres, constitute a high‑level committee to devise schemes for rescue, rehabilitation and eradication of prostitution, and to monitor implementation through permanent secretarial committees. The directions were issued as a binding precedent and the petitions were disposed of.

Issues considered

The constitutional and statutory rights of children of prostitutes under the Indian Constitution and the Juvenile Justice Act, 1986.
Whether the Court may order the establishment of separate schools and hostels for these children.
The scope of the Court's power under Article 142 of the Constitution in a public‑interest litigation.
The duty of the Union and State governments to formulate and implement schemes for rescue, rehabilitation and eradication of prostitution.
The appropriate institutional mechanism (juvenile homes, CDCCs) for the care of child prostitutes and neglected juveniles.

Legislation cited

Immoral Traffic (Prevention) Act, 1956s. 2(a) (definition of brothel), s. 2(f) (definition of prostitute)
Juvenile Justice Act, 1986s. 10, s. 11, s. 12, s. 13, s. 14, s. 15, s. 2(1) (definition of neglected juvenile), s. 4 (Juvenile Welfare Boards), s. 5 (Powers of Juvenile Courts), s. 9 (Juvenile homes)

Subjects

public interest litigationchild rightsprostitutionjuvenile justiceArticle 142rehabilitationconstitutional lawhuman rightschild developmentsocial welfare

Judgment

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:
c
Public Interest Litigation-Petition filed for rehabilitaiioll of childrell of
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 develop-
ment 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 Resour-
ces--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 Govem- F
ments to implement the Schemes--Pennanent Committee of Secretaries to be
constituted to review the progress of the implementation of the Schemes-Pe-
riodical progress reporl to be submitted to Supreme Cowt-Juve11ile Justice
Act, 1986.
G
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
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.
Articles 32 and 226 :

Public Interest Litigation-Nature scope, ambit and power of Court to
grant reliefs.
B
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.
c
Juvenile Justice Act, 1986 :

S.2(1)--'Neglected Juvenile'-Definition-Interpretation of.

Words & Phrases :
D
'Brothel'-"Prostitution ''-'A huse ', 'Sexual abuse'-'Public Place'-
Meaning of in the context of Immoral Traffic (Prevention) Act, 1956 and
Juvenile Justice Act, 1986.
(1
Labourers working on Sala/ Hydro Project v. State of Jammu & Kash- <
E 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.
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 Kulkar-
ni, 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 :
c
"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
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 gover-
nance 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
inferno and the undesirable surroundings of prostitute homes". This was
B 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 in-
dividual 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
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. Pros-
titute 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

1
'
self-employment schemes. In no circumstances, they should continue to be
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
E

social mainstream. If given equal opportunity, they would be able to play
their own part for peaceful rehabilitation, live a life with happiness pur-
posefu!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 avail-
able 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; con-
tribute 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
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 mean-
ingful instruments and means to ameliorate their conditions - social, educa-
tional, 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
J effectively so that those rights become real and meaningful to them.

Let us, therefore, first consider the rights of the fallen women and

J D
their children given by the Constitution and the Directive Principles, the
Human Rights and the Convention on the Right of Child, before consider-
ing 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 guaran-
tees 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 Suppres-
sion 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 empower-
ment are firmly held as fundamental rights of every citizen.
c
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 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, protec-
tion, rehabilitation and treatment by the social engineering, in law, Con-
stitution 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 excel-
lence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement.

E 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
F 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
.•
GAURAV 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 institu-
tional 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, implementa-
tion 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. c
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
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 recogni-
tion 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) postu-
lates 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 pro-
cedure 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 "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.

D 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 in-
stitutions for the care of children. When considering solutions, due
E 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 oppor-
F tunity, the State shall in particular : (a) make primary education compul-
sory 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
GAVRAV 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 :
D
"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:

(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.
G
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
nor life imprisonment without possibility of release shall be im-
posed 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 cus-
tomary 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
1
social life in order to ensure on the basis of equality of men and women,
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 Dis-
criminaticin 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-
GAVRAV 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 in-
divisible part of universal human rights. The full development of per-
sonality 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 es-
tablished 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
promiscuous sexual intercourse for hire. On proof thereof, it becomeil a
B brothel.

The Juvenile Justices Act, 1986 (for short, the 'JJ Act') was enacted
to provide for the care, protection, treatment, development and rehabilita-
tion 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
GAVRAV 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 com-
mercial 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 com-
mercial 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 exploita-
tion 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. Every juvenile home to which a neglected juvenile is sent
under the JJ Act shall not only provide the juvenile with accommodation,
maintenance and facilities for education, vocational training and rehabilita-
D tion, but also to provide him with facilities for the development of his
character and abilities and give him necessary training for protecting
himself against moral danger or exploitation and shall also perform such

..
other functions as may be prescribed to ensure all-round growth and
development of his personality. Sections 10 and 11 deal with establishment
-
of special or observation homes for delinquent juveniles, details of which
E needs no elaboration. Sect.ion 12 touches upon the need for After-care
organisations. Under Section 13 in Chapter III, if any police officer or any
other person or organisation authorised by the State Government in this •
behalf, by general or special order, is of the opinion that a person is
apparently a neglected juvenile, such police officer or other person or
F organisation may take change of that person for bringing him before a
Board for rehabilitation, care and protection of the child. Section 14 deals
with special procedure to be followed when neglected juvenile has parents.
Section 15 regulates inquiry regarding the neglected juvenile, the details of
which are not material. The question, therefore is : what procedure is
efficacious to prevent prostitution, bring the fallen women and their
G children into the social mainstream by giving care, protection and
rehabilitation ?
-
Three Cs, viz., counselling, cajolinga and coersion are necessary to
effectively enforce the provisions of ITP Act and JJ Act. By Order dated
H May 2, 1990, this Court, after hearing the counsel, passed an order to set
GAURAVJAINv. U.0.1. 121

up an Advisory Committee to make suggestions for eradicating child A
prostitution and to point out social aspects for the care, protection, treat-
ment, development and rehabilitation of the young victims, children and
girls prostitutes from red light area and get them free from the abuses of
prostitution; to amend the existing law or to enact a new law, if so
warranted; to prevent sexual exploitation of children and to take various B
measures for effective enforcement thereof. It is seen that the Committee
constituted by this Court under the chairmanship of Shri V.C. Mahajan
travelled far and wide to have a look into the field of operatiol\ of the
governmental agencies and has suggested nodal programme for the
eradication of the twin facets of prostitution, viz., protection, care and
rehabilitation of the fallen women and neglected juve!liles. The Committee C
has opined that the problem of child prostitution does not stand by itself
and is a component of overall phenomenon in the country. It highly
concentrates on identified red light areas as well as on areas which are not
so clearly identified. Though the problem of prostitution is mainly found
in large cities, but in the urban areas and some rural areas, the problem
gives frequent recurrence. Among the fallen women, the child prostitutes D
constitute major bulk of the component. Child prostitutes constitute 12 to
15% of prostitutes in any area. On account of the social sanctions, women
are exploited by the monsterous customs of Devdasis, Jogins and
Venkatans is known by other names in different parts of the country. The
• unfounded social and religion based sanctions are only camouflage; their E
real motive is. to exploit the unfortunate women. Most of them belong
either to Scheduled Castes or Backward Classes coming from socio-
• economically lower groups. They are prevalent highly in Karnataka,
Maharashtra and Andhra Pradesh. The specific areas in manor cities are
identified as red light areas as well as some semi-urban but rural areas.
The number of red light areas having increased in recent times, brothel F
based prostitution is on the vane but there is an increasing trend towards
decentralised mode of prostitution. 86% of the fallen women hail from
Andhra Pradesh, Karnataka, Tamil Nadu, West Bengal, Bihar,
Maharashtra, Uttar pradesh, Assam, Gujarat, Goa, Madhya Pradesh,
Kerala, Meghalaya, Orissa, Punjab, Rajasthan and Delhi. Delhi receives·
prostitutes from about 70 districts in the country; Bombay from 40 districts; G
Bangalore from 70 districts; Calcutta from 11 districts, Hyderabad from 3
districts etc. There is growing evidence that the minimum number of
prostitutes get into flesh trade either voluntarily or by organised gangster
force women and girls by offering rosy future to innocent fallen women and
trap them often with the connivance of the police. H
122 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A The Committee has also identified ten types of prostitutes like Street
walkers, religious prostitutes, prostitutes in brothel, singing and dancing
girls, bar nude, massage parlour and some are call girls. Comprehensive
study conducted by another Committee in six metropolitan cities, viz.,
Delhi, Bombay, Calcutta, Madras, Hyderabad and Bangalore, reveals the
age group of the prostitutes below 20 years of age are 75%, 21 to 30 years
B are 40%, 30 to 35 years are 18% and above 35 years are 12%. At the time
of induction into the prostitution, 9% are below 15 years; 24.9% between
16 to 13 year; 27.7% between 19 to 21 years; and 32.9% are above 22 years.
At the time of entry, therefore, 15% of the fallen girls are in the categmy
of neglected juveniles, about 25% are minors between the age group of 16
C to 18 years. The major reasons for induction of prostitution are pover1:y
and unemployment or lack of appropriate rehabilitation etc. All abhore
social stigma; 16% due to family tradition and 9% due to illiteracy. 94.6%
prostitutes are Indians while 2.6% are Nepalis and 2.7% are Bangladeshis.
84.36% are Hindus; 10.9% are Muslims and 3.5% are Christians. In terms
D of caste classification, Dalits and Tribes constitute 36%, Backward Classes
24% and others 40%. In terms of marital status, only 10.6% of the pros-
titutes are married; 34.4% are unmarried and 54.2% are divorcee 1Jr
widows. In terms of education level; 70% of them are illiterates while 4%
only are literates. Only 24% of the prostitutes are educated at primary and
secondary level while 1.4% have higher qualifications. Therefore, prostitu-
E tion is primarily due to ignorance illiteracy, coercive trapping or scare of
social stigma. In India, they enter into the prostitution between the age of
16 to 19 years and lose market by the time they became 35 years of age. •
Thereafter such persons either manage brothels or deveiop contact with
high leads. Recent trend is that ladies from higher levels of income a.re
F initiated into the prostitution to sustain sufficient day-to-day luxurious style
of life so as to ensure continuous economic support for their well-being.

The Mahajan Committee Report indicates that in two villages in
Bihar and some villages in West Bengal, parents send their girl children to
earn in prostitution and the girls in turn send their earnings for main-
G tenance of their familie5. It further indicates that certain social organisa-
tions have identified the poverty as the cause for sending the children for
prostitution in expectation of regular remittance of income from prostitu-
tion by the girls who have already gone into the brothels. It is also an
inevitable consequence that over years the fallen women are accustomed
H to certain life-style and in terms of expenditure they need certain amount
GAURAVJAINv. U.O.I. 123
of money for their upkeep and maintenance. When they bear children, it A
becomes additional burden for them. They are led or cought in the debt
traps. The managers of the brothel are generally ladies. They do not allow
the girls to bear children. In case of birth against their wishes, the unfor-
tunate are subjected to cruelty in diverse forms. In the process of main-
taining the .,children, again they land themselves in perpetually growing B
burden of debt without any scope to get out from the bondage. Thereby,
this process lends perpetuality to slavery to the wile of prostitution. To
support their children for education etc. 44% of them desire to leave the
red light traps and 43% of them express their despondence languishing
between hope and despair. Most of those who want to leave, have given
the reasons to save their children from prostitution and protection of the C
future of their children, fear of contacting the venerial diseases, the fear of
their children following the path; some of them expressed dislike the
profession, social stigma and their yearning is to start new life. Those who
want to remain in prostitution have given absence of alternatives source of
income, their social non-acceptability, family customs, poverty, ill-health D
and their despondence as the reasons and, thus, they want to continue in
the prostitution as the last resort for their livelihood. They do not like to
remain in red light area and the profession but lack of alternative source
of livelihood is the prime cause of their continuation in the profession.
b
If alternatives are available and society is inclined to receive them, E
they will gladly shed of their past and start with a clean slate as a fresh
.. lease of life with renewed vigorous hope and aspiration to live a normal
life, with dignity of person; respect for the personality, equality of status;
crave for fraternity and acceptability in the social mainstream. Therefore,
it would be imperative to provide a permanent cure to the malady. There F
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
behavioral 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 \vith fresh lease of life, without which their G
craving to shed off the past and to start with a new lease of life would
remain a distant dream a,nd 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 H
124 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A disadvantaged, deprived and denied people. The directive principles of the
Constitution, in particular Articles 38, 39, and all relevant related Articks
enjoin the State to provide them as impregnable inbuilt right to life
guaranteed by Article 21 and equality of opportunities with protectil'e
discrimination guaranteed in Article 14 the genus and its species, Articles
15 and 16 and the Preamble, the arch of the Constitution hy legislative and
B administrative measures.

Therefore, it is the duty of the State and all voluntary non- govern-
ment organisations and public spirited persons to come in to their aid to
retrieve them from prostitution, rehabilitate them with a helping hand to
C 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,
D free counselling assistance and all other similar aids and services are
meaningful measures to ensure that unfortunate fallen women do not ag2Jn
fall into the trap of red light area contaminated with foul atmosphere. Law
is a social engineer. The courts are part of the State steering by way of
judicial review. Judicial statesmanship is required to help regaining social
order and stability. Interpretation is effective armury in its bow to stc:er
E clear the social malady, economic reorganisation as effective instruments
remove disunity, and prevent frustration of the disadvantaged, deprived
and denied social segments in the efficacy of law, and pragmatic direction
pave way for social stability peace and order. This process sustains faith of •
the people in rule of law and the democracy becomes useful means to the
F common man to realise hls meaningful right to life guaranteed by Article
21.

V.C. Mahajan Report States that an organisation by name Prerana,
selected Kamathipura red light area, Bombay, where 14 lanes are in the
occupation of the Managers of the brothels and has located a centre for
G counselling. Therein, they organise regular counselling and service centre
for the fallen women and do work for the children. The national plan of
action for the girl child in the SAARC Decade of the Girl Child (1591-
2000) was launched as a project for the welfare and development of the
girl chlldren including adolescent girls and street children in particular. An
H inter-departmental monitoring committee was also set up under this plan
GAURAVJAINv. U.0.1. 125
in some of the red light areas. The provisions of Integrated Child Develop- A
ment Services Scheme were extended. A number of voluntary agencies
have also been involved in the care, rehabilitation and advocacy to retrieve
prostitutes including child prostitutes. The rehabilitation and welfare or-
ganisation is to be initiated.

Women found in the flesh trade, should be viewed more as victims
B
of adverse socio-economic circumstances rather than as offenders in our
society. Prostitution in five star hotels is a licence given to persons from
higher echelons. The commercial exploitatic>n of sex may be regarded as
crime but those trapped in custom oriented prostitution and gender
oriented prostitution should be viewed as victims of gender orient~d vu!- C
nerability. That could be arrested by not only law enforcing agencies but
by constant counselling and interaction by the NGOs impressing upon them
the need to shed off the path and to start with a new lease of life. The
ground realities should be tapped with meaningful action imperatives,
apart from the administrative action which aims at arresting immoral traffic D
.. of women under ITP Act through inter-State or interpol arrangements and
the nodal agency like the CBI is charged to investigate and prevent such
crimes. We are concerned in this case more with the rehabilitation aspect
than with prevention of the crime. Therefore, we emphasise on the review
on the relevant law in this behalf, effective implementation of the scheme
to provide self-employment, training in weaving, knitting, painting and E
other meaningful programmes to provide the fallen women the regular
source of income by self- employment or, after vocational education, the
appropriate employment generating schemes in governmental, semi- 1
governmental or private organisations.
F
The customary initiation of women in the practice of Devadasis,
Jogins al}d Venkatasins is prevalent in Andhra Pradesh, Karnataka and
Maharashtra areas; in particular the practice of prostitution is notorious.
It is an affront to the human dignity and self-respect but the pursuit of
customary beliefs traps the fair sex into this glorified self-sacrifice and G
ultimately leads to prostitution service in the temples and charitable institu-
tions etc. which is a crime against humanity, violation of human rights and
obnoxious to Constitution and Human Rights Act. They are void under
Article 13 of the Constitution of India and punishable under the law. They
are anti-thetical to the Constitutional scheme. Fundamentalists and
proponents of these practices are constitutional criminals. The unfounded H
126 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A customs cannot have legal sanction. On the other hand, penal enactments
provide for abolition thereof. Instead of progressive outlook, regressive
unfortunate tendency, of late, is raising its ugly head to glorify these
ignominous practices which is leading not only to abetment of commission
of the crime, but also misleading the unfortunate illiterate and weaker
B sections of the society, to be taken in seriously by the later by their false
promises or false theories such as God's ordain which finds easy accep-
tance by the poor and illiterate and is acted upon. Every right thinking
person should condemn such attempts apart from keeping and helping
strict implementation of the law prohibiting initiation of the nasty practice
wherein the eldest girl child in particular families, is offered as Devadasi
C or Jogin or Venkatasin, by whatever local name they are called. They are
making the lives of the girl miserable; in the guise of prosperous future and
custom, the girl is detained in prostitution for no fault of her. This is
prevalent in particular in six districts of Karnataka, viz., Raichur, Bijapur,
c
Belgaum, Dharwar, Bellary and Gulbarga where their number is identified
D as 21,306. In Andhra Pradesh, in five districts, namely, Medak, Karimnager,
Nizamabad, Nalgonda and Warangal, such girls are known as Jogins.
Nizamabad District has the largest number of Jogins. As per the survey
conducted in 1996, as many as 16,300 Jogins were found in that State.
Similarly, in Maharashtra, they are found in large number, in particular in
Marathawada and Vidarba regions. The common features of such women
E is that predominantly they are from Scheduled Castes, Scheduled Tribes
and other Backward Classes. The eldest girl in every family is being offered
as Devadasi, Jogin or Venkatasin. Sometimes, they do redeem the pledge
made to the Gods or Goddesses, etc. Original families of these Devdasis,
Jogins or venkatasins were by and large poor. They are primarily agricul-
F tural labourers having no access to credit facilities or literacy. The eldest
girl in each family is driven to prostitution. The system has been in
existence for years as a result of lack of awareness about the exploited
segments of the Devadasis etc. Many families which dedicate their girls, do
so due to pursuit of customary practices.

G Economic rehabilitation is one of the factors that prevent the prac-
tice of dedication of the young girls to the prostitution as Devadasis, J ogins
or Venkatasins. Their economic empowerment and education gives resis-
tance to such exploitation; however, economic programmes are necessary
to rehabilitate such victims of customs or practices. They are being
H rehabilitated with the help of vocational training centres set up in
GAVRAV JAIN v. U.0.1. 127
Maharashtra giving preferential admission into educational training in- A
stitutes; they are admitted into informal adult education. In Maharashtra,
educational training centres have been opened for Devadasis. In Kar-
nataka, Devadasi women have been assisted under DWCRA schemes in
various districts, in particular six districts, where an extensive Devadasi
rehabilitation programme is in full force. The Karnataka State Women's B
Development Corporation and the Karnataka State Scheduled Castes and
Scheduled Tribe Development Corporation are implementing this
programme in the aforesaid six districts where the phenomenon of
Devadasi system is being observed; training is imparted in hand-weaving,
50% subsidy is given in weaving; good work-shed is given to them free of
costs; income assistance like micro-business enterprises, rope and basket C
making etc. are being provided to Devadasi women for rehabilitating them.
Training in production of soap, chalk making khadi and weaving activities
is being imparted in Andhra Pradesh. Karnataka State also has taken the
lead in forming self-helping group of Devadasis; a thrift and saving
programme is being implemented in some areas. Social Welfare Depart- D
ments should undertake these rehabilitation programmes for the fallen
victims of social practice so that the foul practice is totally eradicated and
the fallen women are redeemed from the plight and are not again trapped
into the prostitution. In Andhra Pradesh, the State Government is provid-
ing housing sites or house facilities to Devadasi women; they are getting
free treatment in hospitals. Devadasi women aged about 60 years and E
above are being given pension. In order to improve literacy, adult literacy
programmes are being organised for them. The NGOs in these three States
are playing important role in implementation of various programmes and
they are largely concentrating on generating awareness among these per-
sons and their economic rehabilitation. It would, therefore, be meaningful F
if rehabilitation programmes are launched and implementation machiner¥
is set not only to eradicate the fertile source of prostitution but also for
successful rehabilitation of the fallen women who are the victims of cir-
cumstances to regain their lost respect to the dignity of person to sustain
equality of status, economic and their social empowerment.
G
Children of the world are innocent, vulnerable and dependent. They
are all curious, active and full of hope. Their life should be full of joy and
peace, playing, learning and growing. Their future should be shaped in
harmony and co-operation. Their childhood should mature, as they
broaden their perspectives and gain new experience. Abandoning the H
128 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A children, excluding good foundation of life for them, is a crime against
humanity. The children cannot wait till tomorrow; they grow everyday;
along with them grows their sense of awareness about the surroundings.
Tomorrow is no answer; the goal of their present care, protection and
rehabilitation is the need of the hour. We have already dealt with the rights
B assured to them by the Constitution, the Directive Principles and the
Convention on the Right of the Child. The United Nations Declaration on
the Rights of the Child made on November 20, 1959, has formulated and
given 10 principles in that behalf. Principle No. 1 provides that the child
shall enjoy all the rights set fourth in the Declaration. All children, without
any exception whatsoever, shall be entitled to these rights, without distinc-
C tion or discrimination on account of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status, whether himself or of his family. Principle No. 2 postulates that the
child shall enjoy special protection, and shall be given opportunities and
facilities, by law and by other means to enable him to develop physically,
D mentally, morally, spiritually and socially in a healthy and normal manner
and in conditions of freedom and dignity. Principle No. 3 postulates that
the child shall be entitled from his birth to a name and a nationality.
Principle No. 4 postulates among other things that the child shall enjoy the
benefits of the social security. He shall be entitled to grow and develop in
health; to this end, special care and protection shall be provided to him.
E Principle No. 5 provides that the child who is physically, mentally or socially
handicapped shall be given special treatment, education and care required
by that particular condition. This is more relevant for the pUl]JOSe of this
case. Principle 6 postulates that the child for the full and harmonious
development of his personality, needs love and understanding. A child of
F tender years shall not, save in exceptional circumstances, be separated from
his/her mother. Society and the public authorities shall have the duty to
extend particular care to children without a family and to those without
adequate means of support. Payme1~t of State and other assistance towards
the maintenance of children of large families is desirable.

G Principle No. 7 provides that the child is entitled to receive educa-
tion, which shall be free and compulsory, at least in the elementary stages.
He/She shall be given an education which will promote his/her general
culture, ancl enable him/her on a basis of equal opportunity to develop
his/her abilities, his/her individual judgment, and his/her sense of moral and
H social responsibility and to become a useful member of the society. The best
GAURAV JAIN v. U.O.I. 129

interests of the child shall be the guiding p1inciple of thpse responsible for his, A
education and guidance, that responsibility lies in the first place with his
parents. The child shall have full opp01tunity for play and recreation, which
should be directed to the same purposes as education; society; and the public
autholities shall endeavour to promote the enjoyment of this light. Principle
No. 8 postulates that the child shall in all circumstances be among the first B
to receive protection and relief Principle 9 is most imp01tant in this behalf
which provides that the child shall be protected against all fonns of neglect,
crnelty and exploitation. He shall not be the subject of traffic, in any fonn.
The child shall not be admitted to employment before an appropliate mini-
mum age; he shall in no case be caused or pem1itted to engage in any
occupation or employment which would prejudice his health·ot education, or C
interfere with his physical, mental or moral development. Principle No. 10
postulates that the child shall be protected from practices which may foster
racial, religious and any other fonn of disclimination. He shall be brought up
in a spi1it of understanding, tolerance, ftiendship among peoples, peace and
universal brotherhood and in full consciousness that his energy and foliates D
should be devoted to the service of his fellow men.

[Emphasis supplied]

The Government of India has adopted the National Policy for
Children by Resolution No. 1-14/74-CDD dated August 22, 1974. The main E
purpose o( the policy is that the nation's children are a supremely
important asset. Their nurture and solicitude are our responsibility.
Children's programme should find a prominent part in our national plans
for the development of human resources, so that our children grow up to
become robust citizens, physically fit, mentally alert and morally healthy, F
endorsed with the skills and motivations needed by the society. They
participate in equal measure in democratic governance of the State as
useful citizens. Equal opportunities for development to all children during
the period of !,'fOwth should b~ our aim; for this we would serve our larger
purpose of reducing inequality and ensuring social justice. To care for, plan
out needs of the children and successful implementation is, therefore, our G
duty, as citizen, be an administrator, a Magistrate or a Judge.

Among the diverse programmes, Programme No. 4 of India for
children postulates that the children of the weaker sections of the society
needs special protection. The programme of informal education for pre- H

'
130 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A school children from such sections will also be taken up. Programme No.
5 postulates that children who are not able to take full advantage of formal
school education shall be provided other forms of education suited to their
requirements. Programm~ No. 7 directs to ensure equality of opportunity;
special assistance shall be provided to all children belonging to the weaker
sections of the society, such as children belonging to the Scheduled Castes
B and Scheduled Tribes and those belonging to that economically weaker
sections, both in urban and rural areas. Programme No. 8 envisages that
children who are socially ,,handicapped, who have become delinquent or
have been forced to take to begging or are otherwise in distress, shall be
provided facilities for education, training and rehabilitation and will be
C helped to.become useful citizens. Programme No. 10 provides that no child ...
under 14 years of age shall be permitted to be engaged in any hazardous
occupation or be made to undertake heavy work. Programme No. 11
postulates that facilities shall be provided for special treatment, education,
rehabilitation and care of children who are physically handicapped, emo-
D tionally disturbed or mentally retarded. Programme No. 13 provides that
special programmes shall be formulated to spot out and encourage and
assist gifted children, particularly those belonging to the weaker sections
of society. Programme No. 14 envisages that existing laws should be
amended so that in all legal disputes, whether between parents or institu-
tions, the interest of children are given paramount consideration.
E Programme No. 15 provides that in organising services for children, efforts
would be directed to strengthen family ties so that full potentialities of
growth of children are realised within the normal family, neighborhood and
community environment. Priority sectors have been provided in this behalf
and paragraph 4( c) provides maintenance, education and training of or-
phan and destitute children. They require special care, education, training
F
and rehabilitation of handicapped children; in clause ( e) thereof, role of
voluntary organisations is emphasised. Paragraph 6 thereof postulates that
the Government shall endeavour that adequate resources are provided for
child welfare programmes and appropriate schemes are undertaken.

G India has a tradition of voluntary action which shall be the endeavour
of the State to encourage and strengthen voluntary actions so that State
and NGOs complement each other. Paragraph 7 postulates legislative and
administrative action in that behalf and paragraph 8 emphasises people's
participation in implementation of this programme. It would, thus, be seen
H that the constitutional imperatives of the national policy of the children and
GAURAV JAIN v. U.O.L 131

the international principles for the development of children are of the A
paramount need and consideration is for the child development. The
handicapped children and those from weaker sections are given special
attention by the State and voluntary agencies.

The question, therefore, is : what action is to be taken to rescue, B
rehabilitate and bring the children of fallen women into the mainstream of
the society? As stated earlier, three Cs (CCC) are necessary for successful
impiementation, to rescue and rehabilitate the children of the fallen women
living in the red light area. · Counselling, Cajoling by pursuation and
Coercion, as the last resort, are the three Cs for successful implementation
of them. 65.5% of the fallen women have children and usually they are in C
the age group of one to ten years. Generally, they prefer to keep their
children away from them while they are in the act of intercourse except
those children who are very young. Out of 71% children of illiterate fallen
women 39% are literate while 58% of the total have had primary or
secondary or higher education. They show keen interest to educate their D
children. The children tend to spend their time at study or leisure; though
girl children tend to be engaged in house hold jobs as is usual among
poorer classes. The children face the problems mainly due to (i) lack of
father figure to provide security, care and guidance; (ii) increased
responsibilities of mother; (iii) economic hardships (iv) lack of facilities to E
meet basic needs; (v) unhealthy social environment; (vi) mal-nutrition (vii)
coercive attempts by managers of brothels; (viii) tauntings,due to dislike,
by surrounders; and (ix) lack of proper counselling and. guidance;
motivation and opportunity gaps.
F
Many a prostitute themselves are child prostitutes (for short, the
'CP'); they and the children of the prostitutes (for short, the COP') need
to be removed from the red light area. Generally, the police resort to IPC
and ITP Act in this behalf but the forceful rescue of CP and COP in reality
is not successful in their rehabilitation. In this behalf, it is necessary to take G
aid of the definition of "neglected child" defined in JJ Act. It is already
seen and is reiterated for continuity that 'neglected juvenile' means one
found in begging; or found without having any home or settled place of
abode and without any ostensible means of subsistence and is destitute; or
has a parent who is unfit or incapacitated to exercise control over the
juvenile; or lives in a brothel or with a prostitute or frequently goes to any H
'n
,,
132 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A place used for the purpose of prostitution or is found to associate with any
prostitute or any other person who leads an immoral, drunken or depraved
·-
life; or who is being or is likely to be abused or exploited for immoral or
illegal purposes or unconscionable gain. The JJ Act makes distinction
between 'delinquent juvenile' and 'neglected juvenile' attributing to a delin-
quent juvenile an act or omission punishable by law to identify him as a
B delinquent juvenile. A neglected juvenile is one who is of the age of 16
years in the case of a boy and 18 years in the case of a girl, or whose parents
are unfit because of being living in prostitution, or the child born to a
prostitute, or one who frequents or associates with prostitution becomes a
neglected juvenile. A child brought to associate with a prostitute or is
C engaged in the prostitution or the profession of prostitution or another
juvenile who leads an immoral or depraved life or one who is likely to be
abused or exploited for immoral or illegal purposes for unconscionable
gain is also a juvenile. The crime is not attached for identifying him/her as
neglected juvenile; it is so in the case of a delinquent juvenile under the
D Act. They are to be kept in the Juvenile home as a place of safety.

An institution established or certified by a State Government under
Section 9 of the JJ Act is a juvenile home. The object of the Act is not to
punish the juvenile but to rehabilitate him/her, be it a delinquent juvenile
or neglected juvenile. In the latter case, it is one of obligations of the State
E to provide for care and concern of the State to establish a juvenile home
under Section 9 of the JJ Act. Section 4 of the JJ Act enjoins the State to
constitute, ~y a notification, for any area specified in the notification, one
or more Juvenile Welfare Boards for exercise of the powers and
discharging the duties conferred or imposed, under the JJ Act, on such
F Board in relation to neglected juveniles.

The Board shall consists of a Chairman and such other members as
the State Government thinks fit to appoint, of whom not less than one shall
be a woman; and every such member shall be vested with the powers of a
G Magistrate under the Cr.P.C. The Board shall function as a Bench of
Magistrates and shall have the powers conferred by the Cr.P.C., as the case
may be, on a judicial Magistrate of the first class or Metropolitan
Magistrate in Metropolitan cities. Even, in certain cases, a delinquent
juvenile who commits an offence like begging, being the neglected juvenile
H is covered as a neglected juvenile and should not be treated as delinquent
0
GAURAV JAIN v. U.O.I. . 133

- • juvenile since he began begging due to destitution or was forced to beg by A
organised gangsters. Therefore, all the types of juveniles defined within the
ambit of neglected juvenile, through attached with certain acts or omission,
are punishable under law, they still remain to be neglected juvenile and
should be dealt with by the Welfare Board and be brought within the
protective umbrella of the juvenile home established under Section 9. B
Establishment of juvenile home, thus, is a mandatory duty of the State to
provide teeth to the provisions of the Constitution, the Directive Principles,
the Convention on the Right of the Child read with principles of United
Nations Declaration and National Policy of the Government of India
-· referred to hereinbefore, and are protected by the JJ Act.
c
Every child who is found to be neglected juvenile should be dealt by
the Board and should be ·brought within the protective umbrella of the
juvenile home. The attribution as 'neglected children' is not social stigma;
the purpose is to identify the children as juveniles to be dealt with under
the JJ Act which is more a reformative and rehabilitated centre rather than D
for punishing the child as criminal; and mend their behaviour and conduct.
In an appropriate case, where the treatment of bringing the neglected
juvenile into the national mainstream takes long time, the definition
coupled with age prescription, should not be strictly interpreted to deny
the ameliorative care, consideration and rehabilitation of the neglected E
juveniles. The benefit of reformation, rehabilitation and bringing them into
the mainstream after the passing of the age prescription under the Act, is
the goal sought to be achieved. Lest, it has the effect of throwing the
neglected juvenile into the vile of prostitution or exploitating him for
organi:;ed crimes by the organised gangsters taking advantage of his
F
immaturity and despondence; that would be deleterious to the child's
development and would widen the deep gap between hope and reality in
the operation of the provisions hereinbefore referred to. The definition of
'neglected juvenile', therefore, should be interpreted broadly which is an
important function for the purpose of identifying the groups of children
who need care and attention and protection for rehabilitation. Their G
withdrawal from the protective umbrella of the JJ Act foils the goals set
out; besides all measures to bring the neglected juvenile into the
mainstream of the social status and up in failure and frustration.

Even if the economic capacity of the mother. of neglected juvenile in H
134 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A the red light area to educate and to bring him up would not relieve the •-
child from social trauma; it would always be adverse to keep the neglected
juvenile in the custody of the mother or the manager of the brothel; thus,
the child prostitute is unsafe and insecure. So, they should be rescued,
cared for and rehabilitated. As stated earlier, the three C's, namely,
B counselling, cajoling and coercion of the fallen women to part with the
child or child prostitute herself from the manager of the brothel is more
effective, efficacious and meaningful method to rescue the child prostitute
nr the negiected juvenile. The income criteria, therefore, is not a factor not
to rescue the child prostitute or the neglected juvenile for rehabilitation.

c It is of necessity to remember that the arms of law are long enough
·--
to mould the law to operate on the even keel. The coersive power with the
law enforcement agency to rescue the child prostitute or the neglected
juvenile, may not necessarily end up as a successful means. It would be
last resort when all avenues fail. On the other hand, involvement of the
D non-governmental organisations in particular women organisations which
are more resourceful for counselling and cautioning, would make deep
dent into the thinking mould of the fallen victims and would be a source
of success for their retrieval from the prostitution or sending the neglected
juvenile to the juvenile homes for initial treatment,psychologically and
E mentally, and will yield place to voluntariness to surrender guardianship of
the child prostitute or neglected juvenile to the Welfare Board or to the
NGOs to take custody of a child prostitute or the neglected juvenile for,
care, protection and rehabilitation.

F The V.C. Mahajan Committee report states that the resort to Sec-
tions 14 and 17 of JJ Act has met with resistance by the mothers and in
the case of child prostitute, by the managers of the brothels. The coercive
method adopted on one occasion by the Delhi Police pursuant to a
complaint under Section 13 of the JJ Act on March 7, 1990, led to
frustration of the entire operation, when on an early morning, the pros-
G titutes were taken by surprise by tap on the doors and children were taken
into custody, on the pretext of being examined by the doctors. Total 450
juveniles were taken into custody but no prior arrangement was made with
the doctors, for their examination. The children were not given custody
immediately. The children were taken into custody; 112 children below 16
H years were kept in the custody of the police. Their examination went on
GAURAV JAIN v. U.0.1. 135
A
upto March 23, 1990 by which time, the agitated mothers and the managers
of the brothels resorted to pressure technics. Ultimately, it all ended in a
fiasco. All were released by managers of juvenile home. This would indicate
apathy on the part of police in proper implementation and lack of prior
planning, understanding and concerted action between the law enforce-
ment agency, the NGOs and public spirited persons and doctors. Instead B
of doing good, it does harm. It, therefore, gives a stark lesson that until
proper arrangements are made and concerted action taken ad hoc attempt
to enforce law results in defeat of the purpose of the JJ Act. On the other
hand, if the NGOs in particular women members of the NGOs pursue and
counsel the mothers of the children or managers of child prostitutes to have C
them into custody and if proper care and treatment is given, rehabilitation
is the sure road to the successful results; it would be a success rather than
frustration of the enforcement of the JJ Act. It is, therefore, clear impera-
tive that proper planning, constant counselling and persuation are the
appropriate means, rather than abrupt to ad hoc coercive steps, unless it
becomes the last resort, for successful enforcement of the scheme. D

The question then is : what is proper method required to rehabilitate
the neglected juvenile or child prostitute taken into custody under the JJ
Act for enduring results? It is rather unfortunate that the juvenile homes
established and being run by the Government are not effectively been E
managed and YIELDING expected results. They become ornament for the
statistical purpose defeating the constitutional objectives and international
Conventions which are part of the municipal law. This Court on May 2,
1990 had directed the enforcement agencies to bring the prostitute,
neglected juveniles for the rehabilitation in the juvenile homes manned by
well qualified and trained social workers. The child prostitutes rescued F
from the red light areas should be shifted into the juvenile homes. They
should ensure their protection in the homes. The officers in charge of the
juv.enile homes, the welfare officers and the probation officers should
coordinate the operation and enforce it successfully. They should be made
responsible for the protection of the child prostitutes or the neglected G
juveniles kept in the juvenile homes for psychological treatment in the first
instance relieving them from the trauma under which they were subjected
to while in the brothels and red light areas. The special police authorities
should be established to coordinate with the social welfare officers of the
State Government and public spirited persons, NGOs locally available, and
see that the juvenile homes are entrusted to efficient and effective manage- H
136 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A ment, the child prostitutes or neglected juveniles are properly protected
and psychologically treated, education imparted and rehabilitation suc-
ceeded. They should also be provided with proper accommodation main-
tenance facilities for education and other rehabilitation facilities.

V.C. Mahajan Committee's report specifies at page 31 that since its
B inception till November 1989, 102 boys and 34 girls were admitted by a
responsible institute, a ~on-statutory body in Pune run on voluntary basis
to impart education to the destitute children in general and neglected
juveniles and child prostitutes in particular, with all facilities; it is run by
Bal Sangopan Centre run by Shreemant Dagausheth Halwai Ganpat Trust
c which gets funds from the Ministry of Welfare, Government of India under
the scheme for children in need of care and protection. Similar homes are
also being run for 75 children at Kolhapur and Bombay. As a policy, the
Trust does not keep girls above 12 years in the institute. On the other hand,
it has tied up with Hinge Stree Sikshan Sansthan at Pune for placement of
D the girls above 12 years into their custody but the Trust continues to be the
parent institution, paying their fees and holding the overall responsibility
to bring up the girls above 12 years. The report also states that the mothers
are allowed to visit the children once in a month and they are allowed to
take them home for brief spells during festivals and other special occasions.
E There is another institution, viz., 'Nihar' run by 'Vanchit Vikas' institute at
Pune. It is founded on the basis of the felt needs of the neglected juvenile.
Social workers of Pune Corporation cooperate with them. There are
special health reforms available to prostitutes, the workers come into
frequent contact with the prostitute mothers and their children. Gradually,
F they are getting acquainted with the situation and awareness is generated
of the disadvantages to keep the children with them while remaining in red
light area. The motivation yielded positive results in helping the children
rescued from the mothers and their placement in the home. The institute
is run through donations. It is being run for the past 15 years. Much
G progress has been made in the struggle to rehabilitate the neglected
juveniles. Therein, they have established a school for 25 children being used
in that 'Nihar'. Most of the children are in the age group of 5 to 10 years.
They take only female children with the female staff to attend to the needs
of the children. Their basic requirements of food, clothing and shelter are
H taken care of by 'Nihar'. Health, education and overall development is also
GAURAVJAINv. U.0.1. 137

taken care of. The children are enrolled in Zila Parishad Schools. A
Residential staff help them to take them to the schools and bring them
home. On Saturdays, teachers spend their time in 'Nihar' teaching music
and playing games with the children. On Sundays, teachers come from
Pune and spend time with the children and keep them in their studies. The
mothers of the children visit once in a month. The management does not B
allow the mothers to take the children except for short duration. The
prostitute mothers themselves have realised the advantage to keep their
children away from vile environment and are happy with educational
progress of their children. Similarly, "Devadasi Niradhar Mukti Kendra,
Ganghiganj" is ru~ning a centre by name "Devadasi Chhatra Vasti Graha" C
at Pune from October 1986. It is a residential institution for the children
of the Devadasis. 80% of them are the Devadasi children while 20% are
children from socio- economic backward classes. Funds for this institution
are ~ranted by the Department of Social Welfare, Government of
Maharashtra. It has on its roll, 75. boys 3nd girls. As on the date of the visit
by the Committee on July 7, 1990, 57 boys and 8 girls (total 65) were found D
in the institute. Similar institutions are being run elsewhere; the details of
which are not material. They have been elaborated in the Report of V.C.
Mahajan Committee.

The above facts do indicate that the NGOs are actively involved in E
the field of rehabilitating and educating the children of the fallen women
as neglected juveniles not brought within the net of JJ Act. The mothers
have their legitimate aspirations to bring their children into the mainstream
of the nation. What needs to be done is proper, efficient and effective
coordination and management in particular entrustment to the NGOs
which would yield better results than the management solely by the F
Governmental agencies. The motivation by the NGOs makes a deeper dent
into the mind of the prostitute mothers or child prostitutes to retrieve them
from the flesh trade and rehabilitate the children as useful citizens in the
mainstream of the society. V.C. Mahajan Committee has given details of
the Child Development and Care Centres (for short, the 'CDCC') in G
Annexure IV to the Report. It states how the management needs to be
;'
done, as under :

CHILD DEVELOPMENT AND CARE CENTRES (for brevity CDCC)

(A scheme for Children of Prostitutes & Children Associating with Pros- H
138 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A titutes and Prostitution)
Various factors have led to the perpetuation of prvstitution which in
turn has given rise to a large population of prostitutes' children. Their
mothers' nature of work, status, income, etc. often leave the children
wanting in attention and care for their overall development. However, it is
B 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 have to be tapped and channelised. The Child Development and
Care Centres are envisaged to provide Localised services through which
C the larger interests of these childr~n can be attended to. Such Centres are
to be situated in

(i) the vicinity of redlight areas

(ii) the vicinity of other areas identified as having a concentration
of prostitutes
D
(iii) those areas where there is a concentration of communities
among whom prostitution is the traditional occupation of the
women and girls.

E 171ese Centres will be run by voluntary organisation with government
fund and have Advisory and Monitoring Committees at Centre, State and
Local levels.

[Emphasis supplied]

p OBJECTIVES
The scheme would

(i) provide welfare and developmental services for children of
prostitutes and other children associating with prostitutes and
G prostitution by making them socially productive beings;

(ii) try to wean them away from their stirroundings by referring
them to suitable residential institutions as and when neces-
sary;

H (iii) try to reach out to the mothers (through their children) and
GAURAV JAIN v. U.O.I. 139

counsel them on different issues related to their personal A
lives, their occupational lives and their children; and

(iv) operate as an information dissemination and conscientious
point, particularly for the higher age group (12-18 years).

Services/Facilities B

Keeping in view the total care and development of the child, the following
services/facilities would be provided.

(i) crech (day and night)
c
(ii) pre-school education
(Balwad) The objective of pre-school
education, besides the
physical emotional and
social development of the D
children, is to prepare them
mentally to attend formal

-
schools in future. This, it is
hoped will increase the
enrolment in schools.
E
(iii) non-formal education/functional literacy

(iv) counselling (personal and career)

(v) nutritional inputs
F
(vi) health care

(vii) library

(viii) toy-bank G
(ix) recreation

(x) outings and educational trips

(xi) skill development H
140 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A (xii) 'save for the child' scheme Mothers are anticipated to be
spending Rs. 100 (at least)
per child per month when the
child stays with her. When
the child is placed in the
custody of a residential
B
institution, she no longer has
to spend on the child, She
should, therefore, start an
account in the name of the
child in any nationalised bank
c and de.posit Rs. 100 every
month. If at the end of one
year it is found that she has
been regular in depositing
the amount, the CDCC will
D start contributing an equal
share. By the time the child is
out of the institution he/she
will have some immediate
financial. support.

E
Note : Suggestion by the Court: The Government of India
should extend the Thrift
Scheme of Women for these fal-
len women as well.

F (xiii) after school educational help the children complete
help their homework and prepare
lessons for schools. Teachers
would also help them with
any difficulties faced in
G school. By this measure, the
rate of school dropout can be
checked.

Suggestion and Directions of Special coaching should be ar-
H the Court: ranged for these children.
GAURAV JAIN v. U.0.1. 141

(xiv) de-institutionalised help Some of the mothers may be A
agreeable to part with their
children or have different
priorities for the children.
Money may not be their
problem. In such cases the B
CDCC may enlist their children
as recipients of de-
institutionalised care services.
It would ensure that the
minimum needs of the child are
.met by the mother and his/her
c
development is in no way
impeded. It would be binding
on the mother to provide the
child with the basic minimum
facilities for the child's overall D
growth and development. This
would be a means of getting the
mother to provide for the child
instead of institutionalising
him/her. Here, in the process, E
the CDCC would operate as a
catalytic and monitoring
agency.
The CDCC will also follow up
the cases of those children whose
F
mothers are placed in Protective
Homes. In case they are
endangered in any way by
separation from mother, the
CDCC will adopt necessary
steps to help them. G
The CDCC would be paid a
nominal sum for its services
and also for spending on some
of the items required by the
child for its growth, in case H
142 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A the mother is unable to meet
such expenditure. The mother
will be liable to make regular
reports to the CDCC to
facilitate its monitoring
function.
B
Suggestion and
Directions of the Court : All necessary funds should be
provided by the appropriate
Government, i.e., either the
c Central Government or the
State Government, as the case
may be.

(Note: This arrangement will work for the traditional communities, with
either a CDCC or any other voluntary organisation functioning as a
D catalytic and monitoring agent.

The CDCC would function as a nodal agency in the field and would
co-ordinate with government departments to bring as many programmes
to its group of beneficiaries as possible. Further, they would arrange
E referral services in the following areas as and when the need is felt for the
benefit of a child;

(i) Institutionalised care arrange sponsorship
foster care

F (ii) skill development

(iii) health

(iv) on the job training

G (v) training for enterpreneurship

Eligibility of Beneficia1ies

Children of any age between 0-18 years who are either -

H (i) children of prostitutes, or
GAURAVJAINv. U.O.I. 143
(ii) children associated with prostitution or prostitute, may be A
benefitted from this scheme.

In all deserving cases the scheme should extend services to those
children above 18 years, only if it is clearly seen that they are not
yet able to feed for themselves and would be benefitted. by further
support. Those older than 18 years would be assisted as special B
cases.

Coverage

There would be no limit to the number of children being covered
by the Centre. Being a service oriented centre it is likely that only C
groups of children will come to the Centre during the day asking
l
' for any of the services.

Only in the case of creches and balwad is there wpuld be regular
attendance where not more than 25-30 children should be enrolled
at any given time and when the member increases separate groups D
be formed and benefit of service extended.

Organisation

The following are some of the general conditions for eligibility for
applying for the scheme : E
(i) The applicant should be a voluntary, non-governmental or-
ganisation, registered under an appropriate Act or a regularly
constituted branch of a registered welfare organisation.
I
-'
(ii) The organisation seeking assistance should be a non-profit F
and secular organisation in a way that its services would be
open to all without any discrimination of religion, caste, creed,
_, language or sex.

(iii) The organisation should have a regularly constituted manag- G
ing committee with its functions and their responsibilities
clearly laid down in its Bye-laws.
_,,
n '
(iv) The organisation should preferably have had some experience
in managing child development programmes or experience of
working on the issues related to prostitution. H
144 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A Programme

Though it is viewed as a localised service centre, its community
· outreach aspect must be active. By reaching the prospective target
group and acquainting them with the services available, the utilisa-
tion of the CDCC can be availed.
B
The staff at the Centre would organise health camps and awareness
generation camps from time to time.

While providing the services of the children, efforts of the staff at
the Centre would be \o counsel the mothers and children and
·C
encourage the latter to join educational institutions. It should assist
them in getting admitted into the educational institutions. Teachers
attached to the CDCC would help the school going children in
completing their homework and coping with other difficulties.
During school hours the teacher would held functional literacy
D classes for the elder children who are uneducated.

By way of extending further support to this group of uneduca_ted
and unskilled children, the Centre's staff will have to counsel them
regularly.
E As it is advisable to remove the children from the vicinity of the
redlight area by about 6 years of age, the staff will have to convince
the mothers and arrange for their placement in residential institu-
tions. Regular meetings are to be held with the mothers to discuss
about the health and nutritional needs of their children and to
F make them conscious about the environment. Efforts should be
directed towards making them interested in the activities of the
CDCC. They must be kept informed about the progress of their
children and of their current activities, problem and future plans.
They must be allowed to participate in planning and execution of
programmes.
G
The Centre must follow up cases of women who are placed in
Protective Homes. Their children must be immediately enlisted in
the list of beneficiaries at the Centre. Depending upon their
situation care and protection must be extended to them such that
H the separation from mother does not
GAURAV JAIN v. U.O.L 145

(i) hamper their education A
(ii) make them emotionally and physically insecure

(iii) render them neglected and uncared for

(iv) expose them to greater risks of delinquency. B
In case a child is affected in any of these ways, the Centre must
step in and to give him/her emotional support and to place him/her
in a residential institution. The mother must be involved in the
process and the Centre must be in touch with her at the Protective
Home. C
The CDCC will involve the local level youth club or any other
organisations and with support from the

(i) mobilise the local community,
D
(ii) organise activities for the beneficiary group.

Working Hours of tile CDCC

1. Creche ........................ as per decision of the Local
(day and night) Committee E
2. Balwadi ....................... 9.00 a.m. to 1.00 p.m..
3. Non-formal ................. 1.00 p.m. to 4.00 p.m.
Education
4. After School 4.00 p.m. to 6.00 p.m. F
Education

Timings of the other facilities to be fixed according to local
situation.

Staff G
1. Programme Co-ordinator 1

2. Special Worker-cum-Counseller 2

3. Teacher 1 H
146 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R. •

A 4. Balwadi Teacher 1

5. Helper-cum-Office Assistant 1

6. Ayah-cum-Cook 2

B 7. Chowkidar 1

Advisery and Monit01ing Committees

To ensure effective implementation of the scheme Advisory and
Monitoring Committees will be set up at various levels. There
C would be a Central Committee with State and Local Committees
under it. While there will be a State Committee in every state, there
may be operative in the respective state. A single committee may
be adequate in case there are more than one CDCC in the same
city/town.

D Members of the Committees

Central Committee (Seven Members)

(i) Chairperson, Central Social Welfare Board

, E (ii) Representative of the Department of Women and Child
Development

(iii) Representative of the Ministry of Welfare.

(iv) Retired Police Officer.
F
(v) Three social workers.

State Committee (Seven members)

(i) Chairperson, State Social Welfare Advisory Board.
G
(ii) Representative of the Department of Women and Child
Development

(iii) Representative of the Department of Social Welfare

H (iv) Retired Police Officer.
GAURAV JAIN v. U.O.I. 147

~· (v) Three Social Workers. A
·;,
Local Committee (Seven Members)

(i) .Programme Co-ordinator CDCC.

(ii) Representative of mothers B
(iii) Representative of community

(iv) Representative of local club, if any

... (v) Secretary or representative of the voluntary organisation im-
c
plementing the scheme

(vi) Two Social Workers.

These Committees will run the scheme with the assistance from
the Government. No separate office need be maintained. The D
necessary office work can be done at the offices of the Chairperson,
CSWB (in the case of the Central Committee) and Chairperson
SSWAB (in the case of the State Committee). The CDCC would
help in the office work of the Local Committee. For this, the
respective organisations will receive a token Administrative Assis-
tance grant. E
Meeting of the Committee can be organised by the respective
organisations. There must be quarterly meetings of the Central and
State Committees. The· Local Committees must, however, meet
once in every month. The Local Committee is to send its minutes
of meeting held and reports of activities to the State and Central F
Committees.

The Central Committee will function as the Central Co-ordinating
body, with regular fedback from the State and Local Committees.
Besides regular meetings, the Committee may call emergent meet- G
ings to discuss any urgent matter.

These Committees will co-ordinate the functioning of any ICDS
Centres being run in lieu of the CDCC (in case a voluntary
organisation is not available to .run and manage a CDCC) and
execute the same functions as it does in the case of CDCC." H

r
148 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A We are of the view that the suggestions require earnest examination . '

to give force and content to then. 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
B suitable schemes for proper and effective implementation. The institutional
care, thus, would function as an effective rehabilitation scheme in respect
of the fallen women or the children of fallen women even if they have
crossed the age prescribed under the JJ Act. They should not be left to

C
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 time to the Central
D Government, State Governments and Union Territory Administratorn, ade-
quate 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
E 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 fruit-
F fully.

The Minister of Welfare, Government of India will constitute a
Committee consisting of the Secretary in charge of Department of Women
and Child Development as the chairperson and three or four Secretaries
G 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 Committee should be constituted within one
month from the date of the receipt of this judgment. The Committee should
finalise the report within three months thereafter. As soon as the report is
H submitted, the same may be communicated to all the State Governments
GAURAVJAINv. U.O.I. 149
, and the concerned Ministries for their examination. Within two months A
~··
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 Ministers of the
State Governments and their Secretaries as well to discuss the problem and B
take decisions. The Committee should finalise the report with further
suggestions or amendments, if suggested in the conference. Thereafter, the
report should be finalised and then direction would be given to the State
Governments for effective implementation of the schemes. The nodal
Department would enforce and regularly be supervised by the Ministry of
Welfare, Government of India. A permanent Committee of Secretaries C
should be constituted to review the progress of the implementation on
annual basis, and to take such other steps as may be expedient in the
effective implementation of the schemes. Periodical progress as to funding
and enforcement of the scheme should be submitted to the Registry of this
Court. If further directions would be needed, liberty is given to the parties D
to approach this Court. In that view of the matter, it is believed and hoped
that the above law and directions would relieve the human problem by
rehabilitation of the unfortunate fallen women cought in the trap of pros-
titution; their children would be brought into the mainstream of the social
order; these directions would enable them to avail the equality of oppor-
tunity and of status, with dignity of person which are the arch of the E
Constitution.

My learned brother D.P. Wadhwa, J. has disagreed to the directions
given to the Union of India etc. in the first part of the Order on the ground,
as seems to me, that in view of the relief sought for in the writ petitions F
and the directions given by this Court on the earlier occasions there is no
scope for the relief being granted now and directions given in the conclud-
ing part of the Order. Brother Wadhwa, J. thus agrees with the directions
given at pages 78 to 81 relating to the prostitute children and the children
of the fallen women. Directions at pages 38-39 and 43 to 45 of this Order
pertain to the prevention of induction of women, in various forms, into G
prostitution; their rescue from the wile flesh trade; and rehabilitation
through various welfare measures so as to provide them with dignity of
person, means of livelihood and socio-economic empowerment. In that
behalf, my learned brother has not concurred for the reasons given in the
separate Order proposed to be delivered by him. That has necessitated me H
150 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A to have a re-look into the precedents on Public Interest Litigation vis-a-vis ...,
the scope, ambit and power of the Court to grant reliefs in matters arising
from real and true public interest litigation in which the condition of locus
standi has been relaxed and public-spirited persons, not motivated by
pressure tactics for ultimate ends, are encouraged to work for the poor,
under-privileged or weaker segments of the society who are otherwise
B unable to avail of judicial process for grant of general reliefs to such a
group of persons.
I

In Labourers working on Sala/ Hydro froject v. State of Jammu &
Kashmir & Ors., (1983] 2 SCC 181 - offspring of a letter addressed to this
C Court enclosing a clipping of the newspaper "Iftdian Express" dated August
26, 1982 - it was brought to the notice of this Court that a large number of
migrant workmen were subjected to exploitation and violation of various
welfare laws made for them. Intervention was iought to prohibit exploita-
tion and to grant different reliefs to them. The· letter was treated by this
D Court as a writ petition under Article 32. Directions were issued to the
Labour Commissioner (Centre) to enquire into ~nd submit a report; the
Central Government was also directed to file their affidavit. After receipt
of the report and filing of the counter-affidavits, this Court found, as a fact,
from the evidence that the workmen were denied of the minimum wages
and other welfare benefits. Accordingly, directions were given. This
E decision, therefore, is an authority for the proposition that a Public Interest
Litigation is not of adversary character but one of performance of the
constitutional duty; therein new procedure was adopted for collecting
evidence from acceptable source. In Dr. Upendra Baxi & Ors. (II) v. State
of U.P. & Ors., (1986) 4 SCC 106, Dr. Upendra Baxi, a noted humanist and
F champion of Human Rights, had addressed a letter to this Court that a
writ petition may be entertained in public interest to protect the girls living
in the Government Protective Hornes at Agra who were being denied right
to live with basic human dignity by the State of Uttar Pradesh which was
running the Horne. In that case, it was held that the public interest litigation
G is not a litigation of an adversary undertaken for the purpose of holding
the State Government or its officers responsible for making reparation.
Public interest litigation involves a collaborative and cooperative efforts by
the State Government and its officers, the lawyers appearing in the case
and. the Bench for the purpose of making Human Rights meaningful for
the weaker sections of the community in ensuring the socio-economic
H justice to the deprived and vulnerable sections of the humanity in the
GAURAV JAIN v. U.0.1. 151

country. Directions, therefore, were accordingly issued; details thereof are, A
however, not material for the purpose of this case. What is material is that
the power of this Court is wide to grapple with new situations; it can get
the evidence collected with cooperation of the counsel for the parties and
the State and mete out justice to protect the constitutional rights guaran-
teed. to all the citizens in particular, the vulnerable weaker segments of the B
society. Vincent Panikurlangara v. Union of India & Ors., (1987] 2 SCC 165,
related to manufacture of drugs and involved examination of evidence to
determine· the character of the action taken by the Government on the basis
of advice tendered to it to prohibit the manufacture and trade of drugs in
the interest of patients who required the drugs for that treatment. This
Court pointed out that the statutory bodies and the Government are bound C
to respond and join the proceedings pending before the Court. They are
not litigants; yet they do not have the choice of keeping away from the
Court like private parties in ordinary litigations opting to go ex pa1te. Since
the matter involves technical aspects vis-a-vis health of the public and is of
national importance, this Court ensured cooperation of all the parties and D
suo rnotu extended the opportunity of hearing and inviting the named
statutory authorities to assist the Court. In that behalf, it was held that the
public interest litigation is not a normal litigation with adversaries fitted
against one another.
0
As already seen, in Bandliua Mukti Morcha case, this Court had E
evolved a new procedure supplementing the existing procedure to meet the
new situation and to render justice in public interest litigations. It directed
the Commissioner Labour (Central) to investigate into and collect the
evidence and submit the report to the Court, as dealt with at pages 189-90.
In Rural Litigation and Entitlement Kendra v. State of U.P., [1989] Supp. 1 F
SCC 504, this. Court dealt with a public interest litigation relating to
ecological imbalances created due to mining operations and denudation of
forest. In paragraphs 16 & 17, this Court at pages 515-16 had pointed out
that the writ petitions before the Court were not inter-partes disputes and
had been raised by way of publil: interest litigation and the controversy
before the Court was as to whether for social safety and for creating a G
hazardless environment for the people to live in, mining in the area should
-,
be permitted or stopped. This Court had directed stoppage of mining
activity since it created ecological imbalance and denudation of the forest.
In M.C. Mehta & Anr. v. Union of India & Ors., [1987] 1 SCC 395, a
· Constitution Bench of this Court was to consider the scope of the public H
152 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A interest litigation to grant compensation to the victims of hazardous or
dangerous activities when deaths or injuries were caused to them on
account of the accident during the operation of such activities. This Court
had held that the law should keep pace with changing socio-economic
norms; where a law of the past does not fit in the present context, the Court
B should evolve new law in a public interest litigation. The power of this
Court is very wide to devise appropriate procedure and to issue directions,
orders or rules. This Court is competent to grant a remedial assistance by
way of compensation in exceptional cases. The Court has incidental and
, ancillary power in exercise of which it can devise new methods and strategy
in securing enforcement of fundamental rights particularly in public inter-
C est litigation or social action cases. Directions were accordingly granted in
that case. In Bandltua Mukti Morcha v. Union of India & Ors., [1984] 3 SCC
161, the writ petition under Article 32 was filed to release bonded labourers
in the country by way of letter addressed to this Court. In that behalf, this
Court had taken assistance of the parties, got the evidence collected and
D then issued appropriate directions for release of the bonded labour. In this
behalf, it was held at page 189 that when the poor come before the Court,
particularly for enforcement of their fundamental rights, it is necessary to
depart from the adversorial procedure and to evolve a new procedure
which will make it possible for the poor and the weak to bring the necessary
E material before the Court for the purpose of securing enforcement of their
fundamental rights. It must be remembered that the problems of the poor
which are now coming before the Court are qualitatively different from
those which have hitherto occupied the attention of the Court and they
need a different kind of lawyering skill and a different kind of judicial
F approach. it we blindly follow the adversorial procedure in their case, they
would never be able to enforce their fundamental rights and the result
would be nothing but a mockery of the Constitution. We have, therefore,
to abandon the laissez fairs approach in the judicial process particularly
where it involves a question of enforcement of fundamental rights; we
should forge new tools, devise new methods and adopt new strategies for
G the purpose of making fundamental rights meaningful for the large masses
of the people. And this is clearly permissible by the language of clause (2)
of Article 32 because the Constitution-makers while enacting that clause,
have deliberately and advisedly not used any words restricting the power
of the Court to adopt any procedure which it considers appropriate in the
H circumstances of a given case for enforcing the fundamental right. In
GAURAV JAIN v. U.0.1. 153

Santltal Pargana Antyodaya Ashram v. State of Bihar & Ors., [1987] Supp. A
SCC 141, in a public interest litigation, this Court obtained a report of the
Committee appointed by the Court, accepted the report and gave direc-
tions to release and rehabilitate the bonded labours identified by the
Committee and to implement the Committee's recommendations, as far as
possible, were issued to the State Government. The State Governments B
were directed to carry out the statutory obligations under the Bonded
Labour System Act, 1976.

It would, thus, be the established procedure of this Court under
Article 32 that the public interest litigation is not adversorial. It is one of
collaboration and cooperation between the State and the Court. This Court C
as the sentinel on the qui vive, is constitutionally obligated to enforce the
fundamental rights of all the citizens of the country and to protect them
from exploitation and to provide guidance and direction for facilities and
opportunities to them for securing socio-economic justice, empowerment
and to free the handicapped persons from the disabilities with which they D
suffer from and to make them realise and enjoy the fundamental rights
ensured to them under the Constitution. In that l:Jehalf, this Court is
entitled and empowered under Article 32 to adopt such procedure as is
expedient in a given fact situation and deal with the matter appropriately.
Therefore, the rigour of the pleadings or the reliefs sought for in adver-
sorial litigation, has been softened; new methods, tools and procedures E
were evolved to mete out justice and to enforce the fundamental rights.
Obviously, therefore, when a limited relief to establish separate schools for
the children of the fallen women was sought for by the petitioner-Gaurav
Jain, this Court did not confine to the same. It, instead, enlarged the scope
and directed the authorities as an interim measure to have those children F
admitted in the general schools to make the children overcome the dis-
abilities had from foul atmosphere and to generate the feeling of oneness
and dissegregation. In addition, this Court appointed V.C. Mahajan Com-
mittee to enquire into and submit a report. The report was accordingly
submitted after extensive travelling to far and wide parts of the country; it G
studied not only the problem of the children of the fallen women but also
the route cause of the menace ofchild prostitution and the prostitution as
such and the need for its eradication. The prevailing conditions have been
pointed out in the Report and beneficial actions already taken by some of
the Social Action Groups have been pointed and also noted as illustrated
hereinabove. They have also dealt with the problems of the children. The H
154 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A State Governments and the Central Government were supplied with the
copies of the Report and they have not even objected to the recommenda-
tions; in fact, they cannot be objected to since it is a fact prevailing,
unfortunately, in the country. Therefore, the relief cannot be restricted to
the pleadings .or to the scope of the directions earlier issued; the Court can
take cognisance from indisputable or the undisputed facts from the Report
B
of V.C. Mahajan Committee and other reports and articles published in
recognised Journals and act upon it. Placing reliance thereon, the direc-
tions given in the Order, aim not only at giving benefits to the children but
also to root out the very source of the problem as has been pointed out in
the first part of the Order, it is for the Government to evolve suitable
C programme of action. My learned brother has very graciously agreed to the
second part of the order relating' to the setting up of Juvenile homes for
the prostitute children and children of fallen women.

By operation of Article 145(6), to the extent both of us have agreed,
D the Order constitutes as binding precedent. It is to remember that this
Court being composed of large number of Judges has evolved its own
procedure to transact court management of its judicial work and to decide
cases/causes sitting in appropriate Division Benches constituted by the
Chief Justice of India as per the Supreme Court Rules. Any observation
E made by one of the Judges has pursuasive obiter. When there is a dissent,
the majority of opinion forms a binding precedent. Any difference of
opinion between a Bench composed of two Judges, in an adversorial
litigation requires resolution by a larger Bench of three Judges and/or if
further reference is made to a Constitution Bench, it is to deal with the
controversy and majority opinion forms precedent. As stated earlier, public
F interest litigation is not adversorial in nature but is one of cooperation and
coordination between the three wings of the State and it is the
constitutional duty of this Court to ensure enjoyment of the fundamental
rights by all citizens and in particular the poor and deprived social
segments and in case of violation thereof, to prevent the same by giving
G appropriate directions in that behalf. In aid thereof, this Court has been
armed by Article 142 to pass such orders as may be necessary for doing
complete justice in a cause or pending matter before it. An order so made
shall be enforceable throughout the Territory of India. Normally, if it were
an adversorial dispute, we would have referred the matter to three Judge
H Bench in respect of the first part of the directions, namely, to prevent
GAURAV JAIN v. U.O.I. 155
prostitution; to rehabilitate fallen women and to provide them facilities and A
opportunities by evolving suitable measures by all the Governments for
enforcement of their economic empowerment and social integration with
dignity of person which are fundamental rights to the unfortunate fallen
women, i.e., the victims of circumstances. It is seen that this matter is
pending for nearly a decade. If a reference is made to a three Judge Bench, B
it may further be delayed. Since "delay defeats justice" it may amount to
everyday denial of the fundamental rights to large number of fallen women.

I put a caveat upon myself and I am aware that Article 142 would be
used to enforce final judgment or order which, in given special or excep-
tional circumstances, would include directions of this type to mitigate C
injustice and to elongate enforcement of fundamental and human rights.
Article 142 speaks of doing complete justice in a cause. The arm of the
Court is long enough to reach injustice wherever it is found and to mete
out justice. Denial of the constitutional rights to .the unfortunate fallen
women outrages the quest for justice and pragmatism of constitutional D
ethos which constrain me to avail Article 142 of the Constitution of India
to direct the Union of India as well as all State Governments to evolve,
after indepth discussion at Ministerial level conference, such procedures
and principles or programmes, as indicated in this Order, as guidance
would help rescue and rehabilitate the fallen women. Otherwise, the fun- E
damental and human rights remain pious platitudes to these miserable
souls crushed in the cruel flesh trade with grinding poverty in the evening
of their lives. Generally, Article 142 may not be invoked before the dif-
ference of opinion is resolved in an adversorial litigation and in a keenly
contested matters of even public interest litigation, in particular, of recent
F
type cases. However, in the cases of the type in hand, where there would
be no controversy on human problems of most unfortunate women which
require their careful planning, rescue and rehabilitation, the exercise of the
a
power under Article 142, even by single member of the Bench, may be
appropriate and efficacious to enforce fundamental and human rights of
large number of neglected and exploited segments of the society. Society G
a
is responsible for woman's becoming victim of circumstances. The society
should make reparation to prevent trafficking in women, rescue them from
red light areas and other areas in which the women are driven or trapped
in prostitution. Their rehabilitation by socio-econo~ic empowerment and
justice, is the constitutional duty of the State. Their economic empower- H
156 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A ment and social justice with dignity of person, are the fundamental rights
and the Court and the Government should positively endeavour to ensure
them. The State in a democratic policy includes its three constitutional
organs - the Legislature, the Executive and the Judiciary. Legislature has
already done its duty. The Executive and the Judiciary are required to act
in union to ensure enforcement of fundamental and human rights of the
B fallen women. I am also conscience that the Union of India as well as the
State Governments are sensitive to the conscience of their constitutional
duty under Article 23 and are desirous to have the prostitution eradicated
from the root with the aid of ITP Act, IPC and other appropriate legislative
or executive actions. Sequential rehabilitation of the fallen women rescued
C from the red light areas and other areas requires enforcement. The obser-
vations made in this Order, the constitutional provisions, the human rights
and other International Conventions referred to in the Order and the
National Policy would aid the Union of India and the State Governments
as foundation and guide them to discuss the problems in Ministerial and
D Secretarial level Conferences and as suggested in this Order to evolve
procedures and principles to ensure that the fallen women also enjoy their
fundamental and human rights mentioned in the Order.

Before parting with the case, we place on record the valuable assis-
tance and yeoman's service rendered by V.C. Mahajan Committee.
E
The directions are accordingly given. The writ petitions are directed
to be posted after the compliance report as regards the action taken in that
behalf, is furnished by the Union of India for appropriate orders.

ORDER
F
This writ petition under Article 32 of the Constitution was filed by
Mr. Gaurav Jain, advocate of this Court as public interest litigation after
he had read a report appearing in the 'India Today', a national magazine,
of July 11, 1988. The petitioner had prayed as under :
G
"In the circumstances, it is therefore most respectfully prayed that
this Hon'ble Court may graciously be pleased to :

(a) issue an appropriate writ, in the nature of mandamus, order
or direction, directing the respondents to provide separate schools
H with vocational training, hostels with the medical check-up facilities
GAVRAV JAIN v. U.O.I. · 157

in each respondent state and union territory and such other places A
where this Hon'ble Court may direct, for the children of pros-
titutes, upto the age of sixteen years to rescue them, from falling
into the infernal existence and the same immoral and deproved
way of life by indulging in the vice profession of prostitution, pimps,
drug-pushers and bootleggers and other hazardous employments; B

(b) pass any order/orders which this Hon'ble Court may deem fit
and proper in the circumstances of the case."

By order dated February 20, 1989 the petitioner was directed "to
suitably amend the writ· petition and confine claim in the petition to the C
relief of setting up of juvenile homes as provided under Section 9 of the
Juvenile Justice Act, 1986." Then on the next date, that is, March 13, 1989
the prayer for amendment was allowed and it was directed that prayer in
the writ petition shall stand substituted "by what has now been indicated
in the application for amendment."
D
By order dated November 15, 1989 while the court noted submission
of Mr. V.C. Mahajan, advocate of the petitioner that separate schools and
hostels be provided for the children of the prostitutes, the court did not
find itself inclined to accept such a submission. The court was of the view
that segregating prostitutes' children by locating separate schools and E
providing separate hostels would not be in the interest of such children.
The Court by this very order constituted a Committee headed by Mr. V.C.
Mahajan, Senior Advocate to consider the problems faced by the children
of the prostitutes. This order of the Court is reported in 1990 Supp. SCC
709. This Committee examined the matter keeping the following objects in
view:
F

"(i) Viability of having separate schools and hostels,

(ii) existing laws relating to the target group, and
G
(iii) possibility of evolving a scheme for these children, workable
at the national level."

The Committee has since submitted its report. In its report the
Committee has made various recommendations for the rehabilitation of the
. children of prostitutes. I do not find that the question of eradication of H
158 SUPREME COURT RBPORTS (1997) SUPP. 2 S.C.R.

A prostitution was an issue involved in these proceedings or subject matter
of Committee's deliberations. The Committee in its report which runs into
over 100 pages has only referred in two paragraphs, while examining target
group, as to who are the prostitutes. Apart from this I do not find there is
any discussion in the report of the Committee towards eradication of
B prostitution. As to what should be the scheme to be evolved to eradicate
prostitution, i.e., the source itself; the basics; and what succour and
sustenance can be provided to the fallen victims of flesh trade was not a
question agitated in the proceedings. Certainly no one can dispute that evil
of prostitution must be curbed. It is the mandate of the Constitution which
C prohibits traffic in human beings. Keeping that object in view and in
pursuance of International Conventions for the Suppression of Traffic in
persons and of the Exploitation of the Prostitution of other signed at New
York on May 9, 1950, the Parliament enacted the Suppression of Immoral
Traffic in Women and Girls Act, 1956. The Act was amended in 1978 to
make good some inadequacies in the implementation of the Act and in the
D light of the experience gained during the period the Act was being
implemented. Despite the amendments of the Act, it was felt that
enforcement of the Act had not been effective enough to deal with the
problems of immoral traffic in all its dimensions. Suggestions had been
made to Government by voluntary organisations working for women,
E advocacy groups and various individuals urging the enlargement of the
scope of the Act, to make penal provisions more stringent and to provide
for certain minimum standards for correctional treatment and
rehabilitation of the victims. The Act was, therefore, further amended in
1986 making it more wide based. The Act is now called as immoral Traffic
p (Prevention) Act, 1956. I need not detail other objects of the Act as all the
discussions would not be relevant in these proceedings.

I am not entering into the scope and width of public interest litigation
but when the issue has not been squarely raised, concerned parties not
informed, pleadings being not there, it may not be correct to embark upon
G that task and to give interpretation of the law applicable thereto and that
too without hearing the parties when the issue is so profound certainly
involving, hearing of the Union of India and State Governments with
respect to their problems. [
H Thus considering the substratum of the judgment prepared by my
GAU RAV JAIN v. U.O.I. 159

learned brother relating to children of the prostitutes and establishment of A
the juvenile homes I would concur with the directions being issued by him
in this order, I would, however, record my respectful dissent on the
question of prostitution and the directions proposed to be issued on that
account and also, in the circumstances of the case, what my learned brother
has to say on the directions proposed to be issued referring to the B
provisions of Article 142 and 145(5) of the Constitution.

G.N. Petitions disposed of.