Full Judgment Text
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PETITIONER:
GAURAV JAIN
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 09/07/1997
BENCH:
K. RAMASWAMY
ACT:
HEADNOTE:
JUDGMENT:
WITH
WRIT PETITION (CRL.) NOs. 745-54 OF 1950
O R D E R
"Frailty, the name is woman", was the ignominy heaped
upon women of Victorian Era by William Shakespeare in his
great work ‘Hamlet’. The history or sociology has, however,
established 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
apathetically is women. Indira Gandhi, Margaret Thatcher,
Srimovo Bhandarnaike and Golda Meir are few illustrious
women having proved successful in democratic governance 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 segments are tapping and 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 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 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 vs. Union of
India & Ors. [1990 Supp. SCC 709] that "segregating children
of prostitutes by locating separate schools and providing
separate hostels" would not be in the interest of the
children and the society at large. This Court directed that
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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 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 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. Mahaja, 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
suggestions for appropriate action. Accordingly, the report
was submitted. Arguments wee 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 rehabilitation in the mainstream of the national
life? And as facet of it, what should be the scheme to be
evolved to eradicate prostitution, i.e., the source itself;
and what succour and sustenance can be provided to the
fallen victims of flesh trade? These are primary questions
we angulate for consideration in this public interest
litigation.
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
individual in a united and integrated Bharat. The fallen
women too are part of citizenry. Prostitution in society has
not been an unknown phenomenon; 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,
with police nexus. It is of grave social concern,
increasingly realised by enlightened public spirited
sections of the society to prevent gender exploitation 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 has 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 prostitution or to relieve themselves from the
trap, they succumb to the violent treatment and resultantly
many a one settle for prostitution. Prostitute 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 children, be it
male or female. Their children are equally subjected to
inhuman treatment by managers of brothels and are subjected
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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 a
criminals or as an object of shocking sexual abuse; 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 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
social mainstream. If given equal opportunity, they would be
able to play their own part for peaceful rehabilitation,
live a life with happiness purposefully, with meaningful
right to life, culturally, socially and economically 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 than human problem
with caress and purposeful guidelines, lend help to
ameliorate their socio-economic conditions, eradicate social
stigma and to make available to them equal opportunities for
the social order.
Equally, the right of the child is the concern of the
society so that fallen women surpass trafficking of her
person from exploitation; contribute 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 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 Principles of the
State Policy are equally made available and made meaningful
instruments and means to ameliorate their conditions -
social, educational, 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 directions given to the
executive to effectuate them on administrative side
effectively so that those rights become real and meaningful
to them.
Let us, therefore, first consider the rights of the
fallen women and their children given by the Constitution
and the Directive Principles, the Human Rights and the
Convention on the Right of Child, before considering the
social ignominy attached to them and before looking for
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 guarantees right to life and
liberty. Article 15 prohibits discrimination on the grounds
of religious race, caste, sex or place of birth, or of any
of them. article 15(3) provides for special protective
discrimination in favour of woman and child relieving them
from the moribund of formal equality. It state that "nothing
in this article shall prevent the State from making any
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special provision for women and children". Article 16(1)
covers equality of opportunity in matters of public
employment. Article 23 prohibits traffic in human beings and
forced labour and makes it punishable under Suppression of
Immoral Traffic in Women and Girls Act, 1956 which is
renamed in 1990 as the Immoral Traffic (Prohibition) Act
(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.
Article 38 enjoins the State to secure and protect, as
effectively as it may, a social order in which justice -
social, economic and political, shall inform all the
institutions of national life. It enjoins, by appropriate
statutory or administrative actions, that the state should
minimise the inequalities in status and provide facilities
and opportunities to make equal results. Article 39(f)
provides that the children should be given opportunities and
facilities to develop in a healthy manner and conditions of
freedom and dignity; and that childhood and youth are
protected against exploitation and against moral and
material abandonment. Article 46 directs the State to
promote the educational and economic interests of the women
and weaker sections of the people and that it shall protect
them from social injustice and all forms of exploitation.
Article 45 makes provision for free of exploitation. Article
45 makes provision for free and compulsory education for
children, which is now well settled as a fundamental right
to the children upto the age of 14 years; it also mandates
that facilities and opportunities for higher educational
avenues be provided to them. The social justice and economic
empowerment are firmly held as fundamental rights of every
citizen.
Article 1 of the Universal Declaration of Human Rights
provides that all human beings are born free and equal in
dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of
brotherhood. Article 2 provides that everyone, which
includes fallen women and their children, is entitled to all
the rights and freedoms set forth in the Declaration without
any distinction of any kind such as race, colour, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status. Article 3
provides that everyone has the right to life, liberty and
security of person. Article 4 enjoins that no one shall be
held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms. The fallen victims
in the flesh trade is no less than a slave trade. Article 5
provides that no one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. The
fallen/trapped victims of flesh trade are subjected to
cruel, inhuman and degrading treatment which are obnoxious,
abominable and an affront to Article 5 of the Universal
Declaration and Article 21 of the Indian Constitution.
Equally, Article 6 declares that everyone has the right
to recognition everywhere as a person before the law. The
victims of flesh trade are equally entitled before the law
to the recognition as equal citizens with equal status and
dignity in the society. Article 7 postulates that all are
equal before the law and are entitled, without
discrimination, to equal protection of the law. So, denial
of equality of the rights and opportunities and of dimity
and of the right to equal protection against any
discrimination of fallen women is violation of the Universal
Declaration under Article 7 and Article 14 of the Indian
Constitution.
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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 Supreme Court of India, which is the sentinel in the qui
vive, is enjoined to protect equally the rights of the poor,
the deprived, the degraded women and children trapped in the
flesh trade, kept in inhumane and degrading conditions, and
to grant them the constitutional right to freedoms,
protection, rehabilitation and treatment by the social
engineering, in law, constitution and appropriate
administrate measures so as to enable them to work hand-in-
hand to live with dignity and without any stigma due to
their past conduct tagged to them by social conditions,
unfounded customs and circumstances which have become blot
on the victims and their children. They too are entitled to
full equality, fair and adequate facilities and
opportunities to develop their personality with fully grown
potentiality to improve their excellence in every walk of
life. Article 51-A of the Constitution enjoins duty on every
citizen to develop the scientific temper, humanism and the
spirit of inquiry and reform and to strive toward excellence
in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavor and
achievement.
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 of Social and Legal Principles
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 in bringing the
Declaration in force. Article 3 (1) postulates that in all
actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interest of the child shall be the primary consideration.
Article 3 (2) enjoins to ensure the child such protection
and care as is necessary for his or her well-being, taking
into account the rights and duties of his or her parents,
legal guardians, or other individuals legally and all the
appropriate measures in that behalf shall be taken by the
State. Article 3 (3) postulates that the state shall ensure
the availability of institutional services and facilities
responsible for the care or protection of children, shall
conform with the standards established by competent
authorities, particularly in the areas of safety, health, in
the number and suitability of their self as well as
competent supervision. Article 4 obligates by appropriate
legislative, administrative or other measures,
implementation of the right recognised in the Convention.
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.
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
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been interpreted expansively by this Court to make the right
to life meaningful, socially, culturally, economically, even
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 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 protection of the child from information and material
injurious to his or her well-bearing in mind the provisions
of Articles 13 and 18. Article 18(1) provides that the state
shall use their best efforts to ensure recognition 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 best interests of the child
will be their basic concern. Sub-para (2) postulates 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.
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 protective measures,
as may be appropriate, should include effective procedure
for the establishment of social programme 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:
"1. 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.
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
institutions for the case of
children. When considering
solutions, due regard shall be paid
to the desirability of continuity
in a child’s upbringing and to the
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child’s ethic, religious cultural
and linguistic background."
Article 28 recognises the right of the child to
education and with a view of achieving this right
progressively and on the basis of equal opportunity, the
state shall in particular: (a) make primary education
compulsory 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 assistance 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 reduction of drop-out rates.
Article 29 envisages that the State Parties agree that the
education of the child shall be directed to: (a) the
development of the child’s personality, talents and mental
and physical abilities to their fullest potential; (b) the
development of respect for human 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 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 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:
"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
sexual activity;
(b) the exploitative use of
children in prostitution or other
unlawful sexual practices;
(c) the exploitative use of
children in pornographic
performances and materials.
36. State Parties shall protect the
child against all other forms of
exploitation prejudicial to any
aspects of the child’s welfare.
37. State Parties shall ensure
that:
(a) No child shall be subjected to
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torture or other cruel, inhuman or
degrading treatment or punishment.
Neither capital punishment for life
imprisonment without possibility of
release shall be imposed for
offences committed by persons below
18 years of age;"
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 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 Against Women, 1979 enjoins by Article 1,
prohibition of discrimination of women. Article 5 enjoins to
modify social and patterns of conduct of men and women with
a view to achieving elimination of prejudices and customary
and all other practices which are based on the idea of the
inferiority or the superiority of the sexes or on
stereotyped roles for men and women. Article 12 prescribes
discrimination against women in the field of health care in
order to ensure on the basis of equality of men and women,
access to health care services, including those related to
family planning. Article 13 prescribes discrimination and
directs that the State Parties shall eliminate
discrimination against women in other areas of economic and
social life in order to ensure on the basis of equality of
men and women, the same rights, in particular, the right to
family benefits, the right to participate in recreational
activities, sports and all aspects of cultural life. 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 martial status, in matters
relating to their children; in all cases the interests of
the children shall be paramount. In Madhu Kishwar & Ors. vs.
State of Bihar & Ors. [(1996) 5 SCC 125], this Court
considered the provisions of the Conviction on the
Elimination of All Forms of Discrimination 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 to breathe life into
the dry bones of the Constitution, international Conventions
and the Protection of Human Rights Act, to prevent gender-
based discrimination and to effectuate right to life
including empowerment of economic, social and cultural
rights. Article 2(f) read with Articles 3, 14, and 15 of the
CEDAW embodies concomitant right to development as an
integral scheme of the Indian constitution and the Human
Rights Act charges the National Commission with duty to
ensure proper implementation as well as preventation 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 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 indivisible
part of universal human rights. The full development of
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personality and fundamental freedoms and equal participation
by women in 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 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’ to mean
any house, room, conveyance or 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 of’ indicates that the place being used 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 that a girl/lad 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
established 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. It is not necessary that there 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 only that in a
premises a female indulges in the act of offering her body
for promiscuous sexual intercourse for hire. On proof
thereof, it becomes a brothel.
The Juvenile Justices Act, 1986 (for short, the ‘JJ
Act’) was enacted to provide for the care, protection,
treatment, development and rehabilitation of neglected or
delinquent juveniles and for the adjudication of such
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 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 aims is secured by establishing
observation 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
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standards for the administration of juvenile justice and
special mode of investigation, prosecution, adjudication and
disposition of the juvenile. The JJ Act 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 means
Juvenile Welfare Board constituted under Section 4. Terms
‘Brothel’, ‘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
juvenile entrusted to his or its care and protection on the
terms and conditions specified by the competent authority.
‘Guardian’ in relation to 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 1(i) and 2(j) respectively. ‘Neglected juvenile’
which is more relevant for the purpose of 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 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 commercial purposes and the expression
‘prostitute’ shall be construed as it is defined under
Section 2(f) of ITP Act. After the amendment to the ITP Act,
‘prostitution’ means sexual exploitation or abuse of person
for commercial 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 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 exploitation of her person by an act or
process of exploitation for commercial 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 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’ a 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.
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It must be a place to which public, in 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 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 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 rehabilitation, 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 needs no elaboration. Section 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 opinion that a
person is apparently a neglected juvenile, such police
officer or other person or 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 children into the social mainstream by giving
care, protection and rehabilitation?
Three Cs, viz., counselling, cajoling and coersion are
necessary to effectively enforce the provisions of ITP Act
and JJ Act. By Order dated May 2, 1990, this Court, after
hearing the counsel, passed an order to set up an Advisory
Committee to make suggestions for eradicating child
prostitution and to point out social aspects for the care,
protection, treatment, 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 enact a new law, if so warranted;
to prevent sexual exploitation of children and to take
various 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 operation 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 juveniles. The Committee 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
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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 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 monstrous 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 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 major 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 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; 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.
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 are 40%, 30 to 35 years
are 18% and above 35 years 12%. At the time of induction
into the prostitution, 9% are below 15 years; 249% between
16 to 13 years, 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 category of neglected juveniles,
about 25% are minors between the age group of 16 to 18
years. The major reasons for induction of prostitution are
poverty 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 Bangladesh
is. 84.36% are Hindus; are Muslims and 3.5% are Christians.
In terms of caste classification, Dalits and Tribes
constitute 36%, Other Backward Classes 24% and others 40%.
In terms of martial status, only 10.6% of the prostitutes
are married; 34.4% are unmarried and 54.2% are divorcee or
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,
prostitution 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
develop contact with high leads. Recent trend is that ladies
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from higher levels of income are 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 village in West Bengal, parents
send their girl children to earn in prostitution and the
girls in turn send their earnings for maintenance of their
families. It further indicates that certain social
organisations have identified the poverty as the cause for
sending the children for prostitution in expectation of
regular remittance of income from prostitution by the girls
who have already gone into the brothels. It is also an
inevitable consequence that over years the fallen women are
accustomed to certain life-style and in terms of expenditure
they need certain amount of money for their upkeep and
maintenance. When they bear children, it 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 unfortunate are subjected to
cruelty in diverse forms. In the process of maintaining the
children, again they land themselves in perpetually growing
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 for
prostitution and protection of the future 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 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.
If alternatives are available and society is inclined
to receive them, they will gladly shed off 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 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 with fresh
lease of life, without which their craving to shed off the
past and to start with a new lease of life would remain a
distant dream and a futile attempt. Therefore, the rubicon
has to be bridged between the past and the hope to make them
realise their desire as normal citizenry, by providing
opportunity and facilities. Provision of opportunities and
facilities is input of the constitutional guarantee to the
disadvantaged, deprived and denied people. The directive
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principles of the Constitution, in particular Articles 38,
39, and all relevant related Articles enjoin the State to
provide them as impregnable in built right to life
guaranteed by Article 21 and equality of opportunities with
protective discrimination guaranteed in Article 14 the genus
and its species, Articles 15 and 16 and the Preamble, the
arch of the Constitution by legislative and administrative
measures.
Therefore, it is the duty of the State and all
voluntary non-government organisations and public spirited
persons to come in to their air to retrieve them from
prostitution, rehabilitate them with a helping hand to lead
a life with dignity of person, self-employment through
provisions of education, financial support, developed
marketing facilities as some of major avenues in this
behalf. Marriage is another object to give them real status
in society. Acceptance by the family is also another
important input to rekindle the faith of self-respect and
self-confidence. Housing, legal aid, free counselling
assistance and all other similar aids and services are
meaningful measures to ensure that unfortunate fallen women
do not again fall into the trap of red light area
contaminated with foul atmosphere. 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
armoury in its bow to steer 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 common
man to realise his 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 occupation of the Managers of the brothels
and has located a centre for counselling. Therein, they
organise regular counselling and service center for the
fallen woman and do work for the children. The national plan
of action for the girl child in the SAARC Decade of the Girl
Child (1991-2000) was launched as a project for the welfare
and development of the girl children including adolescent
girls and street children in particular. an inter-
departmental monitoring committee was also set up under this
plan in some of the red light areas. The provisions of
Integrated Child Development 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 organisation is to be initiated.
Women found in the flesh trade, should be viewed more
as victims of adverse socio-economic circumstances rather
than as offenders in our society. Prostitution in five star
hotels is a license given to persons from higher echelons.
The commercial exploitation of sex may regarded as crime but
chose trapped in custom oriented prostitution and gender
printed prostitution should be viewed as victims of gender
oriented vulnerability. 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
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imperatives, apart from the administrative action which aims
at arresting immoral traffic of women under ITP Act through
inter-State or interpol arrangements and the nudal 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 preventation of the crime.
Therefore, we emphasis on the review of the relevant law in
this behalf, effective implementation of the scheme to
provide self-employment, training in weaving, knitting,
painting and 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-governmental or
private organisations.
The customary initiation of women in the practice of
Devadasi, Jogins and Venkatansins 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 ultimately leads to prostitution service
in the temples and charitable institutions 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 to the Constitutional
scheme. Fundamentalists and proponents of these practices
are constitutional criminals. The unfounded customs cannot
ave 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 ignominious practices
which is leading not only to abetment of commission of the
crime, but also misleading the unfortunated illiterate and
weaker sections of he society, to be taken in seriously by
he later by their false promises or false theories such as
God’s ordain which finds easy acceptance by the poor and
illiterate and is acted upon. Every right thinking person
should condemn such attempts apart from prohibiting
initiation of the nasty practice wherein the eldest girl
child in particular families, is offered as Devadasi or
Jogin or Venkatasin, by whatever local name they are called.
They are making the lives of the girl miserable ; in he
guise of prosperous future and custom, the girl is detained
in prostitution for no fault of her. This is prevalent in
particular six districts of Karnataka, viz., Raichur,
Bijapur, Belgaum Dharwar, Bellary and Gulbarge where their
number is identified as 21,306. In Andhra Pradesh, in five
districts, namely, Medak, Karimnager, Nizamabad, Nalgonda
and Warangal, such girls are known as 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 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 Devadasis, Jogins
or Venkatasins were by and large poor. They are primarily
agricultural 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
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girls, do so due to the pursuit of customary practices.
Economic rehabilitation is one of the factors that
prevent the practice of dedication of the young girls to the
prostitution as Devadasis, Jogins or Venkatasins. Their
economic empowerment and education gives resistance to such
exploitation ; however, economic programmes are necessary to
rehabilitate such victims of customs or practices. They are
being rehabilitated with the help of vocational training
centres set up in Maharashtra giving preferential admission
into educational training institutes ; they are admitted
into informal adult education. In Maharashtra, educational
training centres have been opened for devadasis. In
Karnataka, Devadasi women have been assisted under DWCRA
schemes in various districts. in particular six district,
where an extensive devadasi rehabilitation programme is in
full force. The Karnataka State Woman’s Development
Corporation and the Karnatakie 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
making etc. are being provided to devadasi woman 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 Departments 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
providing housing sites or house facilities to devadasi
women ; they are getting free treatment in hospitals.
Devadasi women aged about 60 years and 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 persons and their economic
rehabilitation. It would, therefore, be meaningful if
rehabilitation programmes are launched and implementation
machinery 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 circumstances to regain
their lost respect to the dignity of person to sustain
equality of status, economic and their social empowerment.
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 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.
Tomorrows 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 assured to them by the
constitution, he 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
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formulated and given 10 principles in that behalf. Principle
No.1 provides that he child shall enjoy all the rights set
fourth in the Declaration. All children, without any
exception whatsoever, shall be entitled to these rights,
without distinction 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, 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 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 cafe and protection
shall be provided to him. 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 purpose 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
tender years shall not, save in exceptional circumstance. 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. Payment of State and other assistance
towards the maintenance of children of large families is
desirable.
Principle No.7 provides that the child is entitled to
receive education, 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, and
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 social responsibility and to become a
useful member of the society. The best interests of the
child shall be the guiding principle of those responsible
for his education and guidance, that responsibility lies in
the first place with his parents. The child shall have full
opportunity for play and recreation, which should be
directed to the same purpose as education ; society ; and
the public authorities shall endeavour to promote the
enjoyment of this right. Principle No.8 postulates that the
child shall in all circumstances be among the first to
receive protection and relief. Principle 9 is most important
in his behalf which provides that the child important in
this behalf which provides that the child shall be protected
against all forms of neglect, rudely and exploitation. He
shall not be the subject of traffic, in any form. The child
shall not be admitted to employment before an appropriate
minimum age ; he shall in no case be caused or permitted to
engage in any occupation or employment which would prejudice
his health or health or education, or interfere with his
physical, mental development. Principle No.10 postulates
that the child shall be protected from practices which may
foster racial, religious and any other form of
discrimination. He shall be brought up in a spirit of
understanding, tolerance. friendship among peoples, peace
and universal brotherhood and in full consciousness that his
energy and fallates should be devoted to the service of his
fellow men.
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(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 purpose of 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, endorsed with the skills and
motivations needed by he 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 growth should be 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
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-school children from
such sections will also be taken up. Programme No. 5
postulates that children who are not able to take full
advantages of formal school education shall be provided
other forms of education suited to their requirements.
Programme 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 and Scheduled
Tribes and those belonging to the 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 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, emotionally 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 institutions, the interest of
children are given paramount consideration. 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 th
normal family, neighborhood and community environment.
Priority sectors have been provided in this behalf and
paragraph 4(c) provides maintenance, education and training
of orphan and destitute children. They require special care,
education, training and rehabilitation of handicapped
children ; in clause (e) thereof, role of voluntary
organisations is emphasised. Paragraph 6 thereof postulates
the Government shall endeavour that adequate resources are
provided for child welfare programmes and appropriate
schemes are undertaken.
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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 emphasizes people’s
participation in implementation of this programme. It would,
thus, be seen that the constitutional imperatives of the
national policy of the children and the international
principles for the development of children are of the
paramount need an 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, rehabilitate and bring the children of
fallen women into the mainstream of the society ? As stated
earlier, three Cs (CCC) are necessary for successful
implementation, rescue and rehabilitate the children of the
fallen woman living in the red light area. Counselling,
Cajoling by persuasion 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 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 woman 39% are literate
while 58% of the total have had primary or secondary or
higher education. They show keen interest to educate their
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 meet basic needs; (v) unhealthy social
environment; (vi) nal-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.
Many a prostitute themselves are child prostitutes (for
short, the ‘CP’ ; they and the children of he 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 of COP in reality
is not successful in their rehabilitation. In this behalf,
it is necessary to take 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 placed 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 delinquent juvenile an act or
omission punishable by law to identify him as a 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 prostitution becomes a
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neglected juvenile. A child brought to associate with a
prostitute or is 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 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 of 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, by 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 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 member
shall be vested with he powers of a 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 he neglected juvenile, is covered as a
neglected juvenile and should not be treated as delinquent
juvenile since he began begging due to destitution or was
force to beg by organised gangsters. Therefore, all the
types of juveniles defined within the ambit of neglected
juvenile, though attached with certain acts o 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. 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 th Government of India referred to hereinbefore,
and are protected by the JJ Act.
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 for punishing the child as
criminal ; and mend their behavior 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 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
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juvenile into the vile of prostitution or exploitating him
for organised crimes by the organised gangsters taking
advantage of this immaturity and despondence ; that would be
deleterious to the child’s development and would widen the
deep gap between hope and reality in he 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
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
end up in failure and frustration.
Even if the economic capacity of the mother of
neglected juvenile in 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 he brothel ;
thus, the child prostitute is usage and insecure. So, they
should be rescued, cared for and rehabilitated. As stated
earlier, the three C’s, namely, 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 or the neglected juvenile. The income
criteria, therefore, is not a factor not to rescue the child
prostitute or the neglected juvenile for rehabilitation.
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 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 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.
The V.C. Mahajan Committee report states that the
resort to Sections 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 Ac on March 7,
1990, led to frustration of the entire operation, when on an
early morning, the prostitutes were taken by surprise by tap
on the doors and children were taken by surprise by tap on
he doors and children were taken into custody, on the
pretext of being examined by the doctors. Total 450 juvenile
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 years were kept in the
custody of the police. Their examination went on upto March
23, 1990 by which time, the agitated mothers and the
managers of th 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
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part of police in proper implementation and lack of prior
planning, understanding and concerted action between the law
enforcement agency, the NGOs and public spirited persons and
doctors. Instead 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 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 imperative 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.
The question than is : what is the 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 h Government are not
effectively been 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 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 juvenile 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
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 management,
the child prostitutes or neglected juveniles are properly
protected and psychologically treated, education imparted
and rehabilitation succeeded. They should also be provided
with proper accommodation maintenance facilities for
education and other rehabilitation facilities.
V.C. Mahajan Committee’s report specifies at page 31
that since its inception till November 1989, 102 boys and 34
girls were admitted by a responsible institute, a non-
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 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 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 Sangthan at Pune for placement of
the girls above 12 years into their custody but the Trust
continues to be the parent institution, paying their fees
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and holding the overall responsibility to bring up the
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. 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, 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 donation. It is being run for the
past 15 years. Much progress has been made in the struggle
to rehabilitate the neglected juveniles. There in, 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 taken care of
by ‘Nihar. Health, education and overall development is also
taken care of. The children are enrolled in Zila Parishad
Schools. 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 studies. The mothers
of the children visit once in a month. The management does
not 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 running a centre by name "Devadasi Chhatra
Vasti Graha" 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
granted by the Department of Social Welfare, Government of
Maharashtra. It has o its roll, 75 boys and girls. As on the
date of the visit by the Committee on July 7, 1990, 57 boys
and 8 girls (total 65) were found 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 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 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
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Child Development and Care Centres (for short, the ‘CDCC’)
in 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 Prostitutes and Prostitution)
Various factors have led to the perpetuation of
prostitution which in turn has given rise to a large nature
of work, status, income, etc. often leave the children
wanting in attention and care for their overall development.
However, it is not enough to perceive them as more victims
of neglect. Their cause has to be taken up to prevent them
from taking to prostitution or its promotion and curbing
their proneness to delinquency. It is believed that
children’s energies Development and Care Centres are
envisaged to provide Localised services through which the
larger interests of these children can be attended to. 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
iii) those areas where there is a concentration of
communities among whom prostitution is the traditional
occupation of the women and girls.
These Centres will be run by voluntary organisation with
government fund and have Advisory and Monitering Committees
at Central, State and Local levels.
(Emphasis supplied)
OBJECTIVES
The scheme would
i) provide welfare and developmental services for children
of prostitutes and other children associating with
prostitutes and prostitution by making them socially
productive beings ;
ii) try to wean them away from their surroundings by
referring them to suitable residential institutions as
and when necessary ;
iii) try to reach out to he mothers (through their children)
and counsel them on different issues related to their
personal 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
Keeping in view the total care and development of the child,
the following services/facilities would be provided.
i) crech (day and night)
ii) pre-school education The objective of pre-
(Balwad) school education, besides
the physical emotional
and social development of
the children, is to
prepare them mentally to
attend formal schools in
future. This, it is
hoped will increase the
enrolment in schools.
iii) non-formal education/
functional literacy
iv) counselling (personal
and career)
v) nutrional inputs
vi) health care
vii) library
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viii) toy-bank
ix) recreation
x) skill development
xii) ‘save for the child’ Mothers are anticipated
scheme 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
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 and
deposit 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 start
contributing an equal
share. By the time the
child is out of the
institution he/she will
have some immediate
financial support.
Note : Suggestion by the Court : The Government of India
should extend the Thrift
Scheme of Women for these
fallen women as well.
xiii) after school educational help the children
help complete their homework
and prepare lessons for
schools. Teachers would
also help them with any
difficulties faced in
school. By this measure,
the rate of school
dropout can be checked.
Suggestion and Directions
of the Court : Special coaching should
be arranged for these
children.
xiv) de-institutionalised Some of the mothers may
help be agreeable to part with
their children or have
different priorities for
the children. Money may
not be their problem. In
such cases the 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 development is in
no way impeded. It would
be binding on the mother
to provide the child with
the basic minimum
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facilities for the child’s
overall growth and
development. This would
be means of getting the
mother to provide for the
child instead of
institutionalising
him/her . Here, in the
process, the CDCC would
operate as a catalytic
and monitoring agency.
The CDCC will also follow
up the cases of those
children whose mothers
are placed in Protective
Homes. In case they are
endangered in any way by
separation form mother,
the CDCC will adopt
necessary steps to help
them.
The CDCC would be paid a
nominal sum for its
services and also for
spending onsome of the
items required by the
child for its growth, in
case 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.
Suggestion and Directions
of the Court : All necessary funds
should be provided by the
appropriate Government,
i.e., either the 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 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 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
ii) skill development
ii) health
iv) on the job training
v) training for enterpreneurship
Eligibility of Beneficiaries
Children of any age between 0-18 years who are either -
i) children of prostitutes, or
ii) children associated with prostitution or prostitute, may
be 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
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be benefited by further support. Those older than 18 years
would be assisted as special 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 groups of children will come to the Centre
during the day asking for any of the services.
Only in the case of creches and balwadis there would be
regular attendance where not more than 25-30 children should
be enrolled at any given time and when the member increases
separate groups be formed and benefit of service extended.
Organisation
The following are some of the general conditions for
eligibility for applying for the scheme :
(i) The applicant should be a voluntary, non-governmental
organisation, registered under an appropriate Act or a
regularly constituted branch of a registered welfare
organisation.
(ii) The organisation seeking assistance should be a non-
profit 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
managing committee with its functions and their
responsibilities clearly laid down in its Bye-laws.
(iv) the organisation should preferably have had some
experience in managing child development programmes or
experience of working on the issues related to
prostitution.
Programme
Thought 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 utilisation of the CDCC can be
availed.
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 to counsel the mothers and
children and 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 classes for
the elder children who are uneducated.
By way of extending further support to this group of
uneducated and unskilled children, the Centre’s staff will
have to counsel them regularly.
As it is advisable to remove the children form the vicinity
of the redlight areas by about 6 years of age, the staff
will have to convince the mothers and arrange for their
placement in residential institutions. Regular meetings are
to be held with the mothers to discuss about the health and
nutritutional needs of their children and to 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.
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.
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Depending upon their situation care and protection must be
extended to them such that the separation from mother does
not
(i) hamper their education
(ii) make them emotionally and physically insure
(iii) render them neglected and uncared for
(iv) expose them to greater risks of delinquency.
In case a child is affected in any of these ways, the Centre
must step in and to give 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.
The CDCC will involve the local level youth club or any
other organisations and with support from the
(i) mobilise the local community,
(ii) organise activities for the beneficiary group.
Working Hours of the CDCC
1. Creche ........... as per decision of the Local
(day and night) committee
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.
Education
Timings of the other facilities to be fixed according to
local situation.
Staff
1. Programme Co-ordinator 1
2. Special Worker-cum-Counseller 2
3. Teacher 1
4. Balwadi Teacher 1
5. Helper-cum-Office Assistant 1
6. Ayah-cum-Cook 2
7. Chowkidar 1
Advisery and Monitoring Committees
To ensure effective implementation of the scheme Advisory
and Monitoring Committees will be set up at various levels.
There 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 as many Local Committees as the
number of CDCCs operative in the respective state. A single
Committee may be adequate in case there are more than one
CDCC in the same city/town.
Members of the Committees
Central Committee (Seven Members)
i) Chairperson, Central Social Welfare Board
ii) Representative of eh Department of Women and Child
Development.
iii) Representative of the Department of Social Welfare
iv) Retired Police Officer.
v) Three Social Workers.
Local Committee (Seven Members)
i) Programme Co-ordinator CDCC.
ii) Representative of mothers
iii) Representative of community
iv) Representative of local club, if any
v) secretary or representative of the voluntary
organisation implementing the scheme
vi) Two Social Worker.
These Committees will run the scheme with the assistance
from the government. No separate office need the maintained.
The 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 State Committee). The
CDCC would help in the office work of the Local Committee.
For this, the respective organisations will receive a token
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Administrative Assistance grant.
Meeting of the committee can be organised by the respective
organisations. There must be quarterly meeting of the
Central and State Committees. The Local Committees must,
however, met once in every month. The Local committee is to
send its minutes of meeting held and reports of activities
to the State and Central committees.
The Central Committee will function as the central Co-
ordinating body, with regular feedback from the State and
Local Committees. Besides regular meetings, the Committee
may call emergent meetings to discuss any urgent matter.
These Committees will co-ordinate the functioning of any
ICDS Centres being run in lieu of 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."
We are of the view that the suggestions require earnest
examination to give force and content to them. The rescue
and rehabilitation of the child prostitutes and children
should be kept under the nodal Department, namely,
Department of Women and Child Development under the Ministry
of Welfare and Human Resource, Government of India. It would
devise suitable schemes for proper and effective
implementation. The institutional care, thus, would function
as an effective rehabilitation of fallen women even if they
have crossed the age prescribed under the JJ Act. They
should not be left to themselves, but should be
rehabilitated through self-employment schemes or such
measures as are indicated hereinbefore. The juvenile homes
should be used only for a short stay to relieve the child
prostitutes and neglected juveniles from the trauma they
would have suffered ; they need to be rehabilitated in the
appropriate manner. The details are required to be worked
out by meaningful procedure and programmes. In the light of
the directions already given by this Court from time to the
Central Government, State Governments and Union Territory
Administrators, adequate steps should be taken to rescue the
prostitutes, child prostitutes and the neglected juveniles
as indicated hereinabove ; they should take measures to
provide them adequate safety, protection and rehabilitation
in the juvenile homes manned by qualified trained social
workers or homes run by NGOs with the aid and financial
assistance given by Government of India or State Government
concerned. A nodal Committee with the public spirited NGOs,
in particular women organisations/woman members should be
involved in the management. Adequate encouragement may be
given to them ; the needed funds should be provided and
timely payments disbursed so that the scheme would be
implemented effectively and fruitfully.
The Minister of Welfare, Government of India will
constitute a Committee consisting of the Secretary in charge
of Department of Women the Child Development as the
chairperson and three or four Secretaries from the concerned
State Governments, to be nominated by the Minister of
Welfare. They would make an in-depth study into these
problems and evolve such suitable schemes as are appropriate
and consistent with the directions given above. The
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 submitted. the same may be communicated to
all the State Governments and the concerned Ministries for
their examination. Within two month 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
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Minister of Welfare, Home Minister, Human Resource Minister,
the concerned Minister, Human Resource Minister, the
concerned Ministers of the State Governments and their
Secretaries as well to discuss the problem and take
decision. The 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 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 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 prostitution ; their children would be
brought into the mainstream of the social order ; these
directions would enable them to avail the equality of
opportunity and of status, with dignity of person which are
the arch of the 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 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 concluding 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 prostitution;
their rescue formal flesh trade ; and rehabilitation through
various welfare measures so as to 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 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 relief in matters arising from real and true and
Court to grant reliefs in matters arising from real and true
public interest litigation in which the condition of locus
stand 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 unable to avail of
judicial process for grant of general reliefs to such a
group of persons.
In Labourers working on Salal Hydro Project vs. State
of Jammu & Kashmir & Ors. [(1983) 2 SCC 181] - offspring of
a letter addressed to this Court enclosing a clipping of the
newspaper "Indian 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
sought to prohibit exploitation and to grant different
reliefs to them. The letter was treated by this Court as a
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writ petition under Article 32. Directions were issued to
the Labour Commissioner (Centre) to enquire into and 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 were denied of the minimum wages and
other welfare benefits. Accordingly, directions were given.
This decision, therefore, is an authority for the
proposition that a Public Interest litigation is not of
adversory 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) vs. State of U.P. & Ors. [(1986) 4 SCC
106], Dr. Upendra Baxi, a noted humanist and 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 Homes
at Agra who were being denied right to live with basic human
dignity by the State of Uttar Pradesh which was running the
Home. In that case, it was held that the public interest
litigation is not a litigation of an adversory 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 officer, the lawyers
appearing in the case and the Bench for the purpose of
making Human Rights meaningful for the weaker sections for
the community in ensuring the socio-economic justice to the
deprived and vulnerable sections of the humanity in the
country. Directions, therefore, were accordingly issued ;
details thereof are, 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 guaranteed to all the citizens in
particular, the vulnerable weaker segments of the society.
Vincent Panikurlangara vs. 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 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 ; yet
they do not have the choice of keeping away from the Court
like private parties in ordinary litigations opting to go ex
parte. 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 suo motu
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.
As already seen, in Bandhua Mukti Morcha case, this
Court had 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
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at pages 189-90. In Rural Litigation and Entitlement Kendra
vs. State of U.P. [(1989) Supp. 1 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
public interest litigation and the controversy before the
Court was as to whether for social safety and for creating a
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. vs. Union of India & Ors. [(1987) 1 SCC 395], a
Constitution Bench of this Court was to consider the scope
of the public 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 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
interest litigation or social action cases. Directions were
accordingly granted in that case. In Bandhua Mukti Morcha
vs. 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 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 week to bring the
necessary 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 king of layering skill and a
different kind of judicial approach. If 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 faire 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 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 circumstances of a given case
for enforcing the fundamental right. In Santhal Pargana
Antyodaya Ashram vs. State of Bihar & Ors. [(1987) Supp. SCC
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141] in a public interest litigation, this Court obtained a
report of the Committee appointed by the Court, accepted the
report and gave directions 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 Government wee
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 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 suffer from and to make them realise and enjoy
the fundamental rights ensured to them under the
Constitution. In that behalf, 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 adversorial litigation, has been
softened; new methods, tools and procedures wee 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 admitted in the general schools to make the
children overcome the disabilities had from foul atmosphere
and to generate the feeling of oneness and desegregation. In
addition, this Court appointed V.C. Mahajan Committee to
enquire into and submit a report. The report was accordingly
submitted after extensive travelling to far and wide parts
of the country; it studied not only the problem of the
children of the fallen women but also the route cause of the
menace of child 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 State
Governments and the Central Government were supplied with
the copies of the Report and they have not even objected to
the recommendations; 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 of V.C. Mahajan Committee
and other reports and articles published in recognised
Journals and act upon it. Placing reliance thereon, the
directions 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 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
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us have agreed, 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 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 interest
litigation is not adversorial in nature but is one of
cooperation and coordination between the three wings of the
State and the coordination 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 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 Bench in respect of the
first part of the directions, namely, to prevent
prostitution; to rehabilitate fallen women and to provide
them facilities and 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, 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 exceptional circumstances, would include
directions of this type to mitigate 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 ethos which constrain me to avail Article 142
of the Constitution of India to direct the Union of the
India as well as all State Governments to evolve, after in
depth 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 fundamental 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 difference of opinion is resolved in
an adversorial litigation and in a keenly contested matters
of even public interest litigation, in particular, of recent
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,
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rescue and rehabilitation, the exercise of the power under
Article 142, even by a 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 is responsible for a woman’s
becoming victim of circumstances. The society should make
reparation to prevent trafficking in the women, rescue them
from red light areas and other areas in which the women are
driven or trapped in prostitution. Their rehabilitation by
socio-economic empowerment and justice, is the
constitutional duty of the State. Their economic empowerment
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 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 from the red light areas and other areas
required enforcement. The observations 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 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 assistance and yeoman’s service rendered by V.C.
Mahajan Committee.
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.