Facts in Brief

Coming as a Public Interest Litigation, the petition was filed by a public-spirited advocate, Mr. Gaurav Jain, seeking a declaration that prostitutes in India had: (a) the right to be free citizens; (b) the right not to be trapped again; and (c) the right of readjustment through economic empowerment, social justice, self-sustenance, equality of status, dignity of person in truth and reality, and social integration.

Earlier, in a similar case (Gaurav Jain v. Union of India, 1990 Supp SCC 709), the Court had not accepted the plea for hostels for the children of such prostitutes, though it had agreed with the view that such children must be segregated from their mothers and from that environment. The issue addressed in the present case therefore had a two-fold aspect: first, the rights of the children of “fallen women,” especially girls; and second, in the process, the eradication of prostitution itself.

Arguments

The Petitioner relied on various legal instruments, namely the Constitutional provisions (Articles 14, 15(3), 16(1), 21, 23, 24, 38, 39(f), 45 and 46), the Universal Declaration of Human Rights, 1948 (Articles 1, 4 and 6), and the Declaration of the Rights of the Child (to which India is a signatory), among others. Stressing these instruments, an attempt was made to draw the attention of the judicial system towards this hard truth of society, which had persisted in different forms since ages — sometimes in the name of religion, as with the devadasi or jogin systems, and sometimes for commercial reasons.

Judgment

After studying the variant statistical data and the factual situation in society, the Court went on to offer solutions from two standpoints:

(a) Through the Juvenile Justice Act, it proposed to better the condition of these children by bringing them within the ambit of “neglected children.” Recognising the causes behind such a state of affairs — family tradition, custom, illiteracy, coercive trapping, ignorance, poverty, fear of social stigma, and also the recent trend of women from the higher strata of society entering the profession to sustain their luxury demands — the Court recommended a scheme for the children of prostitutes, and for children associating with prostitutes and prostitution: Child Development and Care Centres for the management and coordination of entrustment to NGOs, so as also to promote voluntary initiatives against this germ in society.

(b) The aspect of prostitutes themselves was sought to be cured, apart from action by NGOs, through the Immoral Traffic (Prevention) Act, 1956, by expanding the horizon of the term “prostitution” by adding the word “abuse,” so as to cover any act contrary to good order. The legislation was also understood widely enough to address a “brothel” as any premises wherein a female indulges in the act of offering her body for promiscuous sexual intercourse for hire. Actual intercourse or repeated visits were therefore not made pre-requisites; even a single instance, proved by surrounding circumstances, was held to be sufficient to invoke the law.

For the Common Man

The judiciary took serious note of the widespread disease of prostitution, which has continued in society in a vicious cycle. A prostitute, in the course of catering to customers, gives birth to an innocent infant; to bear the costs of the child and to bring her up as a responsible citizen, she incurs heavy debts from her customers; but ultimately she leaves the burden of those unsatisfied debts on the shoulders of the child, who grows up in that environment and under a compulsion to repeat her mother’s life. The Court thus relied on the concept of the 3 Cs — counselling, cajoling and coercion — to enforce the legislations, as well as voluntary initiatives, to curb the menace before it engulfs the social fabric.