Gaurav Jain v. Union of India, AIR 1997 SC 3021 

 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 (a) right to be free citizens, (b) right not to be trapped again, and (c) the right of readjustment by 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 accept the plea for hostels of children of such prostitutes, though it agreed to the view that such children must be segregated from their mothers and environment thereto. Hence the issue addressed in this case was a two-fold aspect, firstly the rights of children of ‘fallen women’ especially girls; and secondly in this process eradication of the 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), Universal Declaration of Human Rights, 1948 (Article 1, 4 and 6) and Declaration of Right of Child (to which India is a signatory) etc. Stressing on the above instruments, an attempt was made to draw the attention of the judicial system towards this hard truth of society which had been persisting in different forms since ages sometimes in name of religion like devdasi or jogin, and sometimes for commercial aspects.

JUDGEMENT

The court after study of the variant statistical data and factual situation in society, went on to offer solution from two objectives- 

(a) through the Juvenile Justice Act, it proposed to better the condition of these children by bringing them within the manifold of neglected children; recognizing the cause behind such state of the children to be family tradition, custom, illiteracy, coercive trapping, ignorance, poverty, scare of social stigma, and also the recent trend of ladies from high strata of society entering into this job to sustain their luxury demands, the court recommended the scheme for children of prostitutes and children associating with prostitutes and prostitution- Child Development and Care Centers for management and coordination of entrustment to NGOs so as also to promote voluntary initiatives against this germ of society.

 (b) The aspect of prostitutes 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; also the legislation was understood widely even to address a ‘brothel’ as any premise wherein a female indulges in act of offering her body for promiscuous sexual intercourse for hire, thereby actual intercourse or repeated visits were not made pre-requisites, even a single instance proved by surrounding circumstances was held to be sufficient to invoke the law. 

FOR COMMON MAN

The judiciary took a serious note of the widespread disease of prostitution which has being continuing in the society in a vicious cycle. A prostitute in the course of catering to customers gives birth to an innocent infant, and to bear the costs of child and to bring her up as a responsible citizen, she incurs high debt from her customers, but finally she leaves the burden of those unsatisfied debt on the shoulders of the child who grows up in that environment and compulsion to repeat her mothers life. Thus the court relied on the concept of 3C’s i.e. counseling, cajoling and coercion to enforce the legislations as well as voluntary initiatives to curb the menace before it engulfs the social fabrics.