Trafficking in persons

Gaurav Jain v. Union of India and Others

Fact Summary

The petitioner, an Advocate, filed a Public Interest Litigation (PIL) before the Supreme Court (SC) of India, based on an article "A Red Light Trap: Society gives no chance to prostitutes' offspring" published in the magazine 'India Today' dated July 11, 1988. The petitioner prayed for establishing separate educational institutions for the children of the fallen women (term used by the SC throughout the judgment). The SC stated in its order dated 15-11-1989 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”. While the SC 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".

The SC constituted a Committee directing it to submit a report giving suggestions for appropriate action. Upon submission of the report of the Committee, the SC formulated the following questions for decision: -

- 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?

- 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?

In its judgment, the SC quoted the Fundamental Rights of women and children from the Constitution of India (namely, Articles 14, 15, 16, 21, 23, 24, 38, 39, 45, 46) and relevant international instruments. The court deliberated on the reasons for prostitution and the continuation of the victims in profession and recognized that the victims are the poor, illiterate and ignorant sections of the society who 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. The court held that women found in the flesh trade, should be viewed more as victims of adverse socio-economic circumstances rather than as offenders in our society. 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 SC stated that three Cs, viz., Counselling, Cajoling and Coercion were necessary to effectively enforce the provisions of various statutes. The role of NGOs in rehabilitating and educating the children of the fallen women was emphasized. Detailed directions were given for rescue, rehabilitation of prostitutes and children of prostitutes. The SC held that society was responsible for a woman becoming a victim of circumstances therefore, society should make reparation to prevent trafficking in women, rescue them from red light areas and other areas in which the women were 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.

 

 

Commentary and Significant Features

The judgment in this case was delivered by a bench of two judges. Dissent was expressed by one of the judges on two points; one, regarding directions passed by the other judge on the question of prostitution and its eradication (whilst agreeing with the directions relating to children of the prostitutes and establishment of the juvenile homes); and secondly on the nature and scope of Articles 142 and 145(5) of the Constitution of India.

After the judgment in this case, a Review Petition (Review Petition (C) No. 1841 of 1997 in Writ Petition (C) 824 of 1988) was filed by the Supreme Court Bar Association supported by Gaurav Jain, the original petitioner. The review petition was referred to a larger bench of three judges and judgment was delivered on 30 – 03 – 1998. The judgment in the review petition pertained to the following points – scope and nature of Articles 32, 142 and 145(1) of the Constitution of India; and the directions given in the earlier judgment regarding prostitution and its eradication. The second judgment set aside the directions given in the first judgment relating to prostitution and/or its amelioration or eradication; whilst permitting the Union or State Governments to formulate their own policies in this area or taking measures to implement them.

Therefore, the first judgment was overruled by the second judgment. However, the directions made by the judges in the first judgment with respect to children of the prostitutes and establishment of the juvenile homes were upheld.

The full text of both the judgments is provided for comprehensive appreciation by the reader.

Author:
UNODC Regional Office for South Asia

Keywords

Trafficking in Persons Protocol:
Article 3, Trafficking in Persons Protocol
Article 5, Trafficking in Persons Protocol
Article 6, Trafficking in Persons Protocol
Article 9, Trafficking in Persons Protocol
Acts:
Recruitment
Transportation
Transfer
Harbouring
Receipt
Means:
Threat or use of force or other forms of coercion
Fraud
Deception
Purpose of Exploitation:
Exploitation of the prostitution of others or other forms of sexual exploitation
Form of Trafficking:
Internal
Organized Criminal Group
Sector in which exploitation takes place:
Commercial sexual exploitation

Cross Cutting

Offending

Involved Countries

India

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Supreme Court

1st Instance:

This decision of the Supreme Court of India arises from a Public Interest Litigation filed as Writ Petition (C) No. 824 of 1988 with Writ Petition (Cri.) Nos. 745-754/54 of 1990

 
 

Victims / Plaintiffs in the first instance

Plaintiff:
Gaurav Jain
Gender:
Male
Nationality:
Indian
Advocate practising in Supreme Court of India (filed Public Interest Litigation)

Defendants / Respondents in the first instance

Defendant:
Union of India and Others

Charges / Claims / Decisions

Defendant:
Union of India and Others
Legislation / Statute / Code:

Constitution of India, 1950; Immoral Traffic (Prevention) Act, 1956; Code of Criminal Procedure, 1973; Juvenile Justice Act, 1986 (The Act has since been amended and is now known as the Juvenile Justice (Care and Protection of Children) Act, 2000)

Court

Supreme Court of India

Sources / Citations

AIR 1997 SC 3021; 1997 (2) ALD (Cri) 199; 1998 (3) ALLMR (SC) 433; (1998) 2 CALLT 9 (SC); 1997 (2) Crimes 40 (SC); JT 1997 (6) SC 305; 1997 (4) SCALE 657; (1997) 8 SCC 114; [1997] Supp 2 SCR 105

Gaurav Jain and Supreme Court Bar Association versus Union of India and Ors. - Citation - 1998 (4) SCC 270

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