NATIONAL LEGAL RESEARCH DESK
Gaurav Jain v UOI & Ors Supreme Court excerpts:
Need to eradicate gender discrimination
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 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.
Objective of JJ Act
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 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.
The SC in this case dealt with the question of “what procedure is efficacious to prevent prostitution, bring the fallen women and their children into the social mainstream by giving care, protection and rehabilitation?”
The SC observed that three Cs, viz., counseling, cajoling and coercion 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 has been seen that the Committee constituted by this Court under the chairmanship of Shri V.C. Mahajan:
- looked 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.
- It also opined that the problem of child prostitution does not stand by itself and is a component of overall phenomenon in the country. It highly concentrated on identified red light areas as well as on areas which are not so clearly identified. Though the problem of prostitution is mainly found in large cities, but in the urban areas and some rural areas, the problem gives frequent recurrence.
- Among the fallen women, the child prostitutes constituted major bulk of the component.
- Child prostitutes constituted 12 to 15% of prostitutes in any area.
- On account of the social sanctions, women were 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 were only camouflage; their real motive was to exploit the unfortunate women. Most of them belonged either to Scheduled Castes or Backward Classes coming from socio-economically lower groups. They were prevalent highly in Karnataka, Maharashtra and Andhra Pradesh.
- The specific areas in major cities were identified as red light areas as well as some semi-urban and rural areas.
- The number of red light areas having increased in recent times, brothel based prostitution is on the vane but there was an increasing trend towards decentralised mode of prostitution.
- 86% of the fallen women hailed 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 received 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 was growing evidence that the minimum numbers of prostitutes get into flesh trade voluntarily; organised gangster either force women and girls by offering rosy future to innocent fallen women or trap them often with the connivance of the police.
- The Committee had 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% were below 15 years; 249% between 16 to 13 years, 27.7% between 19 to 21 years; and 32.9% were above 22 years. At the time of entry, therefore, 15% of the fallen girls were in the category of neglected juveniles, about 25% were minors between the age group of 16 to 18 years.
- The major reasons for induction of prostitution were poverty and unemployment or lack of appropriate rehabilitation etc. All abhorred social stigma; 16% joined this heinous occupation due to family tradition and 9% due to illiteracy.
- 94.6% prostitutes were Indians while 2.6% are Nepalis and 2.7% are Bangladeshis.
- 84.36% were 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 marital status, only 10.6% of the prostitutes were married; 34.4% were unmarried and 54.2% were divorcee or widows.
- In terms of education level; 70% of them were illiterates while 4% only were literates. Only 24% of the prostitutes were educated at primary and secondary level while 1.4% had higher qualifications.
- Therefore, prostitution was prevalent primarily due to ignorance, illiteracy, coercive trapping or scare of social stigma.
- In India, they entered into the prostitution between the age of 16 to 19 years and used to lose market by the time they became 35 years of age. Thereafter such persons either managed brothels or developed contact with high leads. The comparatively new trend was that ladies from higher levels of income were 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 indicated 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 caught in the debt traps.
Further, 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 wanted 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 wanted 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 is “imperative to provide a permanent cure to the malady” as per the Committee Report.
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, counseling, 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 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 counseling 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 Stated that an organisation by name Prerana, selected Kamathipura red light area, Bombay, where 14 lanes were 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 had also been involved in the care, rehabilitation and advocacy to retrieve prostitutes including child prostitutes. Also, the rehabilitation and welfare organisation was required to be initiated.
The Committee also recommended 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. Prostitution in five star hotels is a license given to persons from higher echelons. The commercial exploitation of sex may be regarded as crime but those trapped in custom oriented prostitution and gender printed prostitution should be viewed as victims of gender oriented vulnerability.
- Prostitution could be arrested by not only law enforcing agencies but by constant counselling and interaction by the NGOs impressing upon them the need to shed off the path and to start with a new lease of life.
- The ground realities should be tapped with meaningful action imperatives, apart from the administrative action which aims at arresting immoral traffic of women under ITP Act through inter-State or Interpol arrangements and the nodal agency like the CBI is charged to investigate and prevent such crimes.
- We are concerned in this case more with the rehabilitation aspect than with prevention of the crime. Therefore, we 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 Report stated that “customary initiation of women in the practice of Devadasi, Jogins and Venkatansins is prevalent in Andhra Pradesh, Karnataka and Maharashtra areas …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 affront to the Constitutional scheme…On the other hand, penal enactments provide for abolition thereof.” It further denounced the glorification of such gory customs, as these are making the lives of the girl miserable; in the guise of prosperous future and custom, the girl is detained in prostitution for no fault of her, wherein the eldest girl child in particular families, is offered as Devadasi or Jogin or Venkatasin, by whatever local name they are called.
The economic rehabilitation has been suggested as 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 from early age gives resistance to such exploitation by dedication; whereas, economic programmes, like vocational training, informal adult education, educational training with help of schemes such as DWCRA (Development Of Women And Children In Rural Areas) are needed for rehabilitation of such victims, as is being done in Karnataka. Similar provision could be used as Andhra Pradesh State Government is providing housing sites or house facilities to devadasi women, pension for prostitutes aged 60 years and above.
65.5% of the fallen women have children and usually they were in the age group of one to ten years. Generally, they preferred to keep their children away from them while they were in the act of intercourse except very young ones. They also showed keen interest to educate their children. The disparity among children was obvious in this area also as boys tended to spend their time at study or leisure; and girl children tended to be engaged in house hold jobs.
The children faced 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) mal-nutrition; (vii) coercive attempts by managers of brothels; (viii) tauntings, due to dislike, by surrounders; and (ix) lack of proper counselling and guidance; motivation and opportunity gaps.
Many a prostitute themselves were child prostitutes (for short, the `CP’; they and the children of the prostitutes (for short, the COP’) needed to be removed from the red light area. Generally, the police resorted to IPC and ITP Act in this behalf but the forceful rescue of CP of COP in reality was not successful in their rehabilitation. Hence, it should be last resort when all avenues fail. In this behalf, the Committee and the Supreme Court found it necessary to take aid of the definition of “neglected child” defined in JJ Act.
The Court suggested that 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. It stated that attribution as ‘neglected children’ is not social stigma ; as the purpose is to identify the children as juveniles to be dealt with under the JJ Act, more a reformative and rehabilitated Act rather than for punishing the child as criminal ; and mend their behavior and conduct.
It observed that 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 the brothel; thus, the child prostitute is abused and insecure. So, they should be rescued, cared for and rehabilitated.
On the other hand, it suggested that 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 stated 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 and hence their use must be restricted.
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,
- Ensure that the child prostitutes or neglected juveniles were 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 specified 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 used to get funds from the Ministry of Welfare, Government of India under the scheme for children in need of care and protection. Similar homes were 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 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 were 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 has been another institution, viz., `Nihar’ run by `Vanchit Vikas’ institute at Pune, founded on the basis of the felt needs of the neglected juvenile. Social workers of Pune Corporation cooperate with them.
- There were special health reforms available to prostitutes, the workers used to come into frequent contact with the prostitute mothers and their children.
- Gradually, they were getting acquainted with the situation and awareness was being 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 was being run through donation. It was being run for the past 15 years. Much progress had been made in the struggle to rehabilitate the neglected juveniles.
- There in, they had established a school for 25 children, mostly in the age group of 5 to 10 years, being used in `Nihar’.
- They used to take only female children with the female staff to attend to the needs of the children.
- Their basic requirements of food, clothing and shelter were being taken care of by `Nihar. Their health, education and overall development were also being taken care of and the children were enrolled in Zila Parishad Schools.
- Residential staffs helped them to take them to the schools and bring them home.
- On Saturdays, teachers used to spend their time in `Nihar’ teaching music and playing games with the children.
- On Sundays, teachers used to come from Pune and spend time with the children and keep them in their studies.
- The mothers of the children used to visit the homes once in a month. The management did not allow the mothers to take the children except for short duration. The prostitute mothers themselves had even realised the advantage to keep their children away from vile environment and were happy with educational progress of their children.
Similarly, “Devadasi Niradhar Mukti Kendra, Ganghiganj” has been running a centre by name “Devadasi Chhatra Vasti Graha” at Pune from October 1986.
- It was a residential institution for the children of the Devadasis. 80% of them were the Devadasi children while 20% were children from socio- economic backward classes.
- Funds for this institution were granted by the Department of Social Welfare, Government of Maharashtra. It had on 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 were also being run elsewhere.
The above facts do indicated that the NGOs were 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 had 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 SC suggested that 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 had also given details of the Child Development and Care Centres (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 had given rise to a variety of nature of work, status, income, etc. often leaving the children wanting attention and care for their overall development. However, terming as mere victims of neglect was not proper for such children and their cause needed to be taken up to prevent them from taking to prostitution or its promotion and curbing their proneness to delinquency. Children’s Development and Care Centres were envisaged to provide localised services through which the larger interests of these children could be attended to.
Such Centres are to be situated in i) the vicinity of red-light 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 were proposed to be run by voluntary organisation with government fund and had Advisory and Monitering Committees at Central, State and Local levels.
The scheme’s objective was to i) provide welfare and developmental services for children of prostitutes and other children associating with prostitutes and prostitution; to wean these children away from their surroundings by referring them to suitable residential institutions as and when necessary ; to reach out to the mothers (through their children) and counsel them on different issues related to their personal lives, their occupational lives and their children ; and to operate as an information dissemination and conscientious point, particularly for the higher age group (12 – 18 years).
The SC also gave various recommendations with regard to this scheme, though such a comprehensive and useful scheme has not been utilized for the dedicated purpose therein.
Thus, the Court gave various directions in this case and advised the Central as well as State governments to follow them up and use the references given for their policy formation and related discussions as per provision of Article 142 “for doing complete justice” in a given cause, also giving binding effect to the Supreme Court ruling as per Article 141.