Domestic, India Gisela Sin Gomiz Domestic, India Gisela Sin Gomiz

Supreme Court of India, Gaurav Jain v. Union of India and others, 9 July 1997, [1997] 8 SCC 114 - India

Background

The case was initiated by Gaurav Jain, an advocate who filed a Public Interest Litigation (PIL) after having read an article on the situation of children of sex-workers and the difficulties and discrimination they faced on their upbringing and education. Mr Jain requested the Indian Supreme Court (the “Court”) to establish separate educational institutions and accommodations for these children in Gaurav Jain vs. Union of India & Ors. [1990 Supp. SCC 709]. The Court observed 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 and that they "should be segregated from their mothers and be allowed to mingle with others and become a part of the society" (see headnote). However, the Court considered 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" (see headnote).

The Court ordered to set up a committee (the “Committee”), made up of fouradvocates and three social workers, to assess the economic and social circumstances and mental condition of children of sex-workers and to prepare a report giving suggestions for appropriate action to the Court. The judgment at hand was issued based on this report, eight years after the Committee was formed.

Reasoning

The main questions that the Court considered were: (i) what were the rights of the children of female sex workers and the ways to segregate them from their mothers and others so as to give them protection, care and rehabilitation “in the mainstream of the national life”; (ii) what scheme should be put in place to prevent and eradicate prostitution, including child prostitution, for enduring results; and (iii) what aid and what support could be provided to the victims of prostitution.

As to the first question, the Court based its reasoning on a number of international law provisions (Articles 3, 4, 6, 7, 9, 14, 17, 18, 19, 28, 29, 32, 34, 36, 37 of the CRC; Principles of the Declaration on the Rights of the Child; Articles 1, 2, 3, 4, 5, 6, 7, 8 of the UDHR; Article 8 of the Declaration on the Right to Development; Articles 1, 2, 5, 12, 13, 16 of the CEDAW) and Indian legal standards (Part III and IV of the Constitution; Section 2 (a) of the ITP Act; Sections 5, 7, 9, 10, 11, 12, 13, 14, 15 of the Juvenile Justice Act 1986) on human rights and fundamental rights of women and children. The Court found all of these applied directly to this case. In particular, the Court found that the children of the sex-workers have the right to equality of opportunity, dignity, care, protection and rehabilitation and to be part of the “mainstream of social life” without any attached “pre-stigma”.

With regard to the second and third questions, the Court observed that “counselling, cajoling by persuasion and coercion” (the latter as a last resort, according to the Court) were necessary to ensure the successful rescue and rehabilitation of sex-worker’s children. More specifically, based on the Committee’s findings and considering the actions already taken throughout the country to help children of sex-workers, the Court decided that the state was obliged to establish and make available juvenile homes for these children. Noting that the existing state-operated juvenile homes were not yielding the desired results, the Court also ruled that coordination amongst “the officers in charge of the juvenile homes, the welfare officers and the probation officers” should take place in order to guarantee the protection and the rehabilitation of these children. The Court added that NGOs needed to be more involved in the management of the Child Development and Care Centres (CDCC). In this context, the Court cited a detailed catalogue developed by the Committee as how such management should look, repeatedly giving concrete, additional “suggestions” and/or “directions” to the State, including to provide the funding for the institutions. The Court also found that the children of sex-workers should not be separated from their mothers unless this was the best solution in terms of the child’s interests.

Further, the Court ruled that sex-workers should be rehabilitated through self-employment schemes and invited the state to evolve procedures and principles to ensure that sex-workers would also enjoy their fundamental and human rights.

Remedy

The Court went beyond the initial petition and instructed the state of India to take a range of specific measures to, first, eradicate prostitution and, second, better protect the children of sex-workers.

Role of children

There were no children directly involved in the case.

Enforcement and other outcomes

Notably, the decision was later partially overruled by the Supreme Court of India (Gaurav Jain And Another. Vs. Union Of India And Others 1998(3) ALL MR 433 (S.C.)). The decision’s part regarding measures to protect the children of sex-workers was not overturned, however.

As of early 2023, children of women in prostitution still face discrimination and abuse from other children in schools due to stigma and many of them are out of school, especially girls. There is still a need to strengthen existing laws and pass legislation to regulate access to foster homes while guaranteeing that the system ensures that these children receive the same treatment and opportunities as other children and that stigma is overcome.

Significance of the case from a CRSL perspective

This decision is significant because it expressly recognised the rights of children of sex-workers (to equality of opportunity, dignity, care, protection and rehabilitation) and established that the state has a duty to protect those rights. The court directly applied the provisions of international law, such as the Convention on the Rights of the Child.

This case is the first of three major cases upholding the rights of children of women in prostitution (see ABC v. State (NCT of Delhi), (2015) 10 SCC 1, on the issue of parentage, guardianship and parental responsibility, and Sakshi v. Union of India, AIR 2004 SC 3566, on the issue of prevention of sexual abuse of children). It was not, however, cited in these latter decisions.  

Country

India

Forum and date of decision

Supreme Court of India

July 9, 1997

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

Gaurav Jain, Advocate (filing a Public Interest Litigation)

Case documents

Secondary documents

Bhartiya Kisan Sangh, “Educational Status of Children of Traditional Sex Workers in India” (National Commission for Protection for Child Rights December 2018), accessed November 8, 2022

Chawla S, “Raised in Brothels: The Children of Delhi's Red Light District” (FairPlanet July 22, 2022), accessed November 9, 2022

PTI, “Sex Workers's Children Face Discrimination in Schools by Other Kids: Study” (The Indian Express January 24, 2019), accessed November 8, 2022

Rattan K and others, “A Red-Light Trap: Society Gives No Chance to Prostitutes' Offspring” (India Today November 26, 2013), accessed November 7, 2022

Sinha S, “Born in Brothels: Rights of Children of Sex-Workers” (CRC CNLU, PatnaMarch 28, 2021), accessed November 8, 2022

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Domestic, India Gisela Sin Gomiz Domestic, India Gisela Sin Gomiz

Bachpan Bachao Andolan v. Union of India and Others [2011] INSC 403; Writ Petition (C) No. 51 of 2006 - India

Background

Bachpan Bachao Andolan (“the petitioner”) is an NGO that has campaigned for the removal of children from circuses in India since 1996. The petitioner conducted a study on child labour in Indian circuses starting in 2002, which found that children were trafficked from poor parts of India and Nepal and subjected to physical, emotional and sexual abuse in circuses. The petitioner descibed rights violations related to the following broad categories: (i) insufficient space, (ii) quantity and quality of food, (iii) erratic sleep times, (iv) unhygienic sanitary conditions, (v) no provision of health care, (vi) danger due to high risk factor of work, (vii) poor/manipulated salaries, (viii) bound by long term contracts, (ix) loss of all-round development (incl. education, play, recreation) by isolation from outside world.  

The petitioner filed this case seeking an order requiring the Indian government to (i) issue appropriate guidelines for the persons engaged in circuses; (ii) to conduct raids in all circuses to liberate the children and to investigate violations of their rights; (iii) appoint special forces to ensure actions and check on cross border trafficking; (iv) apply the provisions of the Juvenile Justice Act and make the violations offences under the Indian Penal Code /Juvenile Justice Act; (v) empower child welfare committees to award compensation to all victims rescued, and (vi) lay out guidelines prohibiting the employment/engagement of children up to the age of 18 in any form in circuses.

Reasoning

The petition was very broad in scope, and the judgment sets out the petition elaborately. However, the court decided to focus on the issue of children working in circuses, and in particular, the violation of the right to education of such children. The court noted that under the 2005 Constitution of India the right to education was now a fundamental right.

The Court found that “[f]rom the […] submissions made by the learned Solicitor General it is abundantly clear that the Government of India is fully aware about the problems of children working in various places particularly in circuses” (para. 67). The court indicated its intention to deal with the broader problem of children’s exploitation systematically, but limited its ruling to children working in circuses in the first instance.

Remedy

The court ordered: (i) the Central government to issue suitable notifications prohibiting the employment of children in circuses; (ii) respondents to conduct raids on all circuses to liberate the children living in them; (iii) the respondents to ensure that the rescued children live in protective homes until the age of 18; (iv) the respondents to contact the parents of children to enable their return home where possible; and (v) the respondents to provide proper schemes of rehabilitation for rescued children; (vi) the Secretary of the Ministry of Human Resources Development, Department of Women and Child Development to file a report on compliance with the court within ten weeks.

Role of children

Children did not act as party to the case, but a child rights NGO filed the public interest petition.

Enforcement and other outcomes

 In 2015, several years after the first order, the Supreme Court found that there had been a failure of compliance with its earlier orders relating to children in circuses. The judgment in 2015 mentions an order dated 12 December 2014, which led to a meeting being convened by the Secretary, Ministry of Women and Child Development and attended by the Secretary, Minister of Labour, as well as by several officers from the various States. As part of its monitoring role, the Supreme Court issued notices for the Union government and all the states to file affidavits, but the only state that complied within the time frame was the State of Punjab. After considering a report of the Ministry of Women and Child Development, the Court issued a directive that the Central Government should monitor the activities of the circuses through National Commission for the Protection of Child Rights and State Governments, and indicated that the petitioner or any other person was at liberty to approach the court or any other appropriate authority if any instance of child labour or child abuse was found in any circus.

Significance of the case from a CRSL perspective

The case was recognized as a landmark decision to protect children coerced to work in circuses. In particular, the Supreme Court noted that the government was fully aware of the problems children face working under such conditions.

Also, only shortly after the decision (on May 5, 2011), India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) after having signed it already on December 12, 2002. The outcome of this case served as a catalyst for this move. Prior to the judgment, India had struggled with a comprehensive definition for the crime of human trafficking.  In the aftermath of the 2012 Delhi gang rape case, a committee known as the  Justice Verma Committee  was set up to review and make recommendations to update the Indian Criminal Law. In 2013 the Committee released its report, and recommended the adoption of the definition of human trafficking used in Bachpan Bachao Andolan v Union of India case. The Committee pressed upon Parliament the need to update the national laws concerning human trafficking.

Country

India

Forum and date of decision

Supreme Court of India

April 18, 2011

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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