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
Convention on the Right of the Child (CRC), Articles 3, 4, 6, 7, 9, 14, 17, 18, 19, 28, 29, 32, 34, 36, 37
Declaration on the Right to Development, Article 8
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Articles 1, 2, 5, 12, 13, 16
Universal Declaration of Human Rights (UDHR), Articles 1, 2, 3, 4, 5, 6, 7, 8
Domestic law provisions
Constitution of India, Articles 14, 15, 16, 21, 23, 24, 38, 39, 45, 46, 51
Immoral Traffic (Prevention) Act 1956, Section 2
Suppression of Immoral Traffic in Women and Girls Act, 1956 (renamed as the Immoral Traffic (Prohibition) Act or ITP Act)
Juvenile Justice Act 1986, Sections 5, 7, 9, 10, 11, 12, 13, 14, 15
Code of Criminal Procedure (CrPC)
Related information
The applicants:
Gaurav Jain, Advocate (filing a Public Interest Litigation)
Case documents
Supreme Court of India, Gaurav Jain v. Union of India and others, 9 July 1997, [1997] 8 SCC 114.
Committee on Prostitution, Child Prostitutes and Children of Prostitutes, “Report of the Committee on Prostitution, Child Prostitutes and Children of Prostitutes and Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children” (Feminist Law Archives By Partners For Law In Development 1998), accessed November 7, 2022
Gaurav Jain vs. Union of India & Ors. [1990 Supp. SCC 709].
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
