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, Brazil Gisela Sin Gomiz Domestic, Brazil Gisela Sin Gomiz

Supreme Federal Court of Brazil, Habeas Corpus nº 143.641 / SP - Brazil

Background

The case was brought on behalf of all women in pre-trial detention in the national penitentiary system, who were pregnant, had recently given birth or were mothers with children under 12 years of age under their responsibility, and the children under 12 themselves, by the Defensoria Pública da União (Public Defenders’ Office), the Coletivo de Advogados em Direitos Humanos (Collective of Human Rights’ Solicitors) (CADHU), and other solicitors to challenge the automatic adoption of preventative detention of these women.

The applicants affirmed that preventive imprisonment, which disproportionately affected poor women and their families, by confining pregnant women in precarious prisons, denying them access to prenatal health programs, regular assistance during pregnancy and after childbirth, and also depriving children of adequate conditions for their development, constituted inhuman, cruel and degrading treatment that violated the constitutional principles related to the individualization of punishment, the prohibition of cruel punishment and respect for the physical and moral integrity of the prisoner. They reported that, despite the entry into force of Law no. 13.257/2016, which amended the Code of Criminal Procedure to enable the substitution of pre-trial detention for house arrest for pregnant women and mothers of children, this option had been rejected by the judiciary in approximately half of the cases due to the seriousness of the alleged offence and the need to demonstrate the inadequacy of the prison environment in each specific case. They also claimed that the lack of nurseries and mother-child centres in these facilities (as required by the Law of Criminal Enforcement (LEP)) affects the development of children, “which not only affects their learning and socialization capacity, but also seriously violates their constitutional, conventional and legal rights” (p. 6).

This was the first time that the Supreme Federal Court of Brazil admitted a collective habeas corpus.

Reasoning

First, Justice Ricardo Lewandowski recognised that collective actions were probably "the only viable solution to ensure effective access to justice, especially for the most socially and economically vulnerable groups" (p.1) in the country and that the use of a a collective habeas corpus was justified given that it was intended to safeguard one of the most important fundamental human rights, which is freedom.

Justice Lewandowski affirmed that, as emerged from the decision ADPF 347 MC/DF, there was a deficiency of structural character in prison and a “culture of incarceration” (p. 9) revealed by the overuse of provisional imprisonment for poor and vulnerable women. Therefore, women were effectively subjected to degrading situations, especially being deprived of pre-natal and post-natal medical care and children were suffering from the lack of nurseries and day-care centres. He referred to the case Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) to illustrate the State’s inability to ensure maternity care for the female population. He stressed that, as stated in Millennium Development Goal (MDG) 5 and Sustainable Development Goal (SDG) 5, attention to maternal health was considered one of the priorities to be observed by the different countries in terms of their commitment to promoting development. By protecting maternal, newborn and child health, as well as reproductive health, the Judge held that the State would also be giving also effect to the Constitution (arts. 5(II), 5(XLI), 5(XLV), 5(L), 5(XLVIII) and 5(XLIX)) and to the Law no. 11.942/2009, which promoted changes in the Criminal Enforcement Law in this regard. However, Justice Lewandowski concluded that neither the Constitution nor the above mentioned domestic laws had been respected by the authorities responsible for the prison system and that evidence and reports showed that “there [was] a systematic breach of constitutional, conventional and legal rules regarding the rights of women prisoners and their children" (p. 20). This conclusion was also consistent with international standards (Universal Declaration of Human Rights , the International Covenant on Civil and Political Rights , the American Convention on Human Rights, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas , the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Standard Minimum Rules for the Treatment of Prisoners and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders ('the Bangkok Rules')) and the position of the Federal Supreme Court (Repercussão Geral de número 423).

Justice Lewandowski stated that children under the responsibility of these women unjustly suffered the consequences of their imprisonment, contravening articles 227 and 5(XLV) of the Constitution, articles 7, 8 and 9 of the Early Childhood Statute (Law no. 13.257/2016) and article 318 and 319 of the Criminal Procedure Code (Law no. 3.689/1941).

Remedy

Pregnant women, mothers of children up to the age of 12, and mothers of children with disabilities were granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the women’s descendants, in which case their imprisonment has to be analysed on a case-by-case basis by the judges.The judgment also allowed women under those circumstances who had been arrested prior to the ruling and not yet been placed under house arrest, to be entitled to that remedy.

Role of children

Children under the age of 12 of women in pre-trial detention in the national were represented by Defensoria Pública da União (Public Defenders’ Office) and the Coletivo de Advogados em Direitos Humanos (Collective of Human Rights’ Solicitors) (CADHU).

Enforcement and other outcomes

Pregnant women, mothers of children up to the age of 12, and mothers with disabled children were granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the women’s descendants. The judgment also allowed women under those circumstances who had been arrested prior to the ruling and not yet been placed under house arrest, to be entitled to that remedy.

Following the Federal Supreme Court's decision, Law 13.769 was enacted on 19 December 2018 , introducing amendments to article 318-A in the Criminal Procedure Code (Law no. 3.689/1941). This law not only regulated the substitution of pre-trial detention for house arrest for pregnant women and mothers or women responsible for children under 12 or persons with disabilities, but went further and established similar conditions for serving a prison sentence for women convicted in the same situation. To a great extent it was the result of the Federal Supreme Court's effort to reduce the imprisonment of women.

The implementation and enforcement of the decision has been limited. According to Prison Insider, “between December 2018 and December 2019, 6,357 women were preventively arrested in the state of São Paulo”, of which 3,168 were women that met the requirements of the law for house arrest. Of the total number of women who meet the requirements of the law, 915 remained provisionally imprisoned, meaning that “29% of mothers, pregnant women or those responsible for people with disabilities had not the benefit of house arrest”. In the Brazilian central region, where the largest number of potential women benefiting from the Legal Framework of Early Childhood were concentrated, “of the 1,435 women in custody, 78% fit the criteria, but 33% remained in prison” by the end of 2019.  11 out of 16 prison units inspected by the Secretariat of Penitentiary Administration (SAP) answered affirmatively to whether the data collection of the arrested women contained matters related to maternity as required by the law, while the other 5 prison units did not respond. This absence of data on maternity in compliance with the law “impaired the monitoring of conditions of women prisoners” and “the right to information and transparency of public bodies”.

Significance of the case from a CRSL perspective

This was the first collective habeas corpus that was admitted by the Supreme Federal Court of Brazil and it was applicable to the whole national territory.

Children were identified as a priority group in circumstances where it is not appropriate to place women in preventative incarceration, subjecting their children to the precarious incarceration facilities. The judgment considered the effects of having the children taken from their mothers who are incarcerated in circumstances where no family members could take over their care, placing them in a situation of vulnerability, and breaking the familial bond of the child and the mother, with potentially nefarious psychological consequences to children.

The judgment sought to ensure that the issues above were minimized by the requirement that the relevant group under consideration is granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the children.

Country

Brazil

Forum and date of decision

Supremo Tribunal Federal, Segunda Turma (Supreme Federal Court of Brazil, 2nd panel)

February 20, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

Applicant’s information:

(on behalf of all women in pre-trial detention in the national penitentiary system, who were pregnant, had recently given birth or were mothers with children under 12 years of age under their responsibility, and the children under 12 themselves)

Amici Curiae:

Av. Gal Afonso Albuquerque Lima
Edifício Seplag - 2ºandar
Cambeba - Fortaleza, CE

State of Parana

Rua José Bonifácio, 66 - Centro
80020-130 - Curitiba - PR

State of Amapa

Avenida Raimundo Álvares da Costa, 676

Centro, Macapá - AP

State of Espirito Santo

Praça Manoel Silvino Monjardim, nº54 - Centro

Vitória - ES

State of Goias

Alameda Cel. Joaquim de Bastos, nº 282

Qd. 217, Lt. 14 - Setor Marista

State of Maranhao

Rua da Estrela, 421

Praia Grande, Centro

São Luís - MA

State of Para

Rua Padre Prudêncio, nº 154

Belém - Pará

State of Paraiba

Rua Deputado Barreto Sobrinho, 168

Tambiá, João Pessoa - PB

State of Pernambuco

Rua Marques do Amorim, 127,

CEP 50070-330, Boa Vista,

Recife-PE

State of Piaui

Rua Nogueira Tapety, nº 138,

Noivos – Teresina-PI

State of Rio Grande do Norte

Rua Sérgio Severo, 2037,

Lagoa Nova, Natal-RN

State of Rondonia

Av. Jorge Teixeira, nº: 1722

Embratel, Porto Velho – RO

State of Roraima

Avenida Sebastiao Diniz, nº 1165

Centro, Boa Vista -RR

State of Rio Grande do Sul

Rua Sete de Setembro, 666 – Centro Histórico

Porto Alegre - RS

State of Sergipe

Travessa João Francisco da Silveira, n° 44,
Bairro Centro - Aracaju - Sergipe

State of Sao Paulo

State of Tocantins

Quadra AA SE 50, Avenida Joaquim Teotônio Segurado,

Plano Diretor Sul, Palmas - TO

State of Bahia

Avenida Ulisses Guimarães, nº 3.386, Edf. MultiCab Empresarial
CEP - 41745-007, Sussuarana, Salvador/Bahia

State of Distrito Federal

SCN Qd. 01, Conjunto G, Lote 01

Ed. Rossi Esplanada Business

State of Minas Gerais

Rua dos Guajajaras, 1707 - Barro Preto Belo Horizonte, Minas Gerais

State of Rio de Janeiro

Rua dos Guajajaras, 1707

Barro Preto Belo Horizonte, Minas Gerais

State of Mato Grosso

Rua Engenheiro Agrônomo Arnaldo Duarte Monteiro, s/nº

State of Mato Grosso do Sul

Case documents

Secondary documents

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