1997 Supreme(SC) 932

1997(6) Supreme 394
SUPREME COURT OF INDIA
K. Ramaswamy, D.P. Wadhwa, JJ.
Gaurav Jain —Petitioner
versus
Union of India & Ors. —Respondents
Writ Petition (C) No. 824 of 1988
With
Writ Petition (Crl.) Nos. 745-54 of 1990
Decided on 9-7-1997
Counsel for the Parties :
Appearing for the Parties, V. C. Mahajan, Sr. Advocate, Ms. Abha Jain, R. Venkataramani, Mrs. Niranjan Singh, Mrs. Sushma Suri, C.V.S. Rao, M. Veerappa, Mrs. Monjula Kulkarni, Prem Malhotra, Ajay Siwach, Aruneshwar Gupta, Ranjan Mukherjee, Mrs. H. Wahi, Ms. Nandini Mukherjee, S.M. Jadhav, M.N. Shroff, S. Bhowmick, S.K. Agnihotri, D.M. Nargolkar, V. Krishnamurthy, R. Sasiprabhu, Mrs. M. Karanjawala, Shri Narain, Ashok Mathur, R.B. Misra, Ms. S. Janani, B.V. Desai, Ms. Anu Sawhney, B.B. Singh, Shakil Ahmad Syed, Vishal Jeet, R.C. Verma, Tara Chandra Sharma, B.V. Balram Das, Ms. A. Subhashini, Advocates.

VERY IMPORTANT POINT
To rescue and rehabilitate the children of the fallen women living in the red light area, the Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women and Child Development as the chairperson, to make an in-depth study into their problems and evolve such suitable schemes as are appropriate.

Headnote:Constitution of India—Art. 32—Public Interest Litigation—Prayer made suggesting various measures for rehabilitation of children of prostitutes—Rights of children of fallen women given by Constitution and Directive Principles, Human Rights and Convention on Right of Child—By order dated 2-5-1990, this Court had set up an Advisory Committee to make suggestions—Various recommendations made by Committee—Child prostitutes and children of prostitutes need to be removed from red light area—They are to be kept in juvenile home as a place of safety—Definition of ‘neglected juvenile’ should be interpreted broadly—Counselling, cajoling and coercion of fallen women to part with child or child prostitute herself—Department of Women and Child Development should devise suitable schemes—Juvenile homes to be used only for a short stay—Minister of Welfare will constitute a Committee to finalise the report—A meeting to be convened presided over by Prime Minister to take decisions—Report to be finalised—Directions would be given to State Governments for effective implementation of schemes—Permanent Committee of Secretaries to review progress of implementation.

       Held : The rescue and rehabilitation of the child prostitutes and children should be kept under the nodal Department, namely, Department of Women and Child Development under the Ministry of Welfare and Human Resource, Government of India. It would devise suitable schemes for proper and effective implementation. The institutional care, thus, would function as an effective rehabilitation scheme in respect of the fallen women or the children of fallen women even if they have crossed the age prescribed under the JJ Act. They should not be left to themselves, but should be rehabilitated through self-employment schemes or such measures as are indicated hereinbefore.. The juvenile homes should be used only for a short stay to relieve the child prostitutes and neglected juveniles from the trauma they would have suffered; they need to be rehabilitated in the appropriate manner. The details are required to be worked out the meaningful procedure and programmes. In the light of the directions already given by this Court from time to time to the Central Government, State Governments and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child prostitutes and the neglected juveniles as indicated hereinabove; they should take measures to provide them adequate safety, protection and rehabilitation in the juvenile homes manned by qualified trained social workers or homes run by NGOs with the aid and financial assistance given by Government of India or State Government concerned. A nodal Committee with the public spirited NGOs, in particular women organisations/woman members should be involved in the management. Adequate encouragement may be given to them; the needed funds should be provided and timely payments disbursed so that the scheme would be implemented effectively and fruitfully. (Para 46)

       The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women and Child Development as the chairperson and three or four Secretaries from the concerned State Government, to be nominated by the Minister of Welfare. They would make an in-depth study into this problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalise the report within three months thereafter. As soon as the report is submitted, the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decisions. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution; their children would be brought into the mainstream of the social order; these directions would enable them to avail the quality of opportunity and of status, with dignity of person which are the arch of the Constitution. (Para 47)

       (ii) Constitution of India—Art. 32—Public Interest Litigation—Prayer made regarding rehabilitation of children of prostitutes—This Court had set up an Advisory Committee to make suggestions—Report submitted—Committee has suggested nodal programme—Directions made by this Court pertaining to prevention of induction of women, in various forms, into prostitution—Their rescue from flesh trade and rehabilitation—Scheme to provide self employment—Economic rehabilitation victims of customs or practices—(As per K. Ramaswamy, J.)—D.P. Wadhwa, J. not concurring with the directions given.

       Held : As per K. Ramaswamy, J.

       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 licence 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 oriented prostitution should be viewed as victims of gender oriented vulnerability. That 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 arrestring 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 emphasise 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. (Para 27)

        The customary initiation of women in the practice of Devdasi, Jogins and Venkatasins is prevalent in Andhra Pradesh, Karnataka and Maharashtra areas: in particular the practice of prostitution is notorious. It is an affront to the human dignity and self-respect but the pursuit of customary beliefs traps the fair sex into this glorified self-sacrifice and ultimately leads to prostitution service in the temples and charitable institutions etc. 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. (Para 28)

       Economic rehabilitation is 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 gives resistance to such exploitation; however, economic programmes are necessary to rehabilitate such victims of customs or practices. It would, therefore, be meaningful if rehabilitation programmes are launched and implementation machinery is set not only to eradicate the fertile source of prostitution but also for successful rehabilitation of the fallen women who are the victims of circumstances to regain their lost respect to the dignity of person to sustain equality of status, economic and their social empowerment. (Para 29)

       As per D.P. Wadhwa, J. (dissenting opinion)

       Held : I do not find that the question of eradication of prostitution was an issue involved in these proceedings or subject matter of Committee’s deliberations. The Committee in its report which runs into over 100 pages has only referred in two paragraphs, while examining target group, as to who are the prostitutes. Apart from this I do not find there is any discussion in the report of the Committee towards eradication of prostitution. As to what should be the scheme to be evolved to eradicate prostitution, i.e. the source itself; the basics; and what succour and sustenance can be provided to the fallen victims of flesh trade was not a question agitated in the proceedings. (Para 58)

       Further held : I am not entering into the scope and width of public interest litigation but when the issue has not been squarely raised, concerned parties not informed, pleadings being not there, it may not be correct to embark upon that task and to give interpretation of the law applicable thereto and that too without hearing the parties when the issue is so profound certainly involving hearing of the Union of India and State Governments with respect to their problems. (Para 59)

       (iii) Constitution of India—Arts. 142 and 145(6)—Public Interest Litigation before Division Bench—Both Judges agreed regarding directions given relating to prostitute children and children of fallen women—The Order constitutes binding precedent—Difference of opinion regarding directions made regarding prevention of induction of women into prostitution and their rehabilitation through various welfare measures—Matter pending for nearly a decade—Applicability of provisions of Arts. 142 and 145(6).

       Held : As per K. Ramaswamy, J.

       My learned brother D.P. Wadhwa, J. has disagreed to the directions given to the Union of India etc. in the first part of the Order on the ground, as seems to me, that in view of the relief sought for in the writ petitions and the directions given by this Court on the earlier occasions there is no scope for the relief being granted now and directions given in the concluding part of the Order. Brother Wadhwa, J. thus agrees with the directions given at pages 78 to 81 relating to the prostitute children and the children of the fallen women. Directions at pages 38-39 and 43 to 45 of this Order pertain to the prevention of induction of women, in various forms, into prostitution; their rescue from the wile flesh trade; and rehabilitation through various welfare measures so as to provide them with dignity of person, means of livelihood and socio-economic em­powerment. In that behalf, my learned brother has not concurred for the reasons given in the separate Order proposed to be delivered by him. (Para 48)

       By operation of Article 145(6), to the extent both of us have agreed, the Order constitutes as binding precedent. It is to remember that this Court being composed of large number of Judges has evolved its own procedure to transact court management of its judicial work and to decide cases/causes sitting in appropriate Division Benches constituted by the Chief Justice of India as per the Supreme Court Rules. Any observation made by one of the Judges has pursuasive obiter. When there is a dissent, the majority of opinion forms a binding precedent. Any difference of opinion between a Bench composed of two Judges, in an adversorial litigation requires resolution by a larger Bench of three Judges and/or if further reference is made to a Constitution Bench, it is to deal with the controversy and majority opinion forms precedent. As stated earlier, public interest litigation is not adversorial in nature but is one of cooperation and coordination between the three wings of the State and the coordination and it is the constitutional duty of this Court to ensure enjoyment of the fundamental rights by all citizens and in particular the poor and deprived social segments and in case of violation thereof, to prevent the same by giving appropriate directions in that behalf. In aid thereof, this Court has been armed by Article 142 to pass such orders as may be necessary for doing complete justice in a cause or pending matter before it. An order so made shall be enforceable throughout the Territory to India. Normally, if it were an adversorial dispute, we would have referred the matter to three Judge Bench in respect of the first part of the directions, namely, to prevent prostitution; to rehabilitate fallen women and to provide them facilities and opportunities by evolving suitable measures by all the Governments for enforcement of their economic empowerment and social integration with dignity of person which are fundamental rights to the unfortunate fallen women, i.e., the victims of circumstances. It is seen that this matter is pending for nearly a decade. If a reference is made to a three Judge Bench, it may further be delayed. Since “delay defeats justice” it may amount to everyday denial of the fundamental rights to large number of fallen women. (Para 51)

       I put a caveat upon myself and I am award that Article 142 would be used to enforce final judgment or order which, in given special or exceptional circumstances, would include directions of this type to mitigate injustice and to elongate enforcement of fundamental and human rights. Article 142 speaks of doing complete justice in a cause. The arm of the Court is long enough to reach injustice wherever it is found and to mete out justice. Denial of the constitutional rights to the unfortunate fallen women outrages the quest for justice and pragmatism of constitutional ethos which constrain me to avail Article 142 of the Constitution of India to direct the Union of India as well as all State Governments to evolve, after indepth discussion at Ministerial level conference, such procedures and principles or programmes, as indicated in this Order, as guidance would help rescue and rehabilitate the fallen women. Otherwise, the fundamental and human rights remain pious platitudes to these miserable souls crushed in the cruel flesh trade with grinding poverty in the evening of their lives. Generally, Article 142 may not be invoked before the difference of opinion is resolved in an adversorial litigation and in a keenly contested matters of even public interest litigation, in particular, of recent type cases. However, in the cases of the type in hand, where there would be no controversy on human problems of most unfortunate women which require their careful planning, rescue and rehabilitation, the exercise of the power under Article 142, even by a single member of the Bench, may be appropriate and efficacious to enforce fundamental and human rights of large number of neglected and exploited segments of the society. Society is responsible for a woman’s becoming victim of circumstances. The society should make reparation to prevent trafficking in women, rescue them from red light areas and other areas in which the women are driven or trapped in prostitution. The 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. The State in a democratic polity includes its three constitutional organs—the Legislature, the Executive and the Judiciary. Legislature has already done its duty. The Executive and the Judiciary are required to act in union to ensure enforcement of fundamental and human rights of the fallen women. I am also conscience that the Union of India as well as the State Governments are sensitive to the conscience of their constitutional duty under Article 23 and are desirous to have the prostitution eradicated from the root with the aid of ITP Act, IPC and other appropriate legislative or executive actions. Sequential rehabilitation of the fallen women rescued from the red light areas and other areas requires enforcement. The observations made in this Order, the constitutional provisions, the human rights and other International Conventions referred to in the Order and the National Policy would aid the Union of India and the State Governments as foundation and guide them to discuss the problems in Ministerial and Secretarial level Conferences and as suggested in this Order to evolve procedures and principles to ensure that the fallen women also enjoy their fundamental and human rights mentioned in the Order. (Para 52)

       As per D.P. Wadhwa, J.

       Held; considering the substratum of the judgment prepared by my learned brother relating to children of the prostitutes and establishment of the juvenile homes I would concur with the directions being issued by him in his order. I would, however, record my respectful dissent on the question of prostitution and the directions proposed to be issued on that account and also, in the circumstances of the case, what my learned brother has to say on the directions proposed to be issued referring to the provisions of Article 142 and 145(5) of the Constitution. (Para 60)

       (iv) Constitution of India—Art. 32—Public Interest Litigation—Scope, ambit and power of the Court to grant reliefs in such matters—A Public Interest Litigation is not of adversory character—Power of Court is wide to grapple with new situations to issue directions—(As per K. Ramaswamy, J.)

       Held : It would, thus, be the established procedure of this Court under Article 32 that the Public interest litigation is not adversorial. It is one of collaboration and cooperation between the State and the Court. This Court as the sentinel on the qui vive, is constitutionally obligated to enforce the fundamental rights of all the citizens of the country and to protect them from exploitation and to provide guidance and direction for facilities and opportunities to them for securing socio-economic justice, empowerment and to free the handicapped persons from the disabilities with which they suffer from and to make them realise and enjoy the fundamental rights ensured to them under the Constitution. In that behalf, this Court is entitled and empowered under Article 32 to adopt such procedure as is expedient in a given fact situation and deal with the matter appropriately. Therefore, the rigour of the pleadings or the reliefs sought for in adversorial litigation, has been softened; new methods, tools and procedures were evolved to mete out justice and to enforce the fundamental rights. Obviously, therefore, when a limited relief to established separate schools for the children of the fallen women was sought for by the petitioner-Gaurav Jain, this Court did not confine to the same. It, instead, enlarged the scope and directed the authorities as an interim measure to have those children admitted in the general schools to make the children overcome the disabilities had from foul atmosphere and to generate the feeling of oneness and dissegregation. In addition, this Court appointed V.C. Mahajan Committee to enquire into and submit a report. The report was accordingly submitted after extensive travelling to far and wide parts of the country; it studied not only the problem of the children of the fallen women but also the route cause of the menace of child prostitution and the prostitution as such and the need for its eradication. The prevailing conditions have been pointed out in the Report and beneficial actions already taken by some of the Social Action Groups have been pointed and also noted as illustrated hereinabove. They have also dealt with the problems of the children. The State Governments and the Central Government were supplied with the copies of the Report and they have not even objected to the recommendations; in fact, they cannot be objected to since it is a fact prevailing, unfortunately, in the country. Therefore, the relief cannot be restricted to the pleadings or to the scope of the directions earlier issued; the Court can take cognisance from indisputable or the undisputed facts from the Report of V.C. Mahajan Committee and other reports and articles published in recognised Journals and act upon it. Placing reliance thereon, the directions given in the Order, aim not only at giving benefits to the children but also to root out the very source of the problem as has been pointed out in the first part of the Order, it is for the Government to evolve suitable programme of action. My learned brother has very graciously agreed to the second part of the order relating to the setting up of juvenile homes for the prostitute children and children of fallen women. (Para 50)