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PETITIONER: GAURAV JAIN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       09/07/1997

BENCH: D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                             WITH           WRIT PETITION (CRL.) NOS. 745-54 of 1990                          O R D E R      This writ petition under Article 32 of the Constitution was filed  by Mr.  Gaurav Jain,  advocate of  this Court  as public interest  litigation after  he had  a read  a  report appearing in  the ‘India  Today.’ a  national magazine.   of July 11, 1988. The petitioner had prayed as under:      "In  the   circumstances,   it   is      therefore most  respectfully prayed      that   this   Hon’ble   Court   may      graciously be pleased to:-      a) issue  an appropriate  writ,  in      the nature  of mandamus,  order  or      direction,      directing       the      respondents  to   provide  separate      schools with  vocational  training,      hostels, with  the medical check-up      facilities in each respondent state      and union  territory and such other      places where this Hon’ble Court may      direct,   for   the   children   of      prostitutes,  upto   the   age   of      sixteen years  to rescue them, from      falling into the infernal existence      and the  same immoral  and deproved      way of life by inducing in the vice      profession of  prostitution, dimps,      drug-pushers  and  bootleggers  and      other hazardous employments:      b) pass my other order/orders which      this Hon’ble Court may does fit and      proper in  the circumstances of the      case."      By order  dated February  20, 1989  the petitioner  was directed "to  suitably amend  the writ  petition and confine claim in  the petition  to  the  relief  of  setting  up  of juvenile homes  as provided  under Section 9 of the Juvenile Justice Act,  1986." Then  on the  next date, that is, March 13, 1989  the prayer  for amendment  was allowed  and it was

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directed that  prayer  in  the  writ  petition  shall  stand substituted  "by   what  has   now  been  indicated  in  the application for amendment".      By order  dated November 15, 1989 while the court noted submission of  Mr. V.C.  Mahajan, advocate of the petitioner that separate  schools  and  hostels  be  provided  for  the children of  the prostitutes,  the court did not find itself inclined to  accept such  a submission. The Court was of the view  that  segregating  prostitutes  children  by  locating separate schools and providing separate hostels would not be in the  interest of  such children.  The Court  by this very order constituted  a Committee  headed by  Mr. V.C. Mahahan, Senior Advocate  to  consider  the  problems  faced  by  the children of  the prostitutes.  This order  of the  Court  is reported in  1990 Supp. 3CC 709. This Committee examined the matter keeping the following objects in view:      "i) Viability  of  having  separate      schools and hostels.      ii) existing  laws relating  to the      target group, and      iii)  possibility   of  evolving  a      scheme for these children, workable      at the national level."      The Committee  has since  submitted its  report. In its report the  committee has  made various  recommendations for the rehabilitation  of the children of prostitutes. 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. Certainly no one can dispute that  evil of prostitution must be curbed. It is the mandate of the Constitution which prohibits traffic in human beings. Keeping  that object  in view  and in  pursuance  to International Conventions  for the Suppression of Traffic in persons and  of the  Exploitation  of  the  Prostitution  of others signed  at New  York on  May 9,  1950. the Parliament enacted the  Suppression of  Immoral Traffic  in  Women  and Girls Act,  1956. The  Act was amended in  1978 to make good some inadequacies  in the  implementation of  the Act and in the light of the experience gained during the period the Act was being  implemented. Despite the amendments of the Act it was felt  that enforcement of the Act had not been effective enough to  deal with  the problems of immoral traffic in all its dimensions.  Suggestions had  been made to Government by voluntary organisations  working for  women, advocacy groups and various  individuals urging the enlargement of the scope of the  Act, to  make penal provisions more stringent and to provide  for  certain  minimum  standards  for  correctional treatment and  rehabilitation of  the victims.  The Act was, therefore, further  amended in  1986  making  it  more  wide based. The Act is now called as Immoral Traffic (Prevention) Act. 1956. I need not detail other objects of the Act as all the discussions would not be relevant in these proceedings.      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

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give interpretation  of the  law applicable thereto and that to 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.      Thus  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.