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PETITIONER: VISHAL JEET

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT02/05/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1412            1990 SCR  (2) 861  1990 SCC  (3) 318        JT 1990 (2)   354  1990 SCALE  (1)874

ACT:     Constitution of India, 1950.: Article 32--Public  inter- est  litigation --Writ petition seeking directions  for  in- quiry against forced prostitution Devadasi and Jogin  tradi- tions  and rehabilitation of the victims--Held  prostitution is not only social but also a socio-economic  problem-Eradi- cating measures should be preventive rather than punitive--A roving   inquiry   by   C.B.I.   neither   practicable   nor desirable--However,  directions issued by Supreme Court  for setting  up  of Advisory Committees to evolve  measures  for care, protection and rehabilitation of victims--Law  enforc- ing authorities to take appropriate and speedy action  under existing law for eradicating the malady of prostitution.     Article   23--’Right against exploitation’--’Traffic  in Human beings’--Expression is very wide including prohibition of traffic in women for immoral or other purposes.     Article  39(e)(f)--State has an Obligation to  safeguard the  interest and welfare of the children and girls  of  the Country.     The  Immoral Traffic (Prevention) Act, 1956:  Object  of the  Act-What is--Indian Penal Code, 1860:  Sections  366-A, 366-B, 372 and 373. The Juvenile Justice Act, 1986: Sections 13 and 15.

HEADNOTE:     The petitioner filed a writ petition in this Court under Article  32  of the Constitution of India by way  of  public interest  litigation  seeking  directions  for  (i)  inquiry against police officials under whose jurisdiction the malady of forced prostitution, Devdasi system and Jogin  traditions were flourishing and (ii) for rehabilitiation of the victims of this malady. Disposing the writ petition, this Court.     HELD: 1. The malady of prostitution is not only a social but also a socio economic problem and, therefore, the  meas- ures  to be taken in that regard should be  more  preventive rather than punitive. This cannot be 862 eradicated  either  by  banishing,  branding,  scourging  or inflicting  severe  punishment on the helpless  and  hapless victims most of whom are unwilling participants, and  invol-

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untary  victims of compelled circumstances and who,  finding no  way to escape, are weeping or wailing  throughout.  This devastating malady can be suppressed and eradicated only  if the  law  enforcing  authorities in that  regard  take  very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers. [867D; E-G]     2.  In-spite of the stringent and rehabilitative  provi- sions  of law contained in Constitution of India, 1950,  the Immoral  Traffic (Prevention) Act, 1956, Indian Penal  Code, 1860  and the Juvenile Justice Act, 1986, it cannot be  said that  the  desired result has been achieved.  It  cannot  be gainsaid  that a remarkable degree of ignorance or  callous- ness  or  culpable indifference is manifested  in  uprooting this  cancerous  growth despite the fact that  the  day  has arrived imperiously demanding an objective multi-dimensional study and a searching investigation into the matter relating to  the  causes and effects of this evil and  requiring  the most  rational  measures to weed out the  vices  of  illicit trafficking. [867C-D]     3.  The Courts also in such cases have to always take  a serious  view of this matter and inflict consign  punishment on proof of such offences. However, it is neither  practica- ble  and  possible nor desirable to make  a  roving  enquiry through the C.B.I. throughout the length and breadth of  the country. and no useful purpose will be served by issuing any such direction. [867G; 867E]     4.  Apart  from legal action, both the Central  and  the State  Governments have got an obligation to  safeguard  the interest  and  welfare  of the children and  girls  of  this country. [867H]     Lakshmi Kant Pandey v. Union of India, [1984] 2 SCC  244 and Guarav Jain v. Union of India & Ors., AIR 1990 S.C. 292, referred to.     5.  All  the State Governments and  the  Governments  of Union Territories should direct their concerned law  enforc- ing authorities to take appropriate and speedy action  under the existing laws in eradicating child prostitution  without giving  room  for any complaint of  remissness  or  culpable indifference.  They  should also set  up  separate  Advisory Committees for making suggestions for eradication of prosti- tution, implementation of the social welfare programmes  for the care, protection, treatment, development and rehabilita- tion of the victims, and for 863 amendments of the existing law, or for enactment of any  new law  for prevention of sexual exploitation of the  children. These Governments should also devise a machinery for  ensur- ing  proper implementation of the suggestions of  their  re- spective committees. [868D-H; 869A-E]

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Criminal) No.  421 of 1989. (Under Article 32 of the Constitution of India). Vishal Jeet petitioner-in-person.     V.C.  Mahajan, A.S. Nambiar, R.B. Misra, Ms.  A.  Subha- shini, T.V.S.N. Chari, Prabir Choudhary, D. Goburdhan,  M.N. Shroff, K.R. Nambiar, Uma Nath Singh, N.N. Johri, V.  Krish- namurthy, V.N. Patil, A.S. Bhasme, P.R. Ramasesh, M. Veerap- pa,  R.K. Mehta, R.S. Suri, B.D. Sharma, D.  Bhandari,  Amal Dalla, D.K. Sinha, J.R. Das, S.K. Bhattacharya, S.K.  Nandi, Mahabir  Singh, I. Makwana, N.K. Sharma, A. Subba  Rao,  Ms. Kamini  Jaiswal, P.K. Manohar and Mrs. Shanta Vasudevan  for

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the Respondents. The Judgment of the Court was delivered by     S. RATNAVEL PANDIAN, J. This writ petition under Article 32 of the Constitution of India at the instance of an  Advo- cate is filed by way of a Public Interest Litigation seeking issuance of certain directions, directing the Central Bureau of  Investigation (1) to institute an enquiry against  those police officers under whose jurisdiction Red Light areas  as well  Devadasi and Jogin traditions are flourishing  and  to take  necessary action against such erring  police  officers and  law breakers; (2) to bring all the inmates of  the  red light areas and also those who are engaged in ’flesh  trade’ to protective homes of the respective States and to  provide them with proper medical aid, shelter, education and  train- ing  in various disciplines of life so as to enable them  to choose  a  more dignified way of life and (3) to  bring  the children  of  those  prostitutes and  other  children  found begging  in  streets and also the girls pushed  into  ’flesh trade’ to protective homes and then to rehabilitate them.     The averments made in the writ petition on the basis  of which  these  directions are prayed for  can  be  summarised thus: Many  unfortunate  teen-aged  female  children  (hereinafter refer- 864 red to as ’the children’) and girls in full bloom are  being sold in various parts of the country, for paltry sum even by their  parents finding themselves unable to  maintain  their children on account of acute poverty and unbearable miseries and  hoping  that their children would be  engaged  only  in household duties or manual labour. But those who are  acting as pimps or brokers in the ’flesh trade’ and brothel keepers who hunt for these teenaged children and young girls to make money either purchase or kidnap them by deceitful means  and unjustly and forcibly inveigle them into ’flesh trade’. Once these  unfortunate victims are taken to the dens of  prosti- tutes  and sold to brothel keepers, they are shockingly  and brutally  treated  and confined in complete seclusion  in  a tiny claustrophobic room for several days without food until they  succumb to the vicious desires of the brothel  keepers and enter into the unethical and squalid business of prosti- tution.  These victims though unwilling to lead this  obnox- ious  way  of  life have no other way  except  to  surrender themselves  retreating  into silence  and  submitting  their bodies to a11 the dirty customers including even  sexagenar- ians with plastic smile.     The petitioner has cited certain lurid tales of sex with sickening  details  alleged to have been confessed  by  some children  and  girls  either escaped or  rescued  from  such abodes  of ill-fame. After giving a brief note  on  Devadasi system and Jogin tradition, the petitioner states that  this system  and  tradition which are still  prevailing  in  some parts  of the country should be put to an end. The  ultimate plea of the petitioner is that the young children and  girls forcibly  pushed  into ’flesh trade’ should be  rescued  and rehabilitated. With this petition, the petitioner has  filed 9 affidavits said to have been sworn by 9 girls who claim to be  living in the brothel houses, pleading for rescue and  a list  of names of 9 girls who are mortally afraid  to  swear the  affidavits. Be it noted that no counter has been  filed by any one of the respondents.     The  matter  is  one of great  importance  warranting  a comprehensive and searching analysis and requiring a  human- istic rather than a purely legalistic approach from  differ- ent angles. The questions involved cause considerable anxie-

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ty  to  the  Court in reaching a  satisfactory  solution  in eradicating  such sexual exploitation of children. We  shall now examine this problem and address ourselves to the merits of the prayers.     No denying the fact that prostitution always remains  as a running sore in the body of civilisation and destroys  all moral  values. The causes and evil effects  of  prostitution maligning the society are so 865 notorious  and  frightful  that none can  gainsay  it.  This malignity  is daily and hourly threatening the community  at large  slowly but steadily making its way onwards leaving  a track marked with broken hopes. Therefore, the necessity for appropriate  and drastic action to eradicate this  evil  has become  apparent but its successful consummation  ultimately rests with the public at large.     It  is highly deplorable and heart-rending to note  that many  poverty  stricken children and girls in the  prime  of youth  are taken to ’flesh market’ and forcibly pushed  into the ’flesh trade’ which is being carried on in utter  viola- tion  of  all cannons of morality, decency  and  dignity  of humankind.  There  cannot be two opinions--indeed  there  is none--that  this  obnoxious and abominable  crime  committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.     Article  23 which relates to Fundamental Rights in  Part  of  the  Constitution  and which has  been  put  under  the caption  ’Right against exploitation’ prohibits ’traffic  in human  beings and begat and other similar forms  of  labour’ and  provides that any contravention of Article 23(1)  shall be an offence punishable in accordance with law. The expres- sion  ’traffic  in human beings’ is evidently  a  very  wide expression including the prohibition of traffic in women for immoral or other purposes. Article 35(a)(ii) of the  Consti- tution reads that notwithstanding anything in this Constitu- tion, Parliament shall have, and the legislature of a  State shall  not have, power to make laws for prescribing  punish- ment for those acts which are declared to be offences  under this part. The power of legislation, under this article,  is given to the Parliament exclusively, for, otherwise the laws relating  to fundamental rights would not have been  uniform throughout the country. The power is specifically denied  to the state legislatures. In implementation of the  principles underlying Article 23(1) the Suppression of Immoral  Traffic in Women & Girls Act, 1956 (SITA for short) has been enacted under Article 35 with the object of inhibiting or abolishing the immoral traffic in women and girls.      In this connection, it is significant to refer  Article 39  which relates to ’Directive Principles of State  Policy’ under Part IV of the Constitution. Article 39 particularises certain objectives. Clause (f) of Article 39 was substituted by  Forty-Second Amendment Act, 1976. Among  the  objectives mentioned  under Clauses (e) and (f) of Article 39, we  will confine ourselves only to certain relevant objectives  under those  two clauses which are sufficient for the  purpose  of this case. One 866 of the objectives under clause (e) of Article 39 is that the State  should,  in  particular, direct  its  policy  towards securing that the tender age of children are not abused. One of the objectives under clause (f) is that the State should, in  particular,  direct  its policy  towards  securing  that childhood  and youth are protected against exploitation  and against  moral  and material abandonment.  These  objectives reflect  the  great anxiety of the  Constitution  makers  to

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protect  and  safeguard  the interests and  welfare  of  the children  of our country. The Government of India has  also, in  pursuance of these constitutional provisions of  clauses (e) and (f) of Article 39, evolved a national policy for the welfare of the children.     It  will  be apposite to make reference to  one  of  the principles,  namely,  principle No. (9)  formulated  by  the Declaration of the Rights of the Child adopted by the Gener- al Assembly of the United Nations on November 20, 1959.  The said principle reads thus: ’The child shall be protected against all forms of  neglect, cruelty  and  exploitation. He shall not be the  subject  of traffic, in any form."     Before  the adoption of SITA, there were  enactments  in some  of the states for suppression of immoral traffic,  but they  were not uniform nor were they found to be  adequately effective. Some states did not have any law on the subject.     With the growing danger in society to healthy and decent living  with morality, the world public opinion  congregated at  New York in a convention for suppression of  traffic  in persons  for exploitation for immoral purposes. Pursuant  to the  signing of that convention on May 9, 1950, our  Parlia- ment has passed an Act called "Suppression of Immoral  Traf- fic  in  Women and Girls Act, 1956 which is now  changed  as "The  Immoral Traffic (Prevention) Act, 1956" to which  cer- tain drastic amendments are introduced by the Amendment Acts of  46 of 1978 and 44 of 1986. This Act aims at  suppressing the evils of prostitution in women and girls and achieving a public purpose viz. to rescue the fallen women and girls and to  stamp out the evils of prostitution and also to  provide an  opportunity to these fallen victims so that  they  could become decent members of the society. Besides the above Act, :here  are various provisions in the Indian Penal Code  such as Sections 866-A (dealing with procuration of minor  girl), 366-B  (dealing  with offence of importation  of  girl  from foreign  country),  372 (dealing with selling of  minor  for purposes of prostitution etc. ) and 373 (dealing with 867 the  offence  of buying minor for purposes  of  prostitution etc.). The Juvenile Justice Act, 1986 which provides for the care,  protection, treatment, development and  rehabilitaton of  neglected  or deliquent juveniles  contains  a  specific provision namely Section 13 which empowers a police  officer or any other person or organisation authorised by the  State Government  in this behalf to take charge of  any  neglected juveniles and bring them before the Board constituted  under this Act which Board under section 15 has to hold an enquiry and make such orders in relation to the neglected  juveniles as it may deem fit.     Inspite of the above stringent and rehabilitative provi- sions of law under various Acts, it cannot be said that  the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or  culpable indifference  is  manifested  in  uprooting  this  cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi-dimensional study and a search- ing investigation into the matter relating to the causes and effects of this evil and requiting most rational measures to weed  out the vices of illicit trafficking. This  malady  is not  only  a social but also a  socioeconomic  problem  and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.     In our view, it is neither practicable and possible  nor desirable to make a roving enquiry through the CBI  through- out  the  length and breadth of this country and  no  useful

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purpose  will  be served by issuing any such  direction,  as requested by the petitioner. Further, this malignity  cannot be  eradicated either by banishing, branding,  scourging  or inflicting  severe punishment on these helpless and  hapless victims most of whom are unwilling participants and involun- tary victims of compelled circumstances and who, finding  no way to escape, are weeping or wailing throughout.     This devastating malady can be suppressed and eradicated only  if the law enforcing authorities in that  regard  take very  severe and speedy legal action against all the  erring persons  such  as pimps, brokers and  brothel  keepers.  The Courts  in such cases have to always take a serious view  of this matter and inflict consign punishment on proof of  such offences. Apart from legal action, both the Central and  the State Government who have got an obligation to safeguard the interest  and  welfare  of the children and  girls  of  this country have to evaluate various measures and implement them in the right direction. 868     Bhagwati, J. (as he then was) in Lakshmi Kant Pandey  v. Union  of  India,  [1984] 2 SCC 244  while  emphasizing  the importance of children has expressed his view thus: "It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development,  depend on the health and well-being of its children. Children are a ’supremely  important national asset’ and the  future  well- being  of  the nation depends on how its children  grow  and develop."     We,  after bestowing our deep and anxious  consideration on this matter feel that it would be appropriate if  certain directions  are given in this regard. Accordingly,  we  make the following directions: 1.  All the State Governments and the Governments  of  Union Territories  should  direct their  concerned  law  enforcing authorities to take appropriate and speedy action under  the existing  laws  in eradicating  child  prostitution  without giving  room  for any complaint of  remissness  or  culpable indifference. 2. The State Governments and the Governments of Union Terri- tories  should set up a separate Advisory  Committee  within their  respective zones consisting of the secretary  of  the Social Welfare Department or Board, the Secretary of the Law Department,  sociologists,  criminologists, members  of  the women’s  organisations, members of Indian Council  of  Child Welfare  and  Indian Council of Social Welfare as  well  the members of various voluntary social organisations and  asso- ciations  etc., the main objects of the  Advisory  Committee being to make suggestions of: (a) the measures to be taken in eradicating the child  pros- titution, and (b) the social welfare programmes to be implemented for  the care, protection, treatment, development and  rehabilitation of  the young fallen victims namely the children  and  girls rescued either from the brothel houses or from the vices  of prostitution. 3.  All the State Governments and the Governments  of  Union Territories should take steps in providing adequate and 869 rehabilitative homes manned by well-qualified trained social workers, psychiatarists and doctors. 4. The Union Government should set up a committee of its own in  the line, we have suggested under direction  No.(2)  the main  object of which is to evolve welfare programmes to  be implemented on the national level for the care,  protection,

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rehabilitation etc. etc. of the young fallen victims  namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if  so warranted  for  the  prevention of  sexual  exploitation  of children. 5. The Central Government and the Governments of States  and Union  Territories should devise a machinery of its own  for ensuring  the proper implementation of the suggestions  that would be made by the respective committees. 6.  The  Advisory Committee can also go deep  into  devadasi system  and Jogin tradition and give their  valuable  advice and  suggestions as to what best the Government could do  in that regard. 7. The copies of the affidavits and the list containing  the names of 9 girls are directed to be forwarded to the Commis- sioner of Police, Delhi for necessary action.     We may add that we are not giving an exhaustive list  of the  members for the constitution of the  committee.  There- fore, it is open to the concerned Government to include  any member or members in the committee as it deems necessary.     We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitu- tion,  Tevadasi system and Jogin tradition and will also  at the  same  time protect and safeguard the interests  of  the children by preventing of the sexual abuse and exploitation.     So far as the remaining prayer regarding  rehabilitation of  the children of prostitutes is concerned, we  understand that  a similar issue is raised in a separate writ  petition bearing  W.P. No. 824/88 pending before this Court and  this Court is seized of the matter and also has given an  interim direction on 15.11.1989 for setting up a committee to 870 go  into  the question from various angles of  the  problems taking into consideration the different laws relevant to the matter and to submit its report. (Vide Gaurav Jain v.  Union of India and Others, AIR 1990 SC 292. Therefore, we are  not expressing any opinion on this prayer regarding the rehabil- itation of the children of prostitutes.       With  the above directions, the Writ Petition is  dis- posed of.    T.N.A.                                           Petition disposed of. 871