Prostitution has been such an occupation which is generally exercised by those who have not been able to take care of their family members by any other means and then, this becomes the only way to earn their livelihood. Many women in our society are still involved in the business of prostitution and even the government in many countries have made laws for the protection and to safeguards the rights of the prostitute workers.
In a situation, where prostitutes are sexually involved with different male members at a time, the use of contraceptives has been promoted to reduce the transmission of STDs and to prevent the situation which can give rise to pregnancy. But, still, if a mother, who is working as a prostitute, gives birth to a child in the society where every other woman is involved in selling her private life for the source of livelihood, then one might wonder about the future of those children who are born there.
Brothels are considered as dark, miserable and forgotten places. The mind of a child is framed through his/her surroundings or environment and in the place which is so dark and lamentable, the judiciary can be seen as a ray of hope.
Judiciary’s views on providing separate schools and hostels
When a PIL was filed in the early 90s regarding the rehabilitation of the children of prostitutes, the court in Gaurav Jain v. Union of India even though did not give judgement in the favour of the petitioner but has rightly contended that, “Providing separate hostels and schools cannot be in the interest of those children. But they cannot be left in the unfavourable surroundings to mingle with others where there is a possibility that young girls can be likely to get abused.” Then, in Vishal Jeet v. Union of India, the court did not change its opinion on the rehabilitation but issued direction for the constitution of a Committee to examine and evaluate the problem and then report to the Court.
The movement regarding the rehabilitation did not stop here but in 1997, another PIL was filed in the name of Gaurav Jain v. Union of India and Ors., where the court has opined and observed that, “It is the duty of the State and all voluntary NGOs and public-spirited persons to come to their aid and to retrieve them from prostitution, rehabilitate then with helping hand to lead a life of dignity of a person, self – employment, education, financial support and children of a prostitute should, however, not be permitted to live in the inferno and the undesirable surroundings of prostitute homes.”
There has always been a pious intention on the part of the petitioner who has tried to provide rehabilitative measures for those children but in a situation, if they are provided with separate schools and hostels, then they may not have felt themselves as a part of the society. The idea of seclusion would have surrounded them and in a longer run, it might not have shown any good results but the bad consequences.
Child of a Prostitute and Juvenile Justice Act
Even though the laws are not so specified in case of the children of prostitutes in India, there are laws which talk about children who are in dire need of Care and Protection. In the Juvenile Justice Act, 1986, the term ‘neglected juvenile’ was used which was further amended in the year 2000 and the term ‘child in need of care and protection’ was introduced. The Juvenile Justice (Care and Protection of Children) Act, 2015 deals with all the matters concerning Children in conflict with law and children in need of care and protection.
Chapter II mentions the general principles to be followed in the administration of the Act, one of those are “Positive Measures”. This principle clearly states that all the resources are to be mobilized and facilitated in the development of identity and providing an inclusive and enabling environment to reduce the vulnerabilities of the children. The Act mainly highlights two bodies which are to be set up in each district, i.e., Juvenile Justice Board and Child Welfare Committee. The former is formed to exercise the powers and discharge its functions relating to children in conflict with laws whereas the latter is for the children who are from the deprived and marginalized section of the society requiring extra care and protection.
An inclusive and descriptive definition of ‘child in need of care and protection’ has been provided under Section 2 (14) and the children of prostitutes are not less than those who have been or is being or is likely to be abused, tortured or exploited for sexual abuse or illegal acts. The sexual abuse of a child is increasing not only in India but throughout the world and it will not be wrong to say that it is the worst form of exploiting a child which in turn will lead to the violation of certain basic human rights of a child. If a child’s upbringing is done in such a surrounding, then it is very much probable that the child will not only be directed to sexual abuse but also deviate their lives towards criminal behaviour.
The life of children becomes difficult when they need to survive in such an uncaring and hostile environment and they are the most vulnerable among all of us which would make it easier for others to make them a victim of abuse. Rather than providing them separate schools and hostels, those children can be kept in an observation home, place of safety, shelter homes or at any other place under Section 50. The directives which have been given in 1997 by the court is very much in consonance with Section 31, where whosoever finds such a child, he/she needs to bring him/her name in front of any public servant, Child Welfare Police Officer or social worker or the child can itself report.
The prostitutes who find herself in the middle of social stigma for raising a child being a prostitute, if so wishes can surrender her child after all the inquiry and Counselling by the Welfare Committee Board under Section 35. The Committee will further submit the Social Investigation Report under Section 37 of the Act concerning the child in need of care and protection taking into account the wishes of the child if sufficiently mature to take a view and pass orders regarding the child being either kept with the Welfare Committee or restored to parents. In this case, if the child is found to be kept with the Welfare Committee Board, then he/she has to be rehabilitated and socially integrated into the society according to the procedure mentioned in Section 39 of the Act.
No mother wants to be disassociated with her child and no child deserves to have an unhappy and unhealthy life when their parents are alive. A child can prosper better when he/she has received proper love, care, attention from his/her parents. But in certain situations, it is just not possible for a child to grow in a better and healthy environment if a child is left to live life with the mother. The Children of the prostitutes are one of them and they can seek help from the JJ Act, 2015, where they can be taken care of till they attain the age of majority. The Committees set up by the government must ensure that the rehabilitation is based on the individual care plan of the child and is in the best interest of the child.
The main purpose of the Act has been to work in the best interest of the children and to focus on their rehabilitation and reformation. The source of rehabilitation, if implemented properly, then it tends to give children a better and prosperous life who once might have wondered that their future might not shine like others who have not taken birth in the area which is not beneficial for the growth. These are the children who are supposed to take shelter under the JJ Act, where there are provisions for the children who need care and protection.
The children of the prostitutes are those whose future and not even present is secure. Since childhood, it is very much probable that they can be the victim of sexual abuse and the risk becomes higher in case of a girl child where they can be used as a source to earn money and boys are likely to be affected with the mentality of abuse if left in that surrounding. Thus, every child is equally important for the nation irrespective of the place where they have taken birth and who has given them birth. Leaving a child behind just for his/her proper growth can never be an easy task for a mother, but when the social conditions are unfavourable, this is the best a mother can do.
ABOUT THE AUTHORS
Netri is a third-year law student pursuing B.A. LL.B.(Hons.) from National University of Study and Research in Law, Ranchi. She is keenly interested in Criminal Law and Human Rights Law.
Sanya is a fourth-year law student pursuing B.A. LL.B.(Hons.) from National University of Study and Research in Law, Ranchi. She is keenly interested in Criminal Law and Human Rights Law.