Supreme Court of India, Gaurav Jain v. Union of India and others, 9 July 1997, [1997] 8 SCC 114

Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:

Ratified treaties;1 Instruments not subject to ratification2

Rights of the children of prostitutes/ Examination of the international provisions concerning the rights of the child/ Use of international law as a guide for interpreting domestic law

The Supreme Court of India had to determine the rights of the children of prostitutes. Should the children be separated from their mothers, or could they stay with them? In the latter case, under what conditions? In particular, the Court had to define guidelines for action by the administration in this field.

The Court held first of all that international law contained rights that were directly applicable to prostitutes and their children:

 “The Convention on the Right of the Child, the Fundamental Rights in Part III of the Constitution, Universal Declaration of Human Rights, the Directive Principles of the State Policy are equally made available and made meaningful instruments and means to ameliorate their conditions – social, educational, economical and cultural, and to bring them into the social stream by giving the same opportunities as had by other children.”

“This Court considered [in a previous judgment] the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, and held the same to be integral scheme of the Fundamental Rights and the Directive Principles.”

After examining the economic and social circumstances and mental condition of prostitutes’ children as well as the action already taken throughout the country to help them, the Court stated the following:

 “Establishment of juvenile home is a mandatory duty of the State to provide teeth to the provisions of the Constitution, the Convention on the Right of the Child read with principles of United Nations Declaration and National Policy of the Government of India (…).”

In its analysis of the various types of measures already taken to protect the children of prostitutes the Court underlined the following:

 “It is rather unfortunate that the juvenile homes established and being run by the Government are not effectively been managed and yielding expected results. They become ornament for the statistical purpose defeating the constitutional objectives and International Conventions which are part of the municipal law.”

The Court concluded from this lengthy analysis covering legal, social, economic and cultural aspects that the children of prostitutes should not be separated from their mothers unless this was the best solution. The Supreme Court invited the government to implement relevant action, pointing out that:

 “The observations made in this Order, the constitutional provisions, the human rights and other International Conventions referred to in this 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.”

The Supreme Court of India thus held that international Conventions should provide a guide for action by the central and federal governments to integrate prostitutes’ children into society.


1 Convention on the Rights of the Child, 1989; Convention on the Elimination of All Forms of Discrimination against Women, 1979.

2 Universal Declaration of Human Rights, 1948; Declaration on the Right to Development, 1986. 

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