Mrs. Sujata V. Manohar, J. - (1.) This is a somewhat unusual review petition filed by the Supreme Court Bar Association and supported by Gaurav Jain, the original petitioner, in respect of a decision of a Bench of two judges of this Court, Ramaswamy and Wadhwa, JJ. in Writ Petition (C) No. 824 of 1988, Gaurav Jain v. Union of India and reported in (1997) 8 SCC 114 . By an order dated 5th of January, 1998 this review petition has been directed to be heard by a Bench of three Judges of this Court. Hence the petition has been placed before us.
(2.) The original writ petition under Art. 32 of the Constitution was filed as a public interest litigation by Gaurav Jain, an advocate of this Court. In the writ petition, the petitioner has asked for establishment of separate educational institutions for the children of prostitutes and for various other reliefs concerning children of prostitutes. The petition was heard and disposed of by a Bench of two judges - Ramaswamy and Wadhwa, JJ. in the judgment delivered by Ramaswamy, J., apart from a discussion of the plight of prostitutes and their children, various directions have been given, including directions for the constitution of a committee as set out in the judgment, to examine the plight of children of the prostitutes as also the problems of the prostitutes themselves and to devise ways and means for amelioration of their condition and for prevention and eradication of prostitution. On the other hand, Wadhwa, J. in his judgment, while agreeing with the directions given by Ramaswamy, J. pertaining to the children of the prostitutes, has not agreed to the directions given in respect of eradication of prostitution or succour and sustenance to be provided to them. He has stated: "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. . . . . . . . . . . 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. 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 Arts. 142 and 145(5) of the Constitution. (Underlining ours)
(3.) Despite this clear dissent voiced by his brother judge, Ramaswamy, J. has given directions relating to prostitution and its eradication. He has held that under Art. 32 of the Constitution, when a public interest litigation is launched, it cannot be considered as adversorial. It involves cooperation between the State and the Court. Had it been an adversorial dispute, in view of the dissent expressed by his brother judge, he would have referred the matter to a three-Judge Bench in respect of the directions on which he and his brother judge had differed. However, since the petition was public interest litigation and was not adversorial in nature, and since the matter was pending for nearly a decade, if a reference were to be made to a three-Judge Bench, it may be further delayed. Therefore, under Art. 142 he could issue directions to enforce his order in its entirety even in respect of that portion of the order from which his brother judge had dissented, in order to do complete justice in the case. By availing of Art. 142, a Single Judge sitting in a Division Bench of two judges has issued directions singly although there is a difference of opinion between him and his brother judge. It is this part of his order which is sought to be reviewed on the ground that it discloses an error apparent on the face of the record.;