FACTS
The current case was brought against Budhadev Karmaskar [the appellant] in the form of criminal proceedings for the atrocious murder of a prostitute who had refused to have sex with him. The case was concluded by the Calcutta High Court [HC] in 2004 when it issued a ruling declaring the appellant guilty of murder. The appellant had appealed the punishment imposed on him to the Supreme Court [SC] following the announcement of the verdict of conviction. The Criminal Appeal No. 135 was dismissed in 2010 on the grounds that the SC agreed with the decision made by the Calcutta High Court, and the SC adopted the Suo Motto move of converting the appeal into a Public Interest Litigation (PIL).
Shrimati Chayay Rani Pal, alias Buri, a 45-year-old sex worker, was brutally murdered on the dreadful evening of September 17, 1999, at about 9.15 p.m., in the red light district located on Jogen Dutta Lane, shocking the public’s conscience.She lived in a three-story building on Jogen Dutta Lane in Kolkata’s red-light district. The dead was dozing off in front of her room, which was located near the stairwell on the second level of the building, just before the event. A loud argument ensued after the accused entered the building from the second floor and tripped over the deceased.The deceased was assaulted by the accused, Budhadev Karmaskar, who caused severe bleeding by striking her with his fists and knees. She stumbled to the ground, and the defendant pulled her by her hair and pushed her head up against the wall.She began bleeding from her head, nose, and ear as a result. One of the witnesses, Asha Khatun, a maid who was on the second floor when the incident occurred, raised an alarm. The other prisoners came at the scene of the crime and saw the accused beating the deceased viciously.The accused quickly left the victim where they were, shoved and jostled the witnesses, and ran away as soon as a protest was raised. Within five hours of the occurrence, the accused was detained by the police on Jogen Dutta Lane at around 2.15 a.m. When the victim arrived at the hospital, she was pronounced dead.Due to such an act, the appellant was found guilty of assault causing murder in the horrifying case of the murder of a sex worker. Both the High Court and the Supreme Court affirmed the conviction on the grounds that sex workers shouldn’t be degraded and should be allowed to engage in prostitution with dignity and free will rather than under duress or with false information. By creating a panel with Senior Advocate Mr. Pradip Ghosh as the Chairman, chairing 4 other panel members, and other staff members to support them, the Apex Court has also taken corrective measures to reinstate the current prostitutes forced to perform the act without their will. The panel has recommended that the SC approve an aid package of Rs. 10,00,000 from the Central Government, Rs. 5,00,000 from the State Government, and Rs. 2,00,000 from the Union Territories to support the teaching of vocational and technical skills to sex workers so they can support themselves and be reintegrated into society with dignity[2].
ISSUES RAISED
1. How can Article 21’s reach and its definition of “life” be applied to guarantee that sex workers and their progeny have access to the Right to Live with Dignity?
2. To choose a location for the panel’s accommodations.
3. How can the sex workers be reinstated, rescued, and rehabilitated into a safer environment?
CONTENTIONS FOR PETITIONERS
Ms. Archana Ramasundaram, additional DIG of Tamil Nadu Police, had argued on behalf of the petitioners that dealing with the rescued victims of sex trafficking presents a significant challenge because the managers and sex rackets are made aware of their rescue mission in advance, making them watchful of their visit.
Additionally, the petitioners made the claim that the girls are coerced and forced into the sex industry and recruited into various gangs, mostly by their family members through the involvement of peddlers and traffickers. The petitioners contended successively that a successful rescue attempt would be bound to failure unless the link between the traffickers, the proprietors of brothels, and the relatives of the victims were severed.
In addition, the petitioners argued that the State Legal Services Authority should make it easier for NGOs and government agencies to provide a helpline number to the victims of the sex trade who are being forced to work in the industry against their will and consent. Additionally, this would aid them in pursuing any legal action against their offenders or in seeking legal counsel for corrective measures should they decide to stay in that line of work.
The petitioners’ legal representative further stated that only states that engage in sexual activity or states with red-light districts and active prostitution there must be required to provide the panel with the funding it needs to operate.
CONTENTIONS FOR RESPONDENTS
The counsel for the respondent has claimed that in order for the panel to effectively reinstate the victims of sex trade, the cash necessary for its operation should be properly deposited with the panel as soon as possible. The council also argued on the respondent’s behalf that the collection of funds was essential in order to conduct workshops and meetings and to enable experts from various fields to engage in disseminating information about vocational and skill-based training not only in well-known cities like Mumbai, Delhi, and Calcutta but also in less well-known locations that are in urgent need of help and assistance.
The council further argued that a significant portion of the money given to the panel would also be utilised for publications and advertising in an effort to normalise the stigma of reintroducing sex workers into society and make hiring additional experts easier.
RATIONALE
The Court recognised the development of India’s human rights law, particularly with regard to Articles 14, 19, and 21 of the Constitution, which uphold equality, freedom, and the right to a life of dignity. It made reference to earlier rulings like Maneka Gandhi v. Union of India, in which the right to life had been interpreted to include the right to live with dignity. The Court also emphasised how important it is to guarantee access to things like food, clothing, shelter, and the freedom to express oneself[3].
The Panel and Their Advice:
The Court had previously established a Panel to address the problems encountered by sex workers. This Panel was tasked with preventing human trafficking, rehabilitating sex workers who wanted to leave the industry, and establishing conditions that would allow sex workers to continue working with dignity. The Court’s instructions were based on the Panel’s recommendations[4].
Key Directions & Recommendations:
The Court issued a number of significant directives to safeguard the rights of sex workers and advance their welfare. These instructions comprised:
1.Equal protection under the law: When adult sex workers engage in their work voluntarily and with consent, the police are not allowed to interfere or pursue any criminal charges against them.
2.Support for sexual assault victims: In accordance with applicable regulations, sexual assault victims who work in the industry should have access to the same services and support as other survivors of sexual violence.
3.Non-punishment during raids: Since voluntary sex work is not unlawful, sex workers who are engaged in it shouldn’t be detained, fined, harassed, or otherwise victimised. Targeting individuals who operate brothels without a licence should be the main priority.
4.Review of detention: Under the Immoral Traffic (Prevention) Act, state governments were mandated to audit every protective home where adult women may be held against their will in order to ensure prompt review and release.
5.Sensitization of law enforcement: It is important to educate police and law enforcement organisations on how to handle sex workers with respect, dignity, and without using any abusive, violent, or coercive methods.
6.Media guidelines: It was requested that the Press Council of India establish directives to prevent the identification of sex workers during arrest, raid, and rescue operations. The ban against voyeurism in the media needs to be strictly upheld.
7.Health and Saftey measures:Measures taken by sex workers to protect their health and safety, such using condoms, shouldn’t be viewed as crimes or proof that they have broken the law.
8.Participation in decision-making: Sex workers and their representatives must be included in the Central and State Governments’ decision-making, policy-making, and law-reform processes pertaining to sex work.
9.Education and legal awareness: To inform sex workers about their rights, the legality of sex work, the responsibilities of the police, and how they can access the judicial system to prevent harassment, National and State Legal Services Authorities should hold workshops.
10. protection of children: No kid of a sex worker should be taken away from their mother due to the mother’s participation in sex work. No one should automatically assume that minors found in brothels are being trafficked, and the proper testing should be carried out to establish their relationship[5].
DEFECTS OF LAW
- Ambiguity in the definition of voluntary sex work: The judgement does not give a precise explanation of what voluntary sex work entails. Due to the possibility for misinterpretation and abuse by law authorities, this ambiguity can result in arbitrary arrests and harassment of sex workers.
- Lack of full decriminalisation: While the ruling emphasises that adult sex workers who do voluntary sex work are not subject to punishment, it stops short of calling for the decriminalisation of sex work as a whole. Sex workers are exposed to exploitation, abuse, and rights violations because sex work is not legally recognised.
- Lack of focus on rehabilitation and support services: The judgement recognises the necessity of rehabilitation and support services for sex workers who seek to leave the industry, but it offers no specific procedures or mechanisms to guarantee their availability and efficacy. To offer sex workers viable alternatives, rehabilitation programmes, skill development efforts, and accessibility to social welfare programmes should be established.
- Limited responsibility for law enforcement agencies: Although the judgement places a strong emphasis on sensitising law enforcement agencies, there aren’t many effective measures in place to hold them responsible for any abuse or abuses of the rights of sex workers. To stop harassment and guarantee the protection of sex workers’ rights, accountability systems must be strengthened and strict consequences for wrongdoing must be put in place.
- Insufficient provisions for access to justice : Despite mentioning legal awareness and the cooperation of legal services authorities, the judgement fails to effectively address the difficulties sex workers confront in getting justice. For sex workers seeking legal redress, specific steps should be made to provide affordable legal aid, victim protection, and shortened procedures.
To ensure the complete protection of the rights and dignity of sex workers and their children, it would be imperative to address these flaws in the current legislation and the judgement. It calls for thorough legal changes, effective support services, and a change in public perceptions about sex work.
INTERFERENCE
In conclusion, it is critical to take into account the sex workers’ financial stability even if the judiciary and the panel have made tremendous progress in recognising the identity documents of sex workers and addressing their rights. This can be done through defending for their rights at work, ensuring that they have access to financial aid like loans and mortgages, and promoting a livable standard of living with enough housing and education. Additionally, safeguarding their children’s rights and welfare as well as dealing with the delicate subject of medically terminating pregnancies in rare cases are crucial issues that need to be addressed. Their problem won’t be solved by simply eliminating sex workers and outlawing prostitution practises; instead, it will merely force them into covert and more precarious situations. It is crucial to realise that restoring sex workers’ rights and affording them dignity have more to do with basic freedoms than with sympathy or privilege.
Task done by :P.SUVARNA DURGA (BBALLB,Hons)
University :SASTRA DEEMED UNIVERSITY , Thanjavur
[1] SCC online®, http://www.scconline.com/DocumentLink/76KVk50r (last visited May 17, 2023).
[2] Supreme court reports (2011), https://www.main.sci.gov.in/pdf/SupremeCourtReport/2011_v10_piii.pdf (last visited May 19, 2023).
[3] SCC online®, http://www.scconline.com/DocumentLink/d84cQX9l (last visited May 16, 2023).
[4] Budhadev Karmaskar vs The State Of West Bengal, (2022).
[5] SCC online®, http://www.scconline.com/DocumentLink/76KVk50r (last visited May 20, 2023).