Budhadev Karmaskar V. Union of India 2022 SCC Online SC 704

Bench L. Nageshwara Rao, B. R. Gavai, and A. S Bopanna, JJ

citation: criminal appeal number -135/2010

Facts

the incident took place on 17th September 1999 where a prostitute namely Shrimati Chyay Rani Pal, also known as buri, aged 45, succumbed to death after getting beaten up brutally by a person named budhadev karmasker . The incident took place at the residence of the victim, i.e., Jogen dutt lane (a red light area in the city of Kolkata)

Prior to the incident, victim was sleeping near a staircase in front of her room when the accused visited her in a wish of having a sexual intercourse with her, for which the victim denied. In his rage, the accused tripped and assaulted by the accused. He kicked her multiple times, which led to many injuries. She was pulled by her hair, thrashed around and pushed against the wall multiple times.

this led to the bleeding from her ears, nose, and head

at the time of this incident, Asha khatun was the only eye witness present at the time of the incident who raised alarm and called all the other inmates who watched how mercilessly the accused tortured her

the victim sustained 11 injuries after this attack. She was rushed to the medical college hospital, where she lost her life during the treatment.

The accused was arrested within 5 hours of the incident. i.e. Around 2:15 a.m. from the jogen dutta lane itself.

This incident acted as an eye-opener for many people as it made public realize the plight of the sex workers. The public started realizing that there are many such cases which do not even come into the limelight. It made the public that these sex workers are also humans who deserve a just and human treatment and better living conditions for themselves and their children.

Issues raised

the following issues were raised before the court:

1. How to apply article 21 i.e. the right to live with dignity to prostitutes, sex workers and their offsprings ?

2. how to protect sex workers from such kind of people who look down upon them and their work ?

3. how to provide a safer environment to the sex workers ?

4. how to prevent human trafficking?

5. what are the measures that need to be adopted for the rehabilitation of these sex workers?

Contention

arguments from the appellant’s side

the learned advocate representing the appellant denied all the arguments presented from the respondent’s side.

The defense council held that the fatal injuries resulted from a fall from the stairs and not from the physical assault

the first eyewitness , Asha khatoon was not present at the time of the cross-examination and and therefore her evidence would not be admissible under section 164 of the code of criminal procedure, 1973. For this, the following case was quoted :

raghuvir Singh and ors. V. state of uttaranchal (2019)

it was held that none of the people living near the crime scene could be called as witness, so the lawyer had some doubts regarding the prosecution’s story.

The defense created doubt by highlighting that there were no shreds of evidence left from the residents.

Arguments from the respondent’s side

the prosecution argued that the appellant and the respondent had a strenuous relationship which made them fight often.

Moreover the prosecution’s arguments relied heavily on the post-mortem reports that were provided by a reputed and qualified doctor.

these reports supported the fact that the victim sustained 11 severe injuries on her face, nose, and ears and eight of these injuries were so severe that it could have caused the death of any human being under normal circumstances.

these reports also indicated that these injuries were resulted from getting beaten up by punches and kicks during a physical assault.

Rationale

it is a case of a physical assault of a sex worker where the accused , budhadev karmaskar beat a sex worker named Chyay  Rani Pal, also known as Buri , so badly that she could not survive. The accused was convicted by the trial court and then by the high court. He then moved to the supreme court, which also confirmed his conviction. The supreme court by its order given on 11th February 2011 declared that the sex workers also have a right to live a dignified life under the article 21 of the Indian constitution.

keeping in mind the barbaric types of crimes committed against the prostitutes and state in which they were living where some of them could not even afford the necessities of life, and they were nothing but condemned by the other sections of the society, the case was converted into a PIL whereby the supreme court ordered the state and central government to formulate schemes for the rehabilitation of the sex workers in order to uplift them and protect them from the people who look down upon them because of their work

the supreme court panel was made whose chairman Mr. Pradip Ghosh (senior advocate) under its order in 2011. It even submitted its report in 2016 listing all its various demands and recommendations which were to be considered by the central and the state government.

Finally in its order on 19th May 2022, the supreme court issued an order under article 142 to execute utmost justice in order to rehabilitate, uplift and protect the sex workers to the various authorities., even if there is no law in the place.

Defects of law

it was reported by the additional DIG of the Tamil Nadu police that the task to preventing human trafficking in the case of sex workers was a difficult one as this profession also involves professional gangs and spies who report their managers about the rescue missions beforehand, thus preventing them from getting caught and arrested. Moreover, these girls are often coerced and sold for prostitution by their own families and relatives, mostly in the greed of money or sometimes to fight poverty.

moreover , certain sections of the immoral traffic prevention act, 1956 shows the discrepancies between the prevalent laws and the current judgement as they do not even recognize sex work as one of the jobs

for example section 3 makes it illegal to own a brothel, section 4 makes it illegal for an adult to earn money by prostitution and section 8 makes it illegal for an adult to get forced into the prostitution.

Inference

the case of Budhadev Karmaskar v state of West Bengal is only one of the most popular case highlighting the living conditions of the sex workers. There are many other cases even more horrifying cases regarding the crimes committed against the sex workers who are not even reported or brought into the public attention.

sex work or prostitution is one of the oldest professions in the world, yet it is also one of the most condemned professions in this world. Prostitues are still disrespected and looked down upon by the general public . Sex workers are still insulted and abused by other people, especially in public places and government offices such as banks, offices, etc., moreover, their children are often deprived of the access to education. As under article 21-A, it is the right of every child between the ages of 6 to 14 to be provided with free and compulsory education, children of prostitutes should also have equal opportunities to get education.

prostitutes also face discrimination from the government authorities when they are not even provided with the voter ID , depriving them of their right to vote, thus not only violating their right, but also hampering the progress of our nation.

sometimes these sex workers are not even issued their Aadhaar cards, depriving them of getting access to various government facilities and schemes, simply because of the fact that they belong to a brothel.

Even when the constitution guarantees various rights to the citizens, it is time and again that these rights need to be reclaimed by various sections of the society when they get exploited and striped off their rights. It needs to be remembered that the social stigma prevalent in the society prevents the sex workers from coming into the mainstream with the general public. But it also must be remembered that these sex workers do not demand any special treatment, but equal treatment, both from the government as well as from the society.

therefore, it is time for the government to realize the gravity of this issue and strengthen the correct laws in order to protect and rehabilitate the sex workers.

provisions prescribed in immoral traffic prevention act, 1956 have to be strong enough to prevent the mafia gangs from entering into the field of prostitution and helping in human trafficking. Additionally, it is important to issue the Voter IDs and Aadhaar cards to these sex workers so that they can also take benefit of various government schemes. Lastly, it needs to be ensured that the children of these sex workers also get proper access to quality education. At the end, it can be said that these sex workers are also humans, and they have the right to live with dignity. their progress and upliftment is also necessary for the overall progress of our society.

Name-Amrita Gaur

College- Government Law College, Kota