Citation: CRIMINAL APPEAL NO. 135 OF 2010
Quorum: Hon’ble Mr. Justice Girish Chandra Gupta & Hon’ble Mr. Justice Kishore Kumar Prasad.
Author Of the Judgment: Both Hon’ble Justices
Appellant: Budhadev Karmaskar
Respondent: The State of West Bengal & Ors.
Counsel For Appellant: Mrs. P. Goswami
Counsel For Respondent: Mr. Pradip Ghosh
Acts And Sections Involved: Indian Penal Code, 1860 (Section 302) & Code of Criminal Procedure, 1973 (Section 164)
FACTS
On September 17, 1999, at around 9.15 p.m., a 45-year-old sex worker named Shrimati Chayay Rani Pal, also known as Buri, was brutally murdered in the Jogen Dutta Lane red light district, shocking the public’s conscience. She resided in a three-story residence on Jogen Dutta Lane in Kolkata, which is close to a red light. Before the incident, the deceased had been sleeping in front of her room, close to the second-floor staircase of the building. The accused, Budhadev Karmaskar approached the deceased on the second floor and tripped over her, which resulted in a raucous altercation. The deceased was kicked with his fists and legs by the accused, Budhadev Karmaskar, leaving her heavily injured and bleeding profusely. When she hit the floor, the accused pushed her head against the wall and grabbed her by her hair. And so, she started to bleed from her ears, nose, and head. Asha Khatun, a maidservant who was on the second floor at the time of the incident and one of the eyewitnesses, sounded the alarm. The other inmates witnessed the accused brutally beating the deceased as they assembled at the scene of the crime. As soon as someone objected, the accused swiftly left the victim where she was, pushed and jostled onlookers, and fled. At 2:15 a.m., five hours after the incident, the accused was apprehended by the police in Jogen Dutta Lane. The victim was pronounced dead at the hospital after being brought there.
ISSUES RAISED
- How can the meaning of “life” and the provisions of Article 21 be implemented to guarantee sex workers and their children’s right to a life of dignity?
- Is it possible to charge the accused under Section 302 of the Indian Penal Code?
- Where is the safer place to rehire, save, and rehab sexual workers?
CONTENTIONS
ARGUMENTS ADVANCED BY THE APPELLANT
- The appellant’s experienced counsel vigorously denied all of the charges leveled by the prosecutor.
- The learned advocate’s statement made by Asha Khatun, the eyewitness, during the chief examination is not admissible, as per section 164 of the Criminal Procedure Code of 1973. Moreover, she did not attend the cross-examination.
- To bolster his arguments, the learned counsel referenced the Raghubir Singh v. Uttaranchal High Court case.
- It was also abundantly clear that nobody in the neighborhood witnessed the crime. This reasoning does a great job of undermining the appellant’s case.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The deceased’s knowledgeable attorney questioned and made insinuations regarding the accused and the deceased’s apparent animosity as well as their periodic arguments.
- Abeda claimed in her statement that she heard a heated argument and ran to the second floor, where she saw the defendant dragging the deceased and repeatedly striking her head against the wall.
- At the counsel case, the certified physician’s report of injuries was shown, stating that the deceased had been beaten by the accused using his fists and legs.
- According to the report, the deceased had 11 injuries in total, including wounds to his forehead, head, and face, which is enough to result in death. Eight of the eleven injuries, they said, were severe enough to kill an average person.
RATIONALE
In this case, the appeal was dismissed by the Calcutta High Court. The applicant objected, citing Asha Khatun’s absence from cross-examination, that section 164 of the Code of Criminal Procedure 1973 should not be applied to the evaluation of her testimony as an eyewitness. The court, however, rejected the objection. The defendant was given a life sentence by the High District Court. In 2011, the Supreme Court convened a group of judges and senior solicitors to deliberate on measures to protect the rights of sex workers and their professions.
The committee is looking for ways to improve the lives of the women who are affected. The court expressed dissatisfaction further, saying, “The accused’s injury near his left eye was not explained, and the defense’s case was entirely denied.”
- The SC institution approves of the sex labor sector.
In India, sexual servitude is not prohibited. The same legal safeguards and respect that the general public enjoys should be extended to providers of sexual services. The Supreme Court’s (SC) three-judge panel made this decision in this particular case. This decision is historic. For those who provide sexual services and suffer from severe exploitation, this is a huge relief. - In India, engaging in sexual labor for compensation is permissible.
The Indian Supreme Court ruled that regardless of occupation, authorities enforcing immoral traffic control laws must consider everyone’s fundamental right to a decent existence. - Human Sexual Workers ‘Rights Not only is prostitution the world’s oldest profession but it is also held in high regard by the general public, with sex workers in particular seen as the evil that needs to be eradicated from society. “In the absence of legislation and when the executive branch has acted carelessly, the judiciary has repeatedly intervened to defend the fundamental rights guaranteed by Part III of the Constitution.”
Reports state that police “regularly treat sex workers violently and hostilely.” as if they are members of a marginalized group whose rights are disregarded. Law enforcement agencies should be directed to protect the rights of all sex workers, as guaranteed by the constitution, on an equal basis with other citizens. This entails updating or completely rewriting the current legislation in addition to developing new programs and guidelines for sex workers.
DEFECTS OF LAW
This case was the first to compel the government and the legal system to take into account the inhumane working conditions that sex workers face and to pass legislation safeguarding their rights. However, some rights continue to be denied. The Immoral Trafficking Prevention Act of 1956 contains several provisions that are incompatible with the fundamental right of Indian citizens to conduct business within their nation. Even though it might sound a little immoral, if we accept it as a profession, we should also accept the environments in which it is practiced. This implies that it is even prohibited from being done at home or in a pub.
Section 3 of The Immoral Traffic and Prevention Act of 1956: The penalties for running a brothel or allowing property to be used for that purpose are described in this section. If convicted, these offenses carry a harsh sentence that can go up to two years in prison. You face a severe sentence of two years, not to exceed three years, if you are found guilty again.
Section 4 of The Immoral Traffic and Prevention Act of 1956: Penalties are imposed on anyone over the age of eighteen who subsists on the proceeds of prostitution, including family members.
Section 8 of The Immoral Traffic and Prevention Act of 1956: Anybody who participates in sexual activity in a public place to mislead another person may be subject to legal action. Any progress made in the direction of prostitution falls under this category.
The Immoral Traffic Prevention Act of 1956 contains provisions that flagrantly violate the freedoms of contract and practice of one’s trade or profession. A property cannot be used or maintained as a brothel per Section 3. Why is it that a place where these activities can take place is forbidden, when prostitution is allowed in India? Even though it might seem a little unethical, if we accept this as a profession, then we should also accept any establishment that is created with this purpose. Given that these activities would not be carried out in homes, bars, or other public areas, this even makes it eligible to be classified as a profession.
Section 4 is incredibly ambiguous. The fact that family members are involved degrades the practice of prostitution, even though it is intended to be harsh on those who force women into it and profit from it. What about the offspring of sex workers, too? They should face consequences if they enroll in college or pursue other higher education. It puts in jeopardy both their prospects and their fundamental rights. The basic right to a free contract is violated by Section 8 because the sex workers’ gestures are an offer that anyone can accept or reject. It’s not something you have to accept under duress. Pre-work or advertisements are necessary for every profession; those who are interested can proceed, while others can choose to ignore it.
The ITPA, 1956’s features and provisions were not discussed in this case. It is ironic to ignore this aspect, given that it is the first and a historic case for the betterment of prostitutes, as it almost becomes a barrier to practicing this profession and fighting for the right of sex workers’ children to an education; on the whole, it is essentially a name-sake and core work that has not improved the lives of sex workers and their families.
“Just declaring, that sex work is legal isn’t enough.”
INFERENCE
This landmark decision provides a chilling example of the horrific mistreatment and murder of sex workers by demons who see them as nothing more than a commodity. It conveys the social message that such barbaric acts are not appropriate in a civilized society. This case highlights the horrible working conditions faced by sex workers, who carry out their work out of necessity rather than pleasure. Despite the social stigma associated with their line of work, they still have the right to live in dignity. According to Article 21 of the Indian Constitution, everyone has the fundamental right to life and personal liberty. It is more than just an animal.
However, the stereotypical mindset of society makes it almost impossible. As long as prostitution remains illegal, people who detest it will continue to exploit those who work in the sex industry. To help stop these terrible crimes, the Supreme Court granted suo moto jurisdiction over this case and created rules safeguarding the rights of sex workers. This decision not only shocked the public’s conscience but also sparked a social movement.
Meghavi Jindal
Amity University, Kolkata