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Case Commentary on Budhadev Karmaskar vs The State of West Bengal 

Case Comment, Publications
Case TitleBudhadev Karmaskar vs The State Of West Bengal 
Citations2011 AIR SCW 1303, 2011 (11) SCC 538, 2011 CRI. L. J. 1684, AIR 2011 SC (CRIMINAL) 575, 2011 (3) AIR JHAR R 316, (2011) 2 CHANDCRIC 128, (2011) 2 JCR 65 (SC), 2011 CRILR(SC&MP) 236, 2011 (3) SCC(CRI) 397, 2011 (2) SCALE 435, 2011 ALL MR(CRI) 943, (2011) 99 ALLINDCAS 46 (SC), 2011 CRILR(SC MAH GUJ) 236, 2011 (1) CALCRILR 759, 2011 (73) ALLCRIC 1, 2011 (1) KER LT 111 SN, 2011 (1) GUJLR 8 NOC, (2011) 1 RECCRIR 897, (2011) 1 ORISSA LR 932, (2011) 1 CURCRIR 452, (2011) 1 DLT(CRL) 634, (2011) 1 CRILR(RAJ) 236, (2011) 3 ALLCRIR 2401, (2011) 3 ALLCRILR 770, (2011) 2 CRIMES 17
Case No Criminal Appeal No(s).135/2010
Date Of The Order 04- May-2023
Jurisdiction/ CSupreme Court of India
Quorum HON’BLE MR. JUSTICE L.NAGESWARA RAO HON’BLE MR. JUSTICE B.R. GAVAI HON’BLE MR. JUSTICE A.S. BOPANNA
Author Of The Judgement All Hon’ble Justices
AppellantBudhadev Karmaskar
Respondent The State of West Bengal & Ors.
Acts And Section InvolvedI. Indian Constitution, 1950 Article 21  Article 38  Article 39(a)   Article 39-A  Article 41  Article 42    II. The Code of Criminal Procedure, 1973  Section 357C    III. The Indian Penal Code, 1872   Section 354C    IV. The Immoral Traffic (Prevention) Act, 1956

ABSTRACT

A sex worker or prostitute is an individual who offers sexual services in return for payment.The views on prostitution vary worldwide, ranging from complete bans to legislation or regulation in some cases. Laws apply to both the business aspect and the sexual aspect of this work. Different people’s perspectives vary on prostitution. Some see it as a form of work, while others view it as cruel, particularly towards women and children, contributing to issues like human trafficking. Prostitution has a long history.

In a specific case, Budhadev Karmaskar was accused of brutally murdering a prostitute who refused to have sex with him. The Calcutta High Court concluded in 2004 that him guilty of murder Karmaskar appealed this decision to the Supreme Court (1). However, in 2010, the Supreme Court affirmed the High Court’s decision and converted the appeal into a Public Interest Litigation due to its broader societal implications.

  1. FACTS
  1. On September 17, 1999, at 9:15 p.m., a horrifying incident unfolded in Kolkata’s red-light area. Shrimati Chayay Rani Pal (Buri), a 45-year-old sex worker, was brutally attacked in her three-story residence by Budhadev Karmaskar. Buri, sleeping on the second floor, was tripped over, leading to a violent altercation where Karmaskar assaulted her, causing severe injuries and bleeding from her head, nose, and ear.
  2. Asha Khatun, a maidservant and eyewitness, raised an alarm on the second floor as residents witnessed a brutal beating. Karmaskar fled when protests erupted, and he was arrested by the police in Jogen Dutta Lane around 2:15 a.m., within 5 hours. Tragically, Buri was declared dead upon reaching the hospital.
  3. As a consequence, Karmaskar was found guilty of a severe crime – The conviction for assault resulting in murder was upheld by both the High Court and the Supreme Court. .They stressed the importance of respecting sex workers and allowing them the choice to work with dignity, free from force or false identities (2).
  4. The Supreme Court, led by Senior Advocate Mr. Pradip Ghosh, formed a group proposing a the financial assistance comprises Rs. 10,00,000 from the Central Government, Rs. 5,00,000 from the State Government, and Rs. 2,00,000 from Union Territories to empower sex workers with vocational skills for self-support and dignified reintegration into society.
  1. ISSUES
  1. Utilizing Article 21’s interpretation of “life” to secure  the entitlement to dignity in living for sex workers and their children?
  2. Implementing measures to bring back, rescue, and rehabilitate sex workers into a safer environment?
  1. ARGUMENTS FAVOUR OF APPELLANT
  1. The advocate contended that Asha Khatun’s statement provided during the examination-in-chief should not be considered admissible under Section 164 of the Code of Criminal Procedure, 1973, due to her absence during cross-examination.
  2. To support this argument, the counsel cited the case of Raghuvir Singh and Ors v. State of Uttarakhand and Anr., Criminal Misc. Application (C-482) No. 2324 (3).In this case, the statement of an eyewitness was disregarded due to their absence during cross-examination.
  3.  The petitioner’s legal representative argued that young women are coerced into the sex trade by family members and others, emphasizing the importance of a successful rehabilitation mission for their rescue.
  4.  Efforts to rescue individuals face challenges unless the intricate connections between traffickers, brothel owners, and the victims’ family members are severed.
  5. The petitioners advocate for a streamlined helpline process by the State Legal Services Authority to empower sex trade victims for legal action and counselling; additionally, they argue that only states with active sexual activity or red-light districts should fund the panel.
  6. ARGUMENTS FAVOUR OF RESPONDENT
  7. The respondent argues that prompt and appropriate funding is essential for the effective operation of the panel in supporting the reintegration of sex trade victims.
  8.  The council, on behalf of the respondent, emphasizes the importance of fund collection for organizing workshops and meetings. This facilitates the dissemination of details regarding vocational and skill-based training are needed not just in major cities such as Mumbai, Delhi, and Kolkata but also in lesser-known areas that are in urgent need of assistance.
  9. The attorney further contends that a reasonable portion of the allocated funds would be used for publications and advertising. This aims to destigmatize the reintegration of sex workers into society and facilitate the hiring of additional experts.
  10. ORDER OF THE COURT
  11. The court recognized the human rights of sex workers, acknowledging that many engage in sex work due to dire circumstances such as poverty or trafficking.
  12. Proactively, the court initiated opportunities for vocational training to help sex workers earn a livelihood and directed the Central Government to establish a panel for reinstating victims into society.
  13. The court directed the Central, State governments, and Union Territories to formulate schemes for vocational and skill-based training with the constituted panel.
  14. The court emphasized the rehabilitation of sex workers through NGOs, addressing concerns about preventing sex trafficking, rehabilitating those wishing to leave, and ensuring dignity for those choosing to remain in the profession. The court also directed State Governments to provide support like ration cards and identification to sex workers.
  15. The court directs State Governments yet to file affidavits to do so within six weeks. The next hearing is scheduled for July 25, 2023. Notice is issued, and Mr. Siddharth Bhatnagar, senior counsel representing the applicant(s), is asked to furnish copies of the application to Mr. Jayant Bhushan, the esteemed Amicus Curiae, and other pertinent parties (4).
  16. JUDGEMENT
  1. In this instance, The appeal was turned down by the Calcutta High Court, as it dismissed the applicant’s argument that the testimony of absent eyewitness Asha Khatun, who had not undergone cross-examination under Section 164 of the Code of Criminal Procedure 1973, should not be considered (5).
  2. The defendant was sentenced to life imprisonment by the High District Court. In 2011, the Supreme Court established a panel of senior attorneys and judges to address the protection of sex workers and improve their lives.
  3. The Supreme Court has endorsed the sex labour sector.
  4. In India, engaging in sexual services is not illegal. The Supreme Court’s three-judge panel, in a landmark decision, declared that sexual service providers should receive equal respect and legal protections as any other individuals. This decision brings significant relief to sexual service providers facing acute exploitation (6).
  5. Engaging in paid sexual labour is not prohibited in India.
    1. The Indian Supreme Court has declared that every individual possesses a fundamental right to a dignified livelihood, irrespective of their profession. Authorities must consider this protection when enforcing laws related to the control of immoral trafficking (7).
  6. Rights of Individuals Engaged in Sex Work
  7. Society often deems sex workers a nuisance, leading to calls for eradication. The judiciary steps in to safeguard their fundamental rights when legislative and executive efforts are lacking. Reports highlight law enforcement hostility, necessitating urgent measures to ensure constitutional rights for sex workers, involving revisions in regulations and the implementation of policies for their well-being.
  • COMMENTARY

In India the laws come into existence by 3 major branches one is parliamentary laws, secondly rules, regulations and recommendations framed by the supreme court and thirdly by ordinances. Our Hon’ble Supreme court generously plays a major role whenever, the question comes to address any contemporary issues where the laws are not framed yet. Certainly, by exercising the power under Article 142 of the Constitution of India. The Supreme Court has provided various judgements to regulate the issues in our country (8).

In the present case, the Hon’ble Supreme Court constitutes penal for sex workers comprising Justice L. Nageswara Rao, Justice B.R. Gavai and Justice A.S. Bopanna. The panel gave certain recommendations which are as commented.

  1. Recommendations
  2. Protection from Police
  3. In regards to the rehabilitation measures firstly the police were directed to treat any women who are indulged in sexual activities with respect, equality and dignity. The concept of prostitution comes from the ancient times when the system of devadasi was followed and later those devadasi were exploited (9). However in this era, where development is at its peak in India, somewhere there is still some orthodox mentality present in the society which gives birth to the unequal practices followed by the people at large. One such example is Mathura rape case where the women was raped inside police station by considering her as she was “habituated to sexual intercourse”(10). Such cases represent the stereotype mentality, which is being practiced even by authorities and society.
  4. All of those practices violate the rights of those sex workers who are providing sexual services. Even the police authorities mistreat them whenever any of such sexual workers files complaint or part of any investigation or case. Generally, the sex workers provide services through brothels and in India there are multiple cases where the police raids and penalises all of those sex workers (11). Nevertheless the law terms voluntarily providing sexual services as a legal but contradicting to it, running a brothel is illegal. The police takes violent and aggressive criminal actions against those sexual workers.
  5. Most of the sexual workers work under brothel keepers because there are many benefits of it. Such as the comfort, interdependency between the brothel operator and the sex workers (as they get clients accordingly and the sex workers get their income for service), Unionization (as all sex workers provides similar kinds of services under one operator) and many more. Instead, the recommendation should direct the laws which appropriately recognise, regulate and direct the central to set a mechanism to legalize the sex trade and brothels.
  6. Right to medical care and health.
  7. i. The right to health, enshrined in Article 21 of the Constitution, is a fundamental entitlement, and the right of patients to receive dignified treatment is not only a fundamental right but also a human rights (12). As per the present situation where there is no law governing prostitution in India, there are many red-light areas where the prostitutes are forced to provide sexual services and considering all those prostitutes as victims of sexual assault the recommendation (ii) serves as a Protection against the discrimination and prejudice followed against sex workers.
  8. Moreover, under the preview of DPSP is the duty of the State to provide health care facilities and to improve public health. As sex workers are the one who are under greater risk of suffering through sexually transmitted diseases. There are many chances that any sexual workers become holder of such diseases and can spread through their clients. Certainly, the recommendation is not sufficient enough to direct the State for justifying their duties. There should be more strict recommendations and directions for the central to frame polices for better health care facilities such as heath check-ups and framing polices for providing medical benefits to those sexual workers who are treated in an undignified manner and have a discriminant attitude while providing medical facilities.
  9. Awareness
  10. In order to avail rights, acknowledgment of rights is very necessary. Part III of the Constitution of India, to every citizen guarantees some basic fundamental rights, amongst which right to live with dignity (13) (Art 21) is also one, which includes right to be treated with dignity even in police custody and to be treated equal before the eyes of law.
  11. In order to get a dignified life for these sex workers and to keep a check on the verbal and physical abuse done by the police upon them, as per the recommendation made in para (ix) an awareness drive is much needed by the Central and the State Government amongst the sex workers.
  12. The Central and the State Government, shall educate these workers upon their basic human and fundamental rights, about the offenses done against women, the procedure to file an FIR, and also about the health and safety measures which are essential for them.
  13. The Central and State Government shall not only educate these workers but also put heavy penalty upon the police officers who infringes the rights of these workers, so that the fear of punishment may put a check upon such abuse.
  14. The Central and State Government can also have legal drives to educate these workers upon approaching the judicial system. Moreover, all the Central legal aid services, State legal aid services and the District legal aid services shall be directed to spread awareness. All of those legal aid services should, time to time organise legal aid camps, workshops and door to door awareness campaign by providing pamphlets or one to one talks, especially in those red light areas.
  15. There are some awareness campaigns carried out by the State District Legal aid services such as the South west Delhi district legal aid services organised a workshop(14) based upon these directions which shows that this is a positive move and should be followed by all other states because every state and district have red light areas where sex workers live and to spread awareness at ground level is the need of the hour and one of the most important goals and a step to be taken in this direction.
  16. Restriction on Media
  17. Media is the fourth pillar of democracy. Media includes any kind of information sharing agencies which broadcast, print or transmit news. The council is performing for a major mission which is to raise the standard of press and preserving the freedom (15).
  18. In India the media follows many practices, like blurring the face and restricts itself from disclosure of name and basic information such that in order to not reveal the identity of the female, whenever the news is in regards to any female victims. Moreover, as per sec 228-A of the Indian Penal Code, 1860 (16), it is expressly mentioned that the identity of any person who is alleged or found to be committed any offence under sec. 376 (17) as whole and who is a victim shall not be disclosed. Such provisions represent the nature of society towards all of those female victims and criminals where they can face notoriety and Scandalmongering.

In the same course, the sex worker’s identity is generally revealed whenever the news coverage shows raids on brothels or any other premises. This direction will play a significant role as it will punish under section 354C of Indian Penal Code (18) as any media agencies in any form if showcases then it will be considered as a crime.

  • Children of sex workers
  • Children of the sex workers are the ones who face a lot of consequences and are forced to live an abnormal life. All these children face social discrimination and inequality leading to an undignified life.
  • There are studies conducted by The National Commission for Protection of Child Rights (NCPCR), the location of the study mentions that all of these children face abuse in schools by their class mates and other students at school and are in constant fear, especially afraid to be in the same profession of prostitution (19).
  • However, in such situations, where the rights of a child is being infringed, such as the right to education and the children being in isolation because of the society which may forcing these children to  choose the wrong track in life and degrades their mental and physical health. And in circumstances, where such children are misinterpreted as trafficked by the authorities under Immoral Traffic (prevention) Act, 1956, the recommendation (x) act as a shield and help all those mothers to raise their children without hindrance.
  • Fair criticism
  • All inclusive, the recommendation given in this present case does not completely solve the issues of Prostitution and sex trade. The recommendations are silent on various factors such as compelling sexual workers by the brothel keepers to give sexual services and the lack of medical benefits which should be mandatory for all the sex workers to maintain their well-being.
  • Moreover, this case clearly highlights the current situation of sex workers but the recommendations are not satisfactorily framed as to address all the problems directly, the recommendations are off the track and do not serve the problems.
  • CONCLUSION

The profession of sex work is no new to India, but it is followed since pre-British era. The irony is that till date no such law has come into existence in order to govern their rights and protect them from exploitation and hence due to the absence of law, the rights of these people remains unrecognised and they are mistreated like commodities.

In fact, India consists of Asia’s largest red-light area situated in Kolkata (20). There are many countries in the world such as Germany (21), New Zealand (22), etc. where prostitutes are and business of prostitution is recognised and is fairly regulated. Despite prostitution in India being a class of people who are in devastating position and are exploited in all the possible areas, there is no any law till yet. It has become the need of the hour to frame a law which covers all the areas with regulations and protections. The central by following the principles of good governance and considering all of these recommendations and all covering all the aspects which are untouched  in this judgement shall frame an Act to govern the business of Prostitution and protect the sex workers.

END NOTES:

  1. Budhadev Karmaskar vs State Of West Bengal on 14 February, 2011, Indian Kanoon – Search engine for Indian Law, https://indiankanoon.org/doc/1302025/.
  • Budhadev Karmaskar vs The State of West Bengal on 19 May, 2022, Indian Kanoon – Search engine for Indian Law, https://indiankanoon.org/doc/145721634/.
  • Budhadev Karmaskar vs The State Of West Bengal on 4 May, 2023, Indian Kanoon – Search engine for Indian Law, https://indiankanoon.org/doc/22048487/.
  • INDIA CONST. art. 142.
  • Shingal, Ankur, THE DEVADASI SYSTEM: Temple Prostitution in India, UCLA Women’s Law Journal, 22(1), (2015), https://escholarship.org/content/qt37z853br/qt37z853br.pdf.
  1. Tuka Ram And Anr vs State Of Maharashtra, 1979 AIR 185.
  1. THE TIMES OF INDIA, https://timesofindia.indiatimes.com/topic/raided-a-brothel/news.
  1. Lokendra Singh v State of Madhya Pradesh, (1996) 2 SCC 648.
  1. INDIA CONST. art. 21.
  1. South West DLSA, Workshop on sensitize sex workers of their legal rights vis-a-vis the legality of sex work, South West Delhi Legal Service Authority (Jun. 26, 2022), https://dslsa.org/swd/?p=7770.
  1. PRESS COUNCIL OF INDIA CENTRAL STATE AUTHORITY, https://www.presscouncil.nic.in/OurMission.aspx#:~:text=The%20mission%20of%20Press%20Council,agencies%20and%20journalists%20the%20maintenance.
  1. Indian Penal Code, 1860, § 228-A, No.45, Acts of Parliament, 1860 (India).
  1. Indian Penal Code, 1860, § 376, No.45, Acts of Parliament, 1860 (India).
  1. Indian Penal Code, 1860, § 354C, No. 45, Acts of Parliament, 1860 (India).
  1. INDIA TODAY, https://www.indiatoday.in/education-today/news/story/children-of-sex-workers-face-abuse-and-discrimination-in-school-become-isolated-study-by-child-rights-body-1439319-2019-01-25.
  • Rijula Das, Exploring the stories of Asia’s Largest red-light district, THE IRISH TIMES (Sep. 30, 2022), https://www.irishtimes.com/culture/books/2022/09/30/exploring-the-stories-of-asias-largest-red-light-district/#:~:text=Asia’s%20largest%20red%2Dlight%20district%20is%20in%20Kolkata%2C%20India.,oldest%20neighbourhoods%20in%20north%20Kolkata.
  • The Prostitution Protection Act, 2016 (GER).
  • The Prostitution Reform Act, 2003 (NZ).

Authors:

Hetkumar Joshi

4th Year, BBA-LL.B

Navrachana University

Disha Shivnani

4th Year, BBA-LL.B

Navrachana University