Citation: Criminal Appeal No(s).135/2010
Appellate : Budhadev Karmaskar
Respondent : State of West Bengal
Bench/Judge : Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna
Abstract
The heinous murder of a sex worker in the case of Budhadev Karmaskar v. State of West Bengal (supra) has paved a way for the struggles of sex workers to surface. The Supreme Court has taken a landmark decision to eliminate those problems and provide them with the fundamental rights they were deprived of.
Rule
Constitution of India, Art 21 : Every Person should get life and they should have personal liberty, and only procedure established by law can alter that.
Immoral Traffic (Prevention) Act, Section 3 : Keeping a brothel, is illegal and punishable under law.
Section 4 : Earning bread by prostitution is illegal.
Section 8 : Seducing people in public place for prostitution is illegal
Criminal Procedure Code, 1973, Section 146 : the witness can be asked any question by the cross examination party to assess the credibility of the statement.
Facts of the case
- The deceased was a 45 years old sex worker of the red light area in Jogen Dutta Lane, namely, Chaya Rani Pal also known as “Buri”.
- The deceased was sleeping near the stairs of her own room, in the second floor of her three storey apartment, in the same area, mentioned above, on 17th September, 1999.
- Around 9pm the accused Budhadev Karmaskar, came up on the second floor and tripped upon the deceased and after a noisy alteration, the accused assaulted Chaya Rani Pal with his punches and kicks, inhumanely. Quite instantly, the deceased started bleeding, yet the accused didn’t stop and threw her to the first floor by dragging her with her hair and bumped her head to the wall, multiple times. This led to profuse bleeding from her ears, nose and head.
- There were 4 witnesses of the horrific incident, namely, Abida, Maya, Asha, and Parvati. While Abida told, she saw the accused holding the deceased by her hair and banging her head to the wall, Parvati and Maya also saw the accused beat the deceased and also saw her, bleeding profusely.
- The witness, Asha Khatun, a maid servant, who was present at the spot during the commission of the crime, raised her voice and alarmed other inmates who joined, just to see how brutally, the accused assaulted the deceased.
- The accused fled the crime spot after the commission of the crime, yet at around 2:15 AM, nearly 5 hours after the incident the accused was arrested.
Issues Raised
- How to provide a safer environment for the Prostitutes, after rescuing them – This case made the point clear that the sex workers are not safe in their brothels and need a safer place to reside.
- How to safeguard the sex workers from the society who look down upon them – if a sex worker who was just sleeping, can be beaten to death for almost no reason, then it’s quite evident how the society is posing its main danger.
- How the scope of Article 21 and the meaning of living the life with dignity can be applied to the sex workers and their offspring – the constitution of India have given fundamental rights to all yet, it is shameful, to notice how some sections of the society has to fight and struggle even for the basic right to live a dignified life.
These were some of the very basic but deprived issues that the sex workers of not only Kolkata, but also other Red Light areas across the country. After the issue was raised, the plight of sex workers came to the surface. History shows that since time immemorial, it has been a practice to look at the sex workers in a bad way, which toughens their day to day life.[1]
Contentions
This case was elaborately discussed in the court.
Arguments of the Appellant
Firstly, to talk about the arguments from the appellant’s side, the learned advocate strongly opposed the charges, framed against the accused.
- He submitted that the statement given by eye witness Asha Khatun, during the examination-in-chief, cannot be made admissible before court, as she did not come during the cross-examination part, which she should have to validate her witness, as under Section 146 of CrPC[2]. To support the same, the Learned Advocate referred the case of Raghuvir Singh v. State of Uttaranchal[3], where the statement of the eye witness was not taken into account due to absence of cross examination.
- Moreover, most of the other witnesses were not present in the 2nd floor where the incident took place and came much later, so it is possible they would not know the complete story.
- To quash the charges, the advocate also questioned the Physician, where the Physician Dr. A. Das mentioned about the 11 main injuries, that have killed the deceased, but upon questioning he mentioned that those 11 injuries can also be a result of tripping down from the stairs and as no one was present at the spot, no proof of death by assault can be confirmed.
Arguments of the Prosecution
On the other hand, the Prosecution pointed, that
- the accused had a regular tussle with the deceased and often had heated debates and quarrels, due to disagreements of having sex with the accused. Thus it is not very unnatural for the accused to commit such crime.
- Moreover, “Abeda”, a witness, though was not present at the spot from the beginning, she heard noise from the 2nd floor and rushed to the 2nd floor, her further description matched the previous description of Asha Khatun and Parvati, which legitimizes the statement of Asha.
- Additionally, the competent physician, who provided the report, made it clear that, 8 of the 11 bruises were enough to kill the deceased and by any means, the accused had assaulted the deceased.
Judgment
The judgment of the case can be classified into two parts, one is the punishment part and the bigger picture of the betterment of the law, is the action of the Supreme Court on this case. The judgment held the accused, convicted and sentenced for life imprisonment by, both the High Court of Calcutta, as well as the Supreme Court of India. The supreme court also took Suo Moto action, and settled a commission, to address the problems and struggles faced by sex workers in different stages of life.
Rationale
The Supreme Court established a commission with Senior Advocate Mr. Pradip Ghosh as the Chairman, to address the issue of reintroducing the present prostitutes who are being compelled to do the act without their choice, with four more participants and supporting personnel to assist them. The panel has recommended that the Supreme Court to 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 UTs to support the teaching of vocational training and technical skills to sex workers so they can support themselves and be reposition themselves into society with dignity. In addressing the first concern, the courts noted that, as people by definition, prostitutes also have a right to live their lives with dignity. The courts interpreted Article 21 of the Constitution to include having a life with dignity and not surviving in a condition of vegetative state, as the Judgement states “…No matter of the profession, every individual in this country has a right… under Article 21.”[4] They also noted that women in India are typically coerced and pushed into prostitution and the sex trade due to extreme poverty or because human traffickers perceive them to be easy targets. Thus, it is for this reason that sexual acts are performed against their will and most definitely not for their amusement.
It is also understood by the Supreme Court that abolishing the social stigma and shifting these sex workers back to normal social life is not one day work and it will take a lot of progressive changes to achieve that.
Thus for now, the Supreme Court mentioned and asked the Central Government and the State Government to follow 10 recommendations as listed below :
- Immediate medical assistance to be provided to sex workers if they are a victim of any type of sexual assault.
- States are directed to survey all types of immoral trafficking under Immoral Traffic (Prevention) Act, 1956.
- For the women who were forced to the field and are rescued, they should be kept in protective homes, that is to be built by the State so that they could be thoroughly checked mentally and physically before sending them to their home.
- The police officers, and other government bodies to be more sensible to the sex workers and do not harass them, during raids or any other matter.
- The Press Council to take guidelines for utmost care so that identities of sex workers remain hidden.
- Criminal Action cannot be taken against an adult sex worker who is working under consent.
- Contraceptives and other safety precautions used by sex workers must not be considered as crimes or as proof that a crime has been committed.
- Only the Brothel owner can be arrested and the sex workers cannot be arrested.
- A recommendation committee to be established to prohibit child sex workers.
- The increase in role of sex workers in decision making processes, regarding planning and designing of sex work.
In addition to that the Supreme Court also said, the transgender community and also work as sex workers to earn money. This judgment of SC is highly supported, and believe that this will pave a way to the end of the problems the sex workers are in. However, this judgment has some contradictory parts and defects too, which are discussed as follows.
Defects of Law
Ms. Archana Ramasundaram, additional DIG of Tamil Nadu Police, had argued 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, it is said 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. As a result, unless the link between the traffickers, the owners of the brothels, and the relatives of the victims is severed, a successful rescue operation would be doomed to failure, and rehabilitation of the victims would become much more challenging.[5]
Thus it can be noticed, how the loopholes of the law and the limited powers on the hands of the police department, is flourishing the business of sex trafficking. Moreover, the funds that are assigned for the betterment and thorough checking of the Brothels to curb such coerced workers are mostly being diverted for other use which needs strict laws to undergo.
However, the major defect of law can be noticed by the clash of recent judgments of the Supreme Court and some sections of Immoral Traffic (Prevention) Act, 1956. For example, Section 3 of the Act makes it illegal and punishable under law to keep a brothel, which restricts their freedom of trade. Section 4, an adult who is earning her bread by prostitution is punishable under this Act. Section 8, makes the seduction of a person in a public place for prostitution is punishable.[6] These sections hinders the recent judgement which vocally states, sex work is recognized as one of the work.
Inference
Though this judgment of the case of Budhadev Karmaskar v. State of West Bengal, was the base to the upliftment of the sex workers of the country, it should not be forgotten that the social stigma will still refrain them from coming to the main cord of society. Still, most of the sex workers cannot cast their vote, as they could not get their Voter ID cards, they are still humiliated in government offices, banks and other workplaces, just because of the taboos that the society holds to their profession. And most of the illegal rackets are still encircling this profession which prohibits them to be at least, one of the professions that will be not looked down upon for that the Immoral Trafficking Prevention Act, 1956 needs more stringent provisions to curb such rackets. Eventually, this will keep this side of the society and its residents on a brighter side.
Name : Aniket Jana
Semester : 6th Semester (Honours) B.A LL.B
University : Calcutta University
[1] Budhadev Karmaskar v. The State of West Bengal & Ors., 2 (5) & 28 of 2022, IJLR.
[2] Criminal Procedure Code, 1973, Section 146
[3] Raghuvir Singh & Others … vs State Of Uttarakhand And Another, Criminal Misc. Application (C-482) No. 2324 of 2019
[4] Budhadev Karmaskar vs The State Of West Bengal, (2022) Criminal Appeal No(s).135/2010
[5] Parinaz Fanibanda, Case Analysis of Budhadev Karmaskar v. State of West Bengal, Pro-Bono India, Accessed on 22 May, 2023
[6] Immoral Traffic (Prevention) Act, 1956, Section 3, Section 4, Section 8