In the Supreme Court of India,
Budhadev Karmaskar v. State of West Bengal & Ors.
Citation: 2022 SCC OnLine SC 704
Judges: L. Nageswara Rao, B. R. Gavai, and A.S. Bopanna, JJ.
Prostitution is not only the oldest profession in the world but it is also bestowed with utmost contempt by the society and sex workers in particular, are considered as the weed that needs to be discarded out. The fundamental rights of sex workers get sidelined owing to the vicious stain of dishonour attached to the profession of prostitution, whereby an already degraded part of society is left to further degradation. In the absence of any legislation and poor discharge of duty by the executives, the judiciary has time and again stepped up to protect the fundamental rights enshrined under Part III of the Constitution. One such instance is currently making the headlines whereby the Supreme Court, using its discretionary powers under Article 142, has implemented certain directions that are to be followed strictly by the concerned authorities, including police, central and state governments, till legislation fills the void providing for the rehabilitation, protection, and upliftment of sex workers.
The appalling case of Budhadev Karmaskar v State of West Bengal initially dealt with the brutal murder of Chhaya Rani Pal alias Buri, a sex worker who succumbed to her fatal injuries after being brutally beaten up by the accused, Budhadev. Due to the abundance of evidence, the accused was convicted by the trial court and by the High Court, whereupon he appeared before the Supreme Court in a criminal appeal, which also confirmed his conviction. The Apex court, by its judgement and order dated February 14, 2011, considered the social position of sex workers and recognised their right to live with dignity under Article 21 of the Constitution of India.
Acknowledging the barbaric nature of crimes being committed against sex workers, the Apex court also took suo motu action in addressing the problems faced by sex workers owing to the social stigma attached to the profession of prostitution. For such addressal, the case was converted into a PIL whereby the Apex court directed the Central and State governments to prepare schemes for the rehabilitation of physically and sexually abused women as they too are human beings who, irrespective of their profession, must be treated with utmost dignity. For the effective addressal of the problems faced by sex workers and for providing probable solutions for the same, the Supreme Court constituted a panel with Mr. Pradip Gosh (Senior Advocate) as its chairman by its order dated July 19, 2011. The panel submitted seven interim reports and one final report in 2016, enlisting its recommendations to be considered by the central and state governments in implementing legislation.
The following are the subjects to be recommended to the government:
Prevention of Trafficking
Rehabilitation of sex workers who wish to leave sex work, and
to create conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.
Despite the fact that the panel was active in submitting reports and making recommendations that were considered by the central government when drafting legislation, no law has been passed by the Parliament to date.The main issues circling the report submitted by the panel include the very basic rights of sex workers. All these issues still stand unaddressed by any legislation, which only delays the upliftment of sex workers in the context of their legal protection and legal rights.
In its order dated May 19, 2022, the Supreme Court issued directions by virtue of its discretionary power granted under Article 142 to execute complete justice whereby the law is missing on the subject of rehabilitation, protection, and upliftment of sex workers to several authorities to strictly adhere to the directions till legislation is passed by Parliament.
The current order of the Supreme Court focuses majorly on the issue of rehabilitation and conditions conducive for sex workers to live with dignity under Article 21. The following directions were listed by the panel after much deliberation on the subject:
The Police's Role
Police authorities are strictly instructed to treat all sex workers equally and with due respect, providing them with proper medical care as per section 357C of the Criminal Procedure Code, 1973, in cases involving victims of sexual assault. They are further directed to be sensitive towards sex workers and no use of physical force, harassment or arrest where a private act of work is involved is allowed.
Appropriate guidelines for the media are urged by the Press Council of India towards maintaining the privacy of sex workers irrespective of whether they are rescued or are victims of a crime. Apart from that, Section 354 of the Indian Penal Code that prohibits voyeurism is to be imposed strictly against the electronic media.
Protection and upliftment of sex workers and their children.
Central and state governments are directed to include sex workers or their representatives in the decision-making process of laws relating to sex work. The governments are also directed to carry out workshops that impart knowledge to sex workers on their legal rights, the ways by which they can judicially enforce them and their obligations towards the police. Tests can be done to determine the parentage of a minor child living in a brothel, and no child can be forcefully separated from his/her mother merely on the grounds that the mother is a sex worker.
Time is given to the Union of India to file its response to the recommendations, and the matter is further listed for hearing on July 27, 2022.
Crimes against sex workers are common and no substantial or concrete steps are being taken for their security, protection, or upliftment owing to the lack of substantive law and the poor functioning of the executive machinery. The Supreme Court in the current case has prevented the delay of justice by issuing directions to the authorities till the time statutory legislation comes into picture. The directions will lay the very basis that is much needed for the upliftment of the legal position of sex workers in society. The Supreme Court is considered the guardian of fundamental rights, and its power to protect and justify the jurisprudence of human rights is of utmost importance to the welfare of the country. Where the law has failed or has proven to be absent, the Supreme Court's unrestricted powers under Article 142 to ensure complete justice are greatly needed.
This article is written by Isha of Symbiosis Law School, Nagpur.