The author, Simran is a Second Year Student at the Campus Law Centre (LLB), University of Delhi and Executive Editor at Awaaz.
The landmark judgement of Budhadev Karmaskar v. State of West Bengal, 2011, highlights the gravity that Article 21 and Article 142 of the Constitution hold in themselves. The case came up with various recommendations to improve the conditions of sex workers. The social stigma attached with the sex workers and the consequences they face have made their lives miserable. Art. 142 of the Indian Constitution provides immense power in the hands of the apex court, the Supreme Court, to do complete justice. Exercising this power, Supreme Court in this case tried to improve the conditions of the sex workers. The meaning of Art. 21 of the Indian Constitution is not exhaustive and its ambit is expanding with new perspectives coming into light.
The deceased (Chaya Rani Pal aka Buri) never imagined that the night of 17th September 1999 would turn to a fateful one ending with losing her life. She was a sex worker in the red–light area of Jogen Datta lane of Kolkata. While she was sleeping near the staircase, the accused reached the place at around 9 pm and assaulted her. The accused brutally assaulted her with fists and legs. Not satisfied with his inhuman intention, he further dragged her by the hair and smashed her head towards the wall. The other present protested and with the fear of being caught, the accused left the place. The poor deceased received 11 injuries and had her last breath in the hospital. Asha Khatun was the prime witness of this dreadful crime. Accused was arrested a few hours later.
The Articles 21 and 142 of the Constitution are the prime provisions of law which are invoked here. Another relevant provision is Section 164 of Code of Criminal Procedure, 1973 (‘CrPC’), which deals with the recording of confessions and statements. Section 300, thirdly of the Indian Penal Code (‘IPC’), is also applicable in the present case.
Article 21: Its ambit and scope is vast and it imbibes in itself various possibilities regarding the standard living of a human being. The right to life includes clean environment (M.C. Mehta v. U.O.I, 1987), privacy (K.S. Puttaswamy v. U.O.I.,2017), and several other rights.
Article 142: It empowers the Supreme Court to do complete justice where a remedy is absent as per law or statue.
Section 164 (CrPC.): It deals with the confessions and statements of witnesses.
Section 300, thirdly (IPC): It states that if the injury caused is sufficient in ordinary course of nature to cause death, and other ingredients of the main clause are present, the death caused will be considered as murder.
Prosecution: The different prime witnesses confirmed the same incident as how the accused assaulted the deceased and treated her brutally. The doctor confirmed after post-mortem that out of 11 injuries, 7 were sufficient to cause death in ordinary course of nature.
Defence: The main defences given by the counsel were regarding the witnesses. As per obiter dicta of RaghuvirSingh v. State of Uttaranchal, 2007, if a witness failed to give cross-examination after getting his statement recorded under Section 164 CrPC, 1973, his statement would not be considered. In the present case, the prime witness Asha was not called for cross-examination. It was also contended by the counsel that major portion of the injuries were due to her falling over the staircase.
After analysing the evidence, statements of prime witnesses, medical and autopsy report, the High Court rejected the contentions of defence counsel and gave decision in the favour of victim consequently sentencing accused with life imprisonment. On appeal by the accused in Supreme Court, the Hon’ble Supreme Court rejected the appeal petition, butconverted the same into a public interest litigation (‘PIL’) by exercising suo moto power. The Apex Court appointed a committee in 2011, by invoking Article 142, concerning the protection of sex workers, their profession and improving their status and respect in society. This committee comprised of senior advocates and judges.
Before understanding the recommendations, it is pertinent to recognize the three aspects over which the court directed the panel to work:
The following recommendations are based on the above three aspects:
Apart from these recommendations, certain suggestive measures regarding sex workers were observed by the Union Government, including:
But these recommendations were not completely implemented and few further measures were taken. There were a few amendments made to the Immoral Traffic Prevention Act,1956. In addition, a petition was filed by Durbar MahillaSamanwaya in the year 2020 with the objective of providing dry ration to the sex workers, as many of them died of starvation during the Covid period.
Even after so many years of independence, sex workers still cannot live with dignity and are deprived of their basic fundamental rights. With this landmark judgement, the conditions of sex workers will surely be uplifted. They also have the right under Article 21 to live with dignity. The Supreme Court, by invoking its power to do complete justice under Article 142, formed a panel to consider the status of sex workers. It also directed that till the time new laws are not created for the community, these recommendations will strictly be followed by all the States and Centre.
This was indeed a huge step towards upliftment of the community of sex workers which would provide them respect in society. This judgement will make way for upcoming developments and decisions in this aspect.
“As they are also humans, they have the right to live with dignity and have a bright future for their children”