This article has been written by Aaradhya Aggarwal, pursuing a Diploma in Legal English Communication – oratory, writing, listening and accuracy from LawSikho and edited by Shashwat Kaushik. This article discusses the case of Budhadev Karmaskar vs. State of West Bengal (2011), the conditions of sex workers and how they also deserve equality in law and a dignified life.

It has been published by Rachit Garg.

Introduction

India has been known as the “sone ki chidhiya”, but later or sooner, India started to lack backwards. We all know the grand history of the country. There was colonisation and then the urge to be free from those colonies for which many leaders took “the” initiative but in between, people started discriminating against other people. The discrimination was not only on the basis of caste, sex and religion; it also extended to some of the professions. In fact, some professions were chosen to be done by people of a lower caste than you and that practise is still followed in some parts.

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A woman’s respect and dignity were considered unharmed till the time she was not involved with any other person; she was considered to be pure but being a sex worker also does not make any woman impure; it does not give any other person the right to treat them in a less dignified manner or in any manner that harms her reputation. The profession of sex workers is considered to be one that should be kept low profile. There are red light areas in cities where people go but never want to disclose that fact, as this might harm their reputation. At some point in time, this is valid as this is there personal choice but it cannot be a personal choice to worsen the condition of their life or forcefully get involved (sexually) with someone.

This is discussed in the case of Budhadev Karmaskar vs. State of West Bengal (2011), which is a landmark judgement given by the Hon’ble Supreme Court and comprises judges L. Nageswara Rao, B. R. Gavai and A. S. Bopanna.

Facts of the case

  • This is a case of  the  murder of Shrimati Chayay Rani Pal alias Buri (aged 45), who was a sex worker, by the appellant, Budhadev Karmaskar.
  • The incident occurred on September 17, 1999, around 9:00 p.m. in a three-story building on Jogen Duta Lane, which is the red light area of Kolkata. Buri was a resident of the building.
  • Prior to the incident, the deceased was sleeping outside her room, which was near the staircase on the second floor. The accused went to her with a wish for sexual intercourse, which the deceased, i.e., Buri, denied.
  • In a fit of anger, the accused assaulted the deceased by banging her head several times, kicking, thrashing and smashing her hands and legs. The deceased fell down to the first floor; this was not enough for the accused, so he dragged her by her hair and banged her head against the wall.
  • The incident was eye-witnessed by Asha Khatun, who was present on the second floor. A protest was raised against him, and as this happened, he ran away in order to save himself.
  • Buri was immediately taken to the Medical College Hospital, but she lost her life on the way. The incident led to bleeding from the head, nose and ear, and as a result, she had 11 injuries to the face.
  • Within 5 hours of the incident, i.e., around 2:15 a.m., the accused was arrested by the police in Jogen Duta Lane itself.

This is the case of one sex worker that got highlighted but there are many more cases that do not come up. But it opened the eyes of many people to the conditions of people living in these kinds of areas, how they live, what lifestyle they adopt or the treatment they get from people. There might be workers who cannot even acquire the basic necessities of life or maybe they are not even aware of the medical conditions that may arise. They may also have a wish to start a family or may want a better life for their children.

Arguments of prosecution

  1. The prosecution narrated the facts of the case as to what they believed they saw.
  2. They had the support of the post- mortem report, which told about the nature of injuries and how they must have been caused.
  3. The reports mentioned that the injuries are caused by beating through legs and fists and that eight injuries out of eleven were sufficient to cause “the” death of any human.

Arguments of the defendant

  1. The defence counsel defended by saying that the injuries can be the result of continuous falling from the stairs and not the assault committed by the accused.
  2. The person who claims to be the eye-witness was not present at the time of cross- examination and it will not be admissible as per Section 164 of the Code of Criminal Procedure, 1973. For the same, the case of Raghuvir Singh and Ors. vs. State of Uttarakhand (2019) was quoted.
  3. The defence created doubt about the facts stated by the respondent by saying that there was no testimony or shreds of evidence by the residents.

Issues involved in the case

Now the issue was not only about the murder but also about the lifestyle of the people in this profession. A constitutional panel was also formed in 2011 to discuss the issues. The panel consisted of Mr. Pradip Ghosh as the chairman, Mr. Jayant Bhushan senior counsel, etc. Some of the issues include:-

  1. Human trafficking must be prevented.
  2. Steps must be taken to rehabilitate the sex workers who wish to leave the profession.
  3. Steps must be taken to develop “the” dignity, lifestyle and conditions of the people who wish to continue or want to join this profession. This must be done in accordance with Article 21 of the Constitution of India.

Legal aspects of the case

Article 21 of the Constitution of India talks about “protection of life and personal liberty”, i.e., every human has:

  • Right to life
  • Right to personal liberty

The right to life is considered a “heart of fundamental rights”. The right to life enjoys a wider ambit, covering the right to live properly and the right to health to live with dignity. A person deserves respect in society that should not be hampered by his choices in life, profession, gender, caste, religion, etc.

Judgement of the Court

The case was passed through the High Court of Calcutta, where the accused was convicted of life imprisonment. The accused then filed an appeal against the High Court’s decision, which was dismissed by the Supreme Court by order in 2011 and converted the High Court’s order to a public interest litigation, suggesting taking steps considering the sex workers. A constitutional panel has also been made for the recommendations.

A bill was passed by the Union of India in 2016 but there have been no further steps taken on the panel recommendations by the legislation, so the SC issued an order of implementation of six recommendations, ensuring that there is the objection of the central government.

Analysis of the judgement

The judgement is a landmark judgement for sure, as this does not happen every day that people gather enough courage to proceed with the case and that the legislation also makes new bills or amends any of its already existing laws. The case showed us a new aspect of Article 21 of the Constitution of India. Justice was delivered to those who were not even recognised by society. It was clear that every person deserves to live with dignity unless he is restricted by law and the judiciary recognised the right to life for sex workers

The case was a murder case but in the process, the reality was shown to the Court that even after years of independence, some women are still suffering and staying in conditions that are beyond their imagination and how they could still stand equal to other people. The profession of sex worker that they exercise is not the choice of most of the women but the result of trafficking and the conditions that forced them to do so and now it has become their means to earn a livelihood. The means to earn a livelihood do not give another person the authority to make you work forcefully.

In the present case, the deceased was exploited and beaten to death, which shows how cruel one person can be to another. This is one case that came up in history and there might exist similar cases, which we do not know because of the fear among the sex workers that they won’t be listened to. But society must not see them as inferior but should accept them as a part of society.

The Supreme Court accepted that sex workers must also be provided with rights and duties to exercise. SC has asked to provide them with the basic necessities of life but still, their profession has not been fully recognised. Some amendments need to be made to the Immoral Traffic (Prevention) Act, 1956, that restrict the profession, using any property as brothels, the income of sex workers, and making contacts.

‘Sex work’ was made legal but certain provisions must also be laid to support the fact.

Conclusion

Above mentioned case provided rights and dignity to the sex workers; they have been recognised in the law, but it took around a decade to recognise them in the law and it might take a decade to settle provisions in their favour, and it might take another decade for society to accept them. It also gives an example of how a certain population is still deprived and just a mere community, but a voice raised will also be a voice heard. It is a landmark judgement for the protection of sex workers by the Apex Court by means of Article 21 of the Constitution of India.

References

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