This case highlights another elaboration of Article 21 of Indian
constitution, i.e. Right to dignity of life, in virtue of Right to life and
personal liberty. The conditions of sex-workers and their families are given a
thought. It also covers other fundamental rights of sex workers, such as freedom
of trade and profession, right to vote, right to access public distributive
ration and stuffs. This case claims to be a landmark case in the domains of
constitutional law and labour laws.
Arguments of Prosecution
- The deceased Chaya Rani Pal aka Buri was a sex worker in red light area
of Jogen Datta lane in Kolkata.
- On the night of 17 September 1999, she was sleeping outside her room,
near the staircase on the second floor of her three storey apartment in the
red light area in Jogen Datta lane.
- The accused Budhadev Karmaskar, went their around 9 pm and assaulted the
deceased brutally with his fist and legs
- The deceased fell down to the first floor then after the accused dragged
her through hairs and pushed her head against the wall.
- She had eleven injuries on the face and was bleeding extravagantly.
- On being revolted by the other residents, he ran away.
- Asha Khatun, one of the residents was the eye-witness of the entire
- Buri was immediately brought to the Medical college hospital but by then
she lost life.
- After few hours, around 2 am, the accused was arrested by the police in
the Jogen Datta lane only.
Arguments of Defence
- On the basis of the statements given by PW-2 'Abeda', who confirmed that
when she heard the noise she rushed to the second floor and saw the accused
dragging the deceased through hairs and banged her head against the wall,
infact, Parvati and Asha stated the same thing with Asha's statements were
in detail and supporting the scenario.
- PW - 10, Dr. A Das, who conducted the Post-martem has and had confirmed
that the victim suffered eleven serious injuries and eight out of those were
sufficient in causing death in ordinary course of nature.
- PW-11, the physician of the Medical college hospital, who examined the
victim brought by Abeda, Asha and other residents, has also confirmed the
injuries and that the victim was dead when she arrived at the hospital.
Section 164 Criminal Procedure code 1973
Recording of confessions and statements.
- The cross-examination of PW-10, he admitted that the injuries can also
be a result of continuous falling down from each staircase and not
necessarily an assault committed by the accused.
- Asha was not called in for the cross-examination.
- Mrs. Goswami, the defence advocate, quoted the case, Raghuvir Singh v.
State of Uttranchal, 2007 where, the High court of Uttranchal stated that
the witness or person recording his statement under section 164 of Criminal
Procedure code, 1973 and who failed to give cross - examination, his
statement could not be pressed into service.
- There were no testimony given by the residents of the second floor where
all the incident happened.
- The story narrated by the prosecution witnesses were doubtful.
- Any Metropolitan Magistrate or Judicial Magistrate may, whether or now
not or not he has jurisdiction in the case, file any confession or assertion
made to him in the path of an investigation beneath this Chapter or under
any one-of-a-kind regulation for the time being in force, or at any time
afterwards earlier than the graduation of the inquiry or trial: Provided
that no confession shall be recorded by using the use of a police officer on
whom any electricity of a Magistrate has been conferred under any regulation
for the time being in force.
- The Magistrate shall, earlier than recording any such confession, supply
an explanation for to the person making it that he is now not sure to make a
confession and that, if he does so, it may also be used as proof against
him; and the Magistrate shall no longer file any such confession unless,
upon questioning the person making it, he has cause to reflect
onconsideration on that it is being made voluntarily.
- If at any time previously than the confession is recorded, the man or
lady acting earlier than the Magistrate states that he is no longer inclined
to make the confession, the Magistrate shall now now not authorise the
detention of such person in police custody.
- Any such confession shall be recorded in the manner furnished in part
281 for recording the examination of an accused personality and shall be
signed by using the man or lady making the confession; and the Magistrate
shall make a memorandum at the foot of such report to the following effect:
"I have defined to (name) that he is now now not sure to make a confession
and that, if he does so, any confession he may also make would possibly also
be used as evidence towards him and I have confidence that this confession
used to be voluntarily made. It used to be taken in my presence and hearing,
and used to be study over to the man or woman making it and admitted via
ability of him to be correct, and it includes a full and true account of the
announcement made thru him.
(Signed) A. B. Magistrate".
- Any assertion (other than a confession) made under sub- part (1) shall
be recorded in such manner hereinafter furnished for the recording of proof
as is, in the opinion of the Magistrate, pleasant geared up to the
activities of the case; and the Magistrate shall have electricity to
administer oath to the man or woman whose declaration is so recorded.
- The Magistrate recording a confession or assertion below this area shall
ahead it to the Magistrate via whom the case is to be inquired into or
Evidences before the court
- The statements of eye-witnesses, Asha, Abeda, kalyani and Parvati.
- The Medical report and the post-martem report of the deceased indicating
the similar incident.
- There was no explanation available for the injury occurred to the accuse
under his left eye, possibly in liue of catching he might be beaten by the
- The was enmity between the accused and the deceased.
The accused was convicted by the court by the high court for the life
imprisonment. He filed for an appeal against the judgment of high court in the
supreme Court. But it was rejected by the Supreme Court and suo moto converted
it into Public Interest litigation, concerning the undignified condition of sex
workers in the country and they have been treated ill and disrespectfully and
their profession has been categorised in the below the belt zone. Supreme court
appointed a committee in 2011 consisting senior advocates and judges to look out
the ways to protect sex workers and their profession.
The committee has been sincerely working for the protection of the women who are
in sex-working or have been trying to quit. The committee is trying to find ways
to ensure a better life to the concerned women. The Supreme Court has passed an
order with respect to the interim reports prepared by the committee in the year
2011, the report focused on the points, such as:
- Assuring that Sex-workers are provided with alternative livelihood or
not, if they wish to quit.
- All the state legal services authorities were directed to create a
helpline number for the sex-workers to seek legal assistance for free.
- Directed the central government to broaden the scope of scheme meant for
the rescued victims of trafficking, so that, Sex-workers opting for
rehabilitation could be covered in that.
- To relax the rules for verification of residential addresses so that,
Sex-workers can access voter-ID cards, ration cards and bank accounts, etc.
- Protecting the rights of sex-workers and their children like, Right to
In the year 2016, a final report was prepared by the committee, in which it
recommended to bring out some ammendments in the immoral traffick prevention act
Sex-workers were deprived of their Fundamental rights, such as, right to vote,
right to access to government schemes, right to education, because of lack of
address proof, they fail to access voter-ID cards, ration cards etc. It is a
huge problem, Even after 60 years of Independence they were being treated like
strangers in their own country. Till the report of 2011, these issues were not
even raised and despite of being an Indian citizen, they couldn't access their
Infact, after 9 years of such order, the sex-workers were deprived of the ration
provided by the government. In times of pandemic, they died by starvation. In
the year 2020, an application was filed by Durbar Mahilla Samanwaya seeking the
authorities to provide dry ration to sex-workers, upon which the court ordered
to provide dry ration to the sex-workers who were identified by National Aids
control organization [NACO] and not insisting on the identity proofs.
This case was the first case which made the courts and country to think about
the inhumane conditions of the sex-workers and make some amendments and orders
concerning their rights.
But there are several other rights which they are still deprived of.
There are some provisions of Immoral Traffick Prevention act, 1956, which are
highly unsuitable for the rights to practice trade in India which by the way is
the Fundamental right of an Indian citizen.
Such provision are:
- Section - 3 - this section describes the punishment for the keeping a
brothel or allowing a property to be used as brothel , such person be first
convicted with the rigorous punishment of minimum one year not exceeding
more than two years. On being found guilty again are convicted for Rigorous
punishment for two years not exceeding more than 3 years.
- Section - 4 - According to this section, the person who is above 18
years of age is punishable for living on the earnings of prostitution, this
section even includes family members.
- Section - 8 - This section states that Sex-workers can be penalised for
seducing any person for the purpose pf prostitution at any public place,
this includes any gestures made to invite a person for prostitution.
These sections of Immoral Traffic Prevention act 1956, clearly violates the
principles of free contract, and freedom to carry out a profession or trade.
Section 3 prohibits to keep or use a property as a brothel, if prostitution is
not illegal in India and why do a place where such activities can be taken place
is not legal?
This does sound a little immoral but in a broader perspective, if we have
accepted it as a profession and a place dedicated to carry out such profession
should also be accepted and this even makes it classified, because then such
things would not be carried out at homes or bars, etc.
Section 4 is highly ambiguous, surely it intended to be harsh on such people who
coercively throws women into prostitution and earns money from it but, the
inclusion of family members makes it undignified and what about the children of
sex-workers, if they are getting higher education or studying in colleges, this
makes them punishable. It is clearly a red flag for their better future and also
harms their fundamental rights.
Section 8 is a violation of fundamental right to free contract, the gestures
being performed by the sex workers are an invitation to offer, to which any
person is free to make offer or not! There is no coercion or pressure to take
it. Every profession requires some advertisement or pre-works, this could be
treated as one, if somebody is interested can move ahead and others can ignore.
This case did not cover these aspects and provisions of the ITPA, 1956. Being a
first and a landmark case for the betterment of the prostitutes, it is quite
ironical to leave this aspect as it almost becomes an obstacle to carry out this
profession and to fight for the right to education of the children of
sex-workers, it is just like a corem and name-sake work and there is actually no
progress in glorifying the life of sex-workers and their family.
"Just saying, sex work is legal is not enough
The voluntary sex-working can be treated as a profession and can be accepted
with dignity because they also have a family to raise, they are also human
beings and they also possess fundamental rights and equality, what makes them
different from others, why to make it difficult for them to live freely in
society, they do deserve a respectable life.
- Pallavi Tripathi
- Shashwat Ramesh Kumar