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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 15195 of 2003
with
SPECIAL CIVIL APPLICATION No 4594 of 2003
For Approval and Signature:
HON'BLE MR.JUSTICE R.K.ABICHANDANI Sd/-
and
HON'BLE MR.JUSTICE D.H.WAGHELA Sd/-
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1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : YES
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
1 & 2 YES; 3 to 5 NO
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SAHYOG MAHILA MANDAL& ANOTHER
Versus
STATE OF GUJARAT & OTHERS
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Appearance:
1. Special Civil Application No. 15195 of 2003
MR ANAND GROVER Advocate with MR BHUSHAN B OZA
Advocate for Petitioner No. 1
MS MANISHA LAVKUMAR AGP for Respondent No. 1,3-5
RULE SERVED for others
2. Special Civil Application No. 4594 of 2003
MR NM KAPADIA Advocate for Petitioner No. 1
MS MANISHA LAVKUMAR AGP for Respondent No. 1 to 3
MR PARESH UPADHYAY Advocate for Respondent No.4 to 6
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CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI
and
HON'BLE MR.JUSTICE D.H.WAGHELA
Date of decision: 18/03/2004
ORAL JUDGEMENT
:CONTENTS:
*Brief facts and pleadings : Paragraphs 2 to 4
*Arguments and citations : Paragraphs 5 and 6
*Reasoning : Paragraphs 7 to 15
*Conclusions and the
Final Order : Paragraph 16
(Per: HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court:)
1. These two petitions raising common questions seek
to challenge the provisions of Sections 7 (1) (b), 14 and
15 of the Immoral Traffic (Prevention) Act, 1956 on the
ground that they violate the fundamental rights
guaranteed under Articles 14, 19 and 21 of the
Constitution of India. They also challenge the
notification dated 23.2.2000 issued by the Commissioner
of Police under the provisions of Section 7 (1) (b) by
which the areas within the jurisdiction of Chakla Bazaar
Police Station, Surat were notified rendering carrying on
prostitution in any premises within those areas as an
offence.
Brief facts and pleadings:
2. Special Civil Application No.15195 of 2003 has
been filed by a public trust, registered only on
25.1.2002, purporting to be an organization consisting of
214 women in prostitution/sex work as its members at
Surat. According to the petitioner-organization, it
works along with other non-governmental organizations in
the field of HIV/AIDS in Surat and the primary object of
the organization is to protect vulnerable population,
namely, "women in prostitution/sex work", and to prevent
them from infection of sexually transmissible diseases,
such as, HIV/AIDS.
2.1 According to the petitioner, the area known as
"Chakla Bazaar" in Surat was initially on the outskirts
of the city where women in prostitution/sex work were
given homes to live in, outside the main town and they
have been working in that area for over 400 years. It is
stated that the women living in this area are from all
over the country and their clients ranged from labourers
to diamond merchants, textile workers, transport
officers, students and middle-class people. It is stated
that with the expansion of the city of Surat, the area of
Chakla Bazaar became part of the main city. Over the
years, schools, temples and mosques came to be built in
the area, which is known as the "red light area". It is
the allegation of the petitioner that the police taking
advantage of such extension of the city limits and
buildings of schools, temples and mosques in the area,
have used the law to commit atrocities on the women in
the area thereby violating their rights. It is alleged
that the respondents Nos.4 and 5, i.e. the Deputy
Commissioner of Police and the Senior Inspector of Police
of Chakla Bazaar Police Station, have been harassing the
women in prostitution/sex work by abusing the powers
conferred on them under the said Act, the PASA and the
Bombay Police Act and have been entering homes of the
women without search warrants and arresting them
arbitrarily. It is alleged that, on 5.1.2003, the
respondents Nos.4 and 5 along with their subordinates
entered "Noorjahan" and "Sangeeta" buildings in Chakla
Bazaar and damaged the homes of the women living there
and beat them up forcing them to leave the place. They
arrested about 37 women and 8 men from that area without
following the procedure established by law. It is
alleged that similar raids were carried on by the
respondents Nos.4 and 5 and their subordinates from time
to time on various dates mentioned in paragraphs 9 to 39
of the petition, the last being on 15th April, 2003. It
is alleged that women who were in the streets and those
who were buying vegetables were also beaten up and placed
in police lock-up. One woman even died in police
custody. According to the petitioner, lives of women in
the area have become traumatic and filled with pain and
insecurity. Between 5.1.2003 and 15.4.2003, in all, 584
arrests were made, of which 547 were women and 37 were
men. The arrests were made of the women in Chakla Bazaar
area without following the procedure established by law.
The respondents Nos.4 and 5 and their subordinates took
from the women Rs.1,000/- to Rs.1,500/- threatening them
that if they did not pay up the amount, they would be
imprisoned. The women arrested were not informed under
what provisions of law they were arrested and were not
produced before Magistrate. Only in a few instances were
the women produced before the Magistrate. The women were
never communicated the ground of their arrest. It is
further alleged that, on 20.7.2003, the respondents Nos.4
and 5 and their subordinates directed the landlords of
the places where the women stayed not to allow them to
enter their homes. It is stated that the women had paid
the rents to the landlords, but they were informed by the
landlords that they were threatened by the respondents
Nos.4 and 5 and their subordinates and were told that if
they did not prevent these women from entering the
premises, the landlords will be detained under the
provisions of GPASA. All the women in Chakla Bazaar area
are, therefore, on the streets as they are practically
rendered homeless. It is stated that the respondents
Nos.4 and 5 and their subordinates have got the residents
living in the area involved in evicting the women from
the Chakla Bazaar area. Since 4.9.2003, the women have
been sitting outside the Collector's office at Surat on a
"dharna". It is alleged that the respondents Nos.4 and 5
and their subordinates have prevented these women from
entering their houses by warning them that they would be
arrested if they tried to enter. In para 52 of the
petition it is stated that the Government is now planning
to rehabilitate the women and their children and to send
them to Nari Suraksha Gruh. In a meeting of the Chief
Secretary with the women and the police, the Chief
Secretary had suggested that the women would be moved to
Nari Suraksha Gruh and paid certain fixed amount for
about six months. It was also suggested that the
children of the women would be taken in a remand home or
an orphanage. In para 53 of the petition it is stated
that: "...sending the women to the Nari Suraksha Gruh or
any such other home for a period of six months is not
acceptable to them...." It is also stated that taking the
children of such women and keeping them in orphanage or a
remand home was also not acceptable and that such a
course would be violative of Articles 14 and 21 of the
Constitution. It is contended that, if a rehabilitation
plan has to be worked out, first a conducive environment
has to be built to make the women agreeable to such plan
and the police authorities should be directed to stop
arresting the women. It is stated that due to police
raids and harassment, all such policy measures are on the
verge of failure and the intervention programmes will
have no impact. It is contended that the women in
prostitution/sex work are entitled to right to privacy,
and equal protection of law and that prostitution or sex
work, which is one of the oldest professions, serves an
essential social function. Such women earn their daily
bread through sex work which is the only means of their
survival. It is submitted that the said Act aims at
punishing the trafficker or the abuser and not the women
in prostitution or sex work. The women in
prostitution/sex work are entitled to the right of
privacy which cannot be invaded by anyone even in respect
of a woman of easy virtue. It is also stated that under
section 14 of the Act, which empowers arrest without
warrant, women were randomly arrested without being
disclosed the grounds of their arrest or being shown the
order in writing. It is contended that Section 14, to
the extent it makes all offences under the said Act
deemed to be cognizable offences, was violative of
Articles 14 and 21 of the Constitution. It is stated
that there could be no reason on the part of the
respondents Nos.4 and 5 or their subordinates to believe
that such women have committed a crime or that they are
likely to commit a crime under the Act and thereby to
arrest them without a warrant. As regards the provisions
of Section 15 of the Act, it is contended that unguided
and arbitrary power is given to police officers to
conduct search without warrant. It is also contended
that the expression "in respect of a person living in any
premises" occurring in Section 15 (1) of the Act is vague
and that there is no rational nexus between the procedure
providing unguided power to the police to search without
warrant and prevention of offences as set out under the
Act. It is contended that sub-section (4) of Section 15
of the Act is unconstitutional as adult persons who are
not suspected of having committed a crime or in respect
of whom no crime is committed can be arbitrarily removed
from their homes, for no plausible reason, by the police
officer. The provisions of Section 15 are, therefore,
assailed on the ground that they violate Articles 14 and
21 of the Constitution. It is contended that the women
in prostitution, as citizens, have enforceable
fundamental rights under the Constitution and their
eviction from their homes depriving them of their
livelihood amounted to violation of their right to life
under Article 21 of the Constitution. As regards the
provisions of Section 7 (1) (b) of the Act, it is
contended, by an amendment made in the petition, that it
gives unguided power to Commissioner of Police without
taking into account relevant factors including the factor
that prostitution may have been carried on before
schools, temples, mosques may have subsequently come up.
It is also contended that principles of natural justice
have to be read into Section 7 (1) (b) of the Act,
otherwise, it would become unconstitutional on the ground
that it violates Articles 14 and 21 of the Constitution.
As regards the impugned notification dated 23.2.2000
issued under Section 7 (1) (b) of the Act, it is
contended that neither the petitioner nor representatives
of the women of the area were heard before issuing the
notification and the notification was issued without
taking into account the relevant considerations including
the fact that Chakla Bazaar has been in existence since
prior to the coming up of temple, school and mosque in
that area. Besides challenging constitutionality of the
provisions of Sections 7 (1) (b), 14 and 15 of the Act on
the grounds of violation of Articles 14, 19 and 21 of the
Constitution, a direction is sought on the respondents
Nos.4 and 5 and their subordinates for restraining them
from preventing the members of the petitioner (the women
of Chakla Bazaar) ingress into and egress out of their
homes and/or interfering with possession of their homes.
A direction is also sought on the respondents to
formulate a rehabilitation plan of a permanent nature
which does not separate these women from their family
members and was finalised after a thorough study and with
their participation and consent.
3. Special Civil Application No.4594 of 2003 has
been filed by the petitioner, who was working as a
prostitute/sex worker in Chakla Bazaar area, for
protection of fundamental rights of the petitioner as
well as other women who were working as prostitutes/sex
workers in the same area. It is stated in the first para
of the petition that about 1500 women were working in
that area and the petition is filed to stop police
atrocities on them. It is stated that the petitioner was
professing prostitution along with 1500 other women in
Chakla Bazaar area but, since about three months, they
had stopped the activities. The petitioner has narrated
various instances of arrests of women from that area and
alleged that such arrests amounted to harassing the women
and the police had committed the offences of criminal
trespass punishable under Sections 323, 326 read with
Section 506 (2) of the Indian Penal Code. It is alleged
that some builders in the nearby colony wanted to
construct a commercial complex on the main road at Mirza
Sami Road and, at their behest, the police have collected
details regarding measurements of "kholis" so that these
women can be served with notice to vacate the premises on
the ground of carrying on illegal activities. It is
alleged that the police even beat one handicapped woman,
Rupaben Nepali, who had a miscarriage on the next day. A
reference is made to the report prepared by the Centre
for Adult Education, Extension & Continuing Education,
South Gujarat university, Surat in para 12 of the
petition and it is pointed out that the survey showed
that 78.5% of women in the red light area of Surat were
from outside Gujarat, i.e. from Maharashtra, Rajasthan,
Madhya Pradesh, Karnataka, Nepal, Kerala and other places
and majority of the women were illiterate. A direction
is sought that the respondents should permit the
prostitutes of Chakla Bazaar area to move freely and
without any restrain or constraint and desist from
entering into the rooms of the prostitutes without their
prior permission or warrant and not to cause any
harassment to them or arrest them on flimsy grounds.
This petition has also been preferred as a public
interest litigation.
Affidavits of some prostitutes have been filed in
support of the contentions raised in the petition
alleging harassment by police and narrating their status
of poverty.
4. Affidavits-in-reply have been filed by the
respondent authorities in both the petitions and
pleadings of both the parties have been relied upon by
the counsel for both the sides while arguing the matters
together.
4.1 In the affidavit-in-reply dated 1.11.2003 filed
in Special Civil Application No.15195 of 2003 by the
police inspector of Chakla Bazaar Police Station, the
affidavits-in-reply filed in the earlier petition being
Special Civil Application No.4594 of 2003 are
incorporated by reference, and copies thereof have been
annexed at Annexures-R.1 and R.2. It is stated that the
notification at Annexure-R.3 was issued on 23.2.2000
under the provisions of Section 7 (1) (b) of the Act
prohibiting carrying on or indulging in prostitution in
the areas notified thereunder. That notification was
brought into effect on 1.3.2000. It is stated that there
are various religious places like temples, mosques and
dargahs situated near Chakla Bazaar area. There are also
educational institutions nearby, like I.P.Mission Girls
and Boys High School (1876), Sir J.J.High School (1859),
and Anglo-Urdu High School, wherein a large number of
students are studying. It is stated that brothels are
situated on both the sides of the main road in the Chakla
Bazaar area through which persons have to pass by for
going to temples, mosques, schools or residences. Such
people have to face undue hardships while using the road.
It is stated in para 5.2 of the affidavit-in-reply that
after issuance of the notification, police authorities
have tried to strictly implement the same by registering
numerous cases against the women carrying on prostitution
as well as the brothels situated in the area, due to
which the trade of prostitution in the area has come to a
total halt. It is stated that at present there are about
60 to 70 women who are "mausis" who bring in girls from
outside to carry on prostitution and who at present are
residing in Khajurwadi "jhupadpatti". These women with a
view to perpetuate carrying on prostitution in Chakla
Bazaar area have been making false allegations against
police and are on a token "dharna" in front of the
Collector's office since 4.9.2003. It is stated that it
appeared that organizations involved in intervention
programmes, with a view to easily achieve their HIV/AIDS
control target in the Chakla Bazaar area, are supporting
the sex workers. It is asserted that police have not
caused any injury, either physical or mental, to any
person nor have they caused any damage to any property or
violated human rights as alleged in the petition and that
the allegations contained in the petitions are baseless
and concocted. It is submitted that there cannot be any
fundamental right to carry on any illegal activities and
the sex workers cannot claim any right of prostitution,
especially in the notified area. It is denied that the
impugned provisions are violative of Articles 14, 19 and
21 of the Constitution. It is stated in para 5.6 of the
petition that pursuant to the notification issued under
Section 7 (1) (b) of the Act, action has also been taken
against landlords under Section 6 of the Act as well as
under the provisions of the Gujarat Prevention of
Anti-social Activities Act, 1985, whereupon the landlords
have on their own got the sex workers vacated from the
premises and have informed the police in writing about
the same. Some of the possession receipts obtained from
the landlords as well as affidavits/applications made by
them are annexed at Annexure-R.4 to the
affidavit-in-reply. It is pointed out that an order
dated 21.9.1994 was issued by the Director General and
Inspector General of Police, Gujarat State, Ahmedabad in
the exercise of powers under Section 6-A of the
Suppression of Immoral Traffic in Women and Girls
(Bombay) Rules, 1958 appointing Special Officers under
sub-section (1) of Section 13 of the Act, whereby police
officers of the ranks specified in Column 1 of the
Schedule thereto have been appointed to be the Special
Officers. A copy of the said order dated 21.9.1994 is
annexed as Annexure-R.5 to the affidavit-in-reply. It is
stated that all actions against the sex workers were
taken in accordance with law and, after the arrests were
made, they were produced before Judicial Magistrate,
First Class. It is denied that officers and subordinates
of the respondents Nos.4 and 5 took Rs.1,000/- to
Rs.1,500/- from the women or committed atrocities on the
women. It is denied that the women were physically hit
or tortured by the law enforcement agencies. It is
contended that the averments made in the petitions are
false and not borne out from the police record pertaining
to raids. It is stated that all the 244 women and 26 men
arrested during the period in question, were produced
before the Judicial Magistrate, First Class within the
prescribed time and that these arrests were made in the
exercise of the powers of the Special Police Officers
conferred on them by Order dated 21.9.1994. It is stated
that when the accused were produced before the Court,
none of them made any allegations of the nature which are
sought to be made in the petition against the concerned
police authorities. It is stated that the raids were
carried out in presence of either a woman Assistant
Sub-Inspector, a woman Police Constable or a woman Head
Constable, which fact was recorded in the panchnamas made
in all the cases. Even after 15.4.2003, i.e. after the
period referred to in the petition, during 3.5.2003 and
10.8.2003, 15 offences were registered under the Act in
respect of the illegal activity of prostitution in the
Chakla Bazaar area and 138 women and 14 men were arrested
in connection with those offences. They were also
produced before the concerned Court within the prescribed
time. Even they had not made any allegations against the
police authorities before the Court. A statement of such
cases is annexed as Annexure-R.7 to the reply. It is
denied that the respondents Nos.4 and 5 or their
subordinates took any amount from the women under threat
of arrest. It is also denied that, on 20.7.2003 the
respondents Nos.4 and 5 directed the landlords of the
places where the women stayed not to allow them to enter
their homes or that any threats were given to them. It
is denied that the women are living on the streets or
footpaths. It is stated that these women are residing in
Khajurwadi "jhupadpatti", behind Chakla Bazaar area, of
whom majority are "mausis" and many of whom are having
their own homes. It is stated that the buildings,
namely, (1) Noorjahan and (2) Sangeeta, owned by one
Mahmad Yakub Banarasi, were sealed pursuant to the Court
orders. The orders containing directions requiring
sealing of the said premises are annexed at ANNEXURES.R.8
and R.9 to the reply. It is stated in paragraph 5.22
that, for the purpose of rehabilitating the women engaged
in prostitution, various schemes were suggested by the
Women's Protection Home, District Industries Centre as
well as the Surat Municipal Corporation, pursuant to
which, a meeting was convened by the Police Commissioner
on 2.10.2003 of the Collector, Surat, the officers from
various departments of the State Government, NGOs and
leaders of the sex workers and, after discussion, it was
found that about 200 women could be accommodated in the
Women's Protection Home where the facilities are better
than those in which they are at present living. The
president of the petitioner-association, Nirmala Appa
Swamy, however, had clearly stated that they were not
ready to stay in the Women's Protection Home and that
they were willing to reside elsewhere, provided the
Government gives them houses and establishes colonies for
them. It is stated that residing in the Chakla Bazaar
area was a question between the women concerned and the
landlords. However, the respondents Nos.4 and 5 would
certainly restrain the activities which were in violation
of the provisions of the said Act. It is stated that it
appears that, in substance, the petitioners want to
perpetuate the illegal activities of prostitution in the
notified area.
4.2 In the affidavit-in-reply dated 29.4.2003 filed
in Special Civil Application No.4594 of 2003, a copy of
which is also annexed at Annexure-R.1 to the
affidavit-in-reply filed in Special Civil Application
No.15195 of 2003, the allegations of harassment or
indiscriminate arrests of the women made in the petition
are denied and it is stated that, due to industrial
growth, lakhs of labourers from different parts of India
migrated to Surat in search of jobs and many of them tend
to visit prostitutes which has given impetus to
prostitution in the area. It is pointed out in para 6 of
the reply that Mirza Sami Road is today one of the
busiest roads of the city with heavy traffic and is used
by thousands of cyclists, pedestrians and school-going
children every day. The passers-by, including a large
number of women, students and other civilians, have to
regularly witness embarrassing scenes as the sex workers
often make embarrassing gestures at them. It is stated
that the said red light area, over a period of time,
turned into an area wherein hectic immoral activities are
conducted all the 24 hours and the area had become a
centre for harbouring anti-social elements and criminals.
It is stated that the middlemen, who became landlords
through huge earnings, in connivance with sex workers,
with a view to pre-empt any action of shifting of the sex
workers from the area, issued notices to the occupants
who were in fact women employed by them, to vacate the
premises on the plea that they used the premises against
their will. Against such notices, several litigations
were initiated where the Government or the police
authorities were not made parties and such litigations
proceeded hand in glove resulting in interim injunctions
from the Courts in favour of the women, rendering the
provisions of Section 18 of the Act ineffective. The
activities of the sex workers in the notified area have
led to serious health hazards. Surat has been reported
as one of the districts having the highest number of HIV
positive tested patients. It is contended that police
authorities are targeted with the allegations of beating
up the sex workers and of being in league with the
builders of the area. Such allegations are made only for
the purpose of obtaining injunctions so that the police
is handicapped from taking actions in accordance with
law. It is alleged that the public interest litigation
in the nature of this petition was merely an attempt to
restrict the police from adopting the due process
prescribed under the law and to handicap the authorities
from enforcing the impugned notification. It is pointed
out that, till date, out of the 23 petitions filed in the
High Court, 18 were withdrawn and 5 were pending. The
matter was also taken up before the National Human Rights
Commission and, after hearing the prosecution and the
applicants, the matter had been disposed of. The matter
was even carried to the Honourable Supreme Court and
after hearing both the sides, the special leave petition
was withdrawn. It is stated that approximately 250 sex
workers were currently carrying on their business in and
around Chakla Bazaar area at the time when the affidavit
was filed. It is stated that the parameters enunciated
by the Honourable the Supreme Court in D.K.BASU's case
are strictly adhered to by the police while making
arrests. It is pointed out that small rooms (kholis)
referred to by the petitioner are in fact brothels and
for effective implementation of the prohibitory orders,
the police authorities are required to conduct raids in
accordance with law.
4.3 In the affidavit-in-reply dated 24.2.2004 filed
on behalf of the respondent, it is pointed out that since
the month of August, 2003, the sex workers are residing
at Khajurwadi, Limbayat Mithikhadi, Dhastipura Nasirnagar
and Fulwadi localities in Surat district. As per the
information of the Police Department, Nirmala Swami, the
president of the petitioner Mandal, had convened a
meeting of the sex workers in order to collect their
respective names and addresses, which they refused to
divulge to the police. It is stated that all those sex
workers were between the age of 50 to 60 years and they
bring in young girls from outside and involve them in the
work of prostitution. It is stated that girls are
brought into the city from Bombay, Hyderabad, Andhra
Pradesh, Kolkatta, Karnataka and Nepal. It is reiterated
that sex workers refused to go and stay in Nari Suraksha
Gruh. Minutes of the meeting dated 3.10.2003 under the
chairmanship of the Chief Secretary are produced at
Annexure-R.2 to this reply. In the said meeting, 14
officers had remained present and it was decided to send
the sex workers back to their respective native places in
Nepal and other parts of the country under full police
protection. It is also pointed out that, on 20.11.2003,
a meeting was held at the Collector's office, Surat in
presence of the Joint Secretary, Women and Children
Development Department and other officers, and N.G.O.
and sex workers and, at the said meeting, a package of
Rs.35,000/- was offered to each of the sex workers which
would include training programme, food bills, stipends
etc. At the said meeting, it was resolved that the
police would play the role of a mediator to get the
deposit amounts belonging to the sex workers back from
the landlords. However, no sex worker was ready to
accept the said package. It is stated that, even today,
the State Government was ready to give effect to this
package for any sex worker in Surat City who was ready to
avail of the rehabilitation programme. A copy of the
minutes is annexed at Annexure-R.4 to the said
affidavit-in-reply. The minutes at Annexure-R.5 in
respect of the meeting held on 26.11.2003 under the
chairmanship of the Deputy Commissioner of Police, North
Division, Surat, are relied upon to show that a public
appeal was made calling upon the sex workers to accept
the package of Rs.35,000/- each and, at the said meeting,
the landlords had shown their willingness to return the
amount of deposit of the sex workers lying with them. It
is stated in para 8 of the said affidavit-in-reply that,
on 1.12.2003, again a meeting was convened under the
chairmanship of the District Social Welfare Officer in
presence of the Police Inspector, which was attended by
the landlords and 28 sex workers and, in that meeting,
the president of the petitioner-association, Nirmala
Swami, had refused to receive back the deposit from the
landlords and the sex workers had stated that only if the
landlords were ready to pay Rs.2,00,000/- in cash in
addition to the amount of deposit, that they would accept
the deposit back. The landlords declined to give
additional amount of Rs.2,00,000/-, but, they were
willing to return the amount of deposits lying with them.
It is stated that as on the date of this affidavit
(24.2.2004), 30 sex workers had accepted the amount of
deposit returned by the landlords and had handed over
vacant possession of the premises to them under a Kabja
Receipt, copies of which are at Annexure-R.8 to this
affidavit.
Arguments and Citations:
5. It has been contended by the learned counsel on
behalf of the petitioners that the right to reside in
"kohlis" (i.e. rooms) of the notified area of Chakla
Bazaar was a fundamental right of the prostitutes/sex
workers and they cannot be prevented from occupying their
residence except in accordance with law. It was
submitted that merely because these women were in the
prostitution trade, it did not deprive them of their
right to life and liberty. It was submitted that
prostitution, per se, was not a criminal offence and it
was only when a prostitute operated within the notified
area, the offence was committed. Therefore, prostitutes
can reside in the notified area and had a right to carry
on their trade outside the notified area. Even if the
prostitutes carry on their work outside the notified
area, where it was not an offence under Section 7 of the
Act, their right to reside in the notified area cannot be
taken away and no raids can be conducted at the places
where they reside. It was submitted that even if, as a
long term measure, they were required to be rehabilitated
at some other places outside the notified area, since
they were not going to be easily accepted by the society
as honourable citizens, they were required to be kept
together in the same locality and cannot be scattered,
because, that would result in depriving them of their
livelihood. It was argued that the provisions of Section
7 (1) (b) of the Act did not lay down any guidelines for
the Commissioner of Police or the District Magistrate
while issuing the order notifying the area in which
prostitution would be an offence under Section 7 of the
Act. It was submitted that there was no indication in
Section 7 (1) (b) as to what type of other places can be
notified by the Commissioner or the Magistrate as the
areas in which prostitution was prohibited in the
premises situated in such areas. It was also argued that
the religious, educational and other institutions have
come up only in the recent past while the occupation of
prostitution was carried out by women since time
immemorial and that aspect has not been taken into
account before issuing the impugned notification by the
Commissioner. It was, therefore, submitted that both,
the provisions of Section 7 (1) (b) of the Act and the
impugned notification issued under Section 7 (1) (b) were
arbitrary and discriminatory in nature and violative of
the fundamental rights of the prostitutes of that area
guaranteed by Articles 14, 19 (1) (d) (e) (g) and 21 of
the Constitution. The learned counsel argued that
Section 14 of the Act, empowering arrest without warrant
by making all offences under the Act as deemed to be
cognizable offences, has the effect of treating unequals
as equals inasmuch as, though the offences under Sections
7 and 8 committed by the prostitutes were of a minor
nature, even such offenders could be arrested without
warrant. It was, therefore, submitted that Section 14 of
the Act violated the provisions of Article 14 of the
Constitution. In the context of Section 15 of the Act,
it was argued that the power to search without warrant
was given to the Special Police Officers without laying
down proper guidelines and was, therefore, likely to be
abused. It was submitted that the provisions of Section
15 (4) empowering the police officer to enter the
premises and remove persons found therein was in blatant
disregard of the rights of the persons living in the
premises and violated Articles 14 and 21 of the
Constitution. In the alternative, it was submitted by
the learned counsel that prostitutes were the victims of
the offences under the Act and of trafficking by
unscrupulous elements, and should be appropriately
rehabilitated without treating them as criminals. It was
submitted that any rehabilitation scheme should be
formulated only in consultation with the persons
affected, namely, the prostitutes of the area and, as far
as possible, they should be housed together. It was
submitted that prostitutes cannot be removed to
protection homes nor can their houses be invaded without
the authority of law or without following the due process
of law and, therefore, the police authorities should not
take law in their own hands and enter the premises at
their own will without following due process of law,
until rehabilitation programme is formulated and gathers
momentum.
5.1 In support of their submissions, the learned
counsel for the petitioners relied upon the following
decisions:
(i) The decision of this Court in BAI SHANTA v.
STATE OF GUJARAT reported in AIR 1967 GUJARAT 211
was cited for the proposition that the said Act
did not aim at abolition of prostitutes and
prostitution as such, and did not make it per se
a criminal offence so as to punish a woman
because she prostitutes herself, but its purpose
was to inhibit or abolish the commercialised
vice. However, certain exceptions to this are
found in Sections 7 and 8 of the Act. Section 7
of the Act made punishable the practice of
prostitution in or in the vicinity of certain
public places and this provision inhibits the
woman herself from the practice of her profession
in contravention of its terms and to that extent
renders prostitution a penal offence.
(ii) The decision of the Bombay High Court in STATE v.
GAYA reported in AIR 1960 BOMBAY 289 rendered in
the context of the provisions of Section 3 (1) of
the Suppression of Immoral Traffic in Women and
Girls Act, 1956 was cited for the proposition
that the said Act was passed in pursuance of the
International Convention signed at New York for
the suppression of immoral traffic in women and
girls and it was never intended that the women or
girls used for such traffic should be liable to
punishment when there was nothing to show in the
complaint that they were either keeping or
managing or acting or assisting in the keeping or
management of a brothel.
(iii) The decision of the Allahabad High Court in SHAMA
BAI v. STAE OF UTTAR PRADESH reported in AIR
1959 ALLAHABAD 57 was cited for the proposition
that, under Article 19 (1) (g), every person has
normally got a right to practise any profession
or carry on any occupation, trade or business of
his choice. Work of a prostitute is a
profession, occupation or trade within the
meaning of Article 19 (1) (g) of the
Constitution. The provisions of Sections 3 to
10, 12, 18 and 20 did not have the effect of
stopping the profession or trade of a prostitute
altogether. It was held that the provisions of
Section 20 of the Act are unconstitutional as
they violated Articles 14 and 19. We may note
here that this decision of the Allahabad High
Court has been overruled by the Constitution
Bench of the Supreme Court by its decision in
STATE OF U.P. v. KAUSHAILIYA reported in AIR
1964 SC 416.
(iv) The decision of the Madras High Court in RE
RATNAMALA AND ANOTHER reported in AIR 1962 MADRAS
31 was cited for the proposition that the purpose
of the said Act was to abolish commercialised
vice, namely, the traffic in women and girls for
the purpose of prostitution as an organized means
of living. The idea is not to render
prostitution per se a criminal offence or to
punish a woman merely because she prostitutes
herself as is clearly indicated by the last part
of the definition of "brothel" in Section 2 (a)
of the Act, which implies that where a single
woman practises prostitution for her own
livelihood, without another prostitute, or some
other person being involved in the maintenance of
such premises, her residence will not amount to
"brothel".
(v) The decision of Kerala High Court in T.JACOB v.
STATE OF KERALA reported in AIR 1971 KERALA 165
was cited for the proposition that prostitution
in itself is no offence except in the manner
covered under Sections 7 and 8.
(vi) The decision of the Supreme Court of Bangladesh
in BANGLADESH SOCIETY FOR THE ENFORCEMENT OF
HUMAN RIGHTS v. GOVERNMENT OF BANGLADESH
reported in Vol.LIII 2001 Dhaka Law Reports was
cited for the proposition that sex workers as
citizens had enforceable fundamental rights under
Articles 31 and 32 of the Constitution of
Bangladesh, 1972. It was held that, upon their
wholesale eviction from Tanbazar and Nimtali,
prostitutes had been deprived of their livelihood
which amounted to deprivation of the right to
life making the action unconstitutional and
illegal. It was also held that rehabilitation
scheme must not be incompatible with their
dignity and worth of human person but should be
designed to uplift personal morals and family
life and provide jobs giving them option to be
rehabilitated or to be with their relations, and,
facilities for better education and better
economic opportunities should be provided to
minimise the conditions that gave rise to
prostitution.
(vii) The decision in GAURAV JAIN v. UNION OF INDIA
reported in (1997) 8 SCC 114 was cited to point
out that, in para 27 of the opinion of Justice K.
Ramaswamy, it was observed that women found in
the flesh trade should be viewed more as victims
of adverse socio-economic circumstances rather
than as offenders in our society. It was
observed that: "...commercial exploitation of
sex may be regarded as a crime but those trapped
in custom-oriented prostitution and
gender-oriented prostitution should be viewed as
victims of gender-oriented vulnerability."
We may just note here that the Supreme Court in
GAURAV JAIN and UNION OF INDIA reported in (1998)
4 SCC 270 reviewed the said decision and held
that power conferred by Article 142 (1) cannot
contravene the provisions of Article 145 (5) and
set aside the directions given by Justice K.
Ramaswamy relating to prostitution and/or its
amelioration or eradication. It was, however,
observed that this should not be understood as
preventing the Union or State Governments from
formulating their own policies in this area or
taking measures to implement them.
(VIII) The decision of the Supreme Court in STATE OF
MAHARASHTRA v. MADHUKAR NARAYAN MARDIKAR
reported in AIR 1991 SC 207 was cited for the
proposition that even a woman of easy virtue is
entitled to privacy and no one can invade her
privacy as and when one likes. She is entitled
to protect her person if there is an attempt to
violate it against her wish and is equally
entitled to the protection of law. It was held
that the observations of the High Court that the
complainant being an unchaste woman it would be
extremely unsafe to allow the fortune and career
of a government official to be put in jeopardy
upon the uncorroborated version of such a woman
who makes no secret of her illicit intimacy with
another person was wrong. On the contrary, she
was honest enough to admit the dark side of her
life.
6. The learned Assistant Government Pleader,
appearing for the respondent authorities, submitted that
when police officers exercise their functions under the
Act in discharge of statutory duties for implementing the
provisions of the Act by effecting arrests and in
searching premises, they did not violate any fundamental
rights of the petitioners, including the right to
privacy. It was submitted that the right to privacy
cannot be pleaded against search of premises in which
there are reasonable grounds to believe that offences
punishable under the Act are being committed. It was
submitted that prostitution per se was punishable in the
notified area under Section 7 and also in any area under
Section 8. Prostitution itself was considered to be
illegal having regard to the various provisions of the
Act, including those for removal of prostitute from the
localities as contemplated by Section 20 of the Act. It
was submitted that having regard to the object sought to
be achieved by the provisions of the Act and the nature
of the offences involved, it was absolutely necessary to
invest the police officer with the power of arrest
without warrant and search without warrant. It was
submitted that the provisions of the Act contained
sufficient safeguards against any abuse of powers of
search and arrest. Moreover, the restrictions imposed by
the provisions were reasonable and in the interests of
the general public. It was submitted that Sections 7, 14
and 15 of the Act did not in any manner violate Articles
14, 19 (1) (d) (e) (g) or 21 of the Constitution. It was
further submitted that rehabilitation of all the
prostitutes in the same locality will not be useful in
eradicating the evil and they would carry on the work of
prostitution in the locality or area where they are
rehabilitated, which again would create a situation
similar to the one which existed for a number of decades
in the Chakla Bazaar, which is now brought under control
by stringent enforcement of the provisions of the Act
after issuance of the notification under Section 7 (1)
(b). The learned counsel submitted that the Government
would respond positively to any suggestions or directions
that may be given for evolving a mechanism which would
solve the problems of sex workers as well as ensure that
the provisions of the said Act are duly complied with.
The learned counsel referred to the affidavits-in-reply
filed on behalf of the respondents to point out the harm
caused by the activities which were carried on in the
Chakla Bazaar in violation of the provisions of the said
Act and also to point out that the police officers were
acting in accordance with the provisions of law to carry
out the mandate of the law.
6.1 In support of her submissions, the learned
counsel for the respondent authorities relied upon the
following decisions:
(i) The decision of the Supreme Court in STATE OF
UTTAR PRADESH v. KAUSHAILIYA reported in AIR
1964 SC 416 was cited to point out that the
Supreme Court had held that it cannot be gainsaid
that the vice of prostitution is rampant in
various parts of the country and that there
cannot be two views on the question of its
control and regulation. It was held, in the
context of the provisions of Section 20 of the
Act that the restrictions placed upon the
prostitutes were certainly in the interests of
the general public and, as the imposition of the
restrictions is done through a judicial process
on the basis of a clearly disclosed policy, the
said restrictions were clearly reasonable. The
Supreme Court observed that, if the evil is
rampant, it may also be necessary to provide for
deporting the worst of them from the area of
their operation. The magnitude of the evil and
the urgency of the reform may require such
drastic remedies. In para 12 of the judgment it
was held that if the presence of a prostitute in
a locality within the jurisdiction of a
Magistrate has a demoralising influence on the
public of that locality, having regard to the
density of population, the existence of schools,
colleges and other public institutions in that
locality and other similar causes, "we do not see
how an order of deportation may not be necessary
to curb the evil and to improve the public
morals". It is held that if the activities of a
prostitute in a particular area, having regard to
the conditions obtaining therein, are so
subversive of public morals and so destructive of
public health that it is necessary in public
interests to deport her from that place, "we do
not see any reason why the restrictions should be
held to be unreasonable". The Supreme Court held
that the provisions of Section 20 of the said Act
were reasonable restrictions imposed in public
interest within the meaning of Article 19 (5) of
the Constitution and, therefore, did not infringe
the fundamental rights of the respondents-alleged
to be prostitutes- under Article 19 (1) (d) of
the Constitution.
(ii) The decision of the Supreme Court in P.N.KAUSHAL
v. UNION OF INDIA reported in AIR 1978 SC 1457
was cited for the proposition reflected in para
37 of the judgment in the quotation of Field, J.,
that the manner and extent of regulation rest in
the discretion of the governing authority. In
para 56 of the judgment, the Court approvingly
citing Das C.J. held ..."We have no hesitation,
in our hearts and our heads, to hold that every
systematic, profit oriented activity, however
sinister, suppressive or socially diabolic,
cannot, ipso facto, exalt itself into a trade".
The Court held that State action defending the
weaker sections from social injustice and all
forms of exploitation and raising the standard of
living of the people, necessarily imply that
economic activities, attired as trade or business
or commerce, can be de-recognized as trade or
business.
(iii) The decision of the Supreme Court in GAURAV JAIN
v. UNION OF INDIA reported in AIR 1997 SC 3021
was cited to point out that in para 16 of the
judgment in the context of the provisions of
Section 2 (a) of the said Act, it was held that
all that was essential to prove was that a
girl/woman should be a person offering her body
for promiscuous sexual intercourse for hire and
that sexual intercourse was not an essential
ingredient. It was held that a single instance
coupled with the surrounding circumstances may be
sufficient to establish that the place was used
as a brothel and the person was keeping it. The
prosecution has to prove only that in a premises
a female indulges in the act of offering her body
for promiscuous sexual intercourse.
(iv) The decision of the Supreme Court in DELHI
ADMINISTRATION v. RAM SINGH reported in AIR 1962
SC 63 was cited for the proposition that the
expression "police duties" in Section 2 (i) of
the Suppression of Immoral Traffic in Women and
Girls Act, 1956 included all the functions of the
police in connection with the purpose of the Act
and, in the special context of the Act, they will
include the detection, prevention and
investigation of offences and the other duties
which have been specially imposed on them under
the Act. The Supreme Court held that the Act
provides machinery to deal with the offences
created and its necessary implication must be
that new machinery is to deal with those offences
in accordance with the provisions of the special
Act and, when there is no specific provision in
such Act, in accordance with the general
procedure and that no other machinery is to deal
with those offences.
(v) The decision of the Constitution Bench of the
Supreme Court in SUB DIVISIONAL MAGISTRATE v.
MST. RAM KALI reported in AIR 1968 SC 1 was
cited to point out that, after reviewing the
provisions of Sections 3, 7 and 18 of the said
Act it was held that, it was not correct to say
that the set of facts to be proved in prosecution
under Sections 3 or 7 and in proceedings under
Section 18 was not identical. In the former, the
prosecution to succeed has to establish either
the intention or knowledge referred to therein
but in the latter, they are not necessary
ingredients. Section 18 provides for two classes
of cases, namely, those coming either under
Section 3 or 7 as well as under Section 18 and
those coming only under Section 18. These were
two distinct classes of cases and such
classification has reasonable relationship with
the object sought to be achieved. It was held
that bearing in mind the purpose of these
provisions as well as the scheme of the Act and
on a harmonious construction of the various
provisions in the Act, it was of the opinion that
the Magistrate, who was also a Court as provided
in Section 22, must at the first instance proceed
against the persons complained against under the
penal provisions in Sections 3 or 7, as the case
may be, and only after disposal of those cases,
take action under Section 18 if there was an
occasion for it. The Magistrate was bound to
take cognizance of any cognizable offence brought
to his notice under Sections 190 (1) (b) of the
Code of Criminal Procedure.
(vi) The decision of the Supreme Court in
KRISHNAMURTHY v. PUBLIC PROSECUTOR reported in
AIR 1967 SC 567 was cited for the proposition
that even a single instance with surrounding
circumstances was sufficient proof for keeping a
brothel. It was held that one will be guilty of
the offence under Section 3 (1) of the Act if he
does any of the acts mentioned in that
sub-section in relation to a brothel. The
appellant's house on the facts found was being
used as a brothel. The girls were offered for
the purpose of prostitution. The house was used
for such purposes undoubtedly for the gain of the
appellant who pocketed the money which was given
for committing prostitution on the girls.
(vii) The decision of the Supreme Court in CHITAN J.
VASWANI v. STATE OF WEST BENGAL reported in
(1975) 2 SCC 829, which was rendered in the
context of the provisions of Sections 3 (1), 7
(2) (a), 10 (2) and 18 of the Act, was cited to
point out that, Section 18 (1) applied to brothel
within the vicious distance of 200 yards of
specified types of public institutions and
Section 18 (2) operated not merely in places
within the offending distance of 200 yards but in
all places where the activity of prostitution has
been conducted. It was observed that Section 18
(1) providing a summary procedure for closing
down obnoxious places of prostitution, without
going through the detailed process of a criminal
prosecution, was a quick-acting defensive
mechanism, "calculated to extinguish the brothel
and promote immediate moral sanitation, having
regard to the social susceptibility of places
like shrines, schools, hostels, hospitals and the
like". Section 18 (2), on the other hand,
operates only where persons have been convicted
of offences under Section 3 or Section 7. It was
held that it stands to reason that if the purpose
of extirpating the commercial vice from that
venue were to be successful, the occupier must be
expelled therefrom.
(viii) The decision of the Supreme Court in
P.N.KRISHNALAL AND OTHERS v. GOVERNMENT OF
KERALA reported in 1995 Supp (2) SCC 187 was
cited to point out that it was held that State
has the power to prohibit trade or business which
are illegal, immoral or injurious to the health
and welfare of the people. The Supreme Court
held that no citizen has a fundamental right to
carry on any trade or business in activities
which are inherently vicious, pernicious,
criminal in propensity, immoral, obnoxious and
injuries to health, safety and welfare of the
general public. It is, therefore, a question of
public expedience and public morality that the
State is fully competent to regulate the business
in liquor or intoxicating drug to mitigate its
evil or to suppress it in its entirety and there
was no inherent right in a citizen to conduct
business or trade in adulterated intoxicated
liquor by retail or wholesale. There is no
inherent right in crime. Prohibition of trade or
business of obnoxious or dangerous substances or
goods by law is in the interest of social
welfare.
(ix) The decision of the Bombay High Court in SAYED
ABDUL KHAIR v. BABUBHAI JAMALBHAI reported in
1974 Cri.L.J. 1337 was cited for the proposition
that neither Article 14 nor any other provision
of the Constitution gives the pimps, procurers or
brothel-keepers any right to contend that a woman
and a girl must be treated alike for all purposes
by the Legislatures, and that the distinction
between a woman and a girl in Section 15 (4) of
the Act was consistent with the objects sought to
be achieved by the Legislation. It was held that
Section 15 (4) was not discriminatory inasmuch as
young girls all over the world are special
victims of the vice market. It was also held
that power given to the Special Police Officer
under Section 15 was not an arbitrary one and was
subject to immediate scrutiny of the Magistrate
as provided in Section 17 (1). Further, Section
15 (5) and Section 16 (2) are safeguards enough
against arbitrary exercise of his power by the
special officer.
Reasoning:
7. It was contended on behalf of the petitioners
that prostitution is exercise of fundamental right of
women to practice any profession or carry on any
occupation, trade or business and it should be open for
the women to reside in their homes in Chakla Bazaar and
carry on their profession. Since prostitution was not
per se illegal, total restriction on the fundamental
right of the prostitutes as imposed by the notification
issued under Section 7 (1) (b) and the police action
taken against them by raiding their premises were
unwarranted and unconstitutional.
7.1 There has been a considerable acrimonious debate
over the question: Is prostitution a form of
exploitation to be abolished or an occupation to be
regulated ? The question is no longer about morality:
is prostitution a vice and are those involved evil or
lacking in morals ? There are basically two camps, those
seeking to eradicate prostitution and those who view the
women involved as sex workers. The Court has to steer
through the non-legal aspects of the debate, because,
what social standards should be reflected in the laws in
the matter of prostitution is in the legislative domain.
7.2 Prostitution in the modern times is not confined
to street walking and its forms are diversified into
various kinds, such as prostitution services, including
date clubs, various kinds of services in adult
entertainment, business facilities, meet and mate on the
internet etc. Pornography acts as an arm of prostitution
and often women coerced into pornography are coerced into
prostitution.
8. Economic crisis, natural diseases, political
unrest and conflict situations make women and children
more vulnerable and easy prey to sex traffickers and
recruits. The term "sex worker" does not dignify the
women involved though it may dignify the pimps, procurers
and traffickers who can call themselves "managers",
"supervisors" and "organisers". Prostitution for women
is considered not merely a temporal activity but rather a
heavily stigmatized social status which in most societies
remains fixed on them regardless of any improvement in
behaviour. In a study of street prostitutes in Toronto,
approximately 90% of women contacted indicated that they
wished to stop working on the streets at some point of
time, but felt unable or unclear about how to even begin
the process, (see Prostitution and Civil Rights by
Cataharine A. MacKinnon, Michigan Journal of Gender &
Law, 1993, Volume 1:13-31). Often women who themselves
view sex service as a temporary and part-time engagement
are forced by legal and social labelling to remain
prostitutes and to bear that status in all the walks of
their life. Prostitutes epitomise social illegitimacy
and are designated as a fair game for police scrutiny and
social attack. If prostitutes by circumstances regulated
by commercial interests of the middlemen and organizers
cannot leave, they remain as sexual slaves. Women in
prostitution usually begin their career due to poverty
and are kept indebted and poor by pimps and other
middlemen who control their earnings and movements making
them a legal non-person in a biased society. Article 23
of the Constitution of India prohibits traffic in human
beings, begar and other similar form of forced labour.
The victim of prostitution is the prostitute herself who
is placed in a slave-like condition and subjected to
virtually unlimited authority of others in the trade for
rendering distinctly personal service. Through contrived
and manipulated indebtedness to which she gets subjected,
she is unable to ward off the shackles of poverty and
inch towards a dignified living. Servitude results from
indebtedness and poverty. The victims of the vice of
prostitution believe that they have no viable alternative
but to continue in the field of their exploitation for
survival. Poverty and indebtedness make exit from
prostitution impossible for such women. This condition
of involuntary servitude of most of the women and girls
in prostitution, where their distinctly personal services
are bought and sold as chattel, would justify the Courts
and other constitutional authorities in viewing
prostitution as a form of modern slavery and its
perpetrators, pimps and traffickers as exploiters of the
victim prostitutes in violation of their right against
exploitation guaranteed by Article 23.
8.1 Our constitution values human dignity which
inheres in various aspects of what it means to be a human
being. One of these aspects is the fundamental dignity
of human body which is not simply organic. The very
nature of commodifying the human body devalues the
respect that the Constitution regards as inherent in the
human body by guaranteeing fundamental right against
exploitation under Article 23 and by issuing directives
under Articles 39 (e) and 46 that the State should strive
towards securing that, health and strength of men and
women are not abused and citizens are not forced to enter
avocations unsuited to their age or strength and to
promote with special care the educational and economic
interests of the weaker sections of the people and
protect them from social injustice and all forms of
exploitations.
8.2 The most potent rejoinder against recognition of
the degrading practice of prostitution, which undermines
womanhood itself, comes from Article 51-A (e) of the
Constitution, which ordains that it shall be the duty of
every citizen of India to renounce practices derogatory
to the dignity of women. The fact that prostitution is a
practice derogatory to the dignity of women is
universally recognized and is clearly reflected from the
"Convention for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution of Others",
to which India was a signatory having signed it on
9.5.1950 and which was ratified on 9.5.1953. The
Convention was approved by the General Assembly of the
United Nations in its Resolution 317 (IV) of 02 December,
1949. The preamble of the Convention records that:
"....prostitution and the accompanying evil of
the traffic in persons for the purpose of
prostitution are incompatible with the dignity
and worth of the human person and endanger the
welfare of the individual, the family and the
community....." (emphasis added)
8.3 The parties to the Convention agreed under
Article 1 to punish any person who, to gratify the
passions of another, procures, entices or leads away, for
purposes of prostitution, another person, even with the
consent of that person, or exploits the prostitution of
"another person", even with the consent of that person.
The "Convention on the Elimination of all Forms of
Discrimination Against Women of 1979" provided in Article
6 that State Parties shall take all appropriate measures,
including legislation, to suppress all forms of traffic
in women and exploitation of prostitution of women. The
General Assembly of the United Nations passed a
Resolution on 16.12.1983 (A/RES/38/107) in its meeting
No.100 reaffirming the objectives of the United Nations
Decade for Women: Equality, Development and Peace,
bearing in mind, "the essential role of women in the
welfare of the family and the development of society" and
"considering that prostitution and the accompanying evil
of the traffic in persons for the purpose of prostitution
are incompatible with the dignity and worth of the human
person and endanger the welfare of the individual, the
family and the community", urged the Member States "to
take all appropriate humane measures, including
legislation, to combat prostitution, exploitation of the
prostitution of others and all forms of traffic in
persons and to provide special protection to victims of
prostitution through measures including education, social
guarantees and employment opportunities for those victims
with a view to their rehabilitation".
8.4 To recognize prostitution as a legitimate means
of livelihood would be an open invitation to trafficking
in women which is shunned internationally and in all the
civilized nations of the world. "Trafficking in women
and girls is one of the most corrosive forms of violation
of human rights. It results in gradual total destruction
of a woman's personal identity, and her right to live as
a free human being in a civilized society. The victim is
subjected to violence, total humiliation and violation of
personal integrity. The victim of such devastating
violence may also end up with life-threatening
HIV/AIDS/STD or a lifetime of trauma, drug addiction or
personality disintegration. It is a denial of the right
to liberty and security of person, the right to freedom
from torture, violence, cruelty or degrading treatment,
the right to a home and a family, the right to education
and employment, the right to health care - everything
that makes for a life with dignity. Trafficking has been
rightly referred to as a modern form of slavery". (See
Consultation Paper on "TRAFFICKING IN WOMEN AND GIRLS" by
Justice Sujata Manohar for the Expert Group Meeting on
"Trafficking in women and girls" 18-22 November 2002 Glen
Cove, New York, USA).
8.5 It is, therefore, difficult to accept the
contention raised on behalf of the petitioners that the
Court should recognize the right to prostitution as a
fundamental right of women or girls in it,
notwithstanding it being derogatory to the dignity of
women, the United Nation's Resolution dated 16.12.1983,
exhorting the States to combat prostitution by taking
appropriate humane measures including legislations and
the provisions of the said Act. The Court has to be wary
of the vested interests in the prostitution of others,
thriving on the commercial gains from exploitation of
prostitutes while posing as champions of their rights. A
multitude of research around the world has established
that all prostitution causes harm to women. Approval to
prostitution would tend to institutionalize, promote and
teach the abuse of women and create an ever-expanding
industry which normalizes that abuse. It is never right
for a man to be able to buy a woman and recognition of
prostitution would be an undesirable phenomenon in a
civilized modern society. Prostitution, in short,
becomes an activity that is degrading to individual
dignity of the prostitute and it is a vehicle for pimps
and customers to exploit the disadvantaged position of
women in our society. The need to outlaw organized
prostitution and brothels, target the demand that drives
the industry and to ensure a range of programmes to
assist women out of prostitution, can be effectively met
by a proper implementation of the provisions of the
impugned Act. We, therefore, outright reject the
suggestion made on behalf of the petitioners that the
Court should help the women wanting to pursue
prostitution as profession to carry on their work outside
the notified area while occupying the premises within the
notified area. Even if no sexual encounters take place
in the room (kholi) occupied by a prostitute in the
notified area, it would none the less be a brothel within
the definition of that word in Section 2 (a) of the Act
if such room was used for the purpose of sexual
exploitation or abuse for the gain of another person or
for the mutual gain of two or more prostitutes. The
purposes of prostitution can be fully achieved at the
premises by making there of arrangements while the sexual
encounter might be contemplated to be made elsewhere on
the basis of arrangements. The words "for the purpose of
prostitution" cover meeting and making of arrangements
for prostitution elsewhere than at the place of meeting
and the word "brothel" is not limited in its meaning to
place where intercourse for money actually takes place.
9. It was argued that Section 7 (1) of the Act
created invidious discrimination between prostitutes
working in the notified area and those working outside
the notified area without there being any justification
for such differential treatment by making prostitution
carried on in a notified area an offence. It was also
contended that Section 7 was arbitrary because, even if
the premises in which prostitution was carried on are
situated within a locality in which prostitution was not
objected to, it nonetheless is made an offence. It was
also contended that there were no guidelines laid down
for notifying the public places.
9.1 The provisions of Sections 7 (1) and 7 (3), which
are relevant in context of the contentions raised, read
as under:
"7. Prostitution in or in the vicinity of public
places:- (1) Any person, who carries on
prostitution and the person with whom such
prostitution is carried on, in any premises-
(a) which are within the area or areas,
notified under sub-section (3), or
(b) which are within a distance of two
hundred metres of any place of public
religious worship, educational
institution, hostel, hospital, nursing
home or such other public place of any
kind as may be notified in this behalf by
the Commissioner of Police or Magistrate
in the manner prescribed,
shall be punishable with imprisonment for a term
which may extend to three months".
(1-A) xxx xxx xxx
(2) xxx xxx xxx
"(3) The State Government may, having regard
to the kinds of persons frequenting any
area or areas in the State, the nature
and the density of population therein and
other relevant considerations, by
notification in the official gazette,
direct that prostitution shall not be
carried on in such area or areas as may
be specified in the notification."
"(4) Where a notification is issued under
sub-section (3) in respect of any area or
areas, the State Government shall define
the limits of such area or areas in the
notification with reasonable certainty."
9.2 Section 7 (1) makes prostitution an offence if
committed in any premises which are within the area
notified as per sub-section (3) of Section 7 and those
which are within a distance of 200 metres of any place of
public religious worship, educational institution,
hospital, nursing home or such other public place of any
kind as may be notified by the Commissioner or the
District Magistrate in the prescribed manner under clause
(b) of sub-section (1). The provision, therefore,
contains intrinsic guidelines as to the nature of the
area in which it would be an offence to carry on the
activity of prostitution in any premises. Even while
notifying "other public places of any kind", the
Commissioner of Police or the District Magistrate has to
keep in mind the object of this provision which was to
prohibit prostitution in or in the vicinity of public
places. Section 7 (3) also effectively guides the State
Government in notifying the area in which prostitution
per se would be an offence. These are: the kinds of
persons frequenting the area, the nature and the density
of the population in such area and other considerations
which are relevant to the object underlying the Act which
was enacted in the background of the "International
Convention for the Suppression of Traffic in Persons and
of the Exploitation of Prostitution of Others" signed and
ratified by India, whereunder prostitution and the
accompanying evil of traffic in persons for the purpose
of prostitution are declared to be incompatible with the
dignity and worth of the human person and as endangering
the welfare of the individual, the family and the
community. Under Article 253 of the Constitution, the
Parliament has power to make any law for implementing any
Treaty, Agreement or Convention with other countries or
any decision made at any International Conference,
Association or Body. Therefore, when the power is
exercised under such law by the State executive or the
judiciary, even the relevant covenants, agreements or
decisions can provide useful guidelines for exercise of
the powers under the Act in the matter of implementation
of the statutory provisions so enacted.
9.3 The impugned notification dated 23.2.2000 issued
by the Police Commissioner under Section 7 (1) (b) of the
said Act reads as under:-
"Notification under the Section 7 (1) (b) of
Immoral Traffic (Prevention) Act, 1956.
No.P.C.B./Notificatiion/329/2000 Dtd. 23.2.2000
I, K.N.Sharma, IPS, Police Commissioner
Surat City Surat
In exercise of power vested in me, I
hereby notify that, within the following notified
areas and within the distance of 200 metres, in
the jurisdiction of Chowk Bazar Police Station
under Surat City Police Commissionerate no person
shall carry on prostitution, OR shall indulge in
prostitution, OR knowingly permit the prostitutes
for purpose of their trades to resort to or
remain, in their places and or the owner,
lessors, administrators or person in charge of
the premises and buildings situated in this area
shall knowingly permit to use for prostitution,
their premises or any part thereof & or being the
owner, lessor OR land lord agents of such
premises shall let the same OR knowingly permit
the user of such premises or any part thereof
with the knowledge that the same or any part
thereof may be used for prostitution and
knowingly shall take part in the use of such
premises or any part thereof and shall carry on
prostitution:-
1) IP Mission Higher Secondary High
School Muglisara Road, Surat.
2) Chintamani Parshwanathji Jain
Temple Shahpor Road, on the
corner of Marjan Sami Road
3) 400 years old Darga Sharif,
Marjan Sami Road
4) Marjan Sami Mosque, Marjansami
Road.
Whoever commits breach of this
notification or makes violation of the same shall
be on conviction, punished with imprisonment for
a term which may extend for three months for the
first offence and on second or subsequent
conviction shall be punished with imprisonment
for a term which may extend to six months and
when such offence is in relation to child or a
minor, the offender shall be on conviction be
punished with imprisonments which may extend to
10 years or life imprisonment but shall not be
less than seven years and also with fine.
This notification will come in force on
1.3.2000
In promulgation thereof, I have put my
signature and seal today on 23.2.2000.
Sd/-
( K.N.Sharma )
Police Commissioner
Surat City"
9.4 The above order of the Commissioner of Police
notifies with sufficient clarity the areas, which are in
and around a secondary high school, a jain temple, a
dargah sharif and a mosque. These are public places
regularly frequented by a large number of people. It was
within the powers of the Commissioner to notify the area
around these places of public religious worship and
educational institutions under Section 7 (1) (b)
rendering the activity of prostitution an offence under
Section 7 (1) of the Act. It would be noticed that while
offence under Section 7 (1), 7 (1-A), 7 (2) (b) and 7 (2)
(c) are in relation to the areas notified under Section 7
(1) (a) and (b), the offence under Section 7 (2) (a) is
by a keeper of public place, as defined in Section 2 (h)
(any place intended for use by, or accessible to, the
public including public conveyance), who permits
prostitutes for the purpose of their trade to resort to
or remain in such place. In other words, offence under
Section 7 (2) (a) is not confined to areas notified under
Section 7 (1) (a) and (b), but is in respect of any
public place whether or not in such notified area. The
offence of seducing or soliciting for the purpose of
prostitution under Section 8 is also in the context of
any public place. The provisions of Section 7 (1) (b)
are aimed at taking prostitution off the areas notified
around the educational institutions, public religious
worship, hospitals, nursing homes and hostels or other
public places as may be notified, with a view to
eradicate the various forms of social nuisance arising
from the display of the sale of sex. These include
street conjestion, noise, harassment of non-participants
and general detrimental effect on the public frequenting
such areas especially children. The elimination of
prostitution and the social nuisance it creates, from the
notified areas and other public places is a governmental
objective of sufficient importance and treating
prostitution in such notified area and public places as
an offence does not create any invidious discrimination
between the prostitutes operating in such areas or public
places and their sisters operating elsewhere. There is a
rational connection between the impugned provisions of
Section 7 and the prevention of the social nuisance
associated with prostitution in such notified areas or
public places. The objectives of the impugned provision
is of minimising the public exposure of an activity that
is degrading to women. Public places provide an
environment for pimps and procurers to attract women and
girls or to pick up children by befriending them or
offering them short-term affection and economic
assistance. The purpose of these provisions is to
proscribe prostitution in public places and they are
neither discriminatory nor arbitrary and, therefore, do
not violate the right to equality by criminalising
prostitution in public places.
9.5 In SHANKAR v. STATE OF TAMIL NADU reported in
(1994) 4 SCC 478, the Supreme Court observed, albeit in a
different context, that prostitution is an activity, bad
in social sense as witnessed and is prohibited legally.
As held by the Constitution Bench of the Supreme Court in
KAUSHAILIYA (supra), if in a particular locality the vice
of prostitution is endemic, degrading those who live by
prostitution and demoralising others who come into
contact with them, the Legislature may have to impose
severe restrictions on the right of a prostitute to move
about and to live in a house of her own choice. If the
evil is rampant, it may also be necessary to provide for
deporting the worst of them from the area of their
operation. The magnitude of the evil and the urgency of
the reform may require such drastic remedies. The
Supreme Court held that it cannot be gainsaid that the
vice of prostitution is rampant in various parts of the
country. There cannot be two views on the question of
its control and regulation. If carrying on prostitution
in an area has demoralising influence on the public of
that area, having regard to the density of population,
the existence of schools, colleges and other public
institutions, it is difficult to see how the provision
curbing such evil aimed at improving public morals and
eliminating social nuisance can be said to be an
unreasonable restriction on the fundamental right to move
freely or to reside and settle in any part of the
territory of India guaranteed by Article 19 (1) (d) and
(e) of the Constitution. The rights to freedom of
movement and residence cannot prevent the State from
making any law imposing reasonable restrictions in the
interests of the general public. The impugned provisions
of the Act are enacted with the object of "controlling
the growing evil of prostitution in public places" and
the restrictions placed upon the prostitutes are clearly
reasonable and in the interest of general public. The
ratio of the said decision of the Constitution Bench of
the Supreme Court in KAUSHAILIYA (supra) for negativing
the constitutional challenge on the ground of violation
of Article 19 (1) (d) (e) against the provisions of
Section 20 of the Act is applicable with equal force to
the challenge raised in these petitions against
constitutionality of the provisions of Section 7 (1) (b)
of the said Act. Once the restrictions are reasonable
and imposed by law in the interests of general public,
there cannot be claimed any right to freedom of movement
and residence as a fundamental right to the extent
restricted by such law which falls within the ambit of
Clause (5) of Article 19 of the Constitution.
9.6 The restriction on personal liberty imposed by
Section 7 is in the interests of general public and is
imposed by law enacted by the Parliament in the
background of the Convention for Suppression of the
Traffic in Persons and of the Exploitation of
Prostitution of Others signed and ratified by India, and
the deprivation of liberty to carry on prostitution in
public places is as per the procedure established by law.
Therefore, there is no violation of the fundamental right
to life and personal liberty of persons guaranteed by
Article 21 of the Constitution.
10. It was argued that the right to privacy of
prostitutes gets violated every time the law enforcing
agencies barge in the precincts of the premises in their
occupancy and, therefore, the provisions of Section 15
read with Section 7 of the Act enabling the police to
search the premises in which prostitutes may be living
violate Article 21 of the Constitution.
10.1 The right to privacy is not absolute or unlimited
and must be balanced with the needs of the community and
with other rights. The right to privacy must be
understood as recognizing a continuum of privacy rights
which may be regarded as starting with a wholly
inviolable inner self, moving to a relatively impervious
sanctum of the home and personal life, and ending in a
public realm where privacy would only remotely be
implicated, if at all. The extent of recognizable right
to privacy would depend upon the context in which it is
claimed. The community rights and the rights of fellow
members place a corresponding obligation on a citizen
thereby shaping the abstract notion of individualism
towards identifying a concrete member of civil society.
Privacy is fully acknowledged in the truly personal
realm, but as a person moves into communal relations and
activities such as business and social interactions, the
scope of personal space shrinks accordingly. It was,
however, argued that the fact that the work of a
prostitute is commercial does not exclude it from the
scope of the right of privacy. Commercial sex involves
the most intimate of activity taking place in the most
impersonal and public of realms, the market place where
it is simultaneously all about sex and all about money.
A prohibition on commercial sex, therefore, will not
ordinarily encroach upon intimate or meaningful human
relationships. Prostitution is quite different from the
protected sphere of private intimacy where expression of
sexuality, not the commercial aspect, is at the core.
Central to the character of the activity of prostitution
is that it is indiscriminate and loveless. It is,
accordingly, not the form of personal and intimate sexual
expression that is penalised, nor the fact that the
parties possess certain identity. The law aims at sex
which is both indiscriminate and for reward. The privacy
element falls far short of deep attachment and
commitments to the necessarily few individuals with whom
one shares not only a special community of thoughts,
experiences and beliefs but also distinctly personal
aspects of one's life. By making her sexual services
available for hire to strangers in the market-place, the
sex worker empties the sex act of much of its private and
intimate character. She is not nurturing relationships
or taking life-affirming decisions about birth, marriage
or family; she is making money. It would be undoubtedly
correct that this does not strip her of her right to be
treated with dignity as a human being and to be respected
as a person. But, it does place the prostitute or sex
worker far away from the inner sanctum of protected
privacy rights. We accordingly conclude that
expectations of privacy of those involved in prostitution
are relatively attenuated. Although the commercial value
of her trade does not eliminate the claims of a
prostitute to privacy, it does reduce them in great
degree. The provision for limited intrusion into privacy
under the prescribed conditions is essential and is a
reasonable restriction for achieving the objects of the
law. Prostitution in itself is degrading to women, it is
conducive to violent abuse of prostitutes both by their
customers and pimps, it is associated with and encourages
international trafficking in women, which India is
obliged by its International law commitments to suppress,
it leads to child prostitution, it carries an intensified
risk of spread of sexually transmitted diseases
especially HIV/AIDS, it has close connection with a high
degree of drug abuses and crimes, such as assault, rape
and even murder and it is a frequent and persistent cause
of public nuisance. If the Parliament in its wisdom
enacted the provisions of the said Act to combat
prostitution and eradicate immoral traffic in women and
girls in order to prevent their sexual exploitation or
abuse for commercial purpose, such minimal intrusion in
privacy by legitimate search of the premises in respect
of which there are reasonable grounds for believing that
an offence punishable under the Act has been or is being
committed in respect of a woman, girl or any other person
living in such premises would be justified, proportionate
and reasonable. The challenge against the constitutional
validity of the impugned provisions of Sections 7 and 15,
therefore, fails.
11. In the context of Section 14 of the said Act, it
was argued that it confers arbitrary power of arrest
without warrant of even those who committed the offences
under Sections 7 and 8 which were punishable with
relatively minor punishment extending upto three months.
The provisions of Section 14 violated, according to the
learned counsel, right to equality of the prostitutes who
were being treated under it on the same footing as the
other offenders who exploited them and were guilty of
aggravated form of offences under the Act.
11.1 It will be noticed from the provisions of Section
14 that it incorporates certain safeguards against
indiscriminate or pointless arrests, the foremost being
that such warrantless arrest can be made only by Special
Police Officer or under his direction or guidance or
subject to his prior approval. When the Special Police
Officer directs warrantless arrest, otherwise than in his
presence, he shall give such order in writing specifying
the person to be arrested and the offence for which the
arrest is being made. The person who is required to be
so arrested has to be informed about the order and the
order has to be shown when required by such person.
There are, therefore, adequate safeguards against any
arbitrary arrest without warrant. The fact that some
offences are punishable with imprisonment with a maximum
period of three months cannot by itself be sufficient to
hold that arrest without warrant is not justified in such
cases. There are several offences even under the Penal
Code which are made cognizable even though punishment for
such offences may extend to six months or fine or even
less than that. As for example, Section 138 (upto six
months or fine or both), Sections 143, 151, 225-B, 269,
284, 289, 291, 337 (imprisonment upto six months or fine
or both). Offence punishable under Section 188 for which
simple imprisonment for one month or fine of Rs.200/- is
provided, is also made cognizable. Offence under Section
294 (obscene acts and songs) for which imprisonment for
three months or fine is provided, offence under Section
341 for wrongful restraint for which simple imprisonment
for one month or fine is provided, are all cognizable
offences. Thus, the nature of the offence may require
that arrest in respect thereof be made without warrant
and mere quantum of punishment prescribed for it is not a
decisive factor. Therefore, it cannot be said that the
provision of Section 14 of the Act, which makes any
offence under the Act as deemed to be a cognizable
offence, treats unequals as equals.
11.2 For the purpose of treating an offence under the
Act as cognizable, there is no justification for making a
distinction between those offences for which conviction
may result into lesser punishment and those for which it
may be higher depending upon the maximum punishment
provided in respect of such offences under the Act.
Apart from the fact that every police officer empowered
to arrest without warrant may not be expected to know the
details of complex penalty schemes, police officers in
the field frequently have neither the time nor confidence
to determine the severity of the offence for which they
are considering arrest of a person. Penalties for
ostensibly identical conduct can vary on account of
facts, difficult, if not impossible, to know at the scene
of an arrest. Is this the first offence or is the
suspect a repeat offender ? Is the offence committed in
its aggravated form ? Is the offence committed in
respect of a minor or child ? These are some aspects
which show that the claim that distinction should be made
amongst the offences under the Act and all offences
should not be deemed to be cognizable offences is not
ultimately so simple, nor could it be, for, complications
arise the moment we begin to think about the possible
applications of criteria suggested for such distinction.
The provisions of Section 14, therefore, do not violate
the fundamental rights guaranteed by Article 14 or 21 of
the Constitution as was sought to be contended on behalf
of the petitioners.
12. It was contended that prostitutes and other
offenders are all treated alike and even a trafficked
prostitute is treated on the same footing as the criminal
indulging in trafficking or engaged in prostitution of
others. Grievance is made against indiscriminate raids
on the houses of the prostitutes and their removal from
the houses. The offers to rehabilitate the prostitutes
are found to be wanting by them and it was, therefore,
vehemently contended on behalf of the petitioners by
their learned counsel that, the prostitutes/sex workers
of the area should be allowed to stay at the same places
and that they could do their prostitution work outside
the notified area. The tenor of this plea is suggestive
of the unseen forces that work behind the scenes to
perpetuate the trade of prostitution that may be more
gainful to others than the prostitutes themselves. The
stand taken up by the counsel appearing for the
respondent authorities all throughout was that
rehabilitation efforts are being thwarted by certain
vested interests in prostitution industry and the
prostitutes are insisting on keeping their "kholis"
(rooms) in the notified area from where the illegal
activities were being carried on. The insistence of the
learned counsel for the petitioners to allow the
prostitutes to reside in the same locality amounts to
seeking Court's approval to the commission of the
offences under the Act. It is pointed out that after
actions are taken under the Act, Chakla Bazaar wears a
new look and no prostitution activity is now being
carried on in the place for the past few months. It is
stated that most of the prostitutes who were brought to
this place for the trade have gone away and only the
middle women (described as "mausies"), 50 to 60 in
number, posing to be tenants of the premises, which are
small rooms (kholis) have taken up the tirade of being
allowed to return to their places. It was submitted that
allowing the prostitutes to assemble at the same place
would lead to virtual restart of prostitution activities
in the notified area. It was, however, stated on behalf
of the respondent authorities that no impediment is
created against any person occupying his residential
premises and only the activities which amount to offences
under the Act are targeted by police officers and the
authorities.
12.1 This takes us to the examination of the question
as to what action the authorised police officer can
legitimately take and to what extent victims of
trafficking and of persons who are guilty of prostitution
of others should be treated differently for the purpose
of their rehabilitation under the provisions of the Act.
We have been informed on behalf of the State authorities
by the learned counsel appearing for them that the State
Government would welcome any direction towards
rehabilitation of the prostitutes and to ensure that no
undue harassment is caused to them.
12.2 It is significant to note that more stringent
punishment is provided (minimum three years and upto 5
years imprisonment) for keeping a brothel, or allowing
premises to be used as a brothel under Section 3 of the
said Act. In the situations mentioned in sub-section
(2-A) of Section 3, a rebuttable presumption arises
attributing knowledge against use of premises as a
brothel. On conviction of a person, referred in Clause
(a) and (b) of sub-section (2) of Section 3, allowing
premises to be used as a brothel, the lease or agreement
under which such premises are leased or held or occupied
at the time of commission of the offence shall be void
and inoperative from the date of conviction, as provided
by sub-section (3) of Section 3. The Supreme Court in
CHITAN J. VASWANI v. STATE OF WEST BENGAL reported in
(1975) 2 SCC 829, held in para 10 of the judgment that:
"....It is plain from the provisions of sub-section (3)
of Section 3 that the consequence of a conviction under
Section 3 is the invalidation of the lease of the
premises where the brothel is run. The logical
consequence must be that the occupier must be thrown out
of the prostitutional premises. This is achieved by
exercise of the power under Section 18 (2)".(emphasis
added). The Court convicting a person for any offence
under Section 3 or Section 7 may pass order under
sub-section (1) of Section 18 directing eviction of the
occupier and attachment, for improper use, of the
premises as provided under sub-section (2) thereof. The
power of closure of brothel and eviction of offenders
from the premises under Section 18 (1) are entrusted to
District Magistrate or Sub Division Magistrate (see the
Schedule under Section 2 (c) of the Act). While Section
18 is aimed at stopping the use of any premises as a
brothel by any person or by prostitutes for carrying on
their trade entailing conviction of the occupier and a
restriction against letting it out without prior approval
of the District/Sub Divisional Magistrate, Section 20
empowers a Magistrate (Metropolitan or Sub Division)
removal of a prostitute frequenting any place within the
local limits of his jurisdiction and prohibiting re-entry
if it is found on inquiry that it is in the interests of
general public that such person who is a prostitute
should be required to be removed and prohibited from
re-entering the same. Sections 18 and 20 are preventive
provisions calculated to "ensure moral hygiene in the
locality" which is particularly sensitive. Both the
provisions provide for an opportunity of being heard
before passing of the orders by the Magistrate of
closure, eviction or removal.
13. Removal of persons found by the special police
officer or the traffic police officer, as the case may
be, from the premises in which such officer carries out
search without warrant, when he has reasonable grounds
for believing that an offence under the Act has been
committed or is being committed in respect of a person
living in any premises, is contemplated by sub-section
(4) of Section 15 of the Act. The power of search
without warrant can be exercised by a special police
officer or a traffic police officer only when he has
reasonable grounds for believing that an offence
punishable under the Act has been or is being committed
in respect of a person living in any premises and he is
required to ensure that such search is witnessed by two
or more witnesses, at least one of whom shall be a woman.
The person removed under sub-section (4) of Section 15 is
required to be produced before appropriate Magistrate.
As an additional safeguard, sub-section (6-A) of section
15 was inserted with effect from 26.1.1987 by which the
officer making a search under Section 15 is required to
be accompanied by at least two woman police officers and
interrogation of a woman or girl who is removed has to be
done by a woman police officer and, if not available, to
be done only in the presence of a lady member of a
recognized welfare institution or organization. The
power of search without warrant can be exercised when the
search cannot be made without an undue delay. The
requirement of reasonable grounds for believing that an
offence has been committed or is being committed in
respect of a woman or a girl or other person living in
such premises is aimed not only at detection of the
suspected offences but also at rescuing such woman or
girl by removing her from the premises, interrogating her
through a woman police officer when required, and
forthwith producing her before the Magistrate along with
the other persons who are removed. There are sufficient
safeguards in Section 15 against any abuse of exercise of
the power of search without warrant and this provision is
essential for achieving the purposes of the Act. The
purposes of the Act are of combating prostitution and
immoral trafficking in women and to rescue and
rehabilitate the women and girls in respect of whom
offences are committed and who are so removed. We hold
that Section 15 does not confer any arbitrary power on
police officers for any indiscriminate or pointless
search without warrant and the challenge against Section
15 on the ground of violation of Articles 14 and 21
raised on behalf of the petitioners, therefore, fails.
14. The word "prostitution" as defined in Section 2
(f) for the purpose of the Act means sexual exploitation
or abuse of persons for commercial purpose and the
expression "prostitute" is to be construed accordingly.
This would include a woman or a girl who is sexually
exploited or abused for commercial purpose. A woman or a
girl may subject herself to sexual exploitation or abuse
for commercial purposes or there may be other persons,
such as, pimps or procurers, or traffickers who subject
prostitutes to such sexual exploitation or abuse. Those
are persons who sustain themselves on other persons, i.e.
women and girls or persons in respect of whom they commit
offences, and on whom they and the criminality underlying
the immoral traffic, thrives. This is why there are
different scales of punishment provided under the Act,
the more severe ones under Sections 3 and 4 of the Act
being for those who keep or allow premises being used as
brothels or live on the earnings of prostitutes.
Procuring, inducing or taking women, girls or other
persons for the sake of prostitution or inducing such
women or girls or persons to carry on prostitution or
causing to take them from any place with a view to carry
on prostitution or to frequent or become an inmate of a
brothel are grave offences for which severe punishment is
provided under Section 5. Detaining persons in premises
where prostitution is carried on is punishable with
imprisonment which may be for life as provided by Section
6. There are presumptions of criminal intent under
Sections 3 (2-A), 4 (2) and 6 (3) of the Act against
those who allow use of premises as brothels or live on
prostitution of other persons, i.e. women or girls, or
initiate women and girls or other persons into
prostitution. Any person who causes or aids or abets
seduction for prostitution of women or girls is liable to
be punished for a term of imprisonment which may not be
less than seven years but which may be for life under
Section 9 of the Act. All these provisions indicate that
there is a clear distinction maintained under the said
Act between the prostitutes and those who indulge in
offences relating to prostitution of women and girls or
other persons. There may be prostitutes who are in the
trade by themselves and there may be those who are
trafficked persons or in respect of whom offences are
committed under the Act, coerced by economic and other
forces into prostitution from which the stronghold of
pimps, procurers and traffickers does not allow them to
escape. The provisions of Section 17 (4) of the Act
indicate that the victims of trafficking and offences
committed by others under the Act deserve to be rescued
and rehabilitated and not punished as criminals.
14.1 The persons removed from the premises in which
search is made, when offence punishable under the Act has
been or is being committed in respect of a person living
in any premises (which would usually include women or
girls living in such premises) are required to be
produced before appropriate Magistrate and even under
Section 16 (1) when the Magistrate directs removal of a
person living or carrying on or made to carry on
prostitution in a brothel, such person is required to be
produced before the Magistrate issuing the order, under
Section 16 (2). Persons so removed and produced before
the Magistrate under Section 15 (5) or Section 16 (2),
are required to be dealt with under Section 17 (4) of the
Act when the information is found to be correct and such
person is in need of care and protection as contemplated
by sub-section (4) (b) of Section 17. The Magistrate
acting under Sections 15 (5) and 16 is as per the
Schedule to Section 2 (c) of the Act "Metropolitan
Magistrate; Judicial Magistrate, First Class; District
Magistrate or Sub Divisional Magistrate".
14.2 The above provisions, therefore, clearly call for
identifying the victim-prostitutes, girls or other
persons, who are trafficked persons or are under the
control of pimps and procurers or brothel owners. A
failure to correctly identify a trafficked person or a
woman or girl or other person in respect of whom offence
punishable under the Act is committed, i.e. a
victim-prostitute, is likely to result in denial of that
person's human rights. It is, therefore, obligatory on
the part of the police officer and the magistrate dealing
with such cases under the Act to ensure that the
trafficked persons, including other victim prostitutes
and the traffickers and persons committing offences in
respect of prostitutes, including those who are involved
in controlling and exploiting trafficked persons and
other victim prostitutes are duly identified. The law is
required to be strictly enforced against traffickers and
those involved in controlling and exploiting prostitutes
and committing offences in respect of prostitutes.
14.3 The primary responsibility to ensure safety and
immediate well-being of trafficked persons, including
victim prostitutes who are controlled and exploited by
others in the trade lies heavily with the enforcement
authorities and officials. It should be ensured that
rescue operations do not further harm the rights and
dignity of the victims of prostitution. India is a party
to "Protocol to the United Nations Convention on
Transnational Organized Crime to Suppress, Prevent and
Punish Trafficking in Persons, Especially Women and
Children", which came into force from 25.12.2003. The
Protocol was adopted by the Resolution No.A/RES/55/25 of
15.11.2000 at the 55th Session of the General Assembly of
the United Nations. India signed it on 12.12.2002. The
purpose of the said Palermo Protocol are:
(a) to prevent and combat trafficking in persons,
paying particular attention to women and
children;
(b) to protect and assist the victims of such
trafficking; and
(c) to promote co-operation among State Parties
in order to meet those objectives.
14.4 The word "trafficking" has been defined in the
said Protocol under Article 3 as under:
"Article 3
Use of terms
For the purposes of this Protocol:
(a) "Trafficking in persons" shall mean the
recruitment, transportation, transfer, harbouring
or receipt of persons, by means of the threat or
use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of
the giving or receiving of payments or benefits
to achieve the consent of a person having control
over another person, for the purpose of
exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of
others, or other forms of sexual exploitation,
forced labour or services, slavery or practices
similar to slavery, servitude or the removal of
organs.
(b) The consent of a victim of trafficking in
persons to the intended exploitation set forth in
sub-paragraph (a) to this article shall be
irrelevant where any of the means set forth in
subparagraph (a) have been used;
(c) The recruitment, transportation,
transfer, harbouring or receipt of a child for
the purpose of exploitation shall be considered
"trafficking in persons" even if this does not
involve any of the means set forth in
sub-paragrapah (a) of this article;
(d) "Child" shall mean any person under
eighteen years of age."
14.5 We refer to this Protocol because it was pointed
out to us that many of the prostitutes who were working
in Chakla Bazaar were Nepalese women and girls. It was
stated before us that about 1500 women and girls were
working before the raids were started and most of them
are now not in that area. Only those staking claims to
return to the premises as occupiers are on "dharna" and
are refusing the package-offer for rehabilitation as
submitted by the learned Assistant Government Pleader on
behalf of the respondent authorities before us and as
also reflected in the affidavits filed on behalf of the
parties. It appears that the number of women and girls
working in the notified area far exceeded the number of
rooms (kohlis) used for the trade in the area. The
element of trafficking and exploitation of women and
girls is, therefore, writ large in the very nature of
things and the enforcement authorities will do well to
identify the victim prostitutes and those who exploit
them such as traffickers, pimps, procurers or brothel
owners or those running or using premises as brothels.
The scheme of the provisions of Sections 15 (5), 16 (2)
read with Section 17 (2) and (4) of the Act clearly
envisages a humane treatment to the victim prostitutes
who are in need of care and protection and who may be
detained in a protective home for a period being not less
than one year and not more than three years. In the
process of discharge of his functions under sub-sections
(2) and (4) of Section 17, a Magistrate may summon a
panel of five respectable persons, three of whom shall,
wherever practicable, be women to assist him as
contemplated by sub-section (5) of Section 17. Section
21 provides for establishment of protection homes and
corrective institutions under the Act. Therefore, the
women and girls in respect of whom offences punishable
under the Act are committed in any premises in which they
are living and those who were living or made to carry on
prostitution in a brothel and are rescued under Section
16, are all required to be dealt with under Section 17
(4) of the Act, where the Magistrate is satisfied about
the correctness of information and the need of care and
protection, by making an order of detaining them in a
protective home. Even a woman or a girl who carried on
or is made to carry on prostitution can apply under
Section 19 to the Magistrate for being kept in a
protective home or to be provided with care and
protection in the manner indicated in sub-section (3) of
Section 19 for rehabilitation of such person.
14.6 Thus, far from dealing with all offenders under
the Act indiscriminately, the said Act clearly reflects
the international concern for human rights, of the
victims of trafficking and the prostitutes living in
brothels or any premises where offences are committed
under the Act in respect of such women and girls. A
strong indication of reformative approach comes from
Section 10-A of the Act which provides for passing an
order of detention in corrective institution for the term
indicated thereunder in lieu of sentence of imprisonment
when a female offender is found guilty of an offence
under Section 7 or Section 8 of the Act and the
character, state of health and mental condition of the
offender and the circumstances of the case are such that
it is expedient that she should be subject to detention
for such term and such instructions and discipline as are
conducive to her correction. Even though order of
detention is to be made by Court in such cases,
sub-section (3) of Section 10-A empowers the State
Government at any time after the expiration of six months
from the date of an order of such detention, if it is
satisfied that there is reasonable probability that the
offender will lead a useful and industrious life,
discharge her from such institution with or without
conditions. Matching provisions are made in the
Suppression of Immoral Traffic in Women and Girls Rules,
1985 framed under Section 23 of the Act, and Rule 5
thereof provides that where, in pursuance of sub-section
(1) of Section 10-A or sub-section (4) of Section 17 or
sub-section (3) of Section 19, a Magistrate passes an
order directing that a woman or a girl be detained in a
protective home or a corrective institution, a warrant of
detention in Form II shall be prepared and forwarded to
the superintendent of protective home or corrective
institution. Under Rule 41, the State Government is
required to appoint a Director of Social Defence for all
the protective homes and corrective institutions in the
State, inter alia, to superintend, supervise and control
the working of the Rules. Provisions are made for
education and training of inmates of protective
homes/corrective institutions (Rule 21), for their daily
routine (Rule 22), for their diet (Rule 23), supply of
clothes to them (Rule 24), living space for each of them
(Rule 25), religious and moral instructions to them by
strictly maintaining the principle of secularism (Rule
26), libraries in the protective homes/ corrective
institutions (Rule 27), regular medical examination of
the inmates (Rule 12) etc., with a view to achieve the
object of rehabilitation of the prostitutes who are the
victims of traffickers or of the pimps, procurers or
persons using premises as brothels. The prostitutes who
commit the offence of prostitution under Section 7 (1) or
Section 8 and are not involved in any other offence under
the Act, and those in respect of whom offences are
committed under the Act and are removed from the premises
in which they are living under Section 15 (1) and
produced before a Magistrate under Section 15 (5) or
those who are rescued and produced before a Magistrate
under Section 16 (2) are required to be dealt with
keeping in mind the rehabilitation and reformative
provisions which are specifically devised for them under
Sections 10-A, 17 (4) and 19 (3) read with Section 21 of
the Act and Rule 5 of the Rules framed thereunder.
14.7 When premises are used as brothel as defined by
Section 2 (a), the offence of keeping a brothel or
allowing premises to be used as brothel under Section 3
is committed in respect of the women or girls living in
such premises. The offence under section 4 of living on
the earnings of prostitution of any woman or girl is
committed in respect of such woman or girl living in any
premises where such offences are committed. Offence of
procuring, inducing or taking woman or girl for the sake
of prostitution under Section 5 is committed in respect
of such woman or girl, taken or brought to any place
where she is made to live for the purpose of
prostitution. Offence under Section 6 of detaining a
woman or a girl or other person in a brothel or other
premises is committed in respect of such woman or girl
living in such premises. Offence of seduction of a woman
or a girl by any person having the custody, charge or
care of or in position of authority over any woman or
girl or other person by causing or aiding or abetting
seduction for prostitution of such woman or girl or other
person is committed in respect of such woman or girl when
she is seduced while living in any place from where she
is rescued or removed under the provisions of the Act.
In all these cases when the offences are committed under
the Act in respect of women or girls living in any
premises, which are searched, such woman or girl or
person in respect of whom such offences are committed and
who is not involved in those offences, the proper course
for the magisterial Court under Section 17 (4) is to make
an inquiry as contemplated therein and, if the
information received is found to be correct and the
Magistrate is satisfied that the woman or girl or other
person in whose respect the offence is committed is in
need of care and protection, he may make order of
detention in a protective home and there is no scope for
prosecuting such victims of the offences under the Act
committed by other persons with respect to them.
Therefore, prostitutes living in brothels or other
premises in respect of whom offences by others are
committed under the Act will, on search, be removed and
produced before the Magistrate under Section 17 (4)
irrespective of whether such premises are within the
notified area or not. However, a prostitute who is
involved in any offence, other than mere offence under
Sections 7 (1) or Section 8, cannot claim the benefit of
Section 17 (4) or Section 10-A of the Act, and has to be
tried and punished for those offences in accordance with
law.
15. The scheme of the Act and the Rules thus clearly
indicates that the victim-prostitutes, i.e. the
trafficked persons and women, girls or other persons
working as prostitutes under the control of pimps and
procurers and those rescued from the premises in which
offences are committed in respect of such women or girls,
or from brothels as also those persons who are to be kept
in protective or corrective detention, are all required
to be dealt with by the police officials and other
authorities with utmost care and concern in order to
ensure that they are properly rescued, kept in safe
custody and rehabilitated in accordance with the
provisions of the Act and the Rules. It is essential to
have a proper monitoring of the rescue and rehabilitation
work by the concerned authorities. It was, therefore,
suggested by the Court during the course of the arguments
that there may be formed by the State Government a State
level Rehabilitation Committee and a Local Cell, to start
with, for the city and district of Surat, for looking
into the legitimate grievances of the affected women and
girls who deserve to be rescued and rehabilitated under
the Act and the Rules. The State Government has, through
the learned Assistant Government Pleader, accepted this
suggestion inviting suitable directions in the matter by
this Court.
15.1 We may note here that the subject of rescuing and
rehabilitating prostitutes has received international
attention and principles and guidelines on human rights
and human trafficking have been recommended in the report
of the United Nations High Commissioner for Human Rights
to the Economic and Social Council of the United Nations
(E/2002/68 Addl.) placed in the Substantive Session 2002
New York, 1-26 July 2002, on Item No.14 (g) of the
Provisional Agenda. The report contains more important
recommended principles on human rights and human
trafficking indicating that human rights of trafficked
persons shall be at the centre of all efforts to prevent
and combat trafficking and to protect, assist and provide
redress to victims. The States have a responsibility
under international law to act with due diligence to
prevent trafficking, to investigate and prosecute
traffickers and to assist and protect trafficked persons.
Strategies aimed at preventing trafficking are required
to address demand as a root cause of trafficking. States
are required to exercise due diligence in identifying and
eradicating public sector involvement or complicity in
trafficking. All public officials suspected of being
involved in trafficking are required to be investigated,
tried and, if convicted, appropriately punished. States
are required to ensure that trafficked persons are
protected from further exploitation and harm and have
access to adequate physical and psychological care. Such
protection and care shall not be made conditional upon
the capacity or willingness of the trafficked person to
co-operate in legal proceedings. Children who are
victims of trafficking have to be identified as such and
their best interests shall be considered paramount at all
times. Some of the guidelines recommended on human
rights and human trafficking are, promotion and
protection of human rights, identification of trafficked
persons and traffickers, adoption of effective and
realistic anti-trafficking strategies, ensuring an
adequate legal framework, ensuring an adequate law
enforcement response, protection and support for
trafficked persons, prevention of trafficking, special
measures for the protection and support of child victims
of trafficking, access to remedies of trafficked persons
as victims of human rights violations, obligations of
civil police etc.
Conclusions and Final order:
16. We, therefore, conclude, declare, direct and
hereby order as under:
(i) The provisions of Section 7 (1) (b) of the
Immoral Traffic (Prevention) Act, 1956 do not
violate Articles 14, 19 (1) (d) (e) (g) or
Article 21 of the Constitution of India;
(ii) The notification dated 23.2.2000 issued by the
Commissioner of Police, Surat under Section 7 (1)
(b) is legal and valid and does not violate any
fundamental rights guaranteed by Articles 14, 19
(1) (d) (e) (g) or Article 21 of the
Constitution;
(iii) The provisions of Section 14 making any offence
punishable under the Act to be deemed to be a
cognizable offence and empowering special police
officer to make arrest without warrant do not
violate Article 14 or Article 21 of the
Constitution;
(iv) Section 15 of the Act empowering the special
police officer or traffic police officer to make
search without warrant does not violate Article
14 or Article 21 of the Constitution;
(v) When a search is made, of the premises in which a
woman, girl or other person is living, on the
reasonable grounds for believing that an offence
punishable under the said Act is committed in
respect of such woman or girl or other person and
such woman, girl or other person is removed from
the premises under Section 15 (4) of the Act, she
is required to be forthwith produced before the
appropriate Magistrate and is required to be
examined by a registered medical practitioner for
the purpose of determining her age or for
detection of any injuries, as a result of sexual
abuse or for the presence of any sexually
transmitted diseases under sub-section (5-A) of
Section 15 and to be dealt with by the
magisterial Court as per the provisions of
Section 17 (2), (3), (4) and (5) of the Act for
the purpose of safe custody and rehabilitation;
(vi) Even a woman or girl living in a brothel or who
is carrying on or being made to carry on
prostitution in a brothel and removed therefrom
on direction of Magistrate under Section 16 (1)
is required to be produced under Section 16 (2)
of the Act before the Magistrate issuing the
order and is required to be dealt with in
accordance with Section 17 (2), (3), (4) and (5)
for the purposes of safe custody and
rehabilitation;
(vii) The female offender who is found guilty of an
offence under Section 7 or Section 8 may be
ordered by the Court to be detained in a
corrective institution in lieu of sentence of
imprisonment in accordance with the provisions of
Section 10-A of the Act;
(viii) The provisions of the said Act contemplate
identifying the victims of the offences under the
Act committed by other persons and their rescue
and rehabilitation in protective homes or
corrective institutions and, therefore, the
authorised police officers and the appropriate
magistrates are required to exercise their
functions and duties under the Act in a manner
that would achieve the object of the Act of
rehabilitation of the women and girls rescued or
removed from brothels and other premises;
(ix) Having regard to the statutory provisions
authorizing the appropriate magistrate to order
detention of prostitutes in protective homes or
corrective institutions as contemplated by
Sections 10-A, 17 (4) and 19 (3) of the Act read
with Rule 5 of the Rules framed thereunder, it is
obligatory for the State Government to provide
under Section 21 of the Act such number of
protective homes and corrective institutions
under the Act as are, in its discretion,
sufficient and adequate;
(x) For effective supervision and control of the
rehabilitation of prostitutes, there shall be
constituted by the State a high power State Level
Rehabilitation Committee comprising of the
following members:
(1) Additional Chief Secretary of the Social
Welfare Department as Chairman,
(2) Secretary or Officer of equal rank of the
Health Department,
(3) Secretary or Officer of equal rank of the
Home Department,
(4) Secretary or Officer of equal rank of the
Finance Department and
(5) a Member of State Level Commission for
Women or a similar Government Body.
(xi) There will also be constituted by the State
Government a Local Cell for the District of Surat
having the following members:-
(1) Commissioner of Police or Additional
Commissioner of Police, Surat as
Chairman;
(2) District Health and Welfare Officer;
(3) Civil Surgeon or a medical officer (The
name of Dr.Vikas Desai, in his capacity
as the Senior Medical Officer, orally
suggested in Court on behalf of the
petitioners, may be considered);
(4) A representative of N.G.O. The name of
"SAHAS" NGO orally suggested in Court on
behalf of the petitioners for
representing the case of the members of
the petitioner organization, may be
considered).
(xii) The State Level Committee for Rehabilitation will
get acquainted with the "Convention for the
Suppression of Traffic in Persons and of the
Exploitation of Prostitution of Others" and other
relevant International Conventions, Declarations,
Agreements or Protocols etc. to which India is a
Party, and which have a bearing on the
suppression of immoral trafficking and
rehabilitation of women and girls including the
"Protocol to Prevent, Suppress and Punish Traffic
in Persons Especially Women and Children"
supplementing the "United Nation's Convention
against Transnational Organized Crimes" and also
the relevant provisions of the said Act and the
Rules made thereunder having bearing on the
aspects of rescue and rehabilitation of women or
girls and children. The State Level
Rehabilitation Committee may also get acquainted
with the Recommended Principles and Guidelines on
Human Rights and Women Trafficking - Report of
the United Nation's High Commissioner for Human
Rights to the Economic and Social Council of the
United Nations (E/2002/68-Addl.).
(xiii) The State Level Rehabilitation Committee will
prepare and circulate a note for guidance for all
the authorities and officials concerned with such
rescue and rehabilitation under the Act. This
may be done expeditiously and preferably within
three months from the date of this order;
(xiv) The State Level Rehabilitation Committee may be
entrusted by the State Government, subject to its
ultimate control, power to take and implement its
decisions in the matters of rescue and
rehabilitation of the women, girls and children
who are required to be dealt with for detention
in protective homes and corrective institutions
under the provisions of the Act.
(xv) The State Level Rehabilitation Committee will
take up the issue of rehabilitation of the
prostitutes operating in Chakla Bazaar area of
Surat on priority basis, and collect data for
identifying cases which are required to be put up
before the magisterial courts through authorized
police officers for being dealt with under
Sections 17 (2) (4), 16 or 19 (3) of the Act and
issue directions to subordinate authorities for
expeditiously dealing with such cases for the
speedy rehabilitation of the women or girls and
children affected by the trade of prostitution;
(xvi) The State Level Rehabilitation Committee shall
periodically convene, as per its convenience, at
least once in two months, to review the progress
in the matter of rescue and rehabilitation of the
trafficked persons, especially women and children
who are required to be rescued and rehabilitated
as per the provisions of the said Act and the
Rules made thereunder and the international norms
reflected in the Conventions, Protocols and
Agreements to which India is a party.
(xvii) The State Level Rehabilitation Committee shall
consider the recommendations and suggestions of
the Local Cell which will study the nature and
extent of the offences committed under the Act in
the City of Surat and identify the trafficked
persons and females and children who are required
to be rescued and rehabilitated under the
provisions of the said Act and the Rules made
thereunder and in consonance with the
International Conventions and Protocols etc. to
which India is a party and make suggestions or
recommendations to the State Level Rehabilitation
Committee towards rescue and rehabilitation of
such persons;
(xviii) The Local Cell shall periodically check-up the
conditions in the protective homes or corrective
institutions established under the Act in City
and District of Surat, and, if any violation of
the Rules relating to maintenance of such
homes/institutions are noticed, report them
immediately to the State Level Rehabilitation
Committee with its suggestions and
recommendations in the matter;
(xix) The Local Cell shall inform, by suitable
publications, posters or handbills in the
localities involved, the women and girls working
as prostitutes, about their right to make
application under Section 19 for being kept in a
protective home/ corrective institution and also
about the facilities available in such homes and
institutions under the various provisions of the
Suppression of Immoral Traffic in Women and Girls
(Gujarat) Rules, 1985, particularly drawing their
attention to the provisions showing the
facilities that are required to be made available
in such homes/institutions, such as medical
examination of inmates (Rule 12), daily routine
of inmates (Rule 22), diet to inmates (Rule 23),
supply of clothes etc. (Rule 24), living space
for inmates (Rule 25), religious and moral
instructions to inmates (Rule 26), libraries for
protective homes/institutions (Rule 27), and
similar ameliorative provisions;
(xx) The Local Cell will examine genuine grievances
made against police officers and other
authorities in writing with sufficient
particulars by NGOs or the aggrieved women or
girls or other persons involved in prostitution
and try to locally sort them out in accordance
with law and, if legal aid is called for in any
case, refer the same to the appropriate authority
under the Legal Service Authorities Act, 1987;
(xxi) The Local Cell may make such suggestions and
recommendations as deemed proper for attending to
the grievances of affected women or girls or
other persons who are victims of prostitution at
the hands of other persons, to the State Level
Rehabilitation Committee for its consideration
and decision;
(xxii) The Local Cell shall be convened periodically, at
least once in a month, to consider the aspects of
rescue and rehabilitation of the women and girls
working as prostitutes and the children affected
by the trade, their grievances, and make monthly
reports to the State Level Rehabilitation
Committee about the action taken by the Local
Cell for redressal of genuine grievances and
facilitating rescue and rehabilitation of women
or girls involved in prostitution and the
children affected by the trade of prostitution
under the provisions of the Act and the Rules
made thereunder;
(xxiii) The State Level Rehabilitation Committee shall
submit its yearly report and recommendations to
the Cabinet for its consideration.
Both the petitions stand disposed of accordingly
with no order as to costs.
Sd/-
( R.K.Abichandani, J.)
Sd/-
( D.H.Waghela, J.)
(KMG Thilake)
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