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Wednesday, August 24, 2011

"Madad chaahati hai ye hawwaa ki beti Yashodaa ki hamjins raadhaa ki beti Payambar ki ummat zulaikhaa ki beti Sanaakhwaan-e-taqdees-e-mashriq kahaan hain? Zaraa mulk ke rahbaron ko bulao Ye kooche ye galiyaan ye manzar dikhao Sanaakhwaan-e-taqdees-e-mashriq ko lao Sanakhwaan-e-taqdees-e-mashriq kahaan hain?" - Sahir Luhdhianvi : Chakle 1. This order is in continuation of our earlier orders in this case which aim at providing a life of dignity to the sex workers in our country by giving 1 them some technical skills through which they can earn their livelihood instead of by selling their bodies. The legal background of these orders is Article 21 of the Constitution, in which the word `life' has been interpreted by this Court to mean a life of dignity, and not just an animal life. 2. Mr. Pradip Ghosh, Chairman of the Panel appointed by us, submitted a report stating that a meeting of the Panel on Sex Workers was held at the Arbitration Room of M.C. Setalvad Lawyers' Chambers Block, Supreme Court on 05.08.2011. At a subsequent meeting held on 17.08.2011, the members of the Panel along with representatives of the State Governments of Delhi, Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh, West Bengal, Haryana and the Central Government as well as representatives of some NGOs and some senior Police Officers of the State of Tamil Nadu and Delhi were present. In its report the Panel has mentioned the State wise figures of sex workers rehabilitated so far.


                                               REPORTABLE




                  IN THE SUPREME COURT OF INDIA




                CRIMINAL APPELLATE JURISDICTION




                  CRIMINAL APPEAL NO. 135 OF 2010








Budhadev Karmaskar                             ..         Appellant(s)




                             -versus-




State of West Bengal                           ..         Respondent(s)








                                O  R  D  E  R








      "Madad chaahati hai ye hawwaa ki beti


      Yashodaa ki hamjins raadhaa ki beti


      Payambar ki ummat zulaikhaa ki beti


      Sanaakhwaan-e-taqdees-e-mashriq kahaan 


hain?


      Zaraa mulk ke rahbaron ko bulao


      Ye kooche ye galiyaan ye manzar dikhao


      Sanaakhwaan-e-taqdees-e-mashriq ko lao


      Sanakhwaan-e-taqdees-e-mashriq kahaan 


hain?"






                                         -    Sahir Luhdhianvi : 


                                              Chakle










1.    This order is in continuation of our earlier orders in this case which 




aim at providing a life of dignity to the sex workers in our country by giving 










                                         1



them   some   technical   skills   through   which   they   can   earn   their   livelihood 




instead of by selling their bodies.     The legal background of these orders is 




Article 21 of the Constitution, in which the word `life' has been interpreted 




by this Court to mean a life of dignity, and not just an animal life.








2.      Mr. Pradip Ghosh, Chairman of the Panel appointed by us, submitted 




a report stating that a meeting of the Panel on Sex Workers was held at the 




Arbitration   Room   of   M.C.   Setalvad   Lawyers'   Chambers   Block,   Supreme 




Court   on   05.08.2011.     At   a   subsequent   meeting   held   on   17.08.2011,   the 




members of the Panel along with representatives of the State Governments 




of   Delhi,   Maharashtra,   Karnataka,   Tamil   Nadu,   Andhra   Pradesh,   West 




Bengal, Haryana and the Central Government as well as representatives of 




some NGOs and some senior Police Officers of the State of Tamil Nadu and 




Delhi   were   present.     In   its   report   the   Panel   has   mentioned   the   State   wise 




figures of sex workers rehabilitated so far.










3.      By our orders dated 19.07.2011 and 02.08.2011 we had directed the 




Central Government and State Governments to provide certain funds to the 




Panel so that it could function effectively.  However we are informed that as 




yet no funds have been provided, which is hampering the work of the Panel. 




The Panel has suggested that the Central government be directed to provide 










                                                2



Rupees 10,00,000/-, each state Government a sum of Rupees 5,00,000/- and 




each   union   territory   Rupees   2,00,000/-   to   the   Panel.     We   accept   this 




recommendation   and   direct   accordingly,   with   the   modification   that 




States/Union   Territories   which   have   no   sex   workers   as   stated   in   their 




affidavits   need   not   make   this   payment.     This   amount   should   be   paid 




positively   by   07.09.2011   to   the   Secretary   General   of   this   Court   who   will 




deposit it in a nationalized bank nominated by   the Chairman of the Panel, 




Mr. Pradip Ghosh,  Sr. Advocate.










4.      Mr.   Pradip   Ghosh,   Senior   Advocate   (whose   full   name   for   Banking 




purpose is Pradip Kumar Ghosh) and Mr. Jayant Bhushan, Senior Advocate, 




who is a member of the Panel, are jointly authorized to open a bank account 




in   the     nationalized   Bank   where   the   money   is   deposited,   to   be   operated 




jointly   by   them.   The   Chairman   of   the   Panel   will   furnish   to   the   Secretary 




General of this Court accounts of the expenditure incurred by the Panel from 




time to time.   It will be open to the Chairman of the Panel to seek further 




orders of this Court in this connection.  










5.      It is also prayed in the report of the Panel submitted before us today 




that there is no proper accommodation for the functioning of the Panel.  We 




agree that unless some accommodation is provided the Panel will not be able 






                                               3



to   function   properly   and   effectively.     We   are   informed   that   the   Central 




Government   has   in   its   occupation   a   portion   of   the   Indian   Law   Institute 




Building.     We   direct   that   the   said   accommodation/office   space   shall   be 




allotted   forthwith   to   the   Panel   constituted   by   us,   and   not   later   than 




01.09.2011.   The said office space shall be properly furnished and equipped 




by the Central  Government with computer, furniture etc. so that the Panel 




may   be   able   to   carry   out   the   day   to   day   activities   thereon.     Secretarial 




assistance and services of office attendants and other staff shall also be made 




available forthwith by the Central Government as requested by Shri Pradip 




Ghosh, Chairman of the Panel.  










6.      By   our   order   dated   19.7.2011,   this   Court   was   pleased   to   direct   the 




States/Union Territories and the Union of India to carry out surveys through 




their Agencies and to report to the Panel   the findings of the said surveys. 




The   survey   was   meant   to   ascertain   as   to   how   many   sex   workers   want 




rehabilitation and how many of them would voluntarily continue in the same 




profession.   Each State Government should undertake such survey through 




their Agencies in collaboration with the Central Government on the lines as 




recommended   by   the   Panel.     For   this   purpose,   the   help   of   NGOs,   Expert 




Bodies and Demographers may be obtained by the Governments concerned. 




At the first instance, the said surveys may be made with regard to the four 






                                               4



Metropolitan   Cities,   namely,   Delhi,   Mumbai,   Chennai   and   Kolkata. 




Subsequently other States and Union Territories should also carry out such 




surveys.










7.     The Panel will make recommendations in respect of such surveys and 




the   same   should   be   complied   with   by   the   respective   State   Governments. 




The results of the surveys shall be reported to the Panel .










8.     We convey our gratitude to the Central Government and various State 




Governments   who   sent   their   representatives   to   the   meeting   held   on 




17.08.2011.     Many   of   them   have   made   valuable   contributions   in   the   said 




meeting   as   mentioned   in   the   report   of   the   Panel.     We   request   them   to 




continue attending the Panel meetings whenever requested by the Chairman, 




and give all help in this connection. 










9.     We are happy to note that Mr. Pradip Ghosh, Chairman of the Panel 




has   decided   to   add     South   India   AIDS   Action   Programme   through   its 




director Ms. Indumati which is situated in Chennai,   Shakti Vahini through 




Shri Ravi Kant which is a NGO based in Delhi,  Prerana, an NGO based in 




Mumbai, and Mr. Tariq Khan, a social activist of Lucknow, as members of 










                                             5



the Panel.   Some of them have given valuable inputs in the meeting dated 




17.08.2011 as mentioned in the Report of the Panel.  










10.    We   were   happy   to   note     from   the   report   of   the   Panel   that   the 




Government of Andhra Pradesh and Prajwala, a NGO operating in Andhra 




Pradesh,   have   substantially   supported   each   other,   both   in   their   efforts   in 




rehabilitation of sex workers as also in the representations made before the 




Panel   with   regard   to   the   information   as   regards   rehabilitation. 




Notwithstanding   the   changes   in   the   State   government   from   time   to   time, 




Prajwala  and  other   NGOs  have  received  consistent  support  from the  State 




Government in this connection.   This seems  to be a unique feature   in the 




State of Andhra Pradesh, and should be emulated by other States.










11.    In   its   report   the   Panel   has   mentioned   that   the   NGO   Prerana, 




represented  by  Ms. Priti   Patkar  situated  in Mumbai has   rehabilitated   4973 




sex   workers   between   198   and   2010.     The   rescued   women   were   given 




vocational training and made economically self-sufficient.  










12.    Prerana   has   trained   women   as   mobile   crhches,   petrol   pump   fillers, 




catering and hospitality , beauty care, fashion designing, starting their own 




enterprises as small businesses and also in some other   areas of vocational 






                                              6



replacement.     Some   young   women   have   been   placed   in   McDonalds, 




Dominos, PPCL Petrol Pump, Food Courts in Malls etc.   These are some of 




the   areas   of   employment   for   absorbing   these   former   sex   workers.   These 




women who have been rehabilitated by Prerana have not been seen back in 




the flesh trade.  It seems that they have been re-integrated in the mainstream 




and their past identity has been completely obliterated.   Some of them are 




still in touch with Prerana and the reports reveal that they are doing well and 




some   are   settled   with   their   children.     Some   have   started   a   life   with   their 




former clients out of the arena of the flesh trade.   Some are happy with the 




small business of their own that they run.   Some have left for their native 




towns/villages.  Women who move out of the city are always given a list of 




contacts whom they can approach in case they require any assistance.   All 




this shows that Prerna has been doing excellent work.










13.     In   the   State   of   Tamil   Nadu   in   the   year   2010-2011   532   sex   workers 




were given vocational training, and 424 restored to their respective families. 




Many of them were minors.  




14.     Ms.   Archana   Ramasundaram,   Additional   DIG   of   Police   (Crime), 




Tamil Nadu stated  that the major stumbling block in the matter of rescue of 




victims of sex trafficking is that pimps get to know about the trafficked girls 




before the authorities come to know of them, and often even the family of 






                                                7



the     girl     is     involved     in         the       racket.       We     are,     therefore,     of 




the   view    that   if     an     incident    of      the      involvement    of    the 




family   of   the   girl   pushing   her   into   the   sex   racket   comes   to   the   notice   of 




anyone   concerned   including   NGOs,   authorities,   etc.   we   direct   that   such 




incident be reported to the Executive Chairman/Secretary of the State Legal 




Services Authority. It will be open for the said Authority  to take appropriate 




penal action against such illegality or person who may be found involved. 




Unless   this   nexus   between   the   traffickers,   pimps   and   the   brothel   owners, 




together   with   the   family   at   times,   is   broken,   successful   rescue   and 




rehabilitation becomes difficult. 




        Ms.   Ramasundaram   also   suggested   that   instead   of   producing   the 




rescued women in person in court, a system of video conferencing could be 




effective so that the girls do not have to actually travel  and are, therefore, 




safe and hidden from the pimps. 




        We are further of the view that all the State Legal Services Authorities 




should provide a helpline number to the NGOs and to the State machinery as 




well as to the sex workers and victims of sex trade who are in distress and 




who are compelled to continue with the sex trade, so that they can avail the 




benefit   of   the   helpline   number   for   providing   legal   assistance,   to   get   them 




rescued   or   any   other   assistance   which   may   be   offered   to   them   by   way   of 










                                                   8



Free Legal Aid.  The  State Legal Services Authorities thereafter may direct 




them   to   the   concerned   and   appropriate   authorities   for   taking   remedial 




measures   in  that   regard   and  also   report   the   matter   to  the   Panel   which  has 




been constituted by us.








15.     Ms.   Indumati   representing   South   India   AIDS   Action   Program   from 




Chennai who participated on behalf of the said NGO stated that many of the 




sex   workers   want   to   learn   additional   skills   but   they   still   want   to   continue 




with their old profession in the red light area because some of their clients 




are very persistent and keep on coming back and are unwilling to let the sex 




workers   leave   the   profession.     For   many   sex   workers,   the   rehabilitation 




process is important but only if they are old and cannot get any income by 




selling their bodies.   Many of them want vocational training only to add to 




their income while continuing with their sex work.  Unless the attitude of the 




public   in   general   towards   the   sex   workers   undergoes   a   change   so   as   to 




remove   the   stigma   attached   to   their   profession,   and   there   is   more 




acceptability of the rehabilitated sex workers in the mainstream, it is difficult 




to persuade the sex workers to get rehabilitated leaving their old profession.  








16.     There is always a prevailing fear that by opting for rehabilitation they 




may be worse off by losing their old livelihood and also not being able to 










                                                9



survive in the alternative vocation   unless there is ready acceptance of the 




former sex workers  in the  mainstream.




17.     As regards the State of West Bengal, it is well know that Calcutta has 




a   huge   number   of   sex   workers   in   Sonagachi,   Free   School   Street   etc.   The 




Government of West Bengal stated that there is no convincing data available 




in respect of the number of sex workers rehabilitated so far and it will take 




time   to   collect   the   same   from   the   service   providers.     However,   they   are 




running   17   homes   under  the   Swadhar  Schemes  and   two  Homes   under   the 




Ujwala   Scheme   and   43   Short   Stay   Homes.     These   Homes   give   shelter   to 




rescued sex workers.








18.     In this connection we wish to say that providing short stay homes to 




sex workers is hardly a solution to their problem.  They must be provided a 




marketable technical skill so that they can earn their livelihood through such 




technical   skill   instead   of  by   selling   their   bodies.     Merely   sending   them   to 




homes is sending them to starvation.   We were, therefore, disappointed by 




the approach of the State of West Bengal, where the problem is most acute. 




Much more needs to be done by the State Government.








19.     At the Panel meeting, the representative of the State Government who 




was   a   director   in   the   Department   of   Social   Welfare   stated   that   15   sex 




workers   have   been   permanently   rehabilitated   in   the   sense   that   they   have 






                                               10



been given direct employment and are now married.  Some sex workers have 




been   successfully   employed   as   Anganwadi   workers   and   helpers.   He   also 




estimated   that   about   another   one   thousand   sex   workers   have   been 




rehabilitated in the State in the sense that they have been given new jobs and 




are not likely to return to their old profession, but this is not a verified figure. 




Some   of   the   rescued   sex   workers   who   were   from   Bangladesh   and   Nepal 




were repatriated to the countries of their origin.  Ms. Bharti Dey representing 




Durbar   Mahila   Samanwaya   Committee   (DMSC)   questioned   the   basis   of 




calculation of the figures given by the Government representative.  She also 




questioned as to where and how the sex workers have been rehabilitated.








20.    On   behalf   of   DMSC   and   USHA   Multipurpose   Cooperative   Society, 




Dr.  S.  Jana   and  Ms.  Bharti   Dey  who  spoke   at  the  meeting  also   submitted 




written responses, stating that:








       a)     DMSC   itself   has   employed   about   500   sex   workers   in   their 




              Health intervention Program. On enquiry, it has been learnt by 




              DMSC   that   55   have   ceased   to   work   in   their   old   profession 




              while   the   rest   continue   to   sell   sex   while   still   holding   jobs   as 




              health workers.   It was learnt that those 55 who really gave up 




              their old profession were at the fag end of their working life in 




              sex   work.     They   were   neither   able   to   compete   with   their 




              younger   colleagues   nor   able   to   perform   the   jobs   that   was 




              required of them.






                                              11



       b)      According to the records maintained by USHA, 8 sex workers 




               employed   as   Field   Collectors   for   the   Cooperative   Societies, 




               Bank   have   discontinued   sex   work.     Another   10   women   have 




               started working as beautician and do not engage in sex work.






       c)      According to DMSC, the inference drawn from these findings 




               is that while women may leave sex work but they do not leave 




               the sex work sector.  Those who stop selling sex find alternative 




               work  in  the  red  light  area   itself.     This  is   because  they  do  not 




               experience adverse stigma and discrimination among their peers 




               as they would face outside the red light area.






       d)      It   was   emphasized   that   the   so-called   Homes   run   under   the 




               Government   sponsored   projects   virtually   operate   as   prison 




               houses so much so that even if a sex worker may not be willing 




               to   leave   the   profession   they   would   not   like   to   live   in   the   so-




               called   Homes.     The   reluctance   is   not   so   much   due   to   loss   of 




               earning but more because they do not want to be imprisoned or 




               to lose their freedom.






21.    Mrs.   Sunanda   Bose,   representing   All   Bengal   Women's   Union, 




emphasized that stereotypical vocational training would not work any more 




as the women earn more in sex work than they are able to earn by giving up 




their profession.  More innovative jobs have to be offered to them to induce 




them to leave the profession.  She gave the example of one sex worker who 




was   rescued   by   her   who   is   now   working   as   a   Petrol   Pump   Operator   and 




earns about Rs.7,000/- per month.




                                               12



22.     Mrs. Bose  made valuable suggestions and various inputs with regard 




to rehabilitation of the sex workers.  










23.     As   regards   Delhi   there   seems   to   be   no   scheme   of   the   State 




Government   for   rehabilitation   of   sex   workers.   This   is   indeed   regrettable. 




There are many red light areas such as the one in  G. B. Road etc.  in Delhi. 




The State Government needs to do much more in this connection.  










24.     Shakti   Vahini,   represented   by   Shri   Ravi   Kant,   stated   in   the   Panel 




meeting  that not a single victim of commercial sexual exploitation has been 




rehabilitated in Delhi.   The Joint Commissioner of Police (Crime) of Delhi 




Police made significant contributions at the said meeting by making certain 




important suggestions.  He pointed out that the reluctance on the part of the 




sex workers to leave their profession is because they are not sure about their 




future in the alternative livelihood and as to what security they would have 




in   their   life   ahead   since   it   seems   to   them   that   nothing   is   on   a   permanent 




basis.   This lack of faith is not in the rehabilitation process but rather in its 




structure.     The   rehabilitation   Scheme   must   be   made   more   effective   and 




sensitive as to the mindset of the victims.  He pointed out various problems 










                                                 13



in   the   implementation   of   rescue   operation   and   the   rehabilitation   process, 




some of which were agreed to by the representatives of the NGOs also.










25.     As regards the Central Government,  Ms. Sangeeta Verma, Economic 




Adviser,   Ministry   of Women  &  Child  Development,  Government  of  India 




who represented the Central Government at the Panel meeting, explained the 




significance   of  the   UJWALA   Scheme   which  has   five   components   utilized 




for   rehabilitation   of   sex   workers.     She   also   pointed   out   that   if   the   sex 




workers do not wish to go back home, then another program called STEP is 




available for them which is being implemented by the Central Government 




effectively.   She pointed out that poverty is the main   factor which pushes 




vulnerable   women   to   prostitution.     She   emphasized   that   the   Central 




Government   has   Schemes   in   place   which   may   be   availed   of     by   the   sex 




workers who are voluntarily willing to opt  for their rehabilitation, although 




these  are not specially  earmarked for the sex workers.   Even such  general 




schemes can be made use of  by them once they are willing to come out of 




the sex trade .   We request the panel to investigate whether these schemes 




exist largely on paper only, or whether they have been actually implemented.










26.   From   a   perusal   of   the   UJWALA   Scheme   it   appears   that   the   Central 




Government has scheme only for rescued trafficked women but no scheme 






                                               14



for   those   sex   workers   who   voluntarily   want   to   leave   the   sex   trade.   In   our 




opinion, proper effective scheme should be prepared for such women also. 




In   this   connection,   we   would   like   to   say   that   the   Central   Government 




scheme has placed a condition that the rescued sex workers must stay in a 




corrective home in order to get technical training.   In our opinion, no such 




condition   should  be imposed as  many  sex  workers  are  reluctant  to  stay   in 




these corrective homes which they consider as virtual prison.










27.     From a perusal of the report of the Panel dated 23.08.2011 we are not 




satisfied that the Central Government and State Governments are effectively 




carrying out the spirit of our orders in this case.  While a few officers have 




indeed   been   motivated,   much   more   needs   to   be   done   by   the   authorities. 




Hence   by   the   next   date   of   hearing   the   Central   Government   and   State 




Governments   must   submit   additional   reports   stating   in   greater   detail   how 




they are complying with our orders.  










28.     In our dated 02.08.2011 we  observed:-  




                        "We are fully conscious of the fact that simply by 


                our   orders   the   sex   workers   in   our   country   will   not   be 


                rehabilitated   immediately.     It   will   take   a   long   time,   but 


                we   have   to   work   patiently   in   this   direction.     What   we 


                have   done   in  this   case   is  to   present   the  situation   of  sex 


                workers   in   the   country   in   the   correct   light,   so   as   to 


                educate   the   public.     It   is   ultimately   the   people   of   the 






                                                15



               country,   particularly   the   young   people,   who   by   their 


               idealism and patriotism can solve  the massive  problems 


               of sex workers.  We, therefore,  particularly appeal to the 


               youth of the country to contact the members of the panel 


               and   to   offer   their   services   in   a   manner   which   the   panel 


               may require so that the sex workers can be uplifted from 


               their present degraded condition.   They may contact the 


               panel at the email address: panelonsexworkers@gmail.com."










We again reiterate our appeal to the public, and particularly to the youth of 




the   country   to   contact   members   of   the   panel   at   the   e-mail   address 






panelonsexworkers@gmail.com   and give their valuable suggestions and inputs. 






This would surely be of great help to the Panel.  










29.    List this case again before us on 15.9.2011.










30.    Copy   of  this   order   will   be   sent   by   the   Registry   of  this   Court  to   the 




Chief   Secretaries   and   Secretaries   of   the   Home/Social   Welfare/Women's 




Welfare   Department   of   all   State   Governments/Union   Territories   and   shall 




also be sent to the Secretaries of the concerned Departments of the Central 




Government e.g. Home Ministry, Urban Development Ministry,     Ministry 




of   Social   Welfare,   Women's   Welfare   Ministry   etc.   They   will   ensure 




compliance of this order.  Copy of this order as well as our previous orders 




in this regard and of the Panel reports shall also be forwarded to the National 






                                               16



Commission   For   Women,   New   Delhi   through   its   Chairperson,   and   the 




Chairperson of the National Commission is requested to depute one or more 




of  its   members   to  regularly   attend   the  meetings   of  the  panel,   whose  dates 




will be informed in advance by the Chairman of the Panel.   Copies of this 




order will also be given to all the counsels in this case free of charge.      










                                             ...................................J


                                             (Markandey Katju)










                                             .................................J.


                                             (Gyan Sudha Misra)


New Delhi;


24th   August, 2011










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