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2022 Supreme(SC) 804

SUPREME COURT OF INDIA
L. Nageswara Rao, B.R. Gavai, A.S. Bopanna, JJ.
Budhadev Karmaskar – Petitioner
Versus
The State of West Bengal & Ors. – Respondents
Criminal Appeal No(s).135 of 2010
Decided On : 19-05-2022

Advocates:
Advocate Appeared:
Mr. Jayant Bhushan, Sr. Adv., (A.C.) Ms. Reena George, Adv., Mr. Ketan Pual, Adv., Mr. Tushar Bhushan, Adv., Mr. Amartya Bhushan, Adv., Mr. Piyush K. Roy, Adv., (A.C.) Mrs. Kakali Roy, Adv.,(A.C.) Ms. Indrani Dey, Adv.,
Jail Petition : Mr. Dharmendra Kumar Sinha, AOR Ms. G. Indira, AOR Mr. Rohit Kumar Singh, AOR Mr. Anil Kumar, Adv., Mr. Umang Tripathi, Adv Mr. Kamal Mohan Gupta, AOR Mr. Radha Shyam Jena, AOR Mr. S. Udaya Kumar Sagar, AOR Mr. Sweena Nair, Adv., Mr. P. Mohith Rao, Adv., Ms. A. Subhashini, AOR Mr. Anil Shrivastav, AOR Mr. Alok Kumar, Adv., Mr. Suhaan Mukerji, Adv., Mr. Raghent Basant, Adv., Mr. Nikhil Parikshith, Adv., Mr. Vishal Prasad, Adv., Mr. Abhishek Manchanda, Adv., Mr. Sayandeep Pahari, Adv., Mr. Tanmay Sinha, Adv., M/S. PLR Chambers And Co., AOR M/S. Arputham Aruna And Co, AOR Ms. Diksha Rai, AOR Mr. Ankit Agarwal, Adv., Mr. P. V. Dinesh, AOR Manpreet Singh Doabia, Adv., Ms. Kiran Bhardwaj, AOR Ms. Aswathi M.K., AOR Mr. Rameshwar Prasad Goyal, AOR Ms. Hemantika Wahi, AOR Mr. Anand Grover, Sr. Adv., Ms. Savita Singh, AOR Ms. Tripti Tandon, Adv., Ms. Aparna Bhat, AOR Ms. Liz Mathew, AOR Mr. Gopal Singh, AOR Mr. Ashok Kumar Singh, AOR Mr. C. K. Sasi, AOR Mr. Abdulla Naseen V.T., Adv., Ms. Meena K.P., Adv., Mr. Garvesh Kabra, AOR Dr. Monika Gusain, Adv., Ms. Ritu Rastogi, Adv., Mr. Sanjay Kumar Visen, AOR Dr. Monika Gusain, Adv., Mr. S. Harini, Adv., Mr. M. T. George, AOR Mrs. Swarupama Chaturvedi, AOR Mr. Balaji Srinivasan, AOR Mr. Saurabh Trivedi, AOR Mr. Ashutosh Sharma, Adv., Mr. D. Mahesh Babu, AOR Dr. Joseph Aristotle S., AOR Ms. Nupur Sharma, Adv., Mr. Shobhit Dwivedi, Adv., Mr. Sanjeev Kumar Mahara, Adv., M/S. Corporate Law Group, AOR Mrs. Anil Katiyar, AOR Mr. Sunil Fernandes, AOR Mr. Pradeep Misra,Adv., Mr. Suraj Singh,Adv., Mr. Anmol Rattan Sidhu, Adv., Mr. R.K. Rathore, Adv., Mr. Pratham Sethi, Adv., Ms. Jaspreet Gogia, AOR Ms. Asha Gopalan Nair, AOR Mr. Anuvrat Sharma, AOR Mr. Anil K. Jha, AOR Mr. Jayant K. Sud, ASG Mr. Harish Pandey, Adv., Ms. Sanskriti Pathak, Adv., Mr. B.K. Satija, Adv., Mr. Jayant K Sud, ASG Mr. Himanshu Satija, Adv., Ms. Sunita Sharma, Adv., Mr. Sardar Kumar Singhania, Adv., Mr. Sanjay kumar Tyagi, Adv., Ms. Sakshi kakkar, Adv., Mr. Mohammed Akhil, Adv., Mr. A.K. Sharma, AOR Mr. Jayant K Sud,ASG Mrs. Sunita Sharma,Adv., Mr. Mr. B.K. Satija, Adv., Mr. Sanjay Kumar Tyagi,Adv., Mr. Mohammad Akhil, Adv., Mr. Om Prakash Shukla, Adv., Mr. Jayant K. Sud, Ld. ASG, Mr. Anil Hooda Adv., Mr. Harish Pandey Adv., Ms. Sansriti Pathak, Adv., Ms. Megha Karnawal Adv., Mr. Jitender Hooda Adv., Mr. Shafik Ahmed Adv., Mr. Ajay Sharma Adv., Mr. Piyush Beriwal,Adv., Mr. G. S. Makker AOR Mr. Jayant K. Sud, ASG Mr. Sanjay Kumar Tyagi, Adv., Ms. Sunita Sharma, Adv., Mr. Om Prakash Shukla, Adv., M. B.K. Satiza, Adv., Mr. Mohammad Akhil, Adv., Mr. Himashu Satija, Adv., Ms. Shakshi Kakkar, Adv., Mr. Sarad Kumar Singhania Adv., Mr. Rajesh singh chauhan Adv., Mr. Apoorv Kurup Adv., Ms. Priyadarshini Pyiya Adv., Mr. G.S. Makker, Adv., Mr. Arvind Kumar Sharma, AOR Mr. Sanjay Kumar Tyagi, Adv., Ms. Sunita Sharma, Adv., Mr. Om Prakash Shukla, Adv., Mr. Mohammad Akhil, Adv., Mr. Himashu Satija, Adv., Ms. Shakshi kakkar. Adv., Mr. Apoorv Kurup, Adv., Mr. Rajesh Singh Chauhan, Adv., Ms. Priyadarshni Priya, Adv., Mr. Anil Hooda, Adv., Mr. Saraswat Parihar, Adv., Ms. Megha Karnawal, Adv., Mr. Sarad kr. Singhania, Adv., Mr. G.S. Makker, AOR Mr. Randeep Sachdeva, Adv., Mr. Kartik Jasra, Adv., Mr. Harish Nadda, Adv., Mr. Adit Khorana, Adv., Mr. Digvijay Dam, Adv., Mr. Jitender Hooda Adv., Mr. Shafik Ahmed Adv., Mr. Ajay Sharma Adv., Mr. Arvind Kumar Sharma, AOR Mr. B. V. Balaram Das, AOR Mr. Irshad Ahmad, AOR Mr. Jatinder Kumar Bhatia, AOR Mr. Ankur S. Kulkarni, AOR Mr. Shuvodeep Roy, AOR Mr. Ishaan Borthakur, Adv., Mr. Kabir Shankar Bose, Adv., Ms. Taruna Ardhendumauli Prasad, AOR Mr. Jogy Scaria, AOR Mr. M. Yogesh Kanna, AOR Mr. Abhinav Mukerji, AOR Mrs. Bihu Sharma, Adv., Ms. Pratishtha Vij, Adv., Mr. Akshay C Shrivastava, Adv., Mr. Sachin Patil, AOR Mr. Rahul Chitnis, Adv., Mr. Aaditya A. Pande, Adv., Mr. Geo Joseph, Adv., Ms. Shewtal Shepal, Adv., Mr. Risvi Muhammad, Adv., Mr. Aravindh S., AOR Mr. C. Aravind, Adv., Ms. C. Rubavathi, Adv., Mr. Vinod Sharma, AOR Mr. Siddhesh Kotwal, Adv Ms. Anu Upadhyay, Adv., Ms. Manya Hasija, Adv., Mr. Akash Singh, Adv., Ms. Preeti Singh, Adv., Mr. Nirnimesh Dube, AOR Dr. Manish Singhvi, Sr. Adv., Mr. Arpit Parkash, Adv., Mr. Sandeep Kumar Jha, AOR Mr. Tanmaya Agarwal, AOR Mr. Wrick Chatterjee, Adv., Mr. Upendra Mishra, Adv., Mr. Ashish Ranjan, Adv., Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv., Ms. Anupama Ngangom, Adv., Mr. Wahengbam Immanuel Meitei, Adv., Mr. Avijit Mani Tripathi, AOR Mr. P.S. Negi, Adv., Mr. S.R. Kochar, Adv., Mr. Upendra Mishra, Adv., Mr. K. V. Kharlyngdoh, Adv., Mr. T.K. Nayak, Adv., Mr. S.C. Verma, Sr. Adv.,/Adv Gnl. Mr. Sumeer Sodhi, AOR. Mr. Anvit Seemansh, Adv., Mr. Abhay Pratap Singh, AOR Ms. Jyoti Mendiratta, AOR Ms. Archana Pathak Dave, Adv., Ms. Deepanwita Priyanka, AOR Ms. Anindita Pujari, AOR Mr. Siddhartha Srivastava, Adv., Mr. Azad Bansala, Adv., Mr. Prakriti Rastogi, Adv., Mr. Mohit Kaushik,Adv., Mr. Tapesh Kumar Singh, AAG Mr. Kumar Anurag Singh, Addl. Standing Counsel Ms. Tulika Mukherjee, AOR Mr. Shwetank Singh, Adv., Ms. Aastha Shrestha, Adv., Mr. P.S. Sudheer, Adv Mr. Beenu Sharma, Adv., Ms. Astha Sharma, AOR Mr. Zoheb Hossain, AOR Mr. Vivek Gurnani, Adv., Mr. Shoaib Alvi, Adv., Mr. Raj Bahadur Yadav, AOR Mr. Shubhranshu Padhi, AOR Mr. Ashish Yadav, Adv., Mr. Rakshit Jain, Adv., Mr. Vishal Bansal, Adv., Mrs. K. Enatoli Sema, AOR Mr. Amit Kumar Singh, Adv., Ms. Chubalemla Chang, Adv., Mr. P. V. Yogeshwaran, AAG Mr. Sunny Choudhary, AOR Mr. Satish Pandey, AOR Mr. Akbar Ali,Adv., Mr. Mamohan Sharma,Adv., Mr. Harendra Kumar Sharma,Adv., Mr. Raghvendra Kumar, Adv., Mr. Anand Kr. Dubey, Adv., Mr. Nishant Verma, Adv., Mr. Rajiv Kumar Sinha, Adv., Mr. Simanta Kumar, Adv., Ms. Rajlakshmi Singh, Adv., Mr. Sunil Saraogi, Adv., Mr. Varun Singh, Adv Mr. Narendra Kumar, AOR Mr. Mahfooz A. Nazki, AOR Mr. Polanki Gowtham, Adv., Mr. Shaik Mohamad Haneef, Adv., Mr. T. Vijaya Bhaskar Reddy, Adv., Ms. Rajeswari Mukherjee, Adv., Mr. K.V. Girish Chowdary, Adv.
.

The judgment establishes the constitutional protection of human decency and dignity, the equal protection of the law for sex workers, and the need for rehabilitation measures under the Immoral Traffic (Prevention) Act, 1956.

Headnote:

Human Rights - Rehabilitation of Sex Workers - Prevention of Trafficking - Immoral Traffic (Prevention) Act, 1956 - Articles 14, 19, 21 of the Constitution of India - Section 357C of the Code of Criminal Procedure, 1973 - Section 354C, IPC

Fact of the Case:

The court addressed the rehabilitation of sex workers and their children, emphasizing the constitutional regard for human decency and dignity under Articles 14, 19, and 21 of the Constitution of India. It discussed the formation of a panel, its recommendations, and the need for legislation to implement these recommendations.

Finding of the Court:

The court directed the Union of India and State Governments/UTs to comply with the recommendations for the rehabilitation of sex workers and the provisions of the Immoral Traffic (Prevention) Act, 1956. It also addressed the issuance of Aadhar Cards to sex workers without proof of residence.

Issues: Rehabilitation of sex workers, compliance with recommendations, issuance of Aadhar Cards to sex workers without proof of residence.

Ratio Decidendi: The court emphasized the constitutional protection of human decency and dignity, the equal protection of the law for sex workers, and the need for rehabilitation measures. It also highlighted the provisions of the Immoral Traffic (Prevention) Act, 1956 and the procedure for issuing Aadhar Cards to sex workers.

Final Decision: The court directed the Union of India and State Governments/UTs to comply with the recommendations for the rehabilitation of sex workers and the provisions of the Immoral Traffic (Prevention) Act, 1956. It also approved the procedure for issuing Aadhar Cards to sex workers without proof of residence.

ORDER :

1. Human rights jurisprudence in India has acquired a constitutional status and sweep, owing to the full potential breathed by this Court into Articles 14, 19 and 21 of the Constitution of India since Maneka Gandhi v. Union of India, (1978) 1 SCC 248. The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. While expounding on the scope of the right to life under Article 21, this Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 extended the meaning of the right to life beyond the protection of limb or faculty to include the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.

2. Pursuant to an order passed by this Court on 19.07.2011, a Panel was constituted with Mr. Pradip Ghosh as the Chairman of the Panel, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan.

3. The terms of reference made to the panel are:

    (1) Prevention of trafficking,

    (2) Rehabilitation of sex workers who wish to leave sex work, and

    (3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.

4. By an order dt. 26.07.2012, this Court modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

5. After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report on the terms of reference. When the matter was listed in the year 2016, this Court was informed that the recommendations made by the panel were considered by the Government of India and a draft legislation was published incorporating the recommendations made by the panel. Thereafter, periodically adjournments were taken by the Union of India on the ground that the Bill is on the anvil. As the legislation has not been made till date even though the recommendations were made by the Panel in the year 2016 and the said recommendations have to be implemented, we are exercising our powers conferred under Article 142 of the Constitution of India, to issue the following directions which will hold the field till a legislation is made by the Union of India. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.

6. The directions that are issued today relate only to the rehabilitation measures in respect of sex workers and other connected issues. The panel has recommended in respect of the third term of reference in the following terms:

    (i) Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.

    There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.

    ii) Any sex worker who is a victim of sexual assault should be provided with all fa

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