BUDHADEV KARMASKARversusSTATE OF WEST BENGAL

                          [2012] 7 S.C.R. 881
.•

                      BUDHADEV KARMASKAR                              A
                                   V.
                      STATE OF WEST BENGAL
                  (Criminal Appeal No. 135 of 2010)
                            JULY 26, 2012
                                                                      B
        [ALTAMAS KABIR AND GYAN SUDHA MISRA, JJ.]

           Sex Workers - Rehabilitation of - Application filed on
     behalf of Union of India, for modification of earlier order
     passed by Supreme Court on 19th July, 2011, referring certain c
     issues to the Committee constituted by the said order itself -
     First modification sought was deletion of Durbar Mahi/a
     Samanwaya Samiti, from the panel on the ground that it had
     been actively advocating revocation of the Immoral
      Traffic(Prevention) Act, 1956, and also recognition of sex trade D
     and that continuance of such Samiti in the panel was giving
     a wrong impression to the public that the Union of India was
     also inclined to think on similar lines and this wrong
     impression should be removed by excluding the Samiti from
     the panel - Second modification sought was with regard to the E
     third term of reference: "(3) Conditions conducive for sex
     workers who wish to continue working as sex workers with
     dignity" on the ground that wording of such reference could
     be suitably modified so as not to give an impression that the
     Union of India was in favour of encouraging the sex workers,
                                                                       F
     in contravention of the provisions of the aforesaid Act - Held:
     The presence of the Samiti in the Committee is necessary
     even to function as a sounding board in respect of the
     problems faced by the sex workers and therefore prayer of
     Union of India for deleting the Samiti from the Committee is
     rejected - No difference would be made to the terms of G
     reference, if the wording of the third term of reference, is
     modified to the following effect:-"Conditions conducive for sex
     workers to live with dignity in accordance with the provisions
                                  881                                 H
   882      SUPREME COURT REPORTS               [20121 7 S.C.R.


A of Article 21 of the Constitution." - Said modification, should
   not, however, be construed to mean that by this order, any
   attempt is being made to encourage prostitution in any way -
   Immoral Traffic(Prevention) Act, 1956.
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B No. 135 of 2010.
       From the Judgment & Order dated 25.07.2007 of the High
   Court of Calcutta in CRA No. 487 of 2004.
       Solicitor General of India (AC), P.P. Malhotra, ASG,
C Pradip Ghosh (AC), Jayant Bhushan (AC), T.S. Doabia, Ashok
  Bhan, A. Mariarputham, Anand Grover with Tripti Tandon, Manjit
  Singh, Jayant K. Sud, Dr. Manish Singhvi, AAG, Pijush K. Roy,
  Pallav Mongia, D.S. Mahra, Gaurav Sharma, Sushma Suri,
  Satya Siddiqui, S.K. Mishra, Sunita Sharma, Sadhana Sandhu,
D M. Khairati, S. Wasim, A. Qadri, Anjani Aiyagari, Gunwant
  Dara, B.V. Balramdas, B.K. Prasad, Manpreet Singh Doabia,
  Kiran Bhardwaj, Tarjit Singh, Kamal Mohan Gupta, Riku Sarna,
  Navnit Kumar (for Corporate Law Group), Asha Gopalan Nair,
  Mukul Singh, Pragati Neekhra Singh, Khawairakpam Nobin
E Singh, Sapam Biswajit Meitei, Edward Belho, Amit Kumar
  Singh, K. Enatoli Serna, Sunil Fernandes, Gopal Singh, Atul
  Jha, Sandeep Jha, Dharmendra Kumar Sinha, A. Subhashini,
  Anil Srivastav, Rituraj Biswas, Radha Shyam Jena, V.G.
  Pragasam, S.J. Aristotel, Praburamasubramanian, Jatinder
F Kumar Bhatia, Mukesh Verma, Chanchal Kr. Ganguli, Abhijit
  Sengupta, Harendra Singh, Kuldip Singh, D. Mahesh Babu,
  Mayur R. Shah, Suchitra H., Amit K. Nain, Aruna Mathur, Yusuf
  Khan, Movita (for Arputham, Aruna & Co.), K.N.
  Madhusoodhanan, M.T. George, Liz Mathew, Sana Hashmi,
G Hemantika Wahi, Abhishek Sood, Rohit Kumar Singh, Savita
  Singh, Amritananda Chakravorty, Ranjan Mukherjee, S.
  Bhowmick, S.C. Ghosh, Garima Bose, lrshad Ahmad, Balaji
  Srinivasan, Anitha Shenoy, C.D. Singh, Abhimanyu Singh, Anil
  K. Jha, Chhaya Kumari, Vibha Dutt Makhija, ANil Katiyar, P.V.
  Dinesh, Aniruddha P. Mayee, Subramonium Prasad for the
H
   BUDHADEV KARMASKAR v. STATE OF WEST                        883
                BENGAL

appearing parties.                                                    A
    The order of the Court was delivered by

    ALTAMAS KABIR, J. 1. CRLMP.N0.12415 of 2012, has
been filed on behalf of the Union of India, for modification of
the order passed by this Court on 19th July, 2011, referring          s
certain issues to the Committee which had been constituted by
the said order itself.

      2. The first modification sought by the Union of India is for
deletion of the Durbar Mahila Samanwaya Samiti, from the
panel. The second modification sought is with regard to the           C
third term of reference, which reads as follows:-
     "(3) Conditions conducive for sex workers who wish to
     continue working as sex workers with dignity."
     3. Appearing in support of the application, the learned          D
ASG, Mr. P.P. Malhotra, submitted that the Samiti in question
had been actively advocating the revocation of the Immoral
Traffic(Prevention) Act, 1956, and had also been advocating
the recognition of sex trade being continued by sex workers.
The learned ASG submitted that the continuance of such Samiti         E
in the panel is giving a wrong impression to the public that the
Union of India was also inclined to think on similar lines. The
learned ASG submitted that this wrong impression should be
removed by excluding the Samiti from the panel.
     4. As far as the second issue is concerned, the learned          F
ASG submitted that wording of such reference could be suitably
modified so as not to give an impression that the Union of India
was in favour of encouraging the sex workers, in contravention
of the provisions of the aforesaid Act.
     5. We have heard Mr. Pradip Ghosh, learned senior                G
advocate and Chairman of the Committee, as also learned
senior advocate, Mr. Jayant Bhushan, who is also a member
of the Committee and its co-Chairman and Mr. Grover, learned
senior advocate, on the issue.
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    884        SUPREME COURT REPORTS               [2012] 7 S.C.R.


A      6. It has been submitted by Mr. Ghosh that at the meetings
  of the Committee, the members of the Samiti had contributed
  a great deal towards the understanding of the problems of the
  sex workers and it was not as if the said Samiti was
  encouraging sex trade, but were providing valuable inputs into
B the problems being faced by people engaged in the trade. Mr.
  Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that
  the presence of the Samiti in the Committee was necessary
  even to function as a sounding board in respect of the problems
  that are faced by this marginalised and unfortunate section of
c society.
         7. We agree with the submissions made by Mr. Ghosh, Mr.
    Grover and Mr. Bhushan, learned senior counsel, and are not,
    therefore, inclined to delete the Samiti from the Committee, as
    prayed for by the Union of India, and such prayer is rejected.
D
          8. As to the second issue, it will not in any way make any
    difference to the terms of reference, if the wording of the third
    term of reference, is modified to the following effect:-
          "Conditions conducive for sex workers to live with dignity
E         in accordance with the provisions of Article 21 of the
          Constitution."
        9. The above modification, should not, however, be
    construed to mean that by this order, any attempt is being
    made to encourage prostitution in any way.
F         10. CRLMP.N0.12415 of 2012, is, therefore, disposed of
    in term of the aforesaid order.
       11. Let this matter now be listed for consideration of the
  Sixth and Seventh Interim Reports, filed by the Committee, on
G 22nd August, 2012, at 3.00 p.m.
         12. Let this Bench be reconstituted on the said date and
    time for the aforesaid purpose.
      GYAN SUDHA MISRA, J. 1. While concurring with the
H views of my learned brother Justice Altamas Kabir, I prefer to
   BUDHADEV KARMASKAR v. STATE OF WEST                       885
       BENGAL [GYAN SUDHA MISRA, J.]
add in regard to the second issue that this Court should not be      A
misunderstood to encourage the practice of flesh trade or
advocate the recognition of sex trade merely because it has
raised the issue to emphasize the rehabilitation aspect of the
sex workers, for which this Court had taken the initiative right
at the threshold. I consider this essential in order to allay any    B
apprehension which prompted the Union of India to move this
application for modification, by highlighting that the sex workers
although have a right to live with dignity as the society is aware
that they are forced to continue with this trade under
compulsions since they have no alternative source of livelihood,     c
collective endeavour should be there on the part of the Court
and all concerned who have joined this cause as also the sex
workers themselves to give up this heinous profession of flesh
trade by providing the destitute and physically abused women
an alternative forum for employment and resettlement in order
                                                                     0
to be able to rehabilitate themselves. I, therefore, wish to
 reiterate by way of abundant caution that this Court should not
 be perceived to advocate the recognition of sex trade or
 promote the cause of prostitution in any form and manner even
 when it had stated earlier in its terms of reference 'regarding
 conditions conducive for sex workers who wish to continue
                                                                     E
 working as sex workers with dignity'.

     2. Thus, when we modify the earlier term of reference and
state regarding conditions conducive for sex workers to live with
dignity in accordance with the provisions of Article 21 of the       F
Constitution, the same may not be interpreted or construed so
as to create an impression or draw inference that this Court in
any way is encouraging the sex workers to continue with their
profession of flesh trade by providing facilities to them when it
is merely making an effort to advocate the cause of offering an      G
alternative source of employment to those sex workers who are
keen for rehabilitation. When we say 'conditions conducive for
sex workers to live with dignity', we unambiguously wish to
convey that while the sex workers may be provided alternative
source of employment for their rehabilitation to live life with      H
    886      SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A   dignity, it will have to be understood in the right perspective as
    we cannot direct the Union of India or the State Authorities to
    provide facilities to those sex workers who wish to promote their
    profession of sex trade for earning their livelihood, except of
    course the basic amenities for a dignified life, as this was
8   certainly not the intention of this Court even when the term of
    reference was framed earlier.

       3. We, therefore, wish to be understood that we confine
  ourselves to the efforts for rehabilitation of sex workers which
  should not be construed as facilitating, providing them
C assistance or creating conducive conditions to carry on flesh
  trade for expanding their business in any manner as it cannot
  be denied that the profession of sex trade is a slur on the
  dignity of women. Conditions conducive for sex workers to live
  with dignity in accordance with the provisions of Article 21 of
D the Constitution be therefore understood in its correct
  perspective as indicated above.

    8.8.8.                                          Matter pending.