SAHYOG MAHILA MANDAL Vs. STATE OF GUJARAT

JUDGEMENT

(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.1,000.00 to Rs.1,500.00 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.