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/- ============================================================ 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 -------------------------------------------------------------- SAHYOG MAHILA MANDAL& ANOTHER Versus STATE OF GUJARAT & OTHERS -------------------------------------------------------------- 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 -------------------------------------------------------------- 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