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Differentiation between victim and offender – Rehabilitation of victims and correction of women offenders -Gujarat High Court

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NATIONAL LEGAL RESEARCH DESK

Emphasis on Differentiation between victim and offender – Rehabilitation of victims and correction of women offenders

According to the petitioner, lives of women in the area had 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 (red light area) 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 the women were produced before the Magistrate.

The petitioner further submitted that if a rehabilitation plan had to be worked out, first a conducive environment needed to be built to make the women agreeable to such plan and the police authorities should be directed to stop arresting the women. It stated that due to police raids and harassment, all such policy measures were on the verge of failure and the intervention programmes would have no impact. It was also contended that the women in prostitution/sex work were entitled to right to privacy, and equal protection of law and that prostitution or sex work, which is one of the oldest professions, served an essential social function.

As per our submission, this profession is illegal as per our legal system and the service furthers violates the basic human right of these women who are not in this profession with their own free will.

The Gujarat High Court herein upheld the validity of Section 7 1(b), 14, 15 and notification dated 23.2.2000 issued by the Commissioner of Police, Surat under Section 7(1)(b) of the ITPA stating that “There is a rational connection between the impugned provisions of Section 7 and the prevention of the social nuisance associated with prostitution in such notified areas or public places… Public places provide an environment for pimps and procurers to attract women and girls or to pick up children by befriending them or offering them short-term affection and economic assistance. The purpose of these provisions is to proscribe prostitution in public places and they are neither discriminatory nor arbitrary and, therefore, do not violate the right to equality by criminalising prostitution in public places.”

It further stressed on the proper enforcement of the provisions and held that, “The primary responsibility to ensure safety and immediate well-being of trafficked persons, including victim prostitutes who are controlled and exploited by others in the trade lies heavily with the enforcement authorities and officials. It should be ensured that rescue operations do not further harm the rights and dignity of the victims of prostitution.”

Further, while stressing that the Act deals with offenders and victims not in similar ways, it observed that “The scheme of the provisions of Sections 15(5), 16(2) read with Section 17 (2) and (4) of the Act clearly envisages a humane treatment to the victim prostitutes who are in need of care and protection and who may be detained in a protective home for a period being not less than one year and not more than three years. In the process of discharge of his functions under sub-sections (2) and (4) of Section 17, a Magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women to assist him as contemplated by sub-section (5) of Section 17. Section 21 provides for establishment of protection homes and corrective institutions under the Act. Therefore, the women and girls in respect of whom offences punishable under the Act are committed in any premises in which they are living and those who were living or made to carry on prostitution in a brothel and are rescued under Section 16, are all required to be dealt with under Section 17(4) of the Act, where the Magistrate is satisfied about the correctness of information and the need of care and protection, by making an order of detaining them in a protective home. Even a woman or a girl who carried on or is made to carry on prostitution can apply under Section 19 to the Magistrate for being kept in a protective home or to be provided with care and protection in the manner indicated in sub-section (3) of Section 19 for rehabilitation of such person.

In this regard further emphasis  were made by the Court re these categories that “The scheme of the Act and the Rules thus clearly indicates that the victim-prostitutes,… or other persons working as prostitutes under the control of pimps and procurers and those rescued from the premises … as also those persons who are to be kept in protective or corrective detention, are all required to be dealt with by the police officials and other authorities with utmost care and concern in order to ensure that they are properly rescued, kept in safe custody and rehabilitated in accordance with the provisions of the Act and the Rules.

It further held that even though order of detention needs to be made by the Court in such cases, sub-section (3) of Section 10-A empowers the State Government at any time after the expiration of six months from the date of an order of such detention, on satisfaction of reasonable probability that the offender will lead a useful and industrious life, discharge her from such institution with or without conditions. Also, matching provisions are there in the Suppression of Immoral Traffic in Women and Girls Rules, 1985.

It also stressed that “The States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons.”

The Gujrat High Court herein upheld the validity of Section 7 1(b), 14, 15 and notification dated 23.2.2000 issued by the Commissioner of Police, Surat under Section 7(1)(b) and gave following directions and orders:

  1. Even a woman or girl living in a brothel or who is carrying on or being made to carry on prostitution in a brothel and removed therefrom on direction of Magistrate under Section 16(1) is required to be produced under Section 16(2) of the Act before the Magistrate issuing the order and is required to be dealt with in accordance with Section 17 (2), (3), (4) and (5) for the purposes of safe custody and rehabilitation;
  2. On the basis of reasonable grounds for believing that an offence punishable under the ITP Act is committed in respect of a woman or girl or other person, and after her removal from the premises under Section 15(4) of the Act, she should be forthwith produced before the appropriate Magistrate and examined by a registered medical practitioner for the purpose of determining her age or for detection of any injuries, as a result of sexual abuse or for the presence of any sexually transmitted diseases under sub-section (5-A) of Section 15.
  3. The female offender, found guilty of an offence under Section 7 or Section 8, may be ordered by the Court to be detained in a corrective institution in lieu of sentence of imprisonment in accordance with the provisions of Section 10A of the Act.
  4. The Act has provisions for idenitification of victims and their rescue and rehabilitation in protective homes and corrective institutions and therefore authorised police officers and the appropriate magistrates were required to exercise their functions and duties under the Act in a manner that would achieve the object of the Act of rehabilitation of the women and girls rescued or removed from brothels and other premises;
  5. Having regard to the statutory provisions authorizing the appropriate magistrate to order detention of prostitutes in protective homes or corrective institutions as contemplated by Sections 10-A, 17(4) and 19(3) of the Act read with Rule 5 of the Rules framed thereunder, it is obligatory for the State Government to provide under Section 21 of the Act such number of protective homes and corrective institutions under the Act as are, in its discretion, sufficient and adequate;
  6. For effective supervision and control of the rehabilitation of prostitutes, there shall be constituted by the State a high power State Level Rehabilitation Committee comprising officers such as additional chief secretary as chairman, and secretary or officer of departments like Home, Health, Finance; member of State Commission for Women, District Health and Welfare Officer, Civil Surgeon/medical officer as members of the Committee.
  7. There will also be constituted by the State Government a Local Cell for the District of Surat comprising given members.
  8. The State Level Committee for Rehabilitation will get acquainted with the “Convention for the Suppression of Traffic in Persons and of the Exploitation of Prostitution of Others” and other relevant International Conventions, Declarations, Agreements or Protocols etc. to which India is a Party, and which have a bearing on the suppression of immoral trafficking and rehabilitation of women and girls.
  9. The State Level Rehabilitation Committee will prepare and circulate a note expeditiously for guidance for all the authorities and officials concerned with such rescue and rehabilitation under the Act.
  10. “The State Level Rehabilitation Committee may be entrusted by the State Government, subject to its ultimate control, power to take and implement its decisions in the matters of rescue and rehabilitation of the women, girls and children who are required to be dealt with for detention in protective homes and corrective institutions under the provisions of the Act.”
  11. The State Level Rehabilitation Committee will take up the issue of rehabilitation of the prostitutes operating in Chakla Bazaar area of Surat on priority basis, and collect data for identifying cases which are required to be put up before the magisterial courts through authorized police officers for being dealt with under Sections 17(2)(4) , 16 or 19(3) of the Act and issue directions to subordinate authorities for expeditiously dealing with such cases for the speedy rehabilitation of the women or girls and children affected by the trade of prostitution;”
  12. “The State Level Rehabilitation Committee shall periodically convene, as per its convenience, at least once in two months, to review the progress in the matter of rescue and rehabilitation of the trafficked persons, especially women and children who are required to be rescued and rehabilitated as per the provisions of the said Act and the Rules made thereunder and the international norms reflected in the Conventions, Protocols and Agreements to which India is a party.”
  13. “The State Level Rehabilitation Committee shall consider the recommendations and suggestions of the Local Cell which will study the nature and extent of the offences committed under the Act in the City of Surat and identify the trafficked persons and females and children who are required to be rescued and rehabilitated under the provisions of the said Act and the Rules made thereunder and in consonance with the International Conventions and Protocols etc. to which India is a party and make suggestions or recommendations to the State Level Rehabilitation Committee towards rescue and rehabilitation of such persons;”
  14. The Local Cell shall periodically check-up the conditions in the protective homes or corrective institutions and, if any violation of the Rules relating to maintenance of such homes/institutions were noticed, report them immediately to the State Level Rehabilitation Committee with its suggestions and recommendations in the matter;
  15. The Local Cell shall inform, by suitable publications, posters or handbills in the localities involved, the women and girls working as prostitutes, about their right to make application under Section 19 for being kept in a protective home/ corrective institution and also about the facilities available in such homes and institutions under the various provisions of the Suppression of Immoral Traffic in Women and Girls (Gujarat) Rules, 1985, particularly drawing their attention to the provisions showing the facilities that are required to be made available in such homes/institutions, such as medical examination of inmates, daily routine of inmates, diet to inmates, supply of clothes etc., living space for inmates, religious and moral instructions to inmates, libraries for protective homes/institutions, and similar ameliorative provisions.
  16. The Local Cell will examine genuine grievances made against police officers and other authorities in writing with sufficient particulars by NGOs or the aggrieved women or girls or other persons involved in prostitution and try to locally sort them out in accordance with law and, if legal aid is called for in any case, refer the same to the appropriate authority under the Legal Service Authorities Act, 1987;
  17. The Local Cell may make such suggestions and recommendations as deemed proper for attending to the grievances of affected victims of prostitution at the hands of other persons, to the State Level Rehabilitation Committee for its consideration and decision;
  18. The Local Cell shall be convened periodically, at least once in a month, to consider the aspects of rescue and rehabilitation of the women and girls working as prostitutes and the children affected by the trade, their grievances, and make monthly reports to the State Level Rehabilitation Committee about the action taken by the Local Cell for redressal of genuine grievances and facilitating rescue and rehabilitation of women or girls involved in prostitution and the children affected by the trade of prostitution under the provisions of the Act and the Rules made thereunder;
  19. Finally, the State Level Rehabilitation Committee shall submit its yearly report and recommendations to the Cabinet for its consideration.

Sahyog Mahila Mandal And Anr. vs State Of Gujarat And Ors. (2004) 2 GLR 1764

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