NATIONAL LEGAL RESEACH DESK
The High Court of Bombay observed that “In a civilized country minor girls cannot be permitted to be confined for illegal and immoral purpose and their rescue operations should not be delayed.” Further, it also condemned the fact that “Our society, right through the ages, though has given a special status to women, nevertheless, exploits women for pleasure.” Further, “We have to consider that minor girls and young women who are forcibly thrown into this trade are also daughters and sisters of someone.”
Prof. K T Shah’s emphasis on traffic in human for various purposes, while discussing the Constitution when Article 23 was being debated in the Constituent Assembly, was also referred by the Court and it quoted him when he dealt with “White Slave traffic, namely, the buying and selling of young women for export or import, from one set of countries to another; and their permanent enslavement or servitude to an owner or proprietor of the establishments of commercialised vice probably for life.”
It also dealt with improper implementation of the Immoral Traffic (Prevention) Act, 1956 Act (ITPA). It stated that “Though the Immoral Traffic (Prevention) Act, 1956 Act contains provisions for closing down brothels no attempts had been made to close them down though they are functioning and known to all the arms of the Government. Periodical raids pursuant to directions of this Court and/or well-meaning citizens raising their voice is no answer to the duty cast on the State by the Immoral Traffic (Prevention) Act 1956 to weed out the obnoxious trade.” About 30,000 girls were, as reported by the state authorities, forced to indulge in sex trade.
This Court suo motu took notice of an Article that appeared in the daily Indian Express dated 13th January, 1996. The said report disclosed the state of affairs regarding sex workers operating in the city of Mumbai. The report indicated that minor girls were illegally confined and were forced to be sex workers. As per the said newspaper report:
i) Girls who are rescued from the brothel houses are harassed and their guardians are required to pay large sums for providing protection;
ii) Large sums are regularly extorted from brothel owners and prostitutes for giving them protection;
iii) There are no efforts by the State Government to rehabilitate 40,000 and odd sex workers;
iv) Minors are procured by local agents as prostitutes and are illegally confined in brothel house;
v) Many prostitutes, whose blood was tested, were HIV positive. In so far as the report about AIDS amongst sex workers, it is stated that out of the 70,000 prostitutes in the red-light district, 65% were already infected with the dreaded AIDS disease and had been tested HIV positive.
2. Based on the said report the Court passed an order on 17th January, 1996 and issued notices to the State of Maharashtra through its Chief Secretary, Commissioner of Police, Mumbai, Municipal Commissioner for Municipal Corporation of Greater Bombay. Also, show cause notices were issued to respondents to show cause why appropriate actions under sections 366, 366-A of the Indian Penal Code and sections 5 and 6 of the Suppression of Immoral Traffic in Woman and Girls Act, 1956 were not being taken.
Certain other directions were also given as it was alleged that girls who were rescued from brothels were not provided with any Police protection by the Police Authorities and in that view of the matter the Court directed that the same needs to be immediately investigated by the 1st and 2nd respondents. Further directions were given as under:-
(1) To frame proper Scheme for release from the confinement of the procurers of the women including minors procured for sexual slavery;
(2) For implementation of this Scheme, a proper Cell, involving social workers, may be created for regular checking minors and others for their release and rehabilitation in the society; and
(3) To frame proper Scheme with the active assistance of the Municipal Corporation of Greater Bombay for carrying out HIV test for the willing sexual workers, to save the disease from being spread.
II. Subsequent actions being taken and various relevant orders.
On 7th February 1996, considering the serious allegations with regard to the release of the rescued minor girls by interested persons and with regard to their rehabilitation, following directions were given :-
(a) the state authorities were directed to keep the rescued girls in proper custody and not to release them;
(b) even if there was any order from the Magistrate’s Court with regard to the release of the said minor girls, the authorities were directed not to release the said girls without prior approval of this Court;
(c) the said minor girls could be kept outside Bombay for their rehabilitation;
(d) the authorities were further directed to launch criminal prosecutions against the brothel owners from where the minor/major girls were rescued;
(e) the Maharashtra Women and Child Welfare Department was directed to carry out the rehabilitation work; and
(f) for seeing that the said Department is properly assisted and its work is monitored, the respondents were directed to frame a proper scheme with the assistance of various social organisations, particularly the women organisations.”
In this case it was pointed out by the State that the Centres of procurement of girls were, mostly, in the neighbouring States of Karnataka, Kerala, Tamil Nadu, Andhra Pradesh, etc. and North-Eastern States e.g. Assam, etc., and countries like Nepal and Bangladesh.
On 16th February 1996, it was directed by the High Court that all the 473 rescued child sex workers be kept in proper custody of Juvenile Homes and other institutions. Provision for adequate police protection of these institutions, adequate finances for food, medicines and clothes was also ordered alongwith test of the girls for HIV tests. The Court also directed that before the long term scheme is evolved, provision be made for medical treatment and counselling programme of the rescued girls/children.
It was suggested by Prayas, that raids on large scale should not be conducted but that raids on a small scale should be conducted so that if rescued girls are small in number it will ensure better rehabilitation.
There was some dispute between the Governmental Organisation and Non-Governmental Organisations in the matter of counselling. The Court thereafter issued some directions which included the following:-
(a) The task force established by the Government and the Members Committee appointed by the Court are directed to visit all the institutions twice a month to find out the problems faced by the rescued girls and sort out the same.
The Court further observed as under:-
“On occasions, some social workers and also Government are taking action for releasing the bonded labourers but uptil now, no serious action is being taken by the Government for rescuing the bonded prostitutes who are kept in the hell on earth for no fault of theirs. May be that in some cases, poverty might have driven the parents or guardians to sell their minor girls. May be, in some other cases, they might have been lured by unscrupulous elements to come to Mumbai and fall in the trap.”
As per the said report, the girls are kept in a brothel and in beginning they get severe punishments from eunuchs. Teenagers are required to entertain as many as 15 to 20 men on a single day. Only those who could entertain above 15 persons were treated well and were given incentives. If they are not in a position to entertain a certain number of persons, they were beaten and were tortured. In brothel houses, they are under constant state of fear psychosis.
The Court reiterated that the rescued girls were required to be protected from sexual exploitation and were to be properly rehabilitated. It also restated that “confinement of the girls in brothel houses is not only illegal and unconstitutional but is also against basic human rights.”
The State of Maharashtra also held a workshop on prevention of child prostitution and rehabilitation. The purpose behind this was that despite stringent laws and Constitutional provisions against kidnapping, abduction, child abuse and prostitution, more and more minor girls were being forcibly inducted into the flesh trade which was flourishing. The workshop addressed itself to the following objectives and to formulate strategies in the areas of –
(a) The Role of the police in prevention and rescue.
(b) Effectiveness of existing laws and ensuring punitive action against perpetrators of crime.
(c) Preventive measures through formal and non-formal education of the family and community.
(d) Health Care for rescued minors.
(e) The training and rehabilitation of rescued minor girls.
Subsequent to the workshop the Directorate of Women & Child Welfare, Maharashtra State, Pune, has prepared a plan for rehabilitation of the unfortunate victims of sex trade. The Rehabilitation Programme consists of :-
2) Medical care & health awareness
3) Counseling & guidance
4) Formal & non-formal education
5) Vocational training suited to their capabilities.
A report from Smt. Mohini Mathur, President of Maharashtra State Branch of Indian Council of Social Welfare in a Paper “Role of Police and NGOs in Preventing Minor Girls from Coming into Prostitution” emphasized on reasons contributing to trafficking of women and children as poverty and economic distress, lack of employment opportunities, false promises made to innocent victims, social customs relating to rigidity of caste, dowry systems make marriage an expensive affair forcing young women to look for jobs in big cities, unequal status of girl in a family, broken homes, consumerism and love for money making innocent girls prey to allurement for jobs with good money eventually turning into a farce, etc.
The Court also observed that “a large number of sex workers in Mumbai are from nearby States, Eastern States of India and from Nepal. The rescued sex workers have presently by and large been sent to their respective States on account of the active co-operation given by the States and in Nepal by the N.G.Os.” It stressed on the need to close-knit association between State governments regarding inter-state trafficking and also discussions about remedial measures taken so that other State Governments could prevent abuse of children by brothel owners.
As per the figures given the Court stated that “it is seen that the number of sex contact with infected sex worker in a year is around 14,850,000 in the City of Mumbai itself.” And it advised the State Government to take appropriate steps to educate the public at large about the dangers to the health of such persons and their families. It further stressed that “If brothels cannot be closed down, at least steps should be taken to educate and inform those who patronise the places of the dangers of AIDS.”
Hence, in conclusion, the High Court issued following directions:-
(1) The various directions given by the interim orders, if not complied with, should be complied with and acted upon periodically.
(2) The respondents-State Government to see that strict vigilance is maintained in the areas where sex workers normally operate and to rescue the child sex workers. Further, adequate steps should be taken to see that those who indulge in trafficking of women should be suitably punished. For this purpose, appropriate directions should be issued to the investigating agencies to take immediate steps. Sometimes it is noticed that a Police Officer who detects this type of activity does not take immediate action on the ground that such duty is assigned to some other Officer. In our view, this is not the proper approach because all Police Officers are bound to prevent or take immediate action in those cases where cognizable offences are committed. It is true that they may not investigate those cases but can certainly report them to the proper officer and during such time take preventive measures. Section 107 of the Indian Penal Code provides that “a person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing.”
(3) It is high time that the State Government should take serious steps :
a) to prevent forcible pushing of women and young girls into prostitution;
b) to prevent trafficking in women i.e. buying and selling of young girls.
These girls may be victims of kidnapping; various deprivations; and of circumstances beyond their control. For this purpose, regular raids should be carried out in the area where sex workers operate. To prevent situations of manhandling, beating or threat of persons from social action groups who try to save these women/girls, for the time being the Government must have a Squad of Police Officers who can take immediate action.
(4) The State Government was directed to set up an Advisory Committee consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and associations etc., as per directions in the case of Vishal Jeet v Union of India and Ors 1990 AIR 1412.
The main objects of the Advisory Committee being to make suggestions of:
(a) the measures to be taken for eradication the child prostitution, and
(b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.
(5) To set up homes for rehabilitation of rescued sex workers including children enabling to acquire alternative skills for providing them an alternative source of employment.
It is also to be noted that when the girls were rescued, it was difficult for the State authorities to provide residential accommodation to them. The State was not having any infrastructure to meet such a situation. It is true that in Mumbai City premises are very costly, but in the periphery of the City the State Government can certainly provide such facility, more so when.
The High Court observed that “It is throughout claimed that Maharashtra State is a much more industrialised, developed and civilised State. In such a State, 473 rescued girls were not properly accommodated and no steps could be taken to rehabilitate them for want of premises and they were required to be sent to their respective home States. This type of situation arises only because of lack of interest on the part of the concerned authorities in implementing the decision of the Supreme Court in the case of Vishal Jeet.” Further, the High Court stated that “During the course of hearing, we have noted that there are no adequate facilities available in the State of Maharashtra, particularly in Mumbai, where these rescued girls could be rehabilitated or kept for some period for bringing them out of the clutches of unscrupulous elements who deal in trafficking of women. Adequate training facilities are also not available and it appears that serious thought is not given to this problem by the State Government.”
(6) Regularly carrying out of AIDS awareness programme was also instructed in the areas where sex workers normally operated.
(7) The State Government was also directed to submit periodical reports, stating what steps were taken pursuant to the aforesaid directions and how many girls are rescued from the clutches of middlemen; whether medical treatment was given and whether rehabilitation facilities were made available to them.
(8) The State Government was also directed to place before this Court the compliance report of these directions.