Andhra HC (Pre-Telangana)
P.N. Swamy, Labour Liberation Front, ... vs Station House Officer, Hyderabad And ... on 22 August, 1997
Equivalent citations: 1998(1)ALD755, 1998(1)ALD(CRI)283, 1998(2)ALT(CRI)411
Author: V. Rajagopalal Reddy
Bench: V. Rajagopalal Reddy
ORDER
Y. Bhaskara Rao, J
1. 'Mehaboob-ki-Mehindi' is an infamous redlight area lying in the thickly populated and business locality near Charminar where the dehumanising carnal trade has been flourishing for several decades. Though flesh trade was, prohibited by the law enacted as early as in 1956, prostitution is being carried on under the very nose of the police. However, the misery of the unfortunate sex-girls in the area was brought to the notice of the Court by a write up in the Telugu Daily 'Eenadu' followed by the letter dated 06-03-1997 of a public spirited person by name P.M. Swamy of "Liberation Front".
2. This Court treated the said letter as writ petition and the Commissioner of Police, Hyderabad city (second respondent) was directed to cause enquiry through the Superintendent of Police for women Protection Cell as to how many women have been kept forcibly in the place called Mehaboob ki Mehndi at Hyderabad and submit a report.
3. Accordingly, the Superintendent of Police, Women Protection Cell, CID, Hyderabad, went to the area and conducted a detailed enquiry on-12-4-1997 and 16-4-1997 and submitted an elaborate report. During the course of enquiry, the Superintendent of Police rescued 65 (sixty five) females from the Mehaboob-ki-Mehindi area She also arrested 19 (nineteen) Sethanis (brothel-keepers), who are conducting the brothel houses; she also arrested four house owners; two financiers; two brokers and one policeman. The Superintendent of Police also made out a list of persons to be arrested -five (5) Sethanis; sixteen (16) houseowners: two (2) financiers; five (.5) brokers and two (2) Police Constables, who are one way or the other connected with the running of this trade in the area It is also submitted that all the rescued women were kept in the Social Welfare Home at Ameerpet and out of the rescued women 12 (twelve) have escaped. Therefore, this Court directed the Director General of Police, Hyderabad, to enquire into the matter.
4. Considering the ailments of various rescued women and minors, this Court also directed the Superintendent, Osmania General Hospital, Hyderabad, to make necessary arrangements for medical examination and also hospitalise them, if necessary. The Secretary, Social Welfare Department was also directed to make necessary arrangements for medical examination and providing food for them.
5. In pursuance of the order of this Court, a team of doctors belonging to Sexually Transmitted Diseases, Osmania General Hospital, Hyderabad, examined forty five (45) ladies and submitted their medical reports on 19-5-1997 regarding their health. The Doctors submitted, in all, five reports. The outcome of the five reports reveal that twenty one (21) ladies are having infection of H.I.V. Seropositive cases and seventeen (17) were suffering with V.D.RL. positive cases. The said seventeen (17) ladies were given treatment and they are cured now. It is stated that no further treatment is required to them. Out of four minors, two were found pregnant and one was infected with VDRL. Four minors were put in juvenile home. The minimum facilities at the Welfare Home are not adequate, some of the women went on hunger strike and that fact was also brought to the notice of the Court. Therefore, this Court directed the authorities to shift the women to the Chanchalguda Jail (Women ward), Hyderabad and also directed the jail authorities to provide all facilities. The ladies, who were not suffering from any disease were directed to be released by this Court and accordingly they were released after executing bonds before the Judicial Magistrate of First Class.
6. Pending disposal of this case, six ladies were also released by the Judicial Magistrate of First Class on executing the bonds.
7. In this writ petition Mehindi Manila Sangheebhava Committee filed a petition to implead them as party in the writ petition and the Sangheebhava Committee also made a claim for providing facilities to the rescued women at the cost of Government. One hundred seventy one (171) residents of surrounding locality of Mehaboob-ki-Mehindi filed a petition to implead them as the respondents in the writ petition and the same was ordered. It is alleged in the petition that the residents of entire area where they are now residing being proximate to Mehaboob-ki-Mehindi, are not in a position to leave the, same and go to any other part of the city and even if they are willing to do so, no person is willing to occupy the residences as tenants. In view of their residences near the areas even the matrimonial alliances to the young girls have become difficult and they were doomed and cursed for no fault of theirs and the entire locality has earned the dubious distinction for itself though prostitution was carried on in a few houses in the area. It was therefore, urged that the Government should take proper steps to ensure implementation of the provisions of the Immoral Traffic (Prevention) Act, 1956 (for short 'Act 104 of 1956) to erase the flesh trade in Mehaboob-ki-Mehindi area to retrieve the dignity of women.
8. This Court appointed Mr. V.V.S. Rao, senior Advocate as amicus curias to assist the Court, by enquiring with the rescued women. Accordingly, the amicus curiae along with his juniors went to the Social Welfare Home and Chanchalguda Jail, interacted with the rescued women and filed a detailed report He contended that the rescued women must be released immediately as they have not committed any crime and there is no law to confine them in the jails. Incarcerating them in jail and continue their confinement will be violative of Article 21 of the Constitution of India Therefore, they must be set at liberty forthwith. He further contended that no woman is infected with HIV, but the same is subject to confirmation.
Even if they are infected with HIV, they cannot be put in incarceration or isolation in rescue homes or protective homes or welfare homes which would deprive not only their liberty under Article 21 of the Constitution of India, but also deprive the right to move freely and to reside and settle as they like as guaranteed under Article 19(1)(d) & (e) of the Constitution of India He further contended that by not liberating them they will not be in a position to look after their children and their children will be deprived of their livelihood. Thus there is requirement of their release immediately.
9. Learned Government Pleader contended that most of the rescued women are suffering from V.D.R.L. and H.I.V. infection. If the women are released there is every possibility of going to the same profession as Sethanis and brokers will drag them into the same profession. The rescued women will become the victims by loosing their right and dignity of womenhood. The women who are infected with H.I.V. would continue the prostitution, and the H.I.V. will be infected to other persons who participate in the intercourse with them and the same will cause a greater harm to the society. Therefore sending them to the protective home or welfare home, giving counselling and education regarding H.I.V. and AIDS would prevent from spreading the diseases. It, is contended that the Government has prepared a scheme to rehabilitate such women. The Government prepared the scheme allotting Rs. 15,00,000-00 (Rupees fifteen lakhs only) vide G.O.Ms. No. 248 (Health, Medical and Family welfare (C2) Department, dated 03-7-1997. The scheme provides as follows:
1. To provide a congenial environment for counselling and economic rehabilitation of the women.
2. To provide counselling services to the inmates who may be suffering from psychological and personality disorders.
3. To provide vocational training and skill development in different trades to create alternative ways of earning.
4. To provide special education and awareness.
5. With the above measures curtailing commercial sexual activity and thus spread of HIV.
10. The above scheme will be implemented with the co-operation of nongovernmental women organisations called "Pratyamnaya" who readily came forward to assist and co-operate to take up the rehabilitation programme of the commercial sex workers. Accordingly the Government sanctioned Rs. 15,00,000-00 for the present for implementation of the above scheme.
11. Therefore the rescued women, that, is the women who are infected with HIV and VDRL should be sent to the welfare homes so that they can be rehabilitated and they can be stopped from indulging in the prostitution. After they are trained in the vocational courses and counselling of education of infected diseases like HIV and AIDS they will be sent to their homes so that they can lead normal life by doing other works as co-citizens.
12. It is further contended that keeping the rescued women in welfare home or protective home thereby preventing spreading of the HIV and AIDS will not be violative of Article 21 or Article 19 (1) (d) and (e) of the Constitution of India.
13. Smt. Malladi Subbamma, one of the renowned women social worker appeared before this Court and submitted a representation suggesting the reformative measures to be taken and to set at liberty the rescued women, who are living as prostitutes due to their social economic conditions. It is stated in the representation that the prostitution spread all over the State of Andhra Pradesh, and most of the prostitutes are divorcees or destitute women and the families are depending solely on the income derived from the prostitution. It is further stated that the sethanis were released on bail and that there is no conclusive evidence that the rescued women were suffering from AIDS. As it may take considerable time to take steps for their rehabilitation, it is not proper to detain the rescued women any further. Therefore the rescued women have to be released forthwith. It is also stated that some of the women were booked for the offences punishable under Sections 225-B and 309IPC, The said offences are bailable offences and hence the women have to be released on bail. She also suggested two methods of rehabilitation, one being communal rehabilitation and the other one individual rehabilitation- Under the caption of individual rehabilitation, she suggested that some of the rescued women intended to start the normal life by installing pan shop, agricultural work and dairy. She also suggested that the rescued women should be provided financial assistance, agricultural land and house sites. If medical aid is provided, all the venereal diseases are curable. Though the law was amended in the year 1986, no male person has been booked.
14. Therefore, we have to examine the scope and the scheme of the Act No. 104 of 1956 and the relevant constitutional provisions. Further we have to examine the scope of the judicial review under Article 226 of the Constitution of India so as to give suitable directions and the duty of the State i.e., Executive for implementation of the welfare legislations made by the Parliament and the State Legislatives to ameliorate the social and economic conditions of the poor women particularly innocent, illiterate women who are dragged into the prostitution by the brokers, Sethanis, Financiers and also by their own kith and kin, who sell them to the brothels for a pittance.
15. It is also relevant at this stage to refer to the elaborate painstaking report submitted by Mrs. Tej Deep, IPS, Superintendent of Police, Women Protection Cell, CID, Hyderabad, afier conducting detailed enquiry, examining and interacting with the rescued women. The Superintendent of Police not only filed a resort but also videographed the interview conducted with the rescued women to elicit their views regarding their life as prostitutes and whether they want to go out of the profession or not.
The report reveals that four minor girls were sold to Sethanis on commission basis and five others were forced into prostitution on the pretext of promising them jobs. Fifty six women were organised into small groups of prostitutes under twenty sethanis and compelled to do prostitution, that each Sethani was taking 50% of her income and providing her protection etc., that along with the Sethanis the collusion of three constables have come to light as organisers of prostitution. The role of two more financiers came to light as they were advancing money at an exorbitant rate of interest of 15% to 20% per month to the prostitutes at their induction into prostitution, that as a result of this the prostitutes were forced to continue to repay the debts and even they want to come out they are unable to do so due to the threats from the financiers. Twenty three house owners had let out their houses at exorbitant rents on a daily basis knowing fully well that the premises are being used for prostitution. It is also stated in the report that two Head Constables two Constables and two Home Guards have established a liason with prostitutes of the area and were providing them protection, advance information about police raids etc. She recommended for disciplinary action against the police officials. The report further reveals that (18) Sethanis; (4) House owners; (2) Financiers; (2) Brokers and (1) Policeman were arrested; that some of the persons are yet to be arrested connected with the cases in one way or the other. 65 prostitutes were detained in the Government Welfare Home for Women, Women and Child Welfare Department, Ameerpet, Hyderabad, In the report the role of Sethanis, house owners, financiers and the policemen was explained. The report further reveals that the women are joining in the trade due to poverty, lack of economic support from male members of the family, unfavourable marital relations, cheating by husband/fiancee etc., that 80% of these women are having one or more children whom they have to maintain through their income from prostitution, that about 30% of the women are sending money to their parents and other relatives, that when the women were pressurised at one Urban-Centre they move to another centre and 20% of the women have interstate operations, that some of the women expected to become Sethanis at the appropriate time, that though they were well aware of the menace of AIDS they were not taking any precaution as a result of which three women were pregnant through their trade. The report further reveals that all steps are being taken for the rehabilitation of the rescued women and the S.P. suggested certain measures for rehabilitation of the rescued women and to erase the flesh trade in the area.
16. This writ petition is taken up as a public interest litigation on the basis of a letter sent by one public spirited person pointing out the social evil viz., Prostitution, rescuing the women from that area and the requirement of removal of the same from the Mehaboob-ki-Mehandi.
17. Let us now examine the relevant constitutional provisions:
Article 19 (1) (d) and (e) of the Constitution of India guarantees the right to reside anywhere and move freely throughout the territory of India. Article 21 of the Constitution of India guarantees Protection of life and personal liberty to the citizens. Article 23 of the Constitution of India prohibits traffic in human beings and forced labour. Article 39 (e) contemplates that the State shall, in particularly, direct its police towards securing the health and strength of workers, men and women, and that the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 39 (f) provides that the State shall, in particular direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 47 of the Constitution of India obligates the State to raise the level of nutrition and the standard of living and to improve public health.
18. By a combined reading of the above provisions of the Constitution of India it is manifest that there is a constitutional mandate to the State to maintain public health by providing adequate measures. This, in turn provides a corresponding constitutional right to the citizens including the poor, weak and fallen women. Though the Directive Principles are non-enforceable in a Court of law yet they are fundamental in the governance of the State. Therefore, the State has to provide all facilities including medical treatment for upliftment and rehabilitation of fallen women.
19. It is to be noticed that Article 23 of the Constitution of India prohibits the traffic in human beings. In the present case it brought to light that some of the women and young girls were sold to the brothel houses. The same amounts to the trafficking in women and the same is in contravention of the Article 23 of the Constitution of India. Therefore, there is duly cast on the law enforcing agency to prosecute the persons responsible and take further action to prevent such acts.
20. Now the point to be considered is whether the infected women with HIV and VDRL can be sent to the protective homes until they are rehabilitated or they shall be released forthwith.
21. To appreciate this aspect it is relevant to refer to the menace of AIDS. It is one of the worst catastrophe that has struck the mankind in 20th century. Its sudden appearance, rapid, spread and devastating impact in various parts of the globe cause great concern. It is an epidemic disease for which there is no cure. No specific drug or vaccine is yet available for its cure. However, there is social stigma attached to the sufferers along with impacts and misconceptions of spread of the disease.
22. Acquired Immune Deficiency Syndrome (AIDS) is an infectious disease caused by the Human Immune Deficiency Virus (HIV). The virus enters the white blood cells which protect the body from infections and disease. In the cells it destroys genetic material and the damage is permanent When these cells are destroyed by HIV, the body has no defence from infection and easily gets affected. Only body fluids with a high concentration of virus cause infections. These fluids are blood, semen and vaginal secretion.
23. The virus is transmitted when body fluid with a high concentration of virus enters into the bloodstream of another person. Transmission takes place through sexual intercourse blood transfusions and during pregnancy. Sexual transmission is the most widespread mode of transmission. There is no vaccine and no cure for AIDS. Education about prevention and care is therefore very important. Sexual spread is the most common mode of transmission and it will only be stopped when each individual knows about the disease and avoids infection.
24. As per the medical reports 21 women were infected with HIV reactive positive. But the learned Counsel contend that the medical report only show HIV reaction positive (subject to confirmation). Therefore, we have called a team of doctors from Osmania General Hospital, Hyderabad and examined Dr. Mandakini, professor of Microbiology of Osmania Medical College, Hyderabad on 06-8-1997. As per her statement she has scrutinised the samples taken from the patients. Her examination reveals that HIV tested positive to 21 women. Though in the report it is stated that HIV positive is subject to confirmation, she stated that samples taken are out to ELISA lest and all the 21 are tested positive to HIV. She deposed that a person may be carrying HIV with him/her without any symptoms. She deposed that she and Dr.Nagendm Chary went to jail and educated these women and gave them counselling regarding preventive measures to be taken. She stated that there is AIDS control department and effective steps are taken to educate sex workers about HIV and AIDS. It will help them to take preventive care from spreading these viruses. Her evidence amply proves that 21 women are infected with HIV. So we hold that 21 women are effected with HIV infection.
25. Section 17(4) of the Act 104 of 1956 empowers the Magistrate to send the rescued women to the protective or welfare home to keep them for a prescribed period. It is contended that Section 17 (4) of Act 104 of 1956 is unconstitutional as it infringes the fundamental right guaranteed under Articles 14, 19 (1) (d) and (e) and 21 of the Constitution of India.
26. Therefore, the important question of law that arises for consideration is whether Section 17(4) of Act 104 of 1956 is in violation of Articles 14, 19 (1) (d) and (e) and 21 of the Constitution of India.
27. To appreciate the above contention, let us examine the relevant provisions of Act 104 of 1956. Section 15 of Act 104 of 1956 empowers the Special Police Officer, where he has got a reason to believe that an offence under Act 104 of 1956 has been or is being committed, to search the premises without warrant; and the police officer entering any premises shall be entitled to remove therefrom all the persons found therein; that the Special officer after removing the person shall forthwith produce him before the appropriate Magistrate; that any person produced before the Magistrate shall be examined by a registered medical practitioner for the purpose of determination of the age of such person or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted diseases. Section 16 of the Act, 1956 postulates where a Magistrate receives any information from the Police or any other person authorised by the Government that any person is living or is carrying on or is being made to carry on prostitution in a brothel, he may direct a Police Officer not below the rank of a Sub-Inspector to enter such brothel and to remove therefrom such person and produce him before him; and that the Police officer after removing the person shall forthwith produce him before the Magistrate issuing the order. Section 17 of the Act, 1956 contemplates intermediate custody of persons removed under Section 15 of the Act, 1956 or rescued under Section 16 of the Act, 1956. Section 17 (4) of the Act, 1956 empowers where the Magistrate is satisfied after making an inquiry, he may make an order that such person be detained for such period being not less than one year and not more than three years as may be specified in the order in a protective home or in such other custody as he shall for reasons to be recorded in writing. The Magistrate is further empowered to call for a report from the Probation Officer after conducting enquiry into the age, character and antecedents of the persons for the purpose of handing over the rescued women to the husband or the relatives etc. Clause (5) of Section 17 of the Act, 1956 obligates the Magistrate to summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons. Section 20 of the Act, 1956 says that the Magistrate on receiving information can remove any person from the place after giving notice to such person as to why he should not be required to remove from that place and be prohibited from re-entering into it.
28. By reading the Sections 15,16, 17 and 20 of Act, 1956 it is manifest that the Magistrate has got ample power to pass orders in respect of the rescued women either releasing them or for handing over them to their kith and kin or send them to rehabilitation centres or protective homes. The Section 17(4) of the Act, 1956 empowers sending such women to protective homes for not less than one year and not more than three years to rehabilitate them without trial and conviction if it reaches to conclusion that they need care and protection subject to the opinion of panel of social workers as provided under clause (5) of Section 17 of the Act, 1956. This is a salutary provision for reformation of the women who are forced into prostitution. This requires strict enforcement as one of the welfare measure in the Act. It should be noticed here that the Act, 1956 is enacted in pursuance of the International Convention signed at NewYork on the 9th day of May, 1950.
Therefore, it is the duty of the State to reform the rescued women particularly those who are infected with HIV and AIDS in their own interest and in the interest of the society.
29. The Act, 1956 is a Social Welfare legislation to abolish the commercial sex activity carried on by the brothel keepers by using innocent and illiterate women and also to remove the social evil for the good of the society. Therefore the provisions of the Act, 1956 has to be read as reasonable restrictions on the fundamental rights as per the Article 19(5) of the Constitution of India It is always permissible for the State to enact laws and impose reasonable restrictions on the fundamental rights in the larger interest of the society. Where there is a conflict between the individual fundamental right and the larger interest of the society, in the interest of social economic good of the society to achieve constitutional goal the individual fundamental right has to yield to the larger interest of the society. The provisions of the Act which are imposing reasonable restrictions are procedures laid down by law and the said procedure cannot be said to be unfair. Therefore, Section 17(4) of the Act is not unconstitutional and the same is not viblative of Article 21 of the Constitution of India.
30. Before the Supreme Court in State of Uttar Pradesh v. Kaushailiya, , Section 20 of the Act, 1956 which empowers the Magistrate to direct the prostitute to remove herself from a place, was challenged as unconstitutional as it is violative of Articles 14, 21, and 19(1) (d) and (e) of the Constitution of India, Mr. Justice Subba Rao speaking for the Court held that the provisions of Section 20 of the Act, 1956 are reasonable restrictions imposed in public interest within the meaning of Article 19(5) of the Constitution of India and therefore do not infringe the fundamental rights of the persons under Article 19 (1) (d) and (e) of the Constitution of India.
31. A Division Bench of Bombay High Court in Lucy S. D'Souza v. State of Goa, AIR 1990 Bom 355, the constitutional validity of Sections 2 (15), 53 (1) (vii) of the Goa, Daman and Diu Public Health Act, 1985 which provides isolation of AIDS (Acquired Immuno Deficience Syndrome) patient, were challenged as unconstitutional and violalive of Articles 14, 19(1)(d) and 21 of the Constitution of India. The Court, after elaborately considering the AIDS disease and its effects on the patients and tie preventive care to be taken to stop the spreading of the disease held that isolation of patients is not unconstitutional and not in violation of Articles 14, 19 (1) (d) and 21 of the Constitution of India, It is further held where there is a conflict between the right of an individual and public interest, the former must yield to the latter.
32. In the case of Ajay Canu v. Union of India, , the Supreme Court has dealt with the validity of the A. P. Motor Vehicles Rules which makes wearing of Helmet compulsory upon a two wheeler rider. The validity has been upheld observing that it was a policy matter and there cannot be any fundamental right against any act aimed at doing some public good.
33. A Full Bench of this Court while considering the provisions of the Human Organ Transplantation Act in N.Mohan Patnaik v. Government of A. P., (FB) and the question whether the individual has got a right to transfer his kidney as he likes to any other person and the State has a right to impose some restrictions in the interest of the health of the donor, recipient of the kidney and social good of the community and interpreting those provisions, it is held that where there is a conflict between the individual fundamental right and the larger interest of the society, public morality and for social good of public health of the society', the individual right yields to the larger interest of the society. Further, the following women are classified for the purpose of rehabilitation and reformation and when they are sent to the Preventive or Welfare Homes, it is in their own interest apart from the welfare of the society.
34. In view of the above stated principles laid down in the judgments Section 17(4) of Act 104 of 1956 empowering the Magistrate to send the rescued women to the protective homes or welfare homes for their rehabilitation and for social good cannot be said to be violative of Article 14 and Articles 19 (1)(d) and (e) and 21 of the Constitution of India.
35. It is further contended that the rescued women are not booked for any offence under Act 104 of 195 6 and therefore the provisions of Act 104 of 1956 are not applicable and no action can be taken by this Court to enforce those provisions. The report submitted by the Superintendent of Police, Women Protection Cell and the report submitted by the amicus curiae vividly manifest that the women were rescued from the brothel houses and even the interview of the Superintendent of Police with the said women, which was videographed, shows that the women are living in the brothel houses as prostitutes due to their poverty and other factors. It is shocking to note that among the rescued women, four are minors. Among the minors two are pregnant. The women were rescued in pursuance of the directions by this Court in this writ petition from the brothel houses. If the local police would have raided and offences would have been registered this situation would not have arise Mere, non-registration of the offences against the women under Act 104 of 1956 will not make any difference. Section 17(4) and Section 17(5) of the Act authorises the Magistrate to send rescued women to preventive homes without trial or conviction. Sending thern to the protective homes is to reform and rehabilitate them but not as punishment The High Court while exercising the powers under Article 226 of the Constitution of India can exercise all the powers of the judicial review under the Constitution but the same, no doubt, should not be in violation of any law.
36. The High Court and the Supreme Court have got wide powers to give proper directions in the public interest litigation and to direct to implement the provisions of the laws which are for the social economic good of the society. Therefore this Court under Article 226 of the Constitution of India can issue suitable directions. It is relevant here to deal with the case law.
37. In Sheela Barse v. Union of India, , the Supreme Court held as follows:
"In a public interest litigation, unlike traditional dispute - resolution - mechanism, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudication the party structure is merely bi-polar and the . controversy pertains to the determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the proceedings cut across and transcend these traditional forms and inhibitions. The compulsions for the judicial innovation of the public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State. Effective solutions to the problems peculiar to this transformation are not available in the traditional judicial system. The proceedings in a public interest litigation are therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert - and quite often not even aware of those rights. The technique of public interest litigation serves to provide an effective remedy to enforce these group rights and interest, in order that these public causes are brought before the Courts, the procedural techniques judicially innovated specially for the public interest action recognises the concomitant need to lower the locus standi thresholds so as to enable public minded citizens or social action groups to act as conduits between these classes of persons and the forum for the assertion and enforcement of their rights.
The dispute is not comparable to one between private parties with the result there is not recognition of the status of a dominus-litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The "rights" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests" of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of governmental action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of governmental policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, adhoc, according as the exigencies of the emerging situations. The proceedings do not partake of predetermined private law litigation models but are exogenously determined by variations of the theme."
Apart from the above judgments there are number of decisions of Apex Court reiterating the above principle in latter cases. It is not necessary to multiply the case law. The principle laid down in the above judgment of the Supreme Court, is that the Courts have to look in the public interest than the private interest in the litigation between the parties and larger interest of the society and downtrodden has to be taken into consideration for giving concession. The failure of the State to perform its statutory obligations have also to be taken into consideration and relief has to be moulded in the larger interest of Society and particular in the interest of the downtrodden fallen women to take steps to wipe out the immoral activity of the Society to rehabilitate the victims.
38. Hence the contention that the rescued women who are infected with HIV infection cannot be sent to welfare home or protective home is not tenable. Therefore, we direct that the twenty one (21) women who are infected with HIV are to be sent to the welfare home to keep them for two years, to give them counselling and education and to make them to learn some vocational courses so that they can be rehabilitated after a period of two years.
39. The medical reports show that seventeen (17) women who are infected with VDRL disease were given counselling and treated by giving medicines and they are now cured and there is no requirement of further treatment. Some of them were already released. The Government is directed to shift these women to the protective homes within a period of one month and meanwhile provide all the facilities in the preventive home or the welfare home where they are being shifted. No doubt, the provisions of the Act equally apply to these women also. But it was represented that the said women expressed desire for their release as they want to go home and live with their children and lead a normal life. In view of the above said fact, we think it just and proper to direct that those women be released on executing a personal bond before the concerned Magistrate. The concerned Magistrate is directed to release them by entrusting them to any of their kith or kin after verifying the persons who come as parents or kith or kin. In case, there is no kith and kin and no parents have come forward to take them, the concerned Magistrate is directed to enquire with them whether they want to live alone. If so, he is directed as to ascertain their addresses and release them to live in such places as they desire and he is further directed to see that the concerned District Probation Officers in the districts have a watch on them and to help them to rehabilitate in the society by providing guidance and help them to get the relief as is provided to weaker sections of society.
40. The (21) women who are infected with H1V are directed to be sent to the protective or welfare homes as per the scheme submitted by the Government to be kept them in the said homes for a period of twoyears. During their stay at the said homes, the State is directed to provide them adequate medical care and all other facilities including counselling and education of HIV and AIDS and preventive measures to be takea Further, they must be trained in vocational courses to rehabilitate themselves in the society afterwards.
41. Next question comes about the children of the HIV infected women. If any woman has got children who are dependent on them, they have to be looked after by providing all facilities because these women are now directed to be kept in welfare homes for a period of two years. Article 45 makes provisions for free and compulsory education for children, which is now well settled as a fundamental right to the children upto the age of 14 years; it also mandates that facilities and opportunities for higher education, be provided to them. Article 39(f) provides that the children should be given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity; and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 46 directs the State to promote the educational and economic interest of the women) and weaker sections of the people and that it shall protect them from social injustice and all forms of exploitation. Thus the children have got a right to -be protected and educated particularly those children of the fallen women who are directed to be kept in protective home. Therefore we think it just and proper to direct the respondents to verify whether there any children of these 21 women and if the children are there, and they are of the age of sending them to educational institutions, the respondents are directed to send them to the welfare hostels established and maintained by Government and provide them food and clothing and other facilities to educate them.
42. Before parting with the case, it is necessary to examine whether the provisions of the Act 104 of 1956 are implemented in its true spirit or not. Section 21 of said of the Act obligates the State Government for establishing protective homes and corrective institutions and they should be properly maintained for rehabilitating the rescued women in the said protective homes. The provision further contemplates that no other person can establish such protective homes, except with the permission of the Government. The Government is entitled to issue licences to the organisations which want to establish the said protective homes. Such organisations after obtaining licence to maintain such protective homes as provided under the Act, 1956 have to establish the protective homes by following the due procedure prescribed therein. The intendment of establishing protective homes and corrective institutions is for the purpose of rehabilitation. The report of the amicus curiae shows that there are no minimum facilities available in the welfare home though a vast area is available to accommodate number of persons.
43. For better administration of protective homes, the Supreme Court in Upendra Baxi v. State of U.P., , issued directions to the State Government. Amongst them some are - the State Government was directed to provide police protection throughout day and night, mosquito nels to each and every inmate, cooking gas in the kitchen and electrical wiring. The duty of the Government in establishing and maintaining the protective/ welfare homes has been laid down by the Supreme Court in the above decisioa The Act, 1956 is enacted to curb the commercial activity in sex and for rescuing the innocent and illiterate prostitutes. There is an obligation on the State to implement the provisions of the Act, 1956 and to maintain the protective homes in such a way that atleast minimum facilities are provided to the inhabitants of the said homes. We, therefore, direct the respondents/Government to prepare a scheme to renovate the welfare homes/protective homes maintained by the State by providing sufficient budget and keep a strict vigil on the activities of the said homes and see whether they are property carried on or not.
44. Section 21 of the Act, 1956 empowers the Government to permit the nongovernmental organisations to establish protective/welfare homes after obtaining licences and maintain them as per the norms prescribed by the Government. It is a fact that the protective homes established by the Government are not sufficient to accommodate the inmates. If voluntary organisations are given licences, it will facilitate to send the rescued women to such homes. Further, it is the fundamental duty of every citizen to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women, to value and preserve the rich heritage of our composite culture and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Selling women and girls and forcing them to prostitution is an act which is derogatory to the dignity of womanhood. Every citizen is duty bound to eradicate such evil from the society. There is also any amount of .responsibility on voluntary organisations to take up and serve the cause. One of the voluntary organisations, which is a party to this writ petition, expressed its desire to serve for the said cause. Therefore, we direct the State Government to consider the matter of issuing licences to the recognised voluntary organisations to establish protective homes after verifying the facts whether such bodies are having genuine, service-motto and sponsored by any other organisation, like Andhra Mahila Mandali, so that the burden on the Government will ease. The said voluntary organisations have to maintain protective homes in accordance with the norms and rules prescribed by the Government. We hope that the Government will bestow attention to this aspect also.
45. Section 13 of the Act, 1956 contemplates for appointment of a Special Police Officer and an Advisory Body. It is evident that the trade of prostitution is increasing day by day and the innocent women and minor girls are forced into the profession and the instances of sale of women to tie brothels are also brought to our notice in the report submitted by the Superintendent of Police, Women Protection Cell. Therefore, there is requirement of appointment of Special Police Officer to deal with the crimes in the area where the prostitution is prevailing and strictly implement the provisions of the Act. Section 13(3)(b) of the Act, 1956 provides that the State Government may associate with the Special Police Officer of a non-official advisory body consisting of not more than five leading social workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act. Till now such Special Officer or advisory body is not appointed.
46. Therefore, we direct the Government to appoint a Special Police Officer to deal with the cases of this nature identifying the areas in the city of Hyderabad and Secunderabad and also in districts. Merely appointing Special Police Officer or officers is not sufficient unless there is a supervision on Special Police Officer or Officers for implementation of provisions of the Act, 1956 in its true spirit- There is requirement to supervise and guide special police officer and other police officers dealing with the crimes under the Act. Hence, a Superior officer has to be nominated by the Government. Therefore, we direct the Government and the Director General of Police to nominate Superintendent of Police, Women Protection Cell as a Superior officer to supervise and guide special police officer and police officers dealing with the crimes under the Act in the twin cities of Hyderabad and Secunderabad and also nominate such superior police officer in each district- We further direct that the Government may also appoint an advisory body as provided under Section 13(3)(b) of the Act, 1956 consisting of renowned social workers so as to help the Special Police Officer who is supervising the offences of this nature.
47. The Act, 1956 further provides for closure of brothel houses. Sections 18 and 20 of the Act, 1956 contemplates closure of brothel and eviction of offenders from the premises and removal of prostitute. It is not brought to our notice till now that any action has been taken. In the present case, the residents of the surrounding locality of Mehaboob-ki-Mehandi have filed a detailed affidavit selling out the difficulties facing by them due to the existence of the flesh trade in the area. Therefore, there is any amount of necessity to implement the provisions of Sections 18 and 20 of the Act, 1956 in the true spirit by the law enforcing agency i.e., Police and the Magistrate.
48. We have directed release of the women excluding minors, who are infected with VDRL disease and also directed to send (21) women infected with HIV to protective home. There are four minor girls and among them two are pregnant and one girl by name Kowuri Saroja daughter of Chenna Reddy is infected with VDRL disease. It is a very in pathetic condition that the minors are forced into this profession but anyhow now they are rescued.
49. We further direct that the four minor girls be lodged in the juvenile jail and further direct that the pregnant girls must be given treatment and counselling; and also give proper treatment to the minor girl Kowuri Saroja who is infected with VDRL. The four minor girls will be given vocational training. They will be kept in the juvenile jail for a period of two years. After expiry of two years or after attaining majority, whichever is later, the advisory body will examine them and in case they want to go and settle to lead normal life or if their parents or, kith and kin come forward to take them to settle them in society as normal women the advisory body after satisfying themselves may recommend for release of those girls and the said recommendation will be acted upon and the concerned Magistrate will pass appropriate orders.
50. By counselling the Doctors advised the two minor girls for termination of pregnancy. Among them one girl agreed for termination of pregnancy and the other is in the process of agreeing for it. If that is so, the advisory body is directed to take further steps in the interest of the said minor girls and the same will be carried out by the authorities.
51. Till now there is no advisory body appointed by the Government. Therefore, we think it just and proper it direct the Government to appoint an advisory body as expeditiously as possible, preferably within a period of six months. Until regular body, is appointed there is a necessity to have the advisory body to advise the Special Police Officer or other police officers who are dealing with the crimes under the Act.
52. Therefore, we hereby direct the Government to appoint Mrs. Tejdeep, IPS Superintendent of Police, Hyderabad and Smt Malladi Subbamma and any other women social workers opted by Smt. Malladi Subbamma and the Superintendent of Police, be appointed as members of the advisory body on temporary basis. The said advisory body will play an active role in assisting such special officers and other police officers who are dealing with the crimes under Act 104 of 1956 and the said advisory body will be in force until a regular body is appointed by the Government
53. We direct that the Government shall appoint a permanent Special Police Officer as contemplated under Section 13 of the Act, 1956 identifying the areas and also appoint an advisory body on permanent basis in terms of Section 13 of the Act, 1956 for the twin cities Hyderabad and Secunderabad and also for each district. This exercise shall be completed within a period of six months from the date of receipt of a copy of this order.
There is an AIDS department and Sexually Transmitted Diseases Department in the Director of Medical Services, Government of A.P, Hyderabad. It is brought to our notice that the authorities are not taking any measures to educate the sex workers about the effect of AIDS and VDRL diseases. Therefore we think it just and proper to direct the Secretary, Health Department, Government of A.P, Hyderabad to take appropriate steps and see that the above stated-two departments will propagate the evil effects of the diseases in every hospital in twin cities of Hyderabad and Secunderabad and in the district headquarters and also in every primary health centres in the State and also in the Government hospitals by affixing the posters and educating the patients who visit the hospitals. We further direct that the above two departments must also tour the areas where the prostitution is carried on and educate the sex workers about the dreaded diseases. We hope and trust that this exercise will clothe the sex workers with the knowledge and they themselves will try to take preventive care by coming out of profession or by taking other preventive measures.
54. The Superintendent of Police, Women Protection Cell filed a detailed report pointing out the involvement of police personnel in the suit. It is a very serious matter. Therefore, we direct the Director General of Police to take stringent action against those police personnel involving in this nature of offence not only by taking departmental actions but also by laying prosecution and report compliance to the Registry of this Court immediately after taking such action. In the report the Superintendent of Police has made important suggestions and we feel that if such suggestions are implemented, the same will be useful for arresting the flourishing commercial activity of flesh trade. Therefore, we direct the Home Secretary and the Director General of Police to take those suggestions alongwith the relevant provisions of Act No.104 of 1956 and issue suitable directions to all the Police officers who will be dealing with the crimes under the said Act.
55. Before parting with this case it is necessary to mention the report submitted by the Superintendent, Women Protection Cell, CID, Hyderabad, as well as the report of the amicus curiae. The reports clearly show that the money earned by these fallen women was misappropriated by the Sethanis, financiers, brokers ere. There are no adequate provisions in Act 104 of 1956 for recovery of such amounts. If the adequate provisions are provided in Act 104 of 1956 for recovery of the said amounts from the above said persons, the same can be recovered by process of law and restore to the destituted women and with that amount they can start a new life. In the present case, according to the Superintendent of Police, Women Protection Cell, each prostitute earns Rs.100-00 to Rs.300-00 per day and from that amount half of the amount has to pay to Sethanis and also fall in debts created by them by executing documents in favour of the financiers who and the brokers who are paid huge amounts. Thus the innocent poor illiterate women are deprived of their earnings. There, is every necessity to incorporate suitable provisions for recovery of such amounts by amending Act 104 of 1956. Therefore, we suggest that the Central Government should bring appropriate amendments in Act 104 of 1956.
56. While concluding the judgment we have to place on record our appreciation to the Government Pleader Ms. Vijaya Laxmi, Sri P. Venkateshwarlu, Sri L. Ravichander, Sri V. V.S. Rao, the senior advocate who was appointed as amicus curias by this Court in assisting the Court. We place on record our appreciation to the efforts made by Mrs. Tej Deep I.P.S. Superintendent of Police, Women Protection Cell, C.I.D., Hyderabad, who has rendered services in conducting enquiry and unearthing brothel houses in the midst of the city and rescued 65 women from the said houses and given a detailed report to this Court.
57. The writ petition is accordingly disposed of. No costs.
58. After pronouncing the judgment, the Advocate-General submitted that among 65 women, who were rescued from brothel houses and put in Welfare Homes and Chanchalguda jail as per the directions of this Court, some of them are released by the Magistrate, though the case is pending in this Court. As per the directions given by this Court now, it is not possible to send the women already released to Protective homes. If that is the case, the Advocate-General may file a petition in this writ petition seeking suitable directions in respect of women already released by the Magistrate.