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Sayed Abdul Khair Vs. Babubhai Jamalbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1974CriLJ1337
AppellantSayed Abdul Khair
RespondentBabubhai Jamalbhai and anr.
Excerpt:
.....the |object, to be achieved. see in this connection two well-known cases under the suppression of immoral traffic in women and girls act, where some other provisions of the act were challenged in state of uttar pradesh v. it has been well settled that article 14 does not prohibit reasonable classification for the purpose of legislation and that a law would not be held to infringe article 14 of the constitution if the classification is founded on an intelligible differentia and the said differentia has a rational relation to the object sought to be achieved by the said law. a prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy..........17 in the charge-sheet for the purpose of prostitution, under section 5 (1) of the suppression of immoral traffic in women and girls act, 1956, is as to whether the learned presidency magistrate was right in rejecting an application for making a reference to this court on the point raised on behalf of the accused that sections 15 (4) and 16 (1) are ultra vires article 14 of the constitution of india, inasmuch as they make a discrimination between a girl and woman.2. by raising such a frivolous point, this case is kept pending from december 7, 1971, when the charge-sheet was filed, till now. the point sounds fantastic in the mouth of a person charged with running a brothel and procuring the girls for prostitution. i do not think that either in article 14 or in any other part of the.....
Judgment:
ORDER

Vaidya, J.

1. The short point to be decided in this Criminal Revision Application, filed by accused No. 3, Sayed Abdul Khair, who is prosecuted along with others under the Suppression of Immoral Traffic in Women and Girls Act, 1956, for running a brothel, under Sections 3 (1) and 4 (1) and for procuring the girls at serial Nos. 4 to 17 in the charge-sheet for the purpose of prostitution, under Section 5 (1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, is as to whether the learned Presidency Magistrate was right in rejecting an application for making a reference to this Court on the point raised on behalf of the accused that Sections 15 (4) and 16 (1) are ultra vires Article 14 of the Constitution of India, inasmuch as they make a discrimination between a girl and woman.

2. By raising such a frivolous point, this case is kept pending from December 7, 1971, when the charge-sheet was filed, till now. The point sounds fantastic in the mouth of a person charged with running a brothel and procuring the girls for prostitution. I do not think that either in Article 14 or in any other part of the Constitution there is anything which has given any such right to a brothel-keeper or to one who Drocures girls to contend that a woman and girl must be treated in the same fashion for all purposes by the Legislature. The Constitution is made for good Government and good life. It is certainly not intended to help people who want to live by or to promote the ancient vices of prostitution without making any distinction between a woman and girl. A kitchen is not made for cockroaches. The Constitution is not made for helping brothel-keepers and procurers, who do not want the Legislature to make an enactment providing for different treatment for women and girls below 21 being exploited for purposes of prostitution. On this around alone, the application of the petitioner ought to be thrown out as a frivolous application which has delayed the proceedings, pending from 1971.

3. However, Mr. Merchant, the learned Counsel appearing for the petitioner, solemnly contended that it is open to the accused to submit that Section 15 (4), in so far as it empowers a Special Police Officer entering any premises to remove therefrom any girl, if in his opinion, she is under the age. of 21 years and is carrying on or is being made to carry on, or attempts are being made to make her carry any prostitution, is unreasonable, arbitrary and discriminating between a girl and a woman, because the woman is not liable to be removed. Similarly, he contended that Section 16 (1) which empowers a Magistrate to direct the special police to enter a brothel and to remove therefrom a girl also makes an unreasonable distinction between a girl and woman.

4. I do not think it is open to a person charged with keeping a brothel and procuring the girls to contend that 'woman should also be removed because a girl is removed' or 'a girl should not be removed because a woman is not removed from the houses of the prostitutes.' Similarly, they cannot contend that 'a girl should not be rescued from the brothel because woman cannot be rescued or a woman should be rescued because a girl is to be rescued.' The distinction between a girl and a woman in fact and also in law relating to prostitution is well known particularly since the beginning of the century, when laws were enacted to suppress the vice of prostitution and prevent or stop the exploitation of young girls and women.

5. The Act itself is called the Suppression of Immoral Traffic in Women and Girls Act. It is an Act to provide in pursuance of the International Convention signed at New York on the 9th day of May, 1950, 'for the Suppression of Immoral Traffic in Women and Girls'. The Convention has prescribed the distinction. The civilized world is agreeing with the convention in making a distinction between a girl and woman for purposes of the Suppression of Immoral Traffic in Women and Girls. The word 'girl' is defined in Section 2 (b) as 'a female who has not completed the age of twenty-one years.'

6. The Constitution of India also makes a distinction between a woman and a girl when it lays down in Article 15 (3) of the Constitution of India that nothing in the Article, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, 'shall prevent the State from making any special provision for women and children'. The expression, 'children' includes both girls and boys. Article 39 (e) lays down that the State shall, in particular, direct its policy towards securing 'that the health and strength of workers, men and women, and 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) lays down that childhood and youth should be protected 'against exploitation and against moral and material abandonment.'

7. The distinction between young girls aged below 21 and women is a reasonable distinction in the context of prostitution and immoral traffic in sex. It is a discrimination fully Justified by the fact that girls below 21 are likely to be exploited to a greater extent in the market of prostitution. The distinction between girls and women is, therefore, germane to the vice of prostitution and immoral traffic, which is attempted to be suppressed by the provisions of the Suppression of Immoral Traffic in Women & Girls Act, 1956. Young girls are the special victims in that field all over the world. The distinction is therefore reasonable and proper in the Suppression of Immoral Traffic in Women and Girls Act.

8. Parliament has made special provision for girls below 21. Even the articles of the convention of New York, which has been adopted by India, in its preamble states:

Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community: Whereas, with respect to the suppression of the traffic in women and children the following international instruments are in force....

This shows that the distinction between young girls and women is one of the basic concepts of the modern legislation to suppress immoral traffic. In the circum stances, the classification made by Parliament between girls and women, the special provisions contained in Sections 15 (.4) and 16 (1) for removing young girls from brothel and for rescuing them cannot be attacked as hit by unreasonable or constitutionally prohibited discrimination,

9. It is well established that Article 14 of the Constitution of India does not rule out a reasonable classification based on rational connection with the | object, to be achieved. See in this connection two well-known cases under the Suppression of Immoral Traffic in Women and Girls Act, where some other provisions of the Act were challenged in State of Uttar Pradesh v. Kaushailiya : [1964]4SCR1002 and A. C. Aggrawal v. Mst. Ram Kali : 1968CriLJ82 .

10. In the earlier case, the provisions of Section 20 were challenged on the ground that an unreasonable discrimination was made therein between a woman who was carrying on prostitution openly and a woman who was carrying on prostitution clandestinely. The Supreme Court negatived this contention by observing:

The next question is whether the policy so disclosed offends Article 14 of the Constitution. It has been well settled that Article 14 does not prohibit reasonable classification for the purpose of legislation and that a law would not be held to infringe Article 14 of the Constitution if the classification is founded on an intelligible differentia and the said differentia has a rational relation to the object sought to be achieved by the said law. The differences between a woman who is a prostitute and one who is not certainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy locality or in an over-crowded town or in a place within the easy reach of public institutions like religious and educational institutions. Though both sell their bodies the latter is far more dangerous to the public, particularly, to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals but, what is worse, to spread diseases not only affecting the present generation, but also the future one. Such trade in public may also lead to scandals and unseemly broils. There are, therefore, pronounced and real differences between a woman who is a prostitute and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deportation. The object of the Act, as has already been noticed, is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitutes from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes have a rational relation to the object sought to be achieved by the Act. Section 20, in order to prevent moral decadence in a busy locality, seeks to restrict the movements of the second category to prostitutes and to deport such of them as the peculiar methods of their operations in an area may demand.

11. In the second case which was from Punjab, the provisions of Section 18 of the Act were challenged on the ground that it prescribed a different procedure for offences under Sections 3 or 7 as well as under Section 18 and those coming only under Section 18. The Punjab High Court had struck down the section. The Supreme Court reversed the decision observing:

They are two distinct classes of cases a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Anwar All Sarkar's case : 1952CriLJ510 .

12. In my judgment these principles will apply with greater force to the classification made by Section 15 (4) between women and girls. Not only is this distinction consistent with the objects of the legislation relating to prostitution in the modern world from the beginning of the century, it is also consistent with the provisions of the Indian Penal Code where a distinction is made between kidnapping of minors and abduction of woman and between rape of a girl below 16 and a woman and of a married woman and unmarried woman. It is consistent with the classification made in the Convention of New York to implement which the Act has been passed by Parliament. It has intimate connection with the inducement to and exploitation of prostitution everywhere as this vice market has an unending demand for teenage girls.

13. Moreover, the girls rescued from brothels have to be removed somewhere by the State after making reasonable arrangements for them. Section 17 provides for their intermediate custody. Unless there are sufficient number of rescue homes or other facilities, the State will not be in a position to rescue everybody from the prostitution market and keep them in protective homes. Even a woman above 21, is given a right to make an application under Section 19 to the Magistrate for an order that she may be kept in a protective home in the same way as a girl. The Parliament has made the distinction between women and girls only with regard to removal from the brothels and intermediate custody for reasons which are very germane to the vice of prostitution which is attempted to be prevented by the Suppression of Immoral Traffic in Women and Girls Act.

14. Young girls are the hot favourites in the immoral traffic in women and girls. Unless they are rescued and removed from the places of vice they will continue to be exploited particularly if the brothel-keepers have men, money and other means enough to defeat or de-lay the proceedings instituted against them.

15. Mr. Merchant then submitted that Section 15 is unconstitutional in so far as the Special Police Officer is given an uncanalised, uncontrolled and arbitrary power to determine whether a woman is below 21 years of age under Section 15 (4) and whether she is carrying on or is being made to carry on. or attempts are being made to make her carry on prostitution, and hence the discrimination is unreasonable. But a Special Officer is appointed under the Act with sufficient experience and knowledge to determine whether a particular girl in a brothel is below 21 and whether she was carrying on or was being made to carry on, or attempts were being made to make her carry on prostitution. Further safeguard is provided in Section 17 (1) by compelling the officer to produce the girl immediately before a Magistrate as required by Sub-Section (5) of Section 15 or Sub-Section (2) of Section 16. Thus, the power given to the Special Police Officer is not arbitrary. It is subject to the immediate judicial scrutiny of the Magistrate, who will decide whether there are reasonable grounds for holding that the girl is below the age of 21 years and is carrying on or is being made to carry on, or attempts are being made to make her carry on prostitution within the meaning of Section 15 (4).

16. In the result, I find no substance in this Criminal Revision Application. Rule is discharged. The Presidency Magistrate, who is in charge of this case shall hear it as early as possible from day to-day and dispose it of in accordance with law before the end of March 1974.


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