Appellate Division Cases
The Secretary. Ministry of Home Affairs and others ……………….Appellants
Bangladesh Secretary for the enforcement of Human Rights (BSEHR) and others
Syed J.R.Mudassir Husain, C.J.
M.A. Aziz J
Amirul Kabir Chowdhurv J.
Date of Judgment
8th August, 2004
The Vagrancy Act, 1943
Article 103 of the Constition of Bangladesh
To show cause as to why the lifting of the sex workers in the early hours of 23.07.1999 from their residence at Tanbazar and Nimtali, Narayanganj by the District Administration with the help of the police and dislodging them and taking some of them to the Kashimpur Vagrant Home in the name of rehabilitation should not be declared to be taken or done in violation of their fundamental rights as to residence, profession, trade, calling etc. and why their confinement in Vagrant Center should not be declared illegal and directing that the sex-workers in custody be brought before the Court so that it may satisfy itself that they are not being held in custody without lawful authority or in an unlawful manner. (3)
The respondent to co-ordinate themselves with UNDP of other connected organisa tion scheme for the sex workers of the country and asking the Government to come out with legislation prohibiting prostitution and /or soliciting prostitution appear to us to be harmless directions (12)
Abdur Razzaque Khan, learned Additional Attorney General instructed by Mr.Sajjadul Huq, Advocate-on-Record.-For the Appellants. Sigma Huda, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record. for the Respondent Nos. 2 & 4 Dispensed with–Respondent Nos.
1. Amirul Kabir Chowdhury, J: This appeal by leave is directed against the judgment and
order dated 14.03.2000 passed by the High Court Division in Writ Petition No. 2871 of
1999 making the rule absolute in part.
2. The facts, in brief, leading to the appeal are that the respondent, Bangladesh Secretary for the enforcement of Human Rights, in short, BSEHR and others filed writ Petition No. 2871 of 1999 stating, inter alia, that on 23.07.1999/24/7/1999 a large number of policemen entered into the rooms of the residents of Nimtali and Tanbazar, Narayanganj who were working as sex workers and informed the residents that the local Member of the Parliament and the Deputy Commissioner along with Superintendent of Police and other Officers were waiting at the Narayanganj Sadar Police Station and desired to meet them and when they came to meet the aforesaid officers, the policemen suddenly threatened, abused and beat them and their children and by force pushed them to the waiting buses and earned them to Kashimpur vagrant home and detained them against their will and the respondents circulated a questionnaire to the residents of Nimtali and Tanbazar to express their opinion as to how many women and girls were willing to give up prostitution and opt for their rehabilitation and the respondents found 659 women willing to be rehabilitated out of 1058. The respondent writ petitioner after meeting the officers concerned could realise that in order to effect eviction of the residents from their quarters at Nimtali and Tanbazar the aforesaid raid had been carried out at the influence of vested quarters and that the inhabitants were detained in the vagrant homes at Kashimpur and that the respondents released them thereafter paying a sum of TK. 5,000/- plus a sewing machine or alternatively on payment of consolidated sum of Tk. 7,000/- to each of the inmates. The writ petitioner further alleged that in the vagrant home they were abused and that the detention of the inmates at vagrant home was illegal.
3. On the said application the rule was issued calling upon the respondents to show cause as to why the lifting of the sex workers in the early hours of 23.07.1999 from their residence at Tanbazar and Nimtali, Narayanganj by the District Administration with the help of the police and dislodging them and taking some of them to th Kashimpur Vagrant Home in declared to be taken / done in violation of their fundamental rights as to residence, profession, trade, calling etc. and why their confinement in Vagrant Center should not be declared illegal and directing that the sex-workers in custody be brought before the Court so that it may satisfy itself that they are not being held in custody without lawful authority or in an unlawful manner.
4. The rule being issued, the appellant contested the rule by filing affidavits-in-opposition denying the material statements made in the PT writ petition and stating, inter alia, that none of the sex-workers was taken away from their living houses/rooms forcibly nor any of them was abused or tortured and that with the help of women police the sex-workers, those roaming around the localities of Tanbazar and Nimtali. being found to be vagrants were taken to the Magistrate concerned who declared 155 of them as vagrants and directed to release 112 others as not vagrants and the vagrants so declared were to the vagrant home by bus and were handed over to the authority of the vagrant home and those who were not declared to be vagrants were released. It was further asserted that some of the press reports published in various news papers did not reflect the correct position and as such the said press clippings annexed with the writ petition could not be taken into consideration by the High Court Division while disposing of an application under Article 102 of the Constitution and that the appellants also enclosed paper clippings which contradicted papers clippings furnished by the writ petitioner and as such the question being a disputed fact the High Court Division had no jurisdiction to dispose of the same while deciding the writ petition under Article 102 of the Constitution. It was further asserted that shifting of the sex-workers, found as Vagrants, was carried out through the process of law by producing them before a concerned Magistrate who in due process of law declared them as Vagrant and kept at the vagrant home. It was added that the brothels situated at Nimtali and Tanbazar areas were root of spreading HIV, AIDS and other STD (sexually transmitted diseases) and various kinds of crime wherein many innocent women and minor girls being misguided were sold to the pomp and on the night following 30th June. 1999 one Jesmin. a sex-worker was brutally killed by a customer and following the murder tension prevailed there and the inmates got penicky and law and order situation deteriorated as a result of which huge number of sex-workers deserted the area, started rooming about in the area and created an uneasy situation and. therefore, the respondents had to take actions under the provisions of the Vagrancy Act and took steps according to law and the actions so taken were bonafide and so the rule was liable to be discharged. The High Court Division after hearing the parties passed by the impugned judgment and order as already mentioned by us at the outset.
5. In support of the appeal, Mr. Abdur Razzaque Khan, learned Additional Attorney General submits, inter alia, that since the writ petitioner did not challenge the proceeding of the Vagrancy Act the impugned direction made by the High Court Division is illegal. Relying on the statements made in the affidavits-in-opposition he submits that entire actions have been taken following the law and with a good intention. Referring to the findings of the High Court Division the learned Additional Attorney General submits that the allegations made by the writ petitioner being not corroborated by any cogent evidence and there being allegations of the writ petitioner about alleged harassment and intimidation and at the same time there being emphatic denial thereto made on behalf of the respondents and the materials filed by both the sides being contentious, the High Court Division committed error in making observations finding truth in the allegations of alleged harassment and intimidation.
6. He further submits that the actions have been taken under the provisions of Vagrancy Act, 1943 and so there was no illegality committed by any of the respondents and as such
the rule ought to have been discharged. Taking us through the annexures the learned Additional Attorney General submits that the whole writ petition has been based on news papers, both the parties producing paper clippings in support of their conflicting claims and that the police personnel were not alone in the removal of the sex-workers as the Deputy Commissioner, elected representatives of the people and officers of other civil administrations were also present during the operation. He further submits that the right to life and right to livelihood of the sex-workers claimed by the writ petitioners mean legal livelihood and the prostitution has been discouraged in the Constitution and as such the actions of the respondents cannot be found fault with. Elucidating his submissions the learned Additional Attorney General referred to the leave granting order and submits that the leave has been granted on a very limited compass and the whole issue is centered on the question as to whether there was validly conducted proceeding under the Vagrancy Act. In this connection he referred to the order sheet of case Nos. 7709 of 1999 and 7710 of 1999 and submits that complying with the requirements of the provisions of the Vagrancy Act, 1943 the actions have been taken and as such the rule was liable to be discharged.
7. Mrs. Sigma Huda. learned Counsel, appearing on behalf of the respondents opposing the appeal submits that the question as to legality of the proceeding under Vagrancy Act k. did not arise at the time of moving the application under Article 102 of the Constitution before the High Court Division and as such there was no necessity to challenge the same though before the Appellate Division the question being agitated by the appellants the Appellate Division took cognizance of it and accordingly in the leave granting order it found place. She add that in fact no records of the proceeding could be produced before the High Court Division and the sex-workers have been evicted by force from their rooms / houses at the instance of the vested quarters incluing owners of the houses in question and the writ petitioner in fact challenged the whole actions but the appellant obtained the leave granting order through incorrect submissions and the appeal having no merits is liable to be dismissed.
8. Considered the submissions made at the Bar and perused the materials on record. At the time of granting leave it has been observed: ” The petitioners have submitted that admittedly 155 women were sent to vagrant home., The question of release of such women is connected with their wishes to stay there and the public interest litigation in such a case is not maintainable particularly without challenging the Vagrancy proceeding under the Vagrancy Act, 1943. It is further submitted that 267 women having been produced before the Special Magistrate in Case No.7709 of 1999 and Case 7710 of 1999 and the Magistrate having sent 155 of them to vagrant home after declaring them as vagabonds under section 7 of the Vagrancy Act, 1943. the High Court Division was wrong in ordering release of the women at Kashimpur vagrant home when the said two proceedings and the orders passed therein h;-ve not been challenged by the petitioners. The submissions made by the petitioners merit consideration. Leave is granted.
9. On behalf of the appellant the order sheets of the case Nos. 7709 of 1999 and 7710 of 1999 under Vagrancy Act. 1943 have been produced. It appears from Case No. 7709 of 1999 that pursuant to Genera! Dairy No. 1053 dated 25.07.1999 of Katowali Police Station. District Narayangonj 40 women including children were produced before the learned Special Magistrate on 28.07.1999 and the learned Special Magistrate called for a police report regarding them and on 05.08.1999 the report being received about 30 of them, the learned Special Magistrate being satisfied that they were vagrants as defined under Section 3(9.^ of Vagrancy Act 1943 hereinafter referred to as the Act. they were declared as such and remaining 10 women were released. Similarly pursuant to the aforesaid general diary 227 women including children were produced before the learned Special Magistrate on 24.07.1999 and Case No. 7710 of 1999 was accordingly started and the learned Special Magistrate on perusal of the police report found 102 of them to be not vagrants and by order dated 29.07.1999 released them and remaining women were declared as vagrants under the provisions of Section 7(2) of the Act and thus the aforesaid vagrants declared as such were legally kept under the provisions of the Vagrancy act in Kashimpur and Pubali Vagrant Homes (Sarkari Asroy Kendro).
10. On perusal of the order sheets it appears that the respondents under the provisions of
Vagrancy Act took the actions.
11. The High Court Division while making the rule absolute in part gave the following observations/ directions: “All the respondents should Co-ordinate themselves with UNDP or other connected organizations formulating and adopting a durable rehabilitation scheme to start with a Pilot Scheme for the purpose of the sex-workers of the country with a sense of security and then the Government should come out with legislation prohibiting prostitution and / or soliciting prostitution and strictly enforce the laws in solemn observance of the Constitutional obligation adopting effective measures to prevent prostitution.”
12. The High Court Division further gave the direction as follows: ” We direct the respondents 2 and 3 that they shall forthwith release the sex workers now detained in Kashimpur vagrant home allegedly treating them vagrants.In the additional paper book filed by the appellants list of 222 sex workers has been furnished showing disbursement of Tk. 7.000/- per head and 13 sex workers have been paid Tk. 5,000/- and one sewing machine per head for the purpose of their rehabilitation and the learned Additional Attorney General submitted that after giving the aforesaid rehabilitation allowance/assistance they have been released. From paragraph 15 of the writ petition the statement as to payment of aforesaid rehabilitation allowance finds support. The direction given by the High Court Division for releasing the sex workers detained in Kashimpur and Pubali Vagrant Homes (Sarkari Asroy Kendro) appears to us to have already been complied with releasing them in the meantime. On the face of it the appeal, therefore. appears to us to have become infractuous. The other directions asking the respondent to coordinate themselves with UNDP of other connected organisation scheme for the sex workers of the country and asking the Government to come out with legislation prohibiting prostitution and /or soliciting prostitution appear to us to be harmless directions.
13. The learned Additional Attorney General strenuously submits that certain findings observations made in the impugned judgment regarding actions of the respondents based on paper clippings are not legally maintainable.
14. It appears that the High Court Division intended not to go into the disputed question of facts but at the same time expressed their disapproval to the police actions as to alleged
brutality/ eviction of the sex workers on the basis of paper clippings produced by the writ
15. It appears that paper clippings as Annexures l(a) 5o l(b), l(d) to l(g) have also been filed by the appellant (respondent in the writ petition) contradicting the claim of the appellants and the High Court Division also found that disputed questions of facts were involved and as such we are of the view that the adverse remark made on the basis of the
paper clippings could be avoided.
16. In view of the discussion made above, we find that though the rule has been made absolute but the consequent directions given by the High Court Division have already been complied with releasing the sex workers giving them rehabilitations allowance and the portion of the direction as already mentioned by us for rendering assistance and co-operation in formulating and adopting durable rehabilitation programmee in collaboration with the UNDP for rehabilitation of the sex workers and also asking the Government to frame suitable legislation to stoop prostitution, to our mind, cannot be found fault with, calling for any interference by this Court.
17. On the reasons made above, the appeal is liable to be dismissed and hence it is dismissed without any order as to costs.
Source: III ADC (2006) 726