SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

warrant. 805 Further, the law punishes the keeping of a brothel or knowingly allowing the
keeping of a brothel by landlords, tenants, etc. 806 It also punishes persons above the age of
eighteen who knowingly live, wholly or in part on the earnings of prostitution; the mother or
child of a prostitute are exempted from this provision unless the court is satisfied that they are
aiding, abetting or compelling her prostitution. 807
In 2000, in the case of Bangladesh Society for the Enforcement of Human Rights (BSEHR)
and Ors v. Government of Bangladesh and Ors 808 the High Court division of the Bangladesh
Supreme Court examined the issue of the legal status of sex work in Bangladesh. The case
arose in the context of forcible evictions of sex workers from a particular locality. After
examining the scheme of the Suppression of Immoral Traffic Act, 1933 and the provisions of
the Penal Code the High Court held that the profession of sex work, “apparently is not an
illegal one under the law of the land.” 809 It did, however note that even if it was not illegal, it
would not be encouraged and that, “State machineries are all out to prevent it by adopting
various measures including rehabilitation schemes in consonance with our Constitutional
mandate in its directive state policy that the State shall adopt effective measures to prevent
prostitution.”
Having noted this position in law, the court then turned to the matter of the evictions and
noted that under the Constitution of Bangladesh every citizen has an inalienable right to be
treated in accordance with law and only in accordance with law. Holding that sex workers, as
citizens of the country also enjoy this right, the court stated that,
“[t]he said fundamental protective rights enshrined that no action detrimental to
the life, liberty, body, reputation or property or personal liberty of any citizen can
be taken except in accordance with law, for a citizen enjoys the equal protection
of law and is entitled to equal protection of law. Article 11 of the Constitution
declares that the Republic shall be a democracy in which fundamental human
rights and freedoms and respect for the dignity and worth of the human person
shall be guaranteed. The evicted prostitutes of Nimtali and Tanbazar are citizens
of Bangladesh, are enrolled as the voters and do exercise the right of franchise.”
The court further recognised the right to livelihood of sex workers and noted that, “in spite of
the provisions of Suppression of Immoral Traffic Act, 1933 whereby they are maintaining
their earning/ livelihood which the State in the absence of any prohibitory legislation has a
duty to protect and a citizen has the right to enforce that right enshrined in Articles 31 and 32
of the Constitution.” Comparing Article 32 of the Bangladeshi Constitution to Article 21 of
the Indian Constitution, the High Court referred to the Indian Supreme Court judgment in
Olga Tellis v. Bombay Municipal Corporation 810, which recognised the right to livelihood as
part of the right to life.
805 Section 22, ibid.
806 Section 4, ibid.
807 Section 8, ibid.
808 53 DLR (2001) 1
809 “The preamble of our Constitution pledges high ideals of trust and faith in the Almighty Allah and that the
State religion is Islam but we are not subjected to Shariat Law making sexual intercourse even with consent
between men and women, other than husband and wife, a heinous offence of Jina/ fornication punishable even
with stoning to death but the same is not the law of the land to be enforced in the Courts of Law…” Ibid.
810 AIR 1986 SC 180
176