The court, by exercising its power under Article 142 of the Constitution, thought fit to lay down certain guidelines keeping in mind that legislation is yet to be passed in this regard, even though recommendations for the same were made to the government by a court-appointed panel in 2016.
—–
ON May 19, the Supreme Court issued directions to the governments of states and union territories ('UTs') to comply with the recommendations made by its Panel for Sex Workers. The Panel was constituted by the Supreme Court through its order dated July 19, 2011. The Panel had identified "conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India" and submitted a comprehensive report after consulting stakeholders.
The matter was listed in 2016, and the Union Government informed the Supreme Court that the Panel's recommendations were under consideration and draft legislation inclusive of the recommendations was in progress. Needless to say, the legislation remains forgotten.
“The basic protection of the right to life, and human decency and dignity by extension must also be provided to sex workers and their children.
The court, by exercising its power under Article 142 of the Constitution, thought fit to lay down certain guidelines keeping in mind that the legislation is yet to be passed even though the recommendations by the Panel were made in 2016. The Supreme Court had similarly laid down the 'Vishakha Guidelines' in 1997 in its celebrated judgment in Vishakha & Ors. versus State of Rajasthan (1997) for the prevention of sexual harassment at the workplace until a legislation to govern the same was passed.
The court has stated in the instant order that, "In a catena of decisions of this Court, this power has been recognized and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role."
Also read: Why must we recognise sex work as 'work'?
The court stated that it has expressly incorporated constitutional regard for human decency and dignity into Article 21 of the Constitution. In Francis Coralie Mullin versus Administrator, Union Territory of Delhi (1981), the meaning of the right to life under Article 21 was extended beyond the circumscribed limit of "protection of limb or faculty", and the right to live with human dignity was included in its ambit by the Supreme Court.
“Police must abstain from taking criminal action or interfering when it is clear that the sex worker's participation is consensual and they are an adult. The police must take complaints made by sex workers seriously regardless of the offence it relates to, and take appropriate action in accordance with the law.
Therefore, the basic protection of the right to life, and human decency and dignity by extension must also be provided to sex workers and their children. The court stated that sex workers "are removed to the fringes of the society" as they suffer the social stigma associated with their work. They are denied their right to live with dignity and are unable to provide their children with the same.
The Supreme Court stated that "sex workers are entitled to equal protection of the law." Criminal law must be applied on the basis of age and consent, and equally. Police must abstain from taking criminal action or interfering when it is clear that the sex worker's participation is consensual and that they are an adult. The police must take complaints made by sex workers seriously regardless of the offence it relates to, and take appropriate action in accordance with the law.
Further, "since voluntary sex work is not illegal and only running a brothel is unlawful," the sex workers, in case of any raid, must not be victimized, harassed, arrested or penalized.
The court also took note of the police's "often brutal and violent" attitude towards sex workers, stating that they, and other law enforcement agencies, must be made sensitive to the basic human rights and the constitutional rights that sex workers, like all other citizens, are entitled to. Police should not abuse sex workers, either physically or verbally, inflict violence on them, or force them into any sexual activity. Sex workers must be treated with dignity.
If sex workers use any precautionary measure to ensure their health and safety, such as the use of condoms, such act must not be deemed to be the commission of any offence or construed as evidence for an offence, the court's guidelines say.
The Supreme Court urged the Press Council of India to issue guidelines for the media so that they take utmost care in concealing the identities of the sex workers at the time of a raid, rescue operation or arrest. Such care must be extended whether the sex worker is the accused or the victim; any photos that could lead to the revelation of the identities of sex workers, therefore, must not be published, the court directed.
To further prohibit the publication of photos of sex workers and their clients under the pretence of reporting a raid or rescue operation, Section 354C of the Indian Penal Code, 1860, which criminalizes voyeurism, must be "strictly enforced against the electronic media", the court added.
The representatives of the sex workers made certain recommendations to the Unique Identification Authority of India ('UIDAI') for providing Aadhaar Card to sex workers. UIDAI filed an affidavit and proposed that sex workers who cannot produce proof of residence but are on the National AIDS Control Organization's ('NACO') list can be issued an Aadhaar Card if a Gazetted Officer of NACO or the State Health Department submits a proforma certificate stating the applicant's particulars.
The Supreme Court stated that UIDAI must issue Aadhaar Card to sex workers on the basis of a proforma certificate submitted by the abovementioned authority, along with an application or enrolment form for Aadhaar. Further, confidentiality related to the identification of the cardholder as a sex worker must also be maintained.
The Union Government, through the National Legal Services Authority, and the state governments, through State Legal Services Authorities and District Legal Services Authorities, should organize educational workshops for sex workers concerning their rights, the legality of sex work, prohibitions and permissions under the law, and the rights and obligations of the police, directed the court. Sex workers must also be made aware of the accessibility to the judicial system so that they can enforce their rights when the need arises, and prevent the police and traffickers from harassing them, another guideline says.
Thanks to the Supreme Court's intervention, the union and state governments must now involve sex workers in all decision-making processes that pertain to them. They must also be actively consulted while planning or designing any policy for sex workers. Their participation must also be encouraged in the formulation or amendment of any law related to sex work. Sex workers can be appointed as panellists or members of committees or authorities entrusted to make any decision regarding them.
Immediate medical assistance must be provided to a sex worker who is a victim of sexual assault. Other assistance in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with the Guidelines and Protocols: Medico-legal Care for Survivor/Victims of Sexual Violence must also be provided.
A child and her mother shall not be separated only because she is a sex worker. A presumption that a child has been trafficked must not be made merely because they are found living with sex workers or in a brothel. If a sex worker claims a child as her own, medical tests can determine the truth of such claims, the Supreme Court clarified.
“The union and state governments must involve sex workers in all decision-making processes that pertain to them. They must also be actively consulted while planning or designing any policy for sex workers. Their participation must also be encouraged in the formulation or amendment of any law related to sex work.
The Supreme Court directed all state governments to survey all Protective Homes established under the Immoral Traffic Prevention Act, 1956 to release adult women detained against their will in a "time-bound manner."
The Union Government expressed reservations regarding some of the recommendations. These include the police refraining from taking criminal action against adult and consenting sex workers, representing and involving sex workers in matters related to them, separation of a sex worker from her child, and preventing sex workers from harassment and arrest in case of a raid.
According to the submissions made by the Additional Solicitor General, Jayant Sud, sex workers are kept in shelter homes for their safekeeping after they are rescued from brothels. He further stated that it might be complicated to determine whether the sex worker was working voluntarily or was coerced into the trade since they did not know anyone in the city and were, therefore, vulnerable to coercion. He suggested that the complete prohibition of the police from interfering with consenting sex workers might not be feasible, and an enquiry to determine the free consent of the sex worker was significant.
The Supreme Court has directed the Centre to submit its response to the recommendations on the next date of hearing, which is July 27 this year. The Supreme Court has directed the states and union territories to strictly follow the other recommendations.
It is possible that recognising sex work as a profession can lead to the increased exploitation of women as organised groups will gain control. Despite this risk and many others, the Centre has resisted the suggestion that sex workers have a say in any policy that affects them.
The Supreme Court's directions emphasise rehabilitation and protection of the sex workers and particularly their reintegration into society as citizens with equal rights. The directions aim at a holistic approach towards the betterment of the sex workers in India. In the past also, an array of judicial pronouncements have supported the choice of adult and consenting sex workers regarding their profession. As such, it is possible that the Court overrules the Center's objections and directs the State Governments and UTs to follow the remaining recommendations as well.
While the recommendations made by the Panel for Sex Workers and the directions issued by the Court are surely going to bring some relief to the plight of the sex workers, the Court did refrain from declaring sex work as legal.
“A child and her mother shall not be separated only because she is a sex worker. A presumption that a child has been trafficked must not be made merely because they are found living with sex workers or in a brothel.
The Immoral Traffic (Prevention) Act, 1956, governs sex work in India. While the law does not make voluntary sex work illegal, certain activities that essentially facilitate prostitution, for instance, running a brothel and coercing a person into prostitution, are illegal. Therefore, the law does not penalize an adult and consenting sex worker but persons who facilitate prostitution. Prostitution under the Act means the "sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind."
In September 2020, the Bombay High Court, in Kajal Mukesh Singh & Ors. v. the State of Maharashtra, while directing the immediate release of three sex workers from a correction home, stated that "there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution." The Act only punishes the sexual exploitation or abuse of a person for commercial purposes.
The Court, while issuing the present directions, also reiterated that voluntary sex work is not illegal. This statement can be construed by some as declaring voluntary sex work as legal. There is also a possibility that the Court is waiting for the Union Government to make its submissions regarding the objection it has against certain recommendations. The Court could also be looking forward to the passing of the Draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 which is yet to be tabled in the Parliament.
The present directions clarify the legal distinction between consenting and adult sex workers and minor and trafficked persons who are unable to give their legal consent and be a part of the trade.
Click here to read the Draft The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021