Awareness of rights among sex workers, self-help groups and organisation of sex workers, sensitisation of police, and a proactive judiciary can all come together to ensure sex workers live and work with dignity and without constant harassment and violation of their rights.
AN additional sessions judge in Mumbai, Justice C.V. Patil, directed the release of a sex worker who was forcefully detained in a shelter home after a raid at a brothel by the police on April 26.
The court relied on the Order and directions of the Supreme Court in the Budhadev Karmaskar versus State of West Bengal (2022), and upheld the right of the sex worker to move and reside freely under Article 19 of the Constitution.
Facts
As per the facts of the case, after conducting a raid, the Mulund police filed a first information report (FIR) against the accused, that is, the manager and owner of the place where the sex work was allegedly taking place.
Three sex workers, found at the place, were taken into custody and detained at Navjeevan Mahila Vastigruh, a shelter home in Deonar, Mumbai.
The sessions court relied on the Order and directions of the Supreme Court in the Budhadev Karmaskar versus State of West Bengal (2022), and upheld the right of the sex worker to move and reside freely under Article 19 of the Constitution.
On being produced before the magistrate, the court directed two of the sex workers to be released from the shelter home. Considering the antecedents of the third sex worker, the magistrate directed her detention in the protection home for 'care, protection and shelter' for one year under Section 17(4) of the Immoral Trafficking (Prevention) Act, 1956 (ITPA).
The magistrate relied on the report of the probation officer at Navjeevan Mahila Vastigruh which said that the sex worker had committed a breach of a previous undertaking in another police complaint to refrain from sex work and that the victim was repeatedly involved in sex work. The magistrate thereby directed the continued detention of the sex worker in the shelter home
Following the order of the magistrate, the sex worker filed an appeal in the sessions court, Mumbai, against the Mulund police station and superintendent of Navjeevan Mahila Vastigruh.
Advocate Tripti Tandon, who represented sex workers in the Budhadev Karmaskar case, said that in places where organisations work with sex workers' on health, education and HIV prevention issues, sex workers are likely to be aware that their work is not illegal.
The court emphasised that the sex worker had attained the age of majority and it was improper for the magistrate to direct her detention in the shelter home, based on one antecedent of similar work, against her will.
In the present case, the sex worker filed the case through a lawyer, allowing her the access to the law and her rights. However, with the rampancy of raids, the question remains on how many sex workers are aware of their rights and are able to assert and fight for their rights in courts.
Awareness of rights among sex workers
Advocate Tripti Tandon, who represented sex workers in the Budhadev Karmaskar case, said that in places where organisations work with sex workers' on health, education and HIV prevention issues, sex workers are likely to be aware that their work is not illegal.
Yet there is stigma associated with the work, and that combined with police brutality and the experience of other sex workers is enough to make sex work "frightening", she noted.
Bishaka Laskar, secretary of Durbar Mahila Samanwaya Committee (DMSC), a community-based organisation of over 65,000 sex workers in West Bengal, spoke with The Leaflet shared that while previously sex workers were fearful of the police, they have understood through awareness programmes that after a raid, they cannot be detained in a police station or in a shelter home.
According to advocate Tripti Tandon, under ITPA, courts are not bound to send sex workers to a shelter home. If a sex worker has expressed her will to not be kept in a shelter home, nothing in the law says the court's cannot respect her choice, she emphasised.
Laskar was quick to point out that due to the efforts of DMSC, the rights awareness among sex workers in West Bengal is higher than in other states.
According to Laskar, advocacy efforts and programmes should be strengthened and police officers and lawmakers should be engaged with, on the issue of sex work and the rights of sex workers.
Community-based organisations that have sex workers as members are in a better position to empower sex workers and understand their problems than other non-governmental organisations, she explained.
Police raids
Tandon clarified that in the Budhadev Karmaskar case, the Supreme Court's observation on raids is not a part of the directions but forms part of recommendations by a court-appointed panel saying that during raids, the police should not interfere with adult sex workers who are doing sex work out of their volition. The Union government had raised objections to this part of the recommendation, she added.
According to social worker Bishaka Laskar, advocacy efforts and programmes should be strengthened and police officers and lawmakers should be engaged with, on the issue of sex work and the rights of sex workers.
While the police can carry out raids under the ITPA, Tandon clarified that it is part of the directions of the Supreme Court that whenever police interact with sex workers, in whatever capacity, the police must treat them with respect, strictly refraining from harassment or abuse.
Tandon said that the Supreme Court had not provided any express directions on detention of sex workers. However, she was of the opinion that taking cue from the recommendations of the panel (constituted by the Supreme Court on July 2011 with three terms of reference, namely: prevention of trafficking, rehabilitation of sex workers who wish to leave sex work, and conditions conducive for sex workers who wish to continue working as sex workers with dignity) that protective homes should be surveyed and sex workers should not be forcefully detained in them, as well as from the introductory paragraphs of the judgment that uphold constitutional protection of sex workers, the judges can hold that detention of sex workers against their will is not in consonance with the Constitution.
According to Tandon, under ITPA, courts are not bound to send sex workers to a shelter home. If a sex worker has expressed her will to not be kept in a shelter home, nothing in the law says the court's cannot respect her choice, she emphasised.
Advocate Tripti Tandon explained that in the Budhadev Karmaskar case, the Supreme Court directed state governments to submit compliance reports on the actions taken to comply with the directions on police sensitisation.
Laskar remarked that the police can provide protection and treatment to sex workers that have expressed a willingness to be put in detention homes, but have no right to detain sex workers forcefully in a shelter home after raids.
Police sensitisation
Tandon explained that in the Budhadev Karmaskar case, the Supreme Court directed state governments to submit compliance reports on the actions taken to comply with the directions on police sensitisation.
Tandon noted that while some states have conducted workshops and developed standard operating procedures in line with the court's directions on refraining from harassing sex workers and respecting their rights, there is nothing concrete to show on whether it has resulted in better treatment of sex workers by the police.
"We still hear complaints about the violence, harassment, and extreme inhumanity and indignity with which sex workers are treated," she said.
Tandon said that police making sex workers resource persons in programmes to sensitise the police will be a step in the right direction. It could be followed by appropriate instructions from senior authorities.
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After incidents of violence or misbehaviour by the police, engaging them in dialogue with community-based sex worker organisations and, as a last resort, leveraging appropriate litigation could be the way forward, Tandon averred.
The society and the government must ensure that this fundamental right of sex workers is not infringed upon. The shades of grey pertaining to the legal status of their work should be removed, so that they can ply their trade with clarity and dignity.
She remarked that while there are instances of sex workers making representation to the police and citing the Supreme Court's Order, it is not known whether any follow-up action is taken against errant police officers or whether the legal services authorities support sex workers.
Tandon explained that 'self-regulatory boards', a flagship programme of DMSC consisting of sex workers and community members, work to ensure that all sex workers are above 18 years of age and have not been forcefully engaged in sex work.
The police are also made aware of the work of these self-regulatory boards, to foster trust and cooperation among the community-based organisations and law enforcement agencies, she explained.
Conclusion
The most significant observation in the Budhadev Karmaskar case was that sex workers have a right to live with dignity under Article 21 of the Constitution. The society and the government must ensure that this fundamental right of sex workers is not infringed upon. The shades of grey pertaining to the legal status of their work should be removed, so that they can ply their trade with clarity and dignity.
The recent judgment by the Mumbai court is a good demonstration of the active and positive role the judiciary can play in this respect.