Exercising its inherent powers, the Supreme Court has filled the legislative void to do complete justice, till Parliament enacts a suitable law for the purpose.
IN a significant order, the Supreme Court has issued a slew of directions concerning rehabilitation measures of sex workers. Holding that basic protection of human decency and dignity extends to sex workers and their children, it has directed inter alia that the police should treat all sex workers with dignity and should not abuse them, both verbally and physically, nor subject them to violence or coerce them into any sexual activity.
A bench of Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna, in the exercise of the Supreme Court’s inherent power under Article 142 of the Constitution, has given effect to various recommendations made by a court-appointed panel on the rehabilitation measures for sex workers. The court felt compelled to invoke its inherent powers since the legislation as promised by the Union Government on the lines of the recommendation of the panel, submitted in 2016, has not yet been enacted.
Slew of directions
The bench has directed that the following recommendations of the panel be followed by all states:
State governments may be directed to do a survey of all Protective Homes established under the Immoral Traffic Prevention Act, 1956 (‘ITPA’) so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity, and should not abuse them, both verbally and physically, nor subject them to violence or coerce them into any sexual activity.
The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrests, raids and rescue operations, whether as victims or accused, and not to publish or telecast any photos that would result in disclosure of such identities. Besides, Section 354C of the Indian Penal Code, which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing rescue operations.
Measures that sex workers employ for their health and safety (for instance, the use of condoms) must neither be construed as offences nor seen as evidence of the commission of an offence.
The union government and the state governments, through the National Legal Services Authority, State Legal Services Authorities and District Legal Services Authorities, should carry out workshops for educating sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police, and what is permitted and prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights, and prevent unnecessary harassment at the hands of traffickers or police.
The court has made it clear that these recommendations will hold the field till legislation is made by Parliament in this regard.
NCRB data (2020 Report) on crimes registered city-wise under the Immoral Traffic (Prevention) Act, 1956
Union government’s reservations
The union government expressed its reservations about the following recommendations of the panel:
Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. There have been concerns that police view sex workers differently from other kinds of work. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised. (emphasis supplied)
The union government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for sex workers, or formulating any change/reform in the laws relating to sex work. This can be done either by including them in decision-making authorities/panels and/or by taking their views on any decision affecting them.
As already recommended in the 6th interim report by the Supreme Court-appointed panel dated March 22, 2012, no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. (emphasis supplied) Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that they have been trafficked. In case the sex worker claims that they are her child, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.
The bench, for the time being, has not passed any directions in relation to these four recommendations. It has asked the union government to file its response to these and the other recommendations, and will hold further hearings on the matter after its summer vacation.
The Supreme Court had, on July 19, 2011, formed a panel to be chaired by senior advocate Pradip Ghosh to make recommendations on the prevention of trafficking, the rehabilitation of sex workers who wish to leave sex work, and to create conducive conditions for sex workers who wish to continue working as sex workers with dignity. On July 27, 2012, the court modified the third term of reference to “conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India”.
After conducting a detailed discussion with all the concerned stakeholders, the panel submitted a comprehensive report on the terms of reference. When the matter was listed in 2016, the court was informed that the recommendations made by the panel were considered by the union government and draft legislation was published incorporating the recommendations made by the panel. Thereafter, the government periodically sought adjournments on the ground that the Bill was on the anvil.
Aadhar cards to sex workers
The bench also directed that the sex workers should be issued Aadhar cards on the basis of a proforma certificate which is issued by the Unique Identification Authority of India (‘UIDAI’) and submitted by a Gazetted Officer at the National AIDS Control Organisation (‘NACO’) or the Project Director of the State Aids Control Society, along with the Aadhar enrolment form/application. It also directed to ensure no breach of confidentiality in the process, including the assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.
Senior advocate Anand Grover, who was appearing for the Durbar Mahila Samanwaya Committee, a registered society run by sex workers in Kolkata (the oldest network of sex workers in the country) and Usha Multipurpose Cooperative Society Limited, informed the court that Aadhar cards were not being issued to sex workers as they were unable to produce proof of their residence. The organisations representing sex workers made the following suggestions for the procedure to be followed by UIDAI, which the latter accepted:
The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhar card but is unable to furnish proof of residence, should be pecifically designated as: “The Project Director of the State AIDS Control Society, or her/his nominee.”
The name and designation of the Gazetted officers who will be authorised to submit the ‘proforma certificate’ for sex workers desirous of applying for an Aadhar Card on behalf of the NACO under the Union Ministry of Health and Family Welfare, must be publicized on its website.
NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhar card but who cannot furnish proof of residence, through their websites as well as through outreach under the Targeted Intervention Programmes that they implement.
The sample ‘proforma certificate’ submitted by UIDAI in its additional affidavit dated February 9, 2022 in terms of the order dated January 10, 2022 as ‘Annexure R-1’ on pages 5 and 6 of the affidavit may be made readily available on the websites of UIDAI, NACO and the State AIDS Control Societies.
There should be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identity the applicant/holder of the card as a sex worker.
The procedure proposed by the UIDAI in its additional affidavit dated February 9, 2011 may not be restricted to sex workers on the NACO list but also extended to those who are identified by community based organisations after verification by the State Legal Services Authority or the State AIDS Control Society. This is in line with the court’s directions to state governments to extend dry ration support, and access to ration cards and voter ID cards to sex workers who are not on NACO’s list, vide orders dated January 10 and February 28, 2022.
The Supreme Court had come to the rescue of the sex workers during the first wave of COVID-19, when it directed state governments to ensure that dry ration was provided to sex workers without insisting on identification proof.
Sex workers’ response
Bharti Dey, Ex-Secretary of Durbar Mahila Samanwaya Committee, who served on the court-appointed panel, recognises this as an historic win after a 12-years long battle. “The court allows our sex workers to live with dignity as equal citizens of the country”, she declared.
Putul Singh, President of All India Network of Sex Workers (‘AINSW’) has alleged that that at many places, the police arrested sex workers on the basis of possession of condoms in their bags. Now, with the court directing that possession of condoms is not an offence, this cannot be seen as evidence of offences under the ITPA, such as soliciting or brothel-keeping, she claimed. This, according to AINSW, reaffirms the protection accorded by Section 22 of the HIV and AIDS (Prevention and Control) Act, 2017.
NCRB data (2020 Report) on crimes registered states/UT-wise under the Immoral Traffic (Prevention) Act, 1956
AINSW, in a press release, further adds: “The Supreme Court ruling emphasizes that the ITPA must be implemented according to the fundamental rights protected under Article 21, i.e., the right to life and liberty with respect for an individual’s dignity and that violations of these rights can be challenged by sex workers with the support of National Legal Services Authority and State legal Services authority. The Court also passed directions for issuing Aadhar cards to sex workers who cannot submit proof of residence on the basis of a ‘proforma certificate’ issued by a Gazetted Officer. In earlier orders, the Court had directed the State Governments to issue ration cards and voter id cards to sex workers, without insistence on residence proof. The other suggestions of the panel, including the recommendation not to interfere or take criminal action in case of adult, consensual sex work, will be examined by the Court in July, after the Government of India submits its response”.
Click here to view the Supreme Court’s full order.