Illustration by Marta Pucci

Why Mumbai sessions court’s order upholding two-year detention of HIV positive woman is bad in law

Critiquing the recent controversial order by a Mumbai court directing the detention of an HIV positive alleged sex worker, YASHASHWINI SANTUKA explains how the verdict not only violates existing legislation and constitutional safeguards, but also revels typifies sexist social prejudices against sex workers and those suffering from HIV.

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THE Dindoshi Sessions Court in Mumbai recently affirmed a Magistrate court’s order detaining an HIV positive woman/victim reportedly involved in sex work, stating that releasing her would pose a larger danger to society. The victim was allegedly apprehended by local authorities while attempting to perform sex work and charged with violating the Immoral Traffic (Prevention) Act, 1956 (ITPA).

Following her appearance in court, the Magistrate ordered her detention for two years due to her HIV positive status under Section 17(4) of the ITPA (as per which the Magistrate can order a person in need of care and protection to be sent to protective home or custody).

The woman’s father argued in her appeal that she was not engaged in sex work; nonetheless, Additional Sessions Judge (ASJ) S.U. Baghele remarked that prima facie facts appeared to indicate that she was engaged in sex work after reviewing the first information report (FIR). As a result, she was deemed a victim under the ITPA. ASJ Baghele found no merit in the argument that the victim is financially secure and so unlikely to engage in unethical behaviour. The court noted that the FIR contained evidence that she agreed to sex work in exchange for 1 lakh.

Additionally, the court stated that her care and protection can be secured by her detention “in order to ensure that the victim leads a normal life in the future, after getting the necessary brainwash.” As a result, ASJ Baghele upheld the Magistrate’s ruling, concluding that it merited no interference.

Order betrays deep-seated prejudices

The court’s observation deprives the individual of their right as a citizen and exacerbates the stigma around a health condition with which sex workers have long struggled. The phrase “brainwash” demonstrates the discriminatory treatment in this situation. The “normal life” that women are supposed to lead is a result of widespread criminalization of sex work, which exposes people to violence and prejudice as a result of the constant conflation of sex work with human trafficking.

A Supreme Court-appointed panel in 2015 stated that individuals should view the ITPA law in the context of consenting adult sex workers. One recommendation was to delete a section authorising magistrates to remove workers from a location.

Detaining and brainwashing someone constitutes cruelty and a violation of human rights — as the Supreme Court noted, sex workers have a right to life and a dignified existence. The widespread portrayal of sex workers as oppressed (or “victims,” as the court remarked in this instance) is demeaning, resulting in the inaccessibility of social welfare programmes.

It is worth stating that being HIV positive does not automatically render someone a danger to society. “There is a strong stigma associated with HIV/AIDS in Indian society, with infected individuals frequently encountering occupational discrimination, social exclusion, and limited access to treatment facilities, basic utilities, and adequate nourishment,” the NGO Her Future Coalition noted. Discrimination against sex workers is worsened when they are already denied crucial social security benefits.

Also read: Why must we recognise sex work as ‘work’?

Violation of fundamental rights

While the court stated its reasons for upholding the Magistrate’s order and sending the woman to detention, it is to be understood that the detention is one that clearly violates the woman’s human and basic fundamental rights guaranteed by the Constitution.

The order by the court is bad in law due to several reasons, the foremost being an infliction on her right to life and personal livelihood guaranteed under the Constitution. This was also explained with respect to detention by the Supreme Court in its judgment in the case of Francis Coralie Mullin vs. Administrator (1981)Here, the apex court delineated the difference between preventive detention and punitive detention thus: ‘punitive detention’ essentially inflicts punishment on a person, who is found to be guilty of committing an offense, whereas ‘preventive detention’ is intended to pre-empt a person from indulging in conduct injurious to the society.

While the Indian Constitution acknowledges the latter’s existence, Articles 21 and 22 provide different safeguards for its operation. Any law or action involving preventive detention must adhere to the constraints imposed by those provisions for the want of validation. Furthermore, Article 21 establishes limitations on law-making, and simply complying with Article 21’s prescription that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty is insufficient; the procedure prescribed by the law must be reasonable, fair, and just. If the same cannot be established, the statute will be declared null and void for violating Article 21.

For a statute of preventive detention to be constitutional, it must pass both the Article 21 and 22 tests, and courts are charged with determining whether the method for depriving a person of their personal liberty is reasonable, fair, and just.

The Supreme Court has also held that the right to life includes the right to live with human dignity and to fulfil the bare necessities of life.  It includes within itself the right to carry on such functions and activities as constituting the bare minimum expression of the human-self. From this interpretation, the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights, and also guaranteed by Article 7 of the International Covenant on Civil and Political Rights, is implicit in Article 21 of the Constitution.

The sessions court’s stance in the given case shows that it views not only sex work as undignified work, but also women who have to resort to means of livelihood through sex workers as a danger to society, and thus undignified and different than any other person practicing a more “respectable” profession.

Also read: Unmasking the misogyny of Indian Courts

Violation of HIV and AIDS (Prevention and Control) Act, 2017

It also drives the point that an HIV positive is being treated differently simply because of the virus. Such treatment, that is different treatment putting aside the unnecessary harshness of the order, is prohibited under the The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017Section 3(e) of the Act explicitly prohibits “the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public”.

Simply put, detaining of the woman sex worker in this case nothing short of cutting her access to any of these places. This also ties back to the Court’s remark of her being a “danger” to the society.

Also read: “Government Will Protect Me From The Stigma, But Only If I Am Alive”: The Struggle To Remove Four Words From The HIV/AIDS Act

This method of legal reasoning is problematic because of two reasons: first, the segregation itself is discriminatory as the multifaceted identity of a human is reduced and changed to that of a virus (pathologization). Moreover, the right-bearing person is denuded to a cyborg-like being (human-virus complex) that demands freedom and containment at the same time.

Therefore, the law arrogates itself the ability to dehumanize the victim as a mere vessel of a virus and provide objective grounds to legitimize the alienation of their fundamental human rights (right to life, equality and freedom) (right to life, equality and freedom).

Such a limited perception of sex work realities results in exclusionary grey areas in law, impairing the court system’s ability to navigate sex, capital, and pleasure on a consensual and non-distressed plane. It is critical to remember that this vision embodies both the progressive promises and regressive limitations of the law, leaving itself with a regenerative capacity to learn, unlearn, and be just while remaining cognizant of society’s changing nature.

(Yashashwini Santuka is third-year B.A., LL.B. (Hons.) student at the NALSAR University of Law, Hyderabad. The views expressed are personal.)

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