On Wednesday, in "Budhadev Karmaskar v. State of West Bengal And Ors.", the Supreme Court directed that the police should treat sex workers with dignity as well as not abuse them, verbally or physically, by asserting that the basic protection of human decency and dignity extends to sex workers also.
SC stated that,
"Notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21."
The Court further held that the media should not publish their pictures or reveal their identities while reporting rescue operations. If the media publishes pictures of sex workers with their clients, the offence of voyeurism under Section 354C of the Indian Penal Code, 1860 should be enforced. The Indian Press Council has been tasked with issuing appropriate guidelines in this regard.
In exercising its power under Article 142 of the Indian Constitution, the Court issued these directions, recognising the recommendations made by a court-appointed panel on the rights of sex workers.
The Apex Court stated that,
"...basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children."
SC further added,
"It need not be again said that, notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The constitutional protection given to all individuals in this country shall be kept in mind by authorities who have a duty under the Immoral Trafficking Prevention Act."
A three-judge bench composed of Justices L. Nageswara Rao, B.R. Gavai, and A.S. Bopanna clarified that the directions so passed would hold the field till the time the Union Government comes up with a legislation.
By its order dated July 19, 2011, the Supreme Court constituted a Panel for sex workers. The Panel had identified broadly three aspects i.e.
(i) Prevention of trafficking;
(ii) Rehabilitation of sex workers who wish to leave sex work; and
(iii) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
According to Article 21 of the Indian Constitution, the third term of reference was eventually modified to provide conditions that allow sex workers to live in dignity. The Panel has issued a complete report after consulting with stakeholders. Following that, when the case was listed in 2016, the Union Government told the Court that the Panel's recommendations were being considered and that a draft legislation embodying them had been issued.
Because the said legislation had still not seen the light of day when the recommendations were made in 2016, the Highest Court felt it was appropriate to exercise its power under Article 142 to provide guidelines, as it did in Vishaka And Ors. v. State of Rajasthan And Ors. (1997), till the legislation is in force.
SC noted that,
"In a catena of decisions of this Court, this power has been recognised 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."
The Court reaffirmed that the right to life includes the right to live with human dignity and the bare necessities of life, such as adequate nutrition, clothes, and shelter, as well as the right to engage in activities that constitute the bare minimum expression of human-self. Acknowledging that the right to a dignified life extended to sex workers and their children also, the three-judge bench urged the State Government to strictly follow some of the Panel's recommendations, which were also approved by the Union Government.
The Apex Court has directed the States and Unions to act in strict compliance with the recommendations made by the panel, which are as follows:
- Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with "Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence", Ministry of Health and Family Welfare (March, 2014).
- The State Governments may be directed to do a survey of all ITPA Protective Homes 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, 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 arrest, raid 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, the newly introduced Section 354C, IPC 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 the rescue operation.
- Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
- The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/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 three-judge bench ordered that,
"The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2,4,5,6,7,9 (the recommendations mentioned above), in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act."
The other recommendations of the Panel regarding which the Union Government has expressed reservations are as follows:
- 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 others. 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.
- The Central 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 the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.
- As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.
The Supreme Court directed the Union Government to respond to the other recommendations made by the Panel within a period of six weeks. The matter is to be next listed on 27.07.2022.