Noting that human decency and dignity extend to sex workers and their children, Supreme Court has issued directions to the police of all states and Union Territories of the country to treat sex workers with dignity and not to abuse them, physically or verbally.
The apex court stated, “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.”
Three judge bench comprising Justice L Nageswara Rao, Justice BR Gavai and Justice AS Bopanna stated that the constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under the Immoral Traffic (Prevention) Act, 1956.
“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. It need not be gainsaid 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,” the bench stated.
The bench also stated that the media should not publish pictures or reveal the identity of sex workers during raids or rescue operations.
The bench issued these directions while exercising its power under Article 142 of the Indian Constitution and accepting some of the recommendations made by a Court-appointed panel to decide sex worker rights.
Supreme Court bench made it clear that the directions would hold the field till the time the Centre government comes with a
legislation.
Following an order issued by Supreme Court on 19 July 2011, a panel for sex workers was constituted which identified three major aspects.
- 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.
After a thorough scrutinization, the panel submitted a comprehensive report. The matter was listed in 2016 where the Centre government had informed that the recommendations are under consideration and a draft legislation was published incorporating the same.
Noting that no progress has been made since 2016, the bench decided to exercise its power under Article 142 of the Constitution of India to provide guidelines till the legislation is in effect, the way it did in Vishaka And Ors. v. State of Rajasthan And Ors.
“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,” the bench said.
The bench went on to add that the right to life extends beyond the protection of limb or faculty to include the right to live with human dignity and the bare necessities of life like adequate nutrition, clothing and shelter and also the right to carry on activities that constitute the bare minimum expression of human-self.
The apex court has directed the State Government to act in strict compliance with some of the recommendations made by the Panel, which were also accepted by the Union Government.
Guidelines Issued By Supreme Court For Dignified Treatment Of Sex Workers
Supreme Court has directed the States and Unions to act in strict compliance with the following recommendations.
- 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 recognized. The police and other law enforcement agencies should be sensitized 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 the 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 about 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 State Governments/ UTs are directed to act in strict compliance with 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 bench directed.
Recommendation Which Union Government Has Not Agreed Upon
- 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 top court has directed the Centre government to submit its response to the recommendations within six weeks. The bench will hear the matter on 27 July 2022.
