Supreme Court directions on sex workers: history of the case, and where it stands now

News: A long-standing demand of sex workers that their work be decriminalised has been partially fulfilled, with the Supreme Court observed that adult sex workers are entitled to dignity and equal protection under law.

With the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill yet to see the light of day, the Court invoked powers under Article 142 to issue guidelines till the legislation is in force.

What are the observations made by the court?

Court directed the police to respect the rights of consenting sex workers, and it further observed that –

– Notwithstanding the profession, every individual has a right to a dignified life under Article 21 of the Constitution.

– It reiterated what the Court had ruled in Budhadev Karmaskar (2011), that sex workers are also entitled to a “life of dignity”.

– Police should treat all sex workers with dignity and should not abuse them, verbally and physically, or subject them to violence or coerce them into any sexual activity.

What happened after the Budhadev Karmaskar judgement?

In 2011, the SC appointed a panel asking it to study and make “suitable suggestions” on “prevention of trafficking, rehabilitation of sex workers who wish to leave sex work.

Findings of the panel: In its final report submitted on September 14, 2016, the panel noted that

– Sex workers found it difficult to acquire proofs of identity such as ration cards or voter cards because they lacked a proof of residence.

– District authorities did not recognise the identities of sex workers and their children, and sex workers did not have access to schemes meant for their rehabilitation.

– They also had no access to credit offered by states, because the lack of documents prevented them from opening bank accounts.

The committee recommended that amendments should be made to The Immoral Traffic (Prevention) Act, 1956.

On May 19, a Bench led by Justice L Nageswara Rao noted that despite its assurances, the Centre was still to bring a law on the subject. Therefore, the court used its extraordinary powers under Article 142 (which enables it to pass orders necessary to do “complete justice” in a pending matter), and directed that some of the recommendations be implemented by states and UTs.

Which are the recommendations that the SC has directed to be implemented?

The May 19 order listed 10 recommendations of the panel, and directed that six of them should be implemented.

These include:

a) provision for immediate medical assistance for any sex worker who is a victim of sexual assault;

b) direction to states to do a survey of all Immoral Trafficking (Prevention) Act 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;

c) sensitising police and other law enforcement agencies to the rights of sex workers and to ensure that police treat them with dignity and do not abuse them verbally or physically or coerce them into any sexual activity;

d) ask The Press Council of India to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers; and

e) direction that measures that sex workers employ for their health and safety (condoms, etc.) must neither be construed as offences nor seen as evidence of commission of an offence.

How has the Centre responded?

The Centre said it had “certain reservations” on four recommendations of the panel.

These are:

a) no criminal action against a sex worker who is adult and participating with consent;

b) arresting only the brothel owner and not sex workers during raid on brothels;

c) role of sex workers in decision-making processes, including planning, designing and implementing policy relating to sex work;

d) a recommendation with regard to children of sex workers.

The SC has asked the Centre to file its response to the recommendations of the panel within six weeks.

Way forward

The Court’s general observations should help sensitise the police, media and society toward sex workers, who have generally been invisible and voiceless.

The ball is in the Government’s court to draw up appropriate legislation to free consenting sex workers from stigma, and grant them workers’ rights. In that, too, the Court suggested the Centre and States involve sex workers or their representatives to reform laws.

Source: This post is based on the article “Sex as work” published in The Hindu on 28^th May 22, and on the article “Supreme Court directions on sex workers: history of the case, and where it stands now” published in The Indian Express on 28th May 22.