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News: Recently, the SC in Budhadev Karmaskar v. State of West Bengal & Ors, has given directions related to rights of the sex workers and their children.
About Sex Worker and Prostitution
The expression ‘sex worker’ has not been defined in the Immoral Traffic (Prevention) Act (ITPA) or any other law. But according to the ITPA 1987, ‘prostitution’ means the sexual exploitation or abuse of persons for commercial purposes.
The expression ‘prostitution’ includes offering the body to a person for promiscuous sexual intercourse for hire. It also include taking unjust and unlawful advantage of trapped women for one’s benefit or sexual intercourse.
Six SC directions which the central government agreed to implement
The court directed the government to implement the other six recommendations as well as the provisions of the Immoral Traffic (Prevention) Act (ITPA) of 1956. These are:
(1) to provide immediate medical assistance to sex workers who are victims of sexual assault;
(2) to release adult sex workers detained in ITPA protective homes against their will;
(3) to sensitise the police and other law-enforcement agencies about the rights of sex workers to live with dignity;
(4) to ask the Press Council of India to issue guidelines to the media so that they don’t reveal the identities of sex workers while reporting on arrest, raid and rescue operations;
(5) To not consider health measures that sex workers employ for their safety (such as condoms) as evidence of commission of an offence; and
(6) To ensure that the legal service authorities of the Central and State governments educate sex workers about their rights vis-à-vis the legality of sex work.
Four recommendations on which The Central Government has shown reservations
(1) Preventing the police from taking any criminal action against a sex worker on the basis of ‘age’ and ‘consent’, if sex worker is an adult and is participating with consent.
An adult sex worker who is a sex worker voluntarily is not an offence per se, until exploitation or abuse is reported by the sex worker or revealed during investigation.
(2) Since voluntary sex work is not illegal and only running a brothel is unlawful. Therefore, sex workers should not be arrested or victimised during any raid in the brothel.
(3) No child of a sex worker should be separated from the mother merely on the ground that the mother is in the sex trade. If a minor is living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked.
As per law, the law presumes trafficking if a child is found with any person in a brothel. Such a child or a minor after being rescued should be place with any child care institute recognised under the Juvenile Justice Act. Similar remarks have also been reiterated in Gaurav Jain v. Union of India (1997), by the Supreme Court of India
(4) The government should involve representatives of the sex workers in the process of decision-making in laws relating to sex work. For example, rehabilitation of sex workers, improving their living conditions etc.
Way Forward
The ITPA and CrPC may be amended suitably to enforce the directions of the Supreme Court.
If possible, other directions may be implemented through executive orders by the governments.
The government should differentiate between prostitution and the work of sex workers. It can ban prostitution per se. However, voluntary sex work should be allowed with certain conditions keeping in mind the public interest.
The women in the flesh trade should be viewed more as victims of adverse socioeconomic circumstances rather than as offenders.
The law should be appropriately amended to define ‘sexual exploitation’ and ‘abuse of persons.
Source: The post is based on an article “Taking steps to ensure sex worker’s rights” published in the “The Hindu” on 7th June 2022.
