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Voluntary sex work is legal - Running the brothel is lawful - Sex workers should not be arrested or penalised or harassed or victimised
Budhadev Karmaskar Vs State of West Bengal
Criminal Appeal No(s). 135/2010
About/from the judgment:
The Supreme Court upheld sex workers right to identity and issued detailed directions for their protection and upliftment.
The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof.
The Court invoked Article 142 of the Constitution to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. The Court remarked,
“The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. Needless to say, this 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.”
Constitution of Special Penal
By an order dated 19-07-2011, the Court had constituted a panel with Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter.
The terms of reference made to the panel were:
“(1) Prevention of trafficking,
(2) Rehabilitation of sex workers who wish to leave sex work, and
(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.”
Later on, by an order dated 26-07-2012, the Court had modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.
Penal Report and Recommendations
After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report and the recommendations made by the panel were considered by the Union Government and a draft legislation was published incorporating the recommendations so made. Thereafter, periodically adjournments were taken by the Union government on the ground that the Bill is on the anvil.
Noticeably, the panel had recommended in respect of the third term of reference in the following terms:
-> “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. The panel noted, “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.
-> 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 CrPC, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
-> 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 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.
-> 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.
“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.”
-> 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.
-> 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, 12 etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
-> 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.
-> The Central Government and the State Governments 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.
-> 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.”
Directions by the Court
Considering that no legislation has been made till date even though the recommendations were made by the Panel in the year 2016, the Court exercised its powers under Article 142 of the Constitution to implement the abovementioned recommendations. Accordingly, the State Governments/ UTs were directed to act in strict compliance of the recommendations by the panel. Similarly, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 were directed to comply with the provisions of the Act while the Union Government was directed to file its response to the recommendations made by the panel within a period of six weeks. The Court added,
“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 that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”
Aadhaar Card for Sex Workers
With regard to non-issuance of Aadhaar Cards to sex workers as they were unable to produce proof of their residence, earlier, the Court had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of residence proof for the sex workers. The UIDAI had proposed that sex workers who are on NACO’s list can be issued Aadhar Cards without having to submit a residence proof, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO (National AIDS Control Organisation) or the State Health Department certifying the particulars of the applicant.
Some suggestions had been made by the organisations representing sex workers for the procedure to be followed by UIDAI; i.e. the procedure to obtain Adhar by sex workers should be publicize through outreach under the Targetted Intervention Programmes and issuance of the Adhar Cards should not be restricted to sex workers on the NACO list but also be extended to those who are identified by CBOs after verification. Since UIDAI had accepted the given suggestions, the Court directed that Aadhar Cards shall be issued to sex workers. The Court emphasized,
“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”
The matter is listed on 27-07-2022 for further hearing.
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