New Delhi: Is voluntary sex work “not illegal”? Should sex workers be arrested and penalised in police raids on brothels? How should the police treat sexual assault or any other criminal complaint made by a sex worker? Should a sex worker’s child be separated from her merely because of her trade? Should sex workers be involved in the process of formulating reforms for themselves?
These were some questions the Supreme Court asked the central government in its order last week — more than decade after it first set out to improve lives of sex workers in the country.
In an order dated 19 May, a Bench of Justices L. Nageswara Rao, B.R. Gavai, and A.S. Bopanna considered 10 recommendations on the rehabilitation of sex workers that a five-member panel it had appointed in July 2011 had made. The panel — headed by senior advocate Pradip Ghosh — was asked to advise the court on three issues: prevention of trafficking, rehabilitation of sex workers who want to leave sex work, and how to ensure conditions that would allow sex workers to live with the dignity as guaranteed under Article 21 (Right to Life) of the Indian Constitution (check).
It submitted its final report on 14 September 2016.
The court’s questions in its order on 19 May came after Additional Solicitor General (ASG) Jayant Sud told the bench that the government had “certain reservations” about four of the 10 recommendations.
The Centre’s objections were to the suggestions that said since voluntary sex work is not illegal, voluntary workers should not be arrested when a brothel is raided, their criminal complaints must be taken seriously, that they should not be forcibly separated from their children, and that sex workers should be involved in policy making, the ASG told the court.
After the Centre voiced its reservations, the court said it was exercising its discretionary powers under Article 142 of the Constitution to order states and union territories “to act in strict compliance” with the remaining recommendations. The order, the court said, “will hold the field” until the Parliament passes a law.
The Centre has six weeks to file a response, the Bench said. The court will hear the case next on 27 July.
The Supreme Court was hearing a murder appeal in a case that dates back to 1999. The appellant in the case, Budhadev Karmaskar, was accused of murdering a sex worker in 1999 after she refused to have sex with him. He was sentenced to life imprisonment.
In 2011, invoking images of sex workers from the movies like ‘Devdas’ and ‘Pyaasa’ to Fyodor Dostoyevsky’s famous novel ‘Crime and Punishment’, the Supreme Court upheld the conviction.
Although it dismissed Karmaskar’s appeal, the court continued to use the hearings of the case to help improve the lives of sex workers, directing central and state governments to work out schemes for the rehabilitation of sex workers across the country.
Over the next decade, the case came up before the court at least 55 times, with different benches monitoring the efforts being taken for their rehabilitation.
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The objections
First, the central government voiced its reservation to the suggestion that police should not interfere or take criminal action against a sex worker who “is an adult and is participating with consent”.
“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,” this suggestion said.
Another recommendation that the Centre had reservations was involving sex workers or their representatives while formulating policies for them.
“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,” the suggestion said.
The third recommendation that the court had a problem with was that since “voluntary sex work is not illegal and only running the brothel is unlawful”, sex workers should not be arrested, penalised, harassed, or victimised during police raids on a brothel.
The suggestion that children of sex workers should not be forcibly taken away from their mothers merely on the ground that she’s engaged in the sex trade also met with objection.
“If a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked,” the recommendation said. “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.”
What the law says
The Immoral Traffic (Prevention) Act, 1956, deals with sex work in India. Although voluntary sex work isn’t illegal under the law, certain activities related to prostitution, such as owning a brothel and inducing into prostitution, are illegal.
Therefore, the law penalises those who facilitate “prostitution”. It defines prostitution as “sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind”.
This position has been acknowledged by courts in the past as well. For instance, in 2020, the Bombay High Court had also said no law makes voluntary sex work a criminal offence or punishes a sex worker for indulging in it.
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‘Human decency and dignity’
Among the recommendations endorsed by the court is a direction to police and other law enforcement agencies to be sensitised to the rights of sex workers.
The court has also ordered the central and state governments to enlist the help of the National Legal Services Authority, State Legal Services Authority, and District Legal Services Authority to conduct workshops to help educate sex workers about their rights, the legality of sex work, the rights and obligations of the police, and what is and is not permitted under the law.
Another direction said that the Press Council of India — the statutory body meant for regulating the press — should be urged to issue appropriate guidelines so that the press takes “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”.
“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,” the order said.
The court ordered 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 Immoral Traffic (Prevention) Act,1956”.
Resolving the Aadhar problem
During earlier hearings, the court was told that Aadhaar cards were not issued to sex workers because they couldn’t produce proof of residence. The court had then asked the Unique Identification Authority of India (UIDAI) and organisations representing sex workers to respond.
Based on their suggestions, the court said in its order on 19 May that sex workers who could not submit proof of residence but were registered with the National Aids Control Organization (NACO) could be issued Aadhaar Cards on the basis of a ‘proforma certificate’ submitted by a gazetted officer at NACO or the project director of the State Aids Control Society.
“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the cardholder as a sex worker,” the court said.
No legal status, identity proof
The Supreme Court-appointed panel included senior advocate Jayant Bhushan; Durbar Mahila Samanwaya Committee (DMSC), a sex worker’s organisation and its affiliate, Usha Multipurpose Cooperative Society (USHA); and the founder and CEO of Roshni (academy for underprivileged girls), Saima Hasan.
The panel, which conducted a detailed discussion with all stakeholders before submitting its report, found that lack of legal staus made it difficult for sex workers to get identity proof like ration cards or voter ID cards.
The report had concluded that sex workers had access to neither schemes meant for their rehabilitation nor credit facilities offered by states due to their inability to open bank accounts in the absence of requisite documentation.
According to the 19 May order, the central government informed the court in 2016 that the central government has published a draft legislation incorporating the recommendations made by the panel.
In February 2020, the court was again informed that a Group of Ministers has been constituted to examine the two draft legislations on the basis of the panel’s recommendations. Meanwhile, in September 2020, the court took note of the effect of Covid-19 and the lockdown on sex workers and directed states and union territories to provide dry rations to sex workers identified by the NACO without insisting on an ID proof.
The court’s 19 May order now noted that since then, the Centre kept asking for periodic adjournments on the ground that the deliberations on the bill are underway.
(Edited by Uttara Ramaswamy)
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