Supreme Court upholds rights of Sex Workers

By Mohammad Adil Ansari 13 Minutes Read

In its order dated 19th May, 2022, in the ongoing case of Budhadev Karmaskar v. The State of West Bengal and others, the Supreme Court issued directions upholding the rights and dignity of sex workers.

The Bench comprising of Justice L. Nageshwara Rao, Justice B.R. Gavai and Justice A.S. Bopanna said: “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.”

The issued Order , pertained to two broad issues, namely:
1. Enforcement of Recommendations of the Pradip Ghosh Panel Report concerning the status, condition and rights of Sex Workers
2. Directions for the Issuance of Aadhar Card to Sex Workers

1. Enforcement of Recommendations of Pradip Ghosh Panel Report

A Panel was earlier constituted by the Supreme Court under the chairmanship of Mr. Pradip Ghosh and was tasked with giving a Report with respect to 3 issues, namely:
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 (in accordance with the provisions of Article 21).

The panel submitted its Report with its recommendations in the year 2016, which were taken into consideration by the Government of India and consequently a draft legislation was prepared but not passed.

The Court held that since there exists a vacuum till such a legislation is passed by the Government, it is issuing certain directions in exercise of its powers under Article 142 of the Constitution. The directions shall be operational till a legislation is passed.

The directions issued in the Order included according legal sanctity to certain recommendations of the Panel concerning the above-mentioned Issue No. 3 with respect to the rehabilitation measures and other connected issues. They are namely:

“(i) 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.

ii) 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).

iii) 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.

iv) 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.

v) 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.

vi) 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.

vii) 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 commission of an offence.

viii) 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.

ix) 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.

x) 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 Court directed that the State Governments/Union Territories must strictly comply with the above mentioned recommendations. Reservations were expressed by the Government of India with respect to recommendations made by the Panel Report under para 2, 4, 5, 6, 7, 9. However, the Court directed that those recommendations must also be strictly complied with by the State Governments/Union Territories. The competent authorities under Immoral Traffic (Prevention) Act, 1956 are also directed to strictly comply with the provisions of the Act.

The other recommendations made by the panel were directed to be taken up by the Court after the summer vacation.

2. Directions for Issuance of Aadhar Card to Sex Workers

It was brought to the Court’s notice that Aadhar Cards were not being issued to sex workers as they were unable to provide proof of their residence. The Court had earlier issued directions to UIDAI and sought its suggestions in respect of waiving the requirement of proof of residence for sex workers. In its response, UIDAI submitted that sex workers who fall in the NACO’s list and apply for Aadhar Card, can be issued the same in the face of failure to submit Proof of Residence, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO or the State Health Department certifying the particulars of the applicant.

Recommendations were submitted collectively by organisations representing sex workers with respect to the procedure that should be followed by UIDAI in such cases. The Court and UIDAI accepted all their suggestions.

The recommendations were:

i.) The Gazetted Officer of the State Health Department, who is authorized to submit the proforma certificate for a sex worker who applies for an Aadhar Card but is unable to furnish proof of residence should be specifically designated as:- “The Project Director of the State AIDS Control Society, or her/his nominee.

ii.) The name and designation of the Gazette Officers who will be authorised to submit the ‘proforma certificate’ for sex workers desirous of applying for an Aadhar Card on behalf of NACO must be publicized on its website.

iii.) NACO and the State AIDS Control Societies should publicize the procedure for sex workers who wish to apply for an Aadhar Card but who cannot furnish proof of residence through their websites as well as through outreach under the Targetted Intervention Programmes that they implement.

iv.) The sample ‘proforma certificate’ submitted by UIDAI in its Additional affidavit dated 09.02.2022 in terms of the order dated 10.01.2022 as “Annexure R-1’ on pages 5 and 6 of the said affidavit may be made readily available on the websites of UIDAI, NACO and State Aids Control Societies.

v.) There should be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrollment numbers that identity the applicant/holder of the card as a sex worker.

vi.) The procedure proposed by the UIDAI in its Additional affidavit dated 09.02.2011 may not be restricted to sex workers on the NACO list but also extended to those who are identified by CBOs after verification by the State Legal Services Authority or the State AIDS control Society. This is in line with the Hon’ble Court’s directions to State Governments to extend dry ration support and access to ration cards and voter ID cards to sex workers who are not on NACO’s list, vide orders dated 10.01.2022 and 28.02.2022.

The Court held that the profession of a person is not a condition for availing the protection of the rights guaranteed to him as per Article 21. And such rights of an individual must be read with while implementing the Immoral Traffic (Prevention) Act, 1956.

Mohammad Adil Ansari

Founding Member & Editor in Chief @LegalWires.

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