New Delhi: In a socially and historically pathbreaking order, the Supreme Court has recognised prostitution as a profession, holding all those engaged in it and their children are entitled to the same human “decency and dignity” as is available to others, and the “opportunities” to grow and advance in their lives guaranteed under Article 21 of the Constitution -- right to life.
“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 society’s fringes, deprived of their right to live with dignity and opportunities to provide the same to their children”, said a three-judge bench comprising Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna.
The directions issued are essentially police-centric, for protecting the rights of sex workers and their children, the court told the police across the country to refrain from being “brutal” and “violent” towards the sex workers and “not to abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity”.
Noting that the attitude of the police towards the sex workers is “often brutal and violent” as if “they are a class whose rights are not recognised”, the court in its recent order pronounced on May 19, 2022 has directed that the police and other law enforcement agencies must 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 court said this as it issued 10 recommendations of a panel set up way back in July 19, 2011 as its direction in exercise of its extraordinary powers under Article 142 of the Constitution. Noting that the Central government has been dragging its feet on enacting a law, owing to reservations in respect of the certain recommendations, the court said its directions will hold till a law is enacted by the Union of India.
The court clarified that the directions being issued by it only relate to the rehabilitation measures for sex workers and other connected issues.
Having noted the indignities and discrimination suffered by sex workers, the order passed said: “Notwithstanding the profession, every individual in this country has the 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 the Immoral Traffic (Prevention) Act 1956.”
Insisting that sex workers are entitled to equal protection of the law, the court said: “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 court said there is concern that the police see sex workers differently from others and 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 the law.
It further said that 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 the March 2014 health ministry “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”.
Underlining that “voluntary sex work is not illegal, and only running the brothel is unlawful”, the court in one of the recommendations issued as directions said: “Whenever there is a raid on any brothel… the sex workers concerned should not be arrested or penalised or harassed or victimised.”
In another significant direction on the children of sex workers, the court said that “no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade”, and “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 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.”
Protecting the identities of sex workers from media exposure, the court has asked the Press Council of India 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”.
Directing the listing of the matter on July 27, the court directed the Union of India to file its response to the recommendations made by the panel within a period of six weeks from Thursday.