Publishing or telecasting photographs of sex workers caught during raid or rescue operation will be a criminal offence, the Indian Supreme Court has said in an order, which also declared that sex workers and their children enjoy basic protection of human decency and dignity as available to any other citizen in the country.
Issuing six directions safeguarding the interests of sex workers on 19 May, a three-judge bench headed by Justice L Nageswara Rao restrained the Indian police from subjecting sex workers to any abuse or torture and sensitised law enforcement agencies to treat them with dignity.
"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," observed the bench, also comprising justices BR Gavai and AS Bopanna.
Stating that sex workers also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens, the bench said, "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."
The directions came during the hearing of a criminal appeal filed in 2010 by one Budhadev Karmaskar, who was accused of murdering a sex worker in Kolkata.
The incident took place in September 1991 and the accused was sentenced to life imprisonment, a punishment which was upheld by the Supreme Court in February 2011. During the hearing in the case, the Indian apex court took suo motu cognisance of the living conditions of sex workers and formed a committee of experts in July 2011 to examine steps for rehabilitation of sex workers in order to provide them with a life of dignity.
The committee also saw participation of various organisations working among sex workers.
The committee gave its report in 2016, listing out 10 recommendations for rehabilitation of sex workers. Of these, six directions, which were accepted by the Centre, formed part of the court order. On the remaining recommendations, the court has directed the Union government to file its objection or response by 27 July.
The bench 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 (CrPC)".
This provision provides for free medical treatment of sexual assault victims.
Making these directions binding on states and UTs, the bench said, "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 (ITPA)."
The bench directed the states and UTs to conduct a survey of all ITPA protective homes to ensure that adult women who are detained against their will can be released in a time-bound manner.
The court also noted that measures employed by sex workers for their health and safety, including use of condoms, should not be construed as an offence nor seen as evidence of commission of a crime. It directed both Centre and states to conduct workshops to educate sex workers about their rights vis-à-vis the legality of their profession, rights and obligations of police, and recourse to judicial system based on what is permitted or prohibited under the law.
The Centre — represented by additional solicitor general (ASG) Jayant Sud — objected to accepting the recommendations of the expert committee in toto. The committee has recommended that when any adult sex worker participates with consent, the police must refrain from interfering or taking any criminal action.
Another recommendation said that during a raid on any brothel, sex workers concerned should not be arrested or victimised as voluntary sex work is not illegal as compared to running a brothel which is unlawful.
ASG Sud told the court that it is "very tricky" to determine whether the consent of sex worker is "voluntary or forced". He added that "sex workers are not arrested, but produced before the magistrate, who orders them to be kept in shelter homes". The bench, however, asked the Centre to consider the ground reality. "You read the report. It takes into account the ground reality of how sex workers are treated by police. It cannot be that they are treated differently from other criminals," the bench said.
The Centre also objected to another recommendation by the committee which 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". It was due to these reservations of the Centre that the committee report could not be incorporated into a proposed legislation — likely to be brought before Parliament — aimed at rehabilitation of sex workers.
"As the legislation has not been made till date even though the recommendations were made by the panel in 2016 and the said recommendations have to be implemented, we are exercising our powers conferred under Article 142 of the Constitution of India, to issue the following directions which will hold the field till a legislation is made by the Union of India," the bench noted.
The court told the states/UTs to act in strict compliance of its order as the bare necessities of life such as adequate nutrition, clothing and shelter and also the right to carry on such functions and activities constitute the bare minimum expression of the human self. "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 order said.