Taking steps to ensure sex workers’ rights
Context: Recently, in Budhadev Karmaskar v. State of West Bengal & Ors, while issuing interim directions to States and Union Territories, the Supreme Court re-asserted that sex workers and their children cannot be deprived of their right to live with dignity and human decency.
What has the court said?
The court said that notwithstanding the profession, every individual in this country has the right to a dignified life.
Pradeep Ghosh Panel:
The court’s directions are the recommendations made by the panel constituted by the Supreme Court in 2011 and headed by a senior advocate, Pradip Ghosh, with regard to “conditions conducive for sex workers who wish to continue as sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India”.
Recommendations made by the panel:
• sex workers are entitled to equal protection of the law and 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.
• 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.
• Central government and the state governments must involve the sex workers and/or their representatives in all decision-making processes or in the process of drafting reforms in laws relating to sex work.
• since voluntary sex work is not illegal and only running a brothel is unlawful, sex workers should not be arrested or victimised during any raid in the brothel.
o According to the ITPA, ‘brothel’ includes any place which is used for purposes of sexual exploitation
• no child of a sex worker should be separated from the mother merely on the ground that the mother is in the sex trade.
• If a minor is living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked.
• The court directed the government to implement the recommendations of the panel as well as the provisions of the Immoral Traffic (Prevention) Act (ITPA) of 1956. These are:
o to provide immediate medical assistance to sex workers who are victims of sexual assault;
In the Code of Criminal Procedure (CrPC) on providing medical assistance to sex workers who are victims of sexual assault.
o to release adult sex workers detained in ITPA protective homes against their will;
o to sensitise the police and other law-enforcement agencies about the rights of sex workers to live with dignity;
o to ask the Press Council of India to issue guidelines to the media so that they don’t reveal the identities of sex workers while reporting on arrest, raid and rescue operations;
o to ensure that the legal service authorities of the Central and State governments educate sex workers about their rights vis-à-vis the legality of sex work.
About Immoral Traffic Prevention Act, 1986
• In 1950 the Government of India ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. In 1956 India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA)
• SITA was amended in 1986 and the Immoral Traffic Prevention Act was passed
• The act states the illegality of prostitution and the punishment for owning any such related establishment
• Any person involved in any phase of the chain activities like recruiting, transporting, transferring, harbouring, or receiving of people for the purpose of prostitution is also liable to be punished
• If a person is found guilty of involving a child in any such activity, he/she is punishable by law and may be imprisoned for seven or more years
• The law is silent about not revealing the identity of sex workers.
• The expression ‘sex worker’ is not defined in the ITPA or any other law.
• According to the ITPA, ‘prostitution’ means the sexual exploitation or abuse of persons for commercial purposes. Therefore, the expression ‘prostitution’ is just confined to offering the body to a person for promiscuous sexual intercourse for hire.
• The word ‘abuse’ also has a wide meaning. It implies that being an adult sex worker who is a sex worker voluntarily is not an offence per se, until exploitation or abuse is reported by her or revealed during investigation.
• Since voluntary sex work is not illegal and only running a brothel is unlawful, sex workers should not be arrested or victimised during any raid in the brothel. What if willing sex workers have no complaint against the brothel owner or manager?
• The law does not mandate separation of the child from the mother (sex worker), it presumes trafficking if a child is found with any person in a brothel.
Safeguards for their children
• If a child or a minor is rescued from a brothel, the magistrate may place him or her with any child care institute recognised under the Juvenile Justice Act.
• In Gaurav Jain v. Union of India (1997), the Supreme Court had held that children of sex workers ought not to be allowed to live in brothels, and reformatory homes should be made accessible to them.
What Should be done?
• It will therefore be appropriate to define ‘sexual exploitation’ and ‘abuse of persons’ as well to rule out multiple interpretations and possible misuse by the enforcement agencies.
• the government would need to decide as a policy whether the act of two or more sex workers living together for mutual gain and being managed by themselves or by anyone else is to be criminalised or not.
• Though an order to send the sex worker to a protective home is passed by a magistrate after due inquiry about her need of care and protection, the ITPA and CrPC may be amended suitably to enforce the directions of the Supreme Court.
Initiatives to combat trafficking of Women and Children
Apart from the Immoral Trafficking (Prevention) Act, various other initiatives have been taken up by the Government and other concerned authorities. Discussed below are the same:
• National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children 1998 was formulated
• Ministry of Home Affairs has set up a dedicated cell for prevention of trafficking
• The Ministry of Women and Child Development (MWCD) along with the Ministry of External Affairs has endeavoured to create special task forces to combat cross border trafficking
• The MWCD in collaboration with NIPCCD and UNICEF has developed three manuals for ‘Judicial Handbook on combating Trafficking of women and Children for Commercial Sexual Exploitation’
It is not disputed that women in the flesh trade should be viewed more as victims of adverse socioeconomic circumstances rather than as offenders. However, with all our laws and policies, we as a society have failed to contain prostitution. Therefore, the government may now use the Supreme Court’s directions as an opportunity to improve the conditions of sex workers and their surrounding environment, facilitate rehabilitation, and remove the various ambiguities and inconsistencies in the applicable laws and bring about clarity.