The Supreme Court, on Thursday, asked Centre to look at the suggestions made by the Court appointed Panel on Sex Workers and come with its response on the next date of hearing (17th May).
A Bench comprising Justices L. Nageswara Rao and B.R. Gavai was keen to pass orders in line with the recommendations made by the said Panel. However, Additional Solicitor General, Jayant Sud asked the Bench to defer in view of the draft bill to protect trafficking victims pending before the PMO.
"I have been informed that there is the Draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2022 which has been prepared in consultation with the stakeholder. It is with the PMO now. Your lordship might consider it before passing directions."
Apprehensive about the fate of the Bill, Justice Rao reckoned -
"We thought we could pass interim directions as proposed by them. This anyhow would be subject to the law that you make. I became a judge in 2016. One of the first cases was this, I am to retire in another 10-15 days, you have not told us what is happening to the Bill."
The Bench was hearing a matter pertaining to the right of sex workers to live with dignity. In this regard, by order dated 19.07.2011, the Panel on Sex Workers was constituted by the Apex Court.
The Panel had identified three broad aspects of the matter as under -
- Prevention of trafficking;
- Rehabilitation of sex workers who wish to leave sex work, and
- Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
On Thursday, Amicus Curiae, Mr. Jayant Bhushan, who is also a member of the Panel suggested that the Bench can pass order with respect to recommendations made by the Panel on the third issue. He listed out the recommendations as under -
- 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 concern that police view sex workers differently. When a sex worker makes a complaint of criminal and sexual or any other offence police officers must take it seriously and act in accordance with law.
- Any sex worker who is the victim of sexual assault, should be provided with all facilities available to surviver of sexual assault, including immediate medical assistance.
- Whenever there is a raid on brothel, since voluntary sex work is not illegal and only running the brothel is illegal, the sex workers concerned should not be penalised, harassed or victimised.
- State Governments must conduct surveys of all ITPA Protective homes so that adult women who are detained against their will can be processed for release in a time bound manner.
- It is noticed that attitude of police towards sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. Authorities should be sensitised.
- They should treat sex workers with dignity, and should not abuse them; subject them to violence; coerce them into sexual activity.
- The Press Council of India should issue guidelines for the media to take utmost care not to reveal identifies of sex workers during arrest, raid and rescue operations and not to publish or disclose photographs that would led to identification.
- Newly inserted Section 354(C) IPC, which makes voyeurism a criminal offence should be strictly enforced against electronic media for telecasting photo of sex workers with their clients in the garb of capturing the rescue operation.
- Measures that the sex workers employ for their health and safety, like using condom should not be construed as offences or seen as evidence of commission of an offence.
- The Central and State Governments should include sex workers in all decision making processes for implement policy for them or formulating any change or reform in the laws relating to sex workers. They must, at least, be consulted.
- NALSA, SLSAs and DLSAs should educate sex workers about their rights and obligations.
- No child of a sex worker should be separated from a mother merely on the ground that she is in the sex trade.
- If a minor is living in a brothel or with a sex worker it should not be assumed that they have been trafficked.
- In case the sex worker states she is the mother, test can be done to check if the claim is correct. If so the minor should not be separated.
Mr. Bhushan informed the Bench that a Rehabilitation scheme similar to Goa's Prabhat scheme has been formulated and can be adopted.
Justice Rao further noted that the recommendations not being contrary to any law in force, the Union Government ought not to have any objection regarding the same. He asked Mr. Sud to get instructions on the next date of hearing.
He further remarked -
"This is a section of society which has not only been forgotten, but no one wants to even think about them. They are not even treated as human beings. That is inhumane."
Case Title: Budhadev Karmaskar v. State of West Bengal Criminal Appeal No. 135 of 2010