Baba’s Explainer – Sex Workers

The bench has directed that the following recommendations of the panel be followed by all states:

• Medical Assistance to Victim of Sexual Assault: 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
• Detailed Survey: State governments may be directed to do a survey of all Protective Homes established under the Immoral Traffic Prevention Act, 1956 (‘ITPA’) so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
• Police Sensitization: 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, nor subject them to violence or coerce them into any sexual activity.
• Privacy to be maintained: 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 arrests, raids and rescue operations.
  • Besides, Section 354C of the Indian Penal Code, 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 rescue operations.
• Educating sex workers about their rights: The union government and the state governments, through Legal Services Authorities, should carry out workshops for educating sex workers about their rights, obligations of the police, and what is permitted and 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.
• Protection for safety measures: It is alleged that that at many places, the police arrested sex workers on the basis of possession of condoms in their bags. The recommendations state that measures which sex workers employ for their health and safety (for instance, the use of condoms) must neither be construed as offences nor seen as evidence of the commission of an offence.
• Aadhar for Sex Workers: The panel noted that sex workers found it difficult to acquire proofs of identity such as ration cards or voter cards because they lacked a proof of residence. SC therefore directed that the sex workers should be issued Aadhar cards and that there shouldn’t be any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.
• Welfare & Rehabilitation of Sex Workers: The panel noted that district authorities did not recognise the identities of sex workers and their children, and sex workers did not have access to schemes meant for their rehabilitation. They also had no access to credit offered by states, because the lack of documents prevented them from opening bank accounts. Providing them with Aadhar identity should enable authorities to provide them with necessary rehabilitative measures.
  • The Supreme Court had come to the rescue of the sex workers during the first wave of COVID-19, when it directed state governments to ensure that dry ration was provided to sex workers without insisting on identification proof.

The court has made it clear that these recommendations will hold the field till legislation is made by Parliament in this regard.

Supreme Court for the time being, has not passed any directions in relation to the four recommendations where Union government has expressed its reservation

• No criminal action in case of adult, consensual sex work: 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 other kinds of work. 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.
• Arresting only the brothel owner and not sex workers: 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.
• Participatory Governance: The union 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 sex workers, or formulating any change/reform in the laws relating to sex work.
• Protection of Children of Sex workers: 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 they have been trafficked.
  • In case the sex worker claims that they are her child, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.

SC has asked the union government to file its response to these and the other recommendations, and will hold further hearings on the matter after its summer vacation.

• A long-standing demand of sex workers that their work be decriminalised has been partially fulfilled with the Supreme Court.
• The judgement upholds that adult sex workers are entitled to dignity and equal protection under law.
• Notwithstanding the profession, SC noted that every individual has a right to a dignified life under Article 21 of the Constitution. It reiterated what the Court had ruled in Budhadev Karmaskar (2011), that sex workers are also entitled to a “life of dignity”
• By holding that basic protection of human decency and dignity extends to sex workers and their children, the Court has struck a blow for the rights of an exploited, vulnerable section.
• Coming down heavily on the brutal and violent “attitude” of the police toward sex workers, the Court said “it is as if they are a class whose rights are not recognised”.
• The Court’s general observations should help sensitise the police, media and society toward sex workers, who have generally been invisible and voiceless.
• The ball is in the Government’s court to draw up appropriate legislation to free consenting sex workers from stigma, and grant them workers’ rights