In a significant decision, the Supreme Court has ruled in favour of Sex Worker's right to dignity in accordance with the provisions of Article 21of the Constitution as the State fails to bring in legislation to prevent them from social and moral scrutiny.

The full Bench of Justice L. Nageshwara Rao, Justice B.R. Gavai and Justice A.S. Bopanna observed that police must refrain from interfering against practitioners of prostitution, they should not be arrested, penalised, harassed or victimised through raids on brothels.

The Court further asked the Media to restrain from taking their pictures or reveal their identity while reporting rescue operations and stated that the offence of voyeurism under Section 354C IPC should be should be enforced if the order is not adhered.

The directions came in exercise of power under Article 142 of the Constitution of India as the Apex Court accepted recommendations made by a Court-appointed panel on the rights of sex workers.

During the hearing, the Court remarked that Human Rights jurisprudence in India has acquired a constitutional status and sweep, owing to the full potential breathed by this Court into Articles 14, 19 and 21 of the Constitution of India since Maneka Gandhi Vs. Union of India, 1978 Latest Caselaw 16 SC 

Stating that the constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court, the Court cited famous ruling of Francis Coralie Mullin Vs. The Administrator, Union Territory of Delhi & Ors, 1981 Latest Caselaw 12 SC wherein expounding on the scope of the right to life under Article 21, the Apex Court extended the meaning of the right to life beyond the protection of limb or faculty to include the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.

To this, the Court remarked that it is nothing but obvious that 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.

Panel for Rights of Sex Workers

Pursuant to an order passed by this Court on 19.07.2011, a Panel was constituted with Mr. Pradip Ghosh as the Chairman of the Panel, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan. 

The terms of reference made to the panel are:

(1) Prevention of trafficking,

(2) Rehabilitation of sex workers who wish to leave sex work, and

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.

However, later the Court modified the last term to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report on the terms of reference.

When the matter was listed in the year 2016, the Court was informed that the recommendations made by the panel were considered by the Government of India and a draft legislation was published incorporating the recommendations made by the panel. Thereafter, periodically adjournments were taken by the Union of India on the ground that the Bill is on the anvil.

Noting that the legislation has not been made till date even though the recommendations were made by the Panel in the year 2016, the Court stated that the recommendaions have to be implemented and therefore deemed it fit to exercise powers conferred under Article 142.

The Court thus issued appropriate directions which will hold the field till a legislation is made by the Union of India. They relate to the rehabilitation measures in respect of sex workers and other connected issues. Highlights from the directions are as follow:

- 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’ and therefore consenting adult must be spared from prosecution. Police should shed their social and moral bias to view sex workers normally and act on their complaints promptly.
-Sex workers complaining of sexual assault should be treated at par with any other victim and should be provided with facilities created for survivors under the law.
-Voluntary sex work is not illegal and only running the brothel is unlawful therefore during raid, sex workers shouldn't be abused, assualted or penalised.
-State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
-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
-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 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.
-Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.)must neither be construed as offences nor seen as evidence of commission of an offence.
-State and Central Government should involve sex workers at every possible level while formulating policies and laws for them
-The Central Government and the State Governments through NALSA, SLSA, DLSA should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law.
-No child of a sex worker should be separated from the mother 13 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 he/she has been trafficked

On Centre's objection to certain recommendations, the Court suggested strict complaince of the Immoral Traffic (Prevention) Act, 1956 to eleminate the menances involved in sex-work.

"It need not be gainsaid that notwithstanding the profession, every individual in this country has a 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 Immoral Traffic (Prevention) Act,1956."

Previously, the Court was informed that Aadhar Cards are not being issued to sex workers as they were unable to produce proof of their residence and it thus had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of proof of residence for the sex workers, to enable them to get an identity by the issuance of Aadhar cards.

The organisations representing sex workers made some suggestions to this regard . The UIDAI  examined the suggestions and accepted that the procedure as proposed. The Court, to this, noted:

"Aadhar Cards shall be issued to sex workers on the basis of a proforma certificate which is issued by UIDAI and submitted by the Gazetted Officer at NACO or the Project Director of the State Aids Control Society, along with Aadhar enrolment form/application. There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker"

Case Title: BUDHADEV KARMASKAR vs  THE STATE OF WEST BENGAL & ORS

Case Details: Criminal Appeal No(s).135/2010

Coram: Justice L. Nageshwara Rao, Justice B.R. Gavai and Justice A.S. Bopanna

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Sheetal Joon