Constitutional Regard For Human Decency And Dignity Must Be Extended To Sex Workers – SC Exercises Power Under Article 142 For Rights Of Sex Workers
A Supreme Court Bench of Justice L Nageswara Rao, Justice BR Gavai and Justice AS Bopanna exercised the powers conferred under Article 142 of the Constitution of India to accept some recommendations made by a Court-appointed Panel for the rights of sex workers.
To that end, the Court noted that "In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role."
The Court clarified that the directions issued would hold the field until legislation is passed by the Union Government. Highlighting the right to a dignified life, the Court held that "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."
ASG Mr Jayant Sud, Senior Counsel Mr Anand Grover and Mr Zoheb Hossain appeared in the hearing.
The Supreme Court stressed the constitutional regard for human decency and dignity that has been conferred to every citizen of India as a right. The Court asserted that this basic protection of human decency and dignity extends to sex workers and their children.
In 2011, the Supreme Court had constituted a Panel for the rights of sex workers. The terms of reference made to the panel were:
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.
By way of an order in 2012, the Supreme Court modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.
The Panel conducted detailed discussions with the concerned stakeholders and submitted a comprehensive report. The matter was finally listed in 2016 when the Apex Court was informed that the recommendations made by the Panel were considered by the Government of India, and draft legislation was published incorporating the recommendations.
Noting that the legislation has not been made to date, the Supreme Court exercised its powers under Article 142 of the Constitution of India to issue directions for the rehabilitation measures for sex workers and other connected issues.
The Court ordered that these directions will fill the vacuum until the legislature steps in to cover the gap or the executive discharge its role. The Panel had made 10 recommendations. The ASG submitted before the Court that the Government of India has reservations regarding some of the recommendations made by the Panel, except those in Paras 2, 4, 5, 6, 7 and 9.
Therefore, the Court held that "The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2, 4, 5, 6, 7, 9, in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act."
To that end, the following Panel recommendations were issued as directions by the Court:
2) 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, 1973 read with "Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence", Ministry of Health and Family Welfare (March 2014).
4) The 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.
5) 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, subject them to violence or coerce them into any sexual activity.
6) 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. Besides, the newly introduced Section 354C, IPC 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 the rescue operation.
7) 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.
9) The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/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.
The Court asserted that the other recommendations made by the Panel will be taken up after summer vacation. The matter is due to be listed on 27.07.2022, and the Union of India has been directed to file its response to the recommendations made by the Panel within a period of six weeks.
It was also brought to the notice of the Court that Aadhar Cards are not being issued to sex workers as they were unable to produce proof of their residence.
To that end, the Court held that 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. It was also held that there shall be no breach of confidentiality in the process, including the assignment of any code in the Aadhar enrolment numbers that identify the cardholder as a sex worker.