Police should not abuse sex workers verbally or physically; should treat them with dignity: Supreme Court

Sex workers are entitled to all basic human rights and other rights guaranteed in the Constitution, and police should not abuse those engaged in sex work verbally or physically, the Supreme Court reaffirmed last week [Budhadev Karmaskar vs. State of West Bengal and ors]..Police should treat all sex workers with dignity and law enforcement agencies should be sensitised in this regard, the Court said. "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," the Court ordered. Pertinently, the Court directed that 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 (CrPC).Further, the Court directed the Press Council of India to urge the media to take utmost care and not reveal the identities of sex workers or indulge in voyeurism during arrest/raid/rescue operations, and also not publish or telecast their photos especially on TV.The order was passed by a Bench of Justices L Nageswara Rao, BR Gavai, and AS Bopanna in a plea concerning the rehabilitation and rights of sex workers.The order came based on recommendations made by a panel constituted by the top court in 2011 to examine conditions of sex workers and to ensure that they can live with dignity.The panel had made ten recommendations regarding dignity of sex workers as per Article 21 of the Constitution in its report submitted to the Court.In the same, the Central government expressed reservations to certain recommendations.The Court in its order passed on May 19, said that the following recommendations to which the Centre agreed, should be strictly complied with by all States and Union Territories. - 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).- 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.- 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.- 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;- Measures that sex workers employ for their health and safety (e.g., use of condoms, 12 etc.)must neither be construed as offences nor seen as evidence of commission of an offence;- 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 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. 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.These guidelines have to followed till a legislation is made in this regard by the parliament. "As the legislation has not been made till date even though the recommendations were made by the Panel in the year 2016 and the said recommendations have to be implemented, we are exercising our powers conferred under Article 142 of the Constitution of India, to issue the directions which will hold the field till a legislation is made by the Union of India," the Court stated. .The Central government expressed its reservations to the following recommendations:- 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 others. 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.- 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.- The Central 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 the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.- As already recommended in the 6th interim report dated March 22, 2012, 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 he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated..The Court asked the Central government to file its response to these other reccomendations, and will hold further hearings on it after summer vacation. .Further, in pursuance of the earlier orders in the matter, the Unique Identification Authority of India was directed to issue Aadhaar to sex workers on the basis on proforma certificates issued as per the list submitted by National Aids Control Organisation."There should be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identity the applicant/holder of the card as a sex worker," the order said.The Court had, in its October 2020 order in the matter, asked all States and Union Territories to ensure the distribution of a minimum quantity of dry ration to sex workers as identified by the National AIDS Control Organisation (NACO) and the District Legal Services Authority (DLSA). This order was passed after taking into account the fact that it would be difficult for sex workers to produce any identity proof.Since then, it has held hearings to stay apprised of the further developments in the matter, pulling up States for not complying with its order..[Read Order]