The Supreme Court of India in Budhadev Karmaskar vs. State of West Bengal and ors case directed, When reporting on raid/rescue operations, the Press Council of India is urging journalists to exercise extreme caution and not expose the identity of sex workers.
The Supreme Court reaffirmed last week that sex workers are entitled to all basic human rights and other constitutional rights, and that police officers should not verbally or physically assault people involved in sex work.
According to the Court, all sex workers should be treated with dignity, and law enforcement officials should be made aware of this.
“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
In particular, the Court ordered that, in accordance with Section 357C of the Code of Criminal Procedure, any sex worker who is a victim of sexual assault be given with all services accessible to a survivor of sexual assault, including prompt medical care (CrPC).
The Court further ordered the Press Council of India to urge the media to exercise extreme caution in not revealing the identity of sex workers or engaging in voyeurism during arrest/raid/rescue operations, as well as not publishing or broadcasting their photographs, particularly on television.
In a case involving the rehabilitation and rights of sex workers, a bench of Justices L Nageswara Rao, BR Gavai, and AS Bopanna issued the order.
The decision was issued in response to recommendations made by a commission appointed by the Supreme Court in 2011 to investigate the working circumstances of sex workers and ensure that they can live in dignity.
In its report to the Court, the panel issued ten suggestions regarding the dignity of sex workers in accordance with Article 21 of the Constitution.
The central government also expressed reservations about some of the recommendations.
The Court stated in its order dated May 19 that all states and union territories must rigorously adhere to the following recommendations, which the Centre agreed to.
- 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 recommendations must be followed until the parliament passes legislation in this regard.
“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 following recommendations have been met with reservations by the central government:
- 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 has requested the federal government to respond to the other recommendations, and will have additional hearings on the matter following the summer recess.
Furthermore, the Unique Identification Authority of India was told to grant Aadhaar to sex workers based on proforma certificates issued as per the list submitted by the National Aids Control Organization, in accordance with previous orders in the case.
“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 Court Said
The Supreme Court had ordered all states and union territories to ensure the provision of a minimum quantity of dry ration to sex workers identified by the National AIDS Control Organization (NACO) and the District Legal Services Authority in an order issued in October 2020. (DLSA). This decree was passed because it was determined that sex workers would have difficulty producing any form of identification.
Since then, it has scheduled hearings to keep up with the latest developments in the case, chastising states for failing to follow its ruling.
Read Order
