Sex Workers Can’t be Harassed, Can’t be Confined to Shelter Homes: SC

On May 17, 2022, a Supreme Court Division Bench comprising Justice L. Nageswasra Rao, Justice B.R. Gavai and Justice A.S. Bopanna in the Criminal Appeal No. 135 of 2010 (BudhadevKarmaskar v/s. The State of West Bengal), asked all concerned to reach a consensus in the issue of sex workers being inordinately and are forcefully sent to shelter homes, so that the Court can pass an appropriate Order in the next hearing, i.e., May 19, 2022.

The Bench was hearing the matter pertaining to the right of sex workers to live with dignity. The Court reckoned that once the sex worker is rescued from the brothel, they ought to be produced before a Magistrate, who clarifies at that stage whether the sex worker had given free consent to the activity or was coerced to give the consent. However, this process of determination of consent ought to be hastened so that those who are not in need of care and protection can be let out of these shelter homes.

Earlier on May 12, 2022, Supreme Court had asked the Centre to look into the recommendations made by the Panel appointed by the Court and Sex Workers, and come with its response on the next hearing i.e., May 17.

LiveLaw quoted Justice Rao as saying, “This is a section of society which has not only been forgotten, but no one wants to even think about them. They are not even treated as human beings. That is inhumane.”

Court room discussion on the Objections to the recommendations

Additional Solicitor GeneralJayant Sud, representing the Union Government raised some objections with respect to the recommendations made by the Panel, which was appointed by the Court, regarding the conditions conducive for sex workers who wish to continue with their work with dignity.

According to the Live Law report, the first Recommendation made by the Panel was as follows:

“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.”

To this ASGSud raised his objection that it becomes very tricky to determine whether the consent was voluntarily given or was a coerced consent of a sex worker. There is a need for investigation in this matter. He also stated that the sex workers are not arrested, but are produced before the Magistrate, following which they are taken to shelter homes for safekeeping.

According to Live Law that published excerpts of the courtroom exchange, he said,“The objection is that for consent it is very difficult to know…I am on the fact that consent of somebody is very difficult to determine at the spur of the moment. So, what happens, is whenever somebody is caught even if the sex worker says that they are consenting party, it is not safe to rely on that. Most of the cases, at least in Delhi, if she says that she had consent then they are not arrested, but are produced before the Magistrate. After that she is sent to these homes.”

ASGSud further submitted, “The person might have become consenting over the years; she might have consented due to some pressure. When we are at a stage of trying to know what has happened, it is difficult to comment on consent.”

To which Justice Rao responded by asking, “Even if we assume you are correct, but why harass a victim? Why unnecessarily mistreat her?”

Amicus Curiae, Mr. Jayant Bhushan submitted to the Court that if there is no consent, there is no reason to arrest the sex worker. ASG Sud, to clarify the issue raised by Mr. Bhushan, submitted that since the sex workers are trafficked from across the country and new to the city where they are brought, they become vulnerable and their consent can be extracted under duress. He further indicated that according to the recommendation, if the investigation is restricted, it would not be possible for the police to probe the case adequately and find out if the consent was voluntary or not. He clarified that when the sex worker is rescued, she is sent to a shelter home, for her safety and not taken into custody.

Mr. Bhushan had met the women indulge in sex trade, informed the Bench that it becomes a huge concern when the sex workers are forcibly kept in a home where they are confined against their wishes. The question then arose about where to keep rescued sex workers.

Senior Advocate, Mr Anand Grover, suggested that the rescued sex workers can be taken to the protective homes after which their statements can be recorded immediately by the Magistrate. Thereafter they can be released from the home. He suggested that the time period of the stay at the said homes should be brief. He further made suggestion that the District Legal Services Authority should be involved in the process when there seems to be lack of legal representation.

As reported by Live Law, Justice Rao delineated the contours of the issue of placing the sex workers in a home for the interim period, as under:

“The concern is that there are some girls who have been rescued and thereafter produced before the Magistrate and they are sent to correctional homes and they are there for 2 years 3 years. We are trying to find out if in the interim they can be in a home. Whether the enquiry by the Magistrate can be done fast and the sex workers who are found to have consented can be allowed to go out.”

ASG Sud pointed out that as the parents/guardians of the sex workers have to be indicated about the legal procedures, the entire process would take time. LiveLaw quoted him as saying, “The whole process takes time. If she is a married woman, the notice goes to the husband. In most cases they give incorrect addresses for obvious reasons. Then parents don’t want to come.”

Justice Rao was appalled to note that for letting the sex worker out of the shelter/correctional homes, who is a major, notice is required to be issued to the parents/husband. “They need not be given to parents/guardians. If I am a major and say I want to go out, will you issue notice to my parents? Can't you hasten the process of enquiry? We cannot accept it that in the meanwhile they should be forced to stay in a home,”LiveLaw quoted him as saying.

Meanwhile, Mr. Bhushan remarked on the inadequacy of these shelter homes. LiveLaw quoted him as saying, “If one wants to stay in the homes there is no problem. But the issue is with the patriarchal mindset that I know best what is good for you. Most of the homes are a hellhole for them. They may have a roof and get food, but that is not sufficient. Even in jail people have a roof and get food. There cannot be a presumption that everyone indulging in sex trade is in need for care and protection.” To this Justice Rao asked, “Can you force people to stay in homes?”

Panel recommendations

Panel appointed by the Court had identified three broad aspects of the matter. Panel had made the following recommendations on one of the aspects - ‘Conditions conducive for sex workers who wish to continue working as sex workers with dignity’. These recommendations are:

1. Sex workers are entitled to equal protection of the law.
2. 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.
3. There have been concerns that the police view sex workers differently. When a sex worker makes a complaint of criminal and sexual or any other offence police officers must take it seriously and act in accordance with law.
4. Any sex worker who is the victim of sexual assault, should be provided with all facilities available to survivor of sexual assault, including immediate medical assistance.
5. Whenever there is a raid on brothel, since voluntary sex work is not illegal and only running the brothel is illegal, the sex workers concerned should not be penalised, harassed or victimised.
6. State Governments must conduct surveys of all ITPA Protective homes so that adult women who are detained against their will can be processed for release in a time bound manner.
7. It is noticed that attitude of police towards sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. Authorities should be sensitised.
8. They should treat sex workers with dignity, and should not abuse them; subject them to violence; coerce them into sexual activity.
9. The Press Council of India should issue guidelines for the media to take utmost care not to reveal identifies of sex workers during arrest, raid and and rescue operations and not to publish or disclose photographs that would lead to identification.
10. Newly inserted Section 354(C) IPC, which makes voyeurism a criminal offence should be strictly enforced against electronic media for telecasting photo of sex workers with their clients in the garb of capturing the rescue operation.
11. Measures that the sex workers employ for their health and safety, like using condom should not be construed as offences or seen as evidence of commission of an offence.
12. The Central and State Governments should include sex workers in all decision making processes for implement policy for them or formulating any change or reform in the laws relating to sex workers. They must, at least, be consulted.
13. NALSA, SLSAs and DLSAs should educate sex workers about their rights and obligations.
14. No child of a sex worker should be separated from a mother merely on the ground that she is in the sex trade.
15. If a minor is living in a brothel or with a sex worker it should not be assumed that they have been trafficked.
16. In case the sex worker states she is the mother, test can be done to check if the claim is correct. If so, the minor should not be separated.

Procedures to be followed after rescuing the sex workers from brothels

The procedures that need to be followed by police officers during and after rescuing sex workers from the brothels are incorporated in ‘The Immoral Traffic (Prevention) Act, 1956’. Here’s a quick summary:

Section 16(1) of the Act states that the Magistrate, upon receiving the information from any source, about prostitution is been carried on in a brothel, shall direct the police officer not below the rank of a sub-inspector, to enter such brothel and remove the person(s) from that place and then produce them before the Court of Magistrate.

Section 16(2) of the said Act, states that after rescuing the person by the police officer, the person shall be produced before the Magistrate.

Section 17(1) of the Act includes the provision of intermediate custody of persons rescued from the brothel. It states the situation in which for any reason, a police officer is not able to produce the rescued person before the magistrate who gave him the directions in the first place, they shall then produce the rescued person to the nearest magistrate of any class, who shall pass such orders asdeemed proper for the safe custody of the recued person(s) until they are produced before the appropriate magistrate, or, as the case may be, the magistrate issuing the order. In this it specifically mentions,“No person shall be detained in custody for a period exceeding ten days from the order given by the magistrate under this section’ or ‘restored to or placed in the custody of a person who may exercise a harmful influence over him.”

Section 17(2) states that after producing the rescued person before the appropriate magistrate, after giving the rescued person an opportunity of being heard, the Magistrate shall cause an inquiry to be made as to make sure that the information received was true, the age, character antecedents of the rescued person and the suitability of their parents, guardian or husband for taking charge of them, and also to ascertain the nature of the influence which the conditions in his home are likely to have on him if they are sent home. To make the inquiry about the circumstances and the prospects of the rescued person’s rehabilitation, the Magistrate may direct the Probation Officer appointed under the Probation of Offenders Act, 1958.

Section 17(3) states that the Magistrate may pass an Order of the safe custody of the rescued person till inquiry is pending. If the rescued person is a minor, it shall be open to the magistrate to place such child or minor in any institution established or recognised under any Children Act, for the time being in force in any State for the safe custody of children. In this Section it is clearly mentioned that “No person shall be kept in custody for the above mention purpose for a period exceeding three weeks from the date of such an order.”

Section 17(4) states that when the Magistrate, after making the inquiry, becomes satisfied the information received was correct and the rescued person needs the care and protection, he may make an order of sending the rescued person to the protective home or in such other custody which he considers suitable, for not less than a year but not exceeding the 3 years time period. The person in charge of a protective home, may be required to enter into a bond which contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the rescued person, as well as supervision by a person appointed by the court, which will be in force for a period, not exceeding three years.

Section 17(5) states that the Magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons.

Section 17A states that the Magistrate before e passing an order for handing over any person rescued under section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognised welfare institution or organisation.

Standard Operating Procedures (SOP) on Investigating Crimes of Trafficking for Commercial Sexual Exploitation

Trafficking of women and children is one of the graver organised crimes, extending beyond boundaries and jurisdictions. Combating and preventing human trafficking requires holistic approach by all stakeholders and integrated actions on prosecution, prevention and protection. The major activities in the project are training of police officials and prosecutors, setting up Integrated Anti Human Trafficking Units, establishing networks among law enforcement agencies and civil society partners as well as developing appropriate tools including Protocols, Manuals, Standard Operating Procedures (SOP) and other training aids.

Appropriate tools, no doubt, are essential to empower the officials to carry out these tasks in the best professional manner. In this context this SOP is a tool for the law enforcement agencies to address the crimes of commercial sexual exploitation.  The SOP contains entire procedure to be followed including the production of the rescued person before the Magistrate, Medical care of the rescued person, Shelter homes, Home verification, Restoration of rescued person and providing interim relief to the rescued person.

The entire SOP may be read here:

Data related to sex workers

The stigma associated with the sex work, it is difficult to find reliable data. But according to the 2016 study by Britannica ProCon, India has approximately 30 lakh sex workers. This may seem likea conservative estimate, but the data for the estimation of number of sex workers was collected from a wide range of public sources which included - security services estimates, reporting by public health programs, and other monitoring data from global criminal justice programs.

According to the Times of India report dated July 21, 2010, the Ministry of Health and Family revealed, that as per the government records, Andhra Pradesh leads with more than one lakh registered female sex workers followed by Karnataka with 79,000. Whereas Delhi had only one known “red light area” - GB Road, there are 37,900 sex workers were registered. Jammu and Kashmir had the least, 259 registered sex workers, whereas not a single registered sex workers were found as per the government records of Dadra and Nagar Haveli as well as Daman and Diu.

Now about the rescued survivors of the sex trafficking, as per the report of Times of India dated October 8, 2021, as many as 557 victims were rescued from the clutches of traffickers in 2020 in the state of Maharashtra. Nationally, 1,466 victims were rescued in the year 2020.