Exercising the powers under Article 142, the honorable Supreme Court has laid the latest guidelines to protect sex workers and elaborated on the rights of voluntary sex workers.
In a slew of other directions, it has ordered the state, police, and media not to infringe the right to a dignified life of sex workers.
These directions are made in pursuance of the panel set by the same court in the case of Budhadev Karmaskar v. State of West Bengal And Ors. Criminal Appeal No. 135 of 2010] to look into the protection and rights of sex workers.
The panel in the case laid down three broad aspects for protections and rights of sex workers
- Prevention of trafficking;
- Rehabilitation of sex workers who wish to leave sex work; and
- Conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.
The Court has directed the States and Unions to act in strict compliance with the following recommendations made by the panel until a legislation a made for the same :
- Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault.
- 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.
- 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.
- 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 the commission of an offence.
- The Central Government and the State Governments should carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, the 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 other recommendations of the Panel regarding which the Union Government had expressed reservations are as under –
- 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.
- 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.
- 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.
In a catena of previous judgments also, SC has used Article 142 to cure shortcomings in a few pieces of legislation to render complete justice. This judgment is one such case.
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