Supreme Court Issues Directions To Police & Media On Sex Workers
Human rights jurisprudence in India has acquired a constitutional status and sweep, owing to the full potential breathed by this Court into Articles 14, 19 and 21 of the Constitution of India since Maneka Gandhi v. Union of India.
The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. While expounding on the scope of the right to life under Article 21, this Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi extended the meaning of the right to life beyond the protection of limb or faculty to include the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.
Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.
Pursuant to an order passed by this Court on 19.07.2011, a Panel was constituted with Mr. Pradip Ghosh as the Chairman of the Panel, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan.
The terms of reference made to the panel are:
(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 an order dated 26.07.2012, this 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.
After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report on the terms of reference. When the matter was listed in the year 2016, this Court was informed that the recommendations made by the panel were considered by the Government of India and a draft legislation was published incorporating the recommendations made by the panel.
Thereafter, periodically adjournments were taken by the Union of India on the ground that the Bill is on the anvil. 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 following directions which will hold the field till a legislation is made by the Union of India.
In a catena of decisions of this Court, this power has been recognized 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.
Supreme Court issued the directions related to the rehabilitation measures in respect of sex workers and other connected issues as recommended by the panel:
(i) 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.
ii) 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).
iii) 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 penalized or harassed or victimized.
iv) 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.
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