No Criminal Action Against Voluntary Sex Work By Adults? Centre Expresses Reservation At SC Panel Recommendation

A Bench comprising Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna directed the Union Government to respond to the other recommendations made by the Panel within a period of six weeks.

The Panel which was bestowed with the mandate to make recommendations on issues pertaining to prevention of trafficking, rehabilitation of sex workers who want to quit sex work and the conditions conducive for sex workers to live with dignity in accordance with Article 21 of the Constitution of India, after consulting with all the stakeholders, had submitted a detailed report on the terms of reference.

The Central Government had accepted some of its recommendations which the Apex Court has now directed the States to adopt. However, it had raised objections to the following recommendations -

1. 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.
2. 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.
3. 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.
4. As already recommended in the 6th interim Report dated 22.03.2012, 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 asked the Centre to give its response to these recommendations on the next date of hearing, July 27. 

As regards the other panel recommendations which were endorsed by the Centre, the Supreme Court directed the States and Union Territories to strictly follow them (For more details on that, refer this report)

On the last date of hearing both Senior Advocate, Mr. Anand Grover and Amicus Curiae, Mr. Jayant Bhushan had apprised the Bench that the sex workers are often confined in correction/shelter homes for inordinate period of time against their wishes.

Additional Solicitor General, Mr. Jayant Sud was of the opinion that the sex workers who are rescued from the brothel are kept in the shelter homes for their safekeeping. He expressed his concern that it might be tricky to verify at the very threshold whether the sex worker had voluntarily consented or was coerced into it. He stated that most of sex workers, trafficked from across the country, might not know anyone in the city where they are practicing the trade and therefore, they are vulnerable to coercion. It the light of the same, he suggested that the recommendation to ask the police to refrain from interfering if the sex workers are consenting adults might not be feasible. Enquiry would be essential to find out if the consent was voluntary or not. He was also apprehensive that the term 'harass' was too wide and could be misused to disrupt investigation.

Considering the ground reality, that the sex workers who are rescued and produced before a Magistrate are sent to correctional homes for no less than 2-3 years, Justice Rao had suggested that the Magistrate, at the threshold, could decide on the issue of consent. In the interim the sex workers could be kept in these homes and if the Magistrate decides that the sex worker had consented, they could be let out. Justice Rao was of the firm opinion that the concerned authorities cannot force sex workers to stay in correction/shelter homes against their will.

The issue of confining sex workers in corrective homes against their wishes, but for their own well-being reflect the patriarchal mindset of the institution, which perpetually takes decisions on behalf of women. Mr. Bhushan who had the opportunity to consult sex workers in this regard had apprised the Bench that such confinement is rampant; forced and a matter of grave concern.

What High Courts have held on prosecutions against sex workers?

While quashing and setting aside an order of the Metropolitan Magistrate, whereby custody of three sex workers to their families were declined and they were sent to a corrective institution, the Bombay High Court noted that being adults they have the right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation as enshrined in Part III of fundamental rights of the Constitution of India. Directing their immediate release from the correction home, it further observed -

"There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution. What is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act".

Dismissing an application for anticipatory bail filed by a brothel owner, the Calcutta High Court had reiterated that no sex workers exploited for commercial sex shall be arrayed as an accused in the course of investigation under Immoral Traffic (Prevention) Act, 1956 until and unless their is material to suggest her involvement as a co-conspirator.

The Karnataka High Court recently held that a customer found in a brothel at the time of raid cannot be hauled into the criminal proceedings.

Case Title: Budhadev Karmaskar v. State of West Bengal And Ors. Criminal Appeal No. 135 of 2010