‘Treated Like Criminals’: Adult Sex Workers Not Allowed to Leave Protective Homes in Most States, Amicus Curiae Tells Supreme Court

“Adult women wanting to leave cannot be held against their will in these protective homes. These protective homes are like jails. Most of them do not want to be there. These are adult women, not criminals. States should not be allowed to treat them in this patriarchal manner and say this is for their protection, even when the women are not willing.”

A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol was hearing a plea by the Durbar Mahila Samanwaya Committee, a collective of 65,000 sex workers. The organisation originally raised this plea in the middle of the COVID-19 pandemic to highlight the lack of access of sex workers to governmental schemes to distribute dry rations. The interlocutory application was filed in a 2011 petition in which the top court had taken suo motu cognisance of the rights available to and the conditions of sex workers in the country.

Last year, in a significant development, a bench headed by Justice L Nageswara Rao (retired) issued a slew of directions for the rehabilitation of sex workers. Among other things, the court specifically said that adult women who are detained against their will in ITPA protective homes would be permitted to leave. Not only this, but it also directed state governments to conduct surveys of these protective homes.

The amicus curiae today alleged that the affidavits of most of the states that had submitted their responses revealed a picture that was far removed from the ground reality. “Surprisingly, many states have submitted that they found out that no one wants to leave. This is against the ground reality. Most women would not want to be kept in these protective homes,” he told the bench. “We have interacted with a large number of sex workers while spending several years on the report,” added Bhushan, who headed a panel constituted by the top court to advise on issues relating to the prevention of trafficking, rehabilitation of sex workers wanting to quit sex work, and the conditions conducive for sex workers to live with dignity in accordance with Article 21. This committee submitted its final report in 2016.

To illustrate his contention, Bhushan used the examples of the states of Bihar and Uttar Pradesh, saying:

“The state of Bihar has been more forthcoming. It has been submitted that all the women in the protective homes in the state want to leave. But, even the state of Bihar does not want to let the women go, on the ground of some training it plans on conducting to help them lead more respectable lives. Effectively, it is allowing no one to leave. The state of Uttar Pradesh has revealed that the women were not allowed to leave because they could not tell their parents’ addresses. These are adult women.”

Senior advocate Anand Grover, representing Durbar, also echoed the sentiments of the amicus. “It is shocking that women are being kept beyond the period mandated under the Act, which is three years,” he exclaimed. Saying this, he urged the bench to pass an appropriate order to address this issue.

Advocate Aparna Bhat, however, forcefully objected to the allegation levelled by the amicus curiae as well as the counsel for the sex workers’ collective. Bhat, who was representing an applicant running one such protective home in Hyderabad, told the bench that… “I can say with experience that all the women who are rescued from brothels, on the date of rescue, say that they want to go back. This is because they do not know any better, and their belongings are also with the brothel owners,” she said. Bhat also alleged:

“Under the guise of conducting surveys, people who support commercial sex work in the country come and harass us, asking us to release the women. This court’s order directed a survey, not the release.”

Grover interjected, “They cannot be kept there beyond three years.”

“We will need to hear this at length and take a call,” Justice Gavai said, issuing notice in another application in which Bhat appeared.

What happened to the bill on sex workers: Justice BR Gavai asks Centre

Besides this, the bench also sought an update on the legislative front. In 2016, the Supreme Court was told that the committee’s recommendations were considered by the union government and a draft legislation was formulated. After this, the Centre assured the court a number of times that a comprehensive legislative enactment would soon be passed. This ultimately resulted in the top court passing directions relating to the rehabilitation of sex workers that would ‘hold the field’ till the proposed legislation is finally enacted by the Parliament.

“What happened to the bill?” Justice Gavai asked Additional Solicitor-General for India Jayant Sood.

The law officer said that pursuant to an earlier order, the amicus curiae and the counsel for the applicant had been provided with the proposed bill. However, Grover objected, saying, “They have sent us the old bill, which has been subsequently amended.” Sood assured that he would seek instructions, saying, “This is not acrimonious at all.”

Grover also pointed out that the union government had objected to the committee’s recommendation to allow adult women to voluntarily engage in sex work.

“This needs consideration. When we take this up, we will see if the Parliament has passed an Act. If they have not, we will consider passing orders with respect to this,” Justice Gavai said.

“The ministry has disagreed with the practice of the National AIDS Control Organisation, which is in consonance with the recommendation,” the senior counsel explained. How can the Ministry of Women and Children object to a recommendation ignoring the practice of the government itself, Grover exclaimed. In response, Justice Gavai asked the additional solicitor-general to “take all departments on board”.

Background

In September 1999, a sex worker living in a red-light area in North Kolkata was murdered in cold blood by a prospective client with whom she reportedly refused to have sex. This led to the Supreme Court’s landmark pronouncement more than a decade later, in which it affirmed that the right to live with dignity enshrined under Article 21 extended to people in sex work as well. “[Sex workers] also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed,” the court held.

While dismissing a criminal appeal filed by the accused against the Calcutta High Court’s decision to uphold his murder conviction and life sentence, a bench headed by retired judge Markandey Katju passed a suo motu order directing central and state governments to prepare rehabilitation schemes for sex workers, under which they would be given technical or vocational training, enabling them to leave sex work. The apex court said:

“A woman is compelled to indulge in [sex work] not for pleasure but because of abject poverty. If such a woman is granted an opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. We feel that the central and the state governments through social welfare boards, should prepare schemes for rehabilitation of [these] physically and sexually abused women. Hence, we direct the central and state governments to prepare schemes for giving technical or vocational training to sex workers and sexually abused women in all cities in India.”

States and UTs directed to issue ration cards and voter ID cards to sex workers

In July 2011, the top court constituted a committee headed by senior advocates Pradip Ghosh and Jayant Bhushan to advise on issues relating to the prevention of trafficking, rehabilitation of sex workers wanting to quit sex work, and the conditions conducive for sex workers to live with dignity in accordance with Article 21. On the strength of their recommendations, the court passed a number of orders, directing the Centre and the states to, inter alia, set up helpline numbers to provide free legal assistance to sex workers, provide a range of facilities including crèche, and daycare and night-care centres for their children, facilitating their access to voter identity cards, and ration cards, and enabling them to open their own bank accounts. In its final report submitted in September 2016, the panel recommended suitable amendments to the Immoral Traffic (Prevention) Act, 1956. The bench was informed that the changes suggested were under ‘active consideration’ for the purposes of a comprehensive law passed by the Parliament on the subject.

Notably, one of the terms of the reference made by the panel related to the recognition of the legal status of sex workers through official documents such as voter identity cards, ration cards, PAN cards, and the like. In a September 2011 interim report (excerpted in this order), the committee had, inter alia, suggested that the state governments and local authorities should issue ration cards to sex workers by relaxing the rigours of the existing rules on address verification to allow such verification without reference to their profession. No sex worker, who is an Indian citizen, should be denied a voter identification card, the panel further insisted. In the same month, the top court directed (excerpted in this order) the central and state governments to implement the committee’s recommendations in relation to the issuance of ration cards and voter identity cards.

Application filed highlighting plight of sex workers during pandemic due to lack of ID proof

More than nine years after this order was passed by the top court, an application was filed by Durbar Mahila Samanwaya Committee, a sex workers collective based in West Bengal, amidst the outbreak of the coronavirus disease, alleging that sex workers across the country were facing ‘untold suffering’ as a result of being unable to access schemes by the Centre and the states for the distribution of dry rations. This, the applicant-organisation averred before the apex court, was because they were unable to produce proof of identity. Noting that sex workers had been left with virtually no income during the pandemic, the top court directed states and union territories to provide dry rations to sex workers identified by the National Aids Control Organisation (NACO) without insisting on proof of identity.

In a subsequent hearing, senior advocate Anand Grover, appearing for the collective, alleged non-compliance, by several states, with the order of the top court directing the governments to distribute dry rations to NACO-identified sex workers sans ration cards. Grover suggested that the issuance of ration cards to all sex workers on the basis of their identification by NACO and community-based organisations would provide a solution to the problem. Directing the appropriate governments to commence the process of issuance of ration cards and voter identification cards immediately on the basis of the NACO list, a bench headed by L Nageswara Rao held:

“As this court has directed the state governments and the union territories to issue ration cards and identity cards to sex workers almost a decade back, there is no reason as to why such direction has not been implemented till now. Right to dignity is a fundamental right that is guaranteed to every citizen of this country irrespective of [their] vocation.”

Slew of directions passed by Supreme Court for rehabilitation of sex workers

In 2016, the Supreme Court was informed that the committee’s recommendations, which were submitted after detailed deliberations with all the stakeholders, were considered by the union government and a draft legislation incorporating them was formulated. In February 2020, the Centre assured the apex court that a ministerial group had been constituted to examine the legislation, which would be actively considering the comprehensive recommendations of the Supreme Court-constituted panel. Again, in November 2021, an additional solicitor-general told the bench that an act for addressing trafficking and rehabilitation of sex workers would be placed before the Parliament in the winter session of that year.

Despite this series of assurances, no such legislation has seen the light of day yet. Therefore, in May of last year, in the exercise of its powers under Article 142 of the Constitution, the top court issued a slew of directions, relating to the rehabilitation of sex workers, “to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role”. Among them were directions to ensure that all facilities available to a survivor of sexual assault were made available to sex workers who have been sexually assaulted, to protect sex workers from verbal, physical, and sexual abuse at the hands of the police and other law enforcement agencies, and to allow adult women detained against their will in ITPA protective homes to be reviewed and processed for release in a time-bound manner.

Notably, the Supreme Court also directed the Unique Identification Authority of India (UIDAI) to issue Aadhaar cards to sex workers on the basis of a proforma certification submitted by a gazetted officer at NACO or the project director of the AIDS control society of the concerned state. UIDAI was further instructed to strictly maintain the confidentiality of the sex workers while issuing their Aadhar cards. This development came after Durbar informed the bench that sex workers were not being issued Aadhar cards without any proof of residence.

Case Title

Budhadev Karmaskar v. State of West Bengal & Ors. | Criminal Appeal No. 135 of 2010

Click Here To Read/Download Order